CASES 


ON 


CONSTITUTIONAL    LAW. 


WITH  NOTES. 


BY 

JAMES  BRADLEY  THAYER,  LL.D. 

WELD  PROFESSOR  OF  LAW  AT   HARVARD  UNIVERSITY. 


IN   TWO    VOLUMES. 
YOL.  I. 


CAMBRIDGE: 
GEORGE   H.   KENT. 

1895. 


Copyright,  1895, 
Br  Jau£3  Bradley  Thateb. 


T 


University  Press: 
John  Wilson  and  Son,  Cambridge,  U.  S.  A. 


PREFACE. 


In  preparing  this  book  I  have  had  chiefly  in  mind  the  wants 
of  my  own  classes  at  the  Harvard  Law  School ;  of  these  and 
students  elsewhere  who  follow  similar  methods  of  study.  I  should 
have  been  glad  to  make  it  more  serviceable  to  others  by  intro- 
ducing headnotes,  were  this  consistent,  in  my  opinion,  with  its 
best  usefulness  for  the  main  purpose  in  hand. 

It  is  nearly  a  year  now  since  the  first  part  of  the  book  appeared. 
I  am  led  to  hope  that  the  completed  work  may  help  to  promote  a 
deeper,  more  systematic,  and  exacter  study  of  this  most  interesting 
and  important  subject,  too  much  neglected  by  the  profession. 
It  appears  to  me  that  what  scientific  men  call  the  genetic  method 
of  study,  which  allows  one  to  see  the  topic  grow  and  develop 
under  his  eye,  —  a  thing  always  grateful  and  stimulating  to  the 
human  faculties,  as  if  they  were  called  home  to  some  native  and 
congenial  field,  —  is  one  peculiarly  suited  to  the  subject  of  Con- 
stitutional Law.  For,  while  this  is  a  body  of  law^  —  of  law  in  a 
strict  sense,  as  distinguished  from  constitutional  history,  politics, 
or  literature,  since  it  deals  with  the  principles  and  rules  which 
courts  apply  in  deciding  litigated  cases ;  and  while,  therefore,  it 
is  an  exact  and  technical  subject ;  yet  it  has  that  quality  which 
Phillipps,  the  writer  on  Evidence,  alluded  to  when  he  said,  in 
speaking  of  the  State  Trials,  that  "  The  study  of  the  law  is  en- 
nobled by  an  alliance  with  history."  The  study  of  Constitutional 
Law  is  allied  not  merely  with  history,  but  with  statecraft,  and 
with  the  political  problems  of  our  great  and  complex  national  life. 

In  this  wide  and  novel  field  of  labor  our  judges  have  been 
pioneers.  There  have  been  men  among  them,  like  Marshall, 
Shaw,  and  Rufiin,  who  were  sensible  of  the  true  nature  of  their 
work  and  of  the  large  method  of  treatment  which  it  required, 
who  perceived  that  our  constitutions  had  made  them,  in  a  limited 
and    secondary    way,   but   yet  a  real    one,   coadjutors    with   the 


*^28750 


VI  PREFACE. 

Other  departments  in  the  business  of  government;  but  many 
have  fallen  short  of  the  requirements  of  so  great  a  function, 
Even  under  the  most  favorable  circumstances,  in  dealing  with 
such  a  subject  as  this,  results  must  often  be  tentative  and  tem- 
porary. Views  that  seem  adequate  at  the  time,  are  announced, 
applied,  and  developed;  and  yet,  by  and  by,  almost  unperceived, 
they  melt  away  in  the  light  of  later  experience,  and  other  doc- 
trines take  their  place. 

Nothing  else  can  bring  home  to  a  student  the  existence  and  the 
nature  of  this  process,  the  large  scope  of  the  questions  presented, 
and  the  true  limitations  of  the  legal  principles  that  govern  them, 
with  anything  like  the  freshness,  precision,  and  force,  and  I  might 
add  also  the  fascination,  which  accompany  the  orderly  tracing  of 
these  things  in  the  cases. 

I  find  a  pleasure  in  tliinking  that  these  volumes  are  appearing 
in  the  twenty-fifth  anniversary  year  of  the  accession  of  Dean 
Langdell  to  his  chair  as  a  professor  at  the  Harvard  Law  School. 
The  method  of  legal  study  with  which  his  name  is  associated,  re- 
garded as  a  mere  mode  of  investigation,  was  indeed  no  novelty 
at  all  ;  lawyers  have  always  known  well  enough  the  necessity 
of  following  it  in  working  out  their  problems.  But  Dean 
Langdell,  early  in  life,  had  the  sagacity  to  apply  it  in  his  own 
self-instruction  in  law,  and  in  his  greatly  valued  help  of  fellow- 
students  ;  and  when  he  came  back  to  the  school  as  a  professor, 
he  had  the  coui'age  and  the  foresight  to  intix»duce  here  the  same 
method  of  study,  and  to  lay  down  for  himself  a  mode  of  instruc- 
tion which  rigorously  drove  his  pupils  to  adopt  it. 

Of  teaching  there  has  never  been  at  this  school  any  prescribed 
method.  There  never  can  be,  in  any  place  where  the  best  woik 
is  sought  for.  Every  teacher,  as  I  have  said  elsewhere,  '•  in  law,  as 
in  other  things,  has  his  own  methods,  determined  by  his  own 
gifts  or  lack  of  gifts, — methods  as  incommunicable  as  his  tem- 
perament, his  looks,  or  his  manners."  But  as  to  modes  of  study, 
a  very  different  matter,  Dean  Langdell's  associates  have  all  come 
to  agree  with  him,  where  they  have  ever  differed,  in  thinking, 
so  far  at  least  as  our  system  of  law  is  concerned,  that  there  is 
no  method  of  preparatory  study  so  good  as  the  one  with  which  his 
name  is  so  honorably  connected, —^  that  of  studying  cases,  care- 
fully chosen  and  arranged  so  as  to  present  the  development  of 
principles.     Doubtless,  tlie   mode    of  study    must    greatly    affect 


PREFACE.  Vli 

the  mode  of  teaching;  if  students  are  to  prepare  themselves  by 
studying  cases,  their  teachers  also  must  study  them,  Aud,  more- 
over, while  good  teaching  will  differ  widely  in  its  methods,  there 
is  at  least  one  thing  in  which  all  good  teaching  will  be  alike ;  no 
teaching  is  good  which  does  not  rouse  and  "  dephlegmatize  "  the 
students,  —  to  borrow  an  expression  attributed  to  Novalis,  — 
which  does  not  engage  as  its  allies,  their  awakened,  sympathetic, 
and  co-operating  faculties.  As  helping  to  that,  as  tending  to  secure 
for  an  instructor  this  chief  element  of  success,  I  do  not  think 
that  there  is  or  can  be  any  method  of  study  which  is  comparable 
with  the  one  in  question. 

In  order  to  keep  this  collection  within  the  compass  of  two  vol- 
umes and  yet  do  anything  like  justice  to  the  subject,  I  have  selected 
only  the  leading  titles,  and  have  given  to  these  a  fairly  full  treat- 
ment, choosing  as  the  text,  for  obvious  reasons,  so  far  as  practi- 
cable, the  decisions  of  the  Supreme  Court  of  the  United  States. 
I  have  preferred  to  make  the  two  volumes  as  large  as  they  could 
well  be,  with  any  regard  to  convenient  use,  and  to  pack  them 
closely,  rather  than  to  take  the  much  easier  course  of  letting  the 
work  run  over  into  three  or  four  volumes.  In  doing  this,  it  has 
been  necessary,  almost  always,  to  omit  the  arguments  of  counsel. 
Other  omissions  are  mentioned  or  sufficiently  indicated. 


JAMES  BRADLEY  THAYER. 


Law  School  of  Harvard  Universitt. 
March  12,  1895. 


TABLE    OF    SUBJECTS. 


VOLUME    I. 

Part  I. 


TABLE  OF  CASES 


Pages 
xi-xxii 


CHAPTER   I. 


CONSTITUTIONS    OF    GOVERNMENT.  -  THE    THREE    DEPART- 
MENTS.-THE   OFFICE   OF   THE   JUDICIARY. 

....  1-47 

Section     I.     Preliminary •     •  .«  onr. 

Section  II     Written  Constitutions  in  the  United  States      48-200 


CHAPTER  II. 
MAKINCx  AND  CHANGING  WRITTEN  CONSTITUTIONS. 

1.  Constitution  of  the  United  States 213-265 

2.  State  Constitutions 

CHAPTER  III. 

The  Jurisdiction  of  the  United  States 266-3-9 

APPENDIX  TO   PART   ONE. 

1.  Text  of  the  Constitution  of  Massachusetts  (1779-1780)     381-400 

2.  Articles  of  Confederation  (1778-1781) 

3      Constitution  of  the  United  States  (1787-1789)  and  its 

405-412 

4.  Passages   from   all   State  Constitutions    (other   than 

Massachusetts)    preceding     that    of    the    United 

....     415-433 
States      

5.  Passages  from  the  Colonial  Charters  of  Connecticut 

(1662)  AND  Rhode  Island  (1663) 433,  434 

6.  Passages  from  the  «onstitution  of  Colorado  (1876)     .     434-448 

7.  Passages  from  the  Constitution  of  Colombia  ....  44 


X  TABLE   OF   SUBJECTS. 

Paet  II. 
chapter  iv. 

Pages 

Citizenship.  —  Fundamental  Civil  and  Political  Rights.  — 
The  Later  Amendments  to  the  Constitution  of  the 
United  States 449-692. 

CHAPTER  V. 

Unclassified  Legislative  Power.  —  The  so-called  Police 

Power 693-944 

Part  III. 

CHAPTER  VI. 
The  Right  of  Eminent  Domain 945-1189 


VOLUME    II. 

CHAPTER  VII. 
Taxation 1190-1431 

Part  IV. 

CHAPTER  VIII. 
Ex  Post  Facto  and  Retroactive  Laws 1433-1533 

CHAPTER  ix::"" 

State  Laws  Impairing  the  Obligation  of  Contracts  .     .     1534-1782 

CHAPTER   X 

'    The  Regulation  of  Commerce,  —  Foreign,  Interstate,  and 

with  the  Indian  Tribes 1783-2191 

CHAPTER  XL 
Money.  —  Weights  and  Measures 2192-2273 

CHAPTER  XII. 
War,  —  Insurrection.  —  ^Military  Law 2274-2420 

INDEX 2421-2134 


TABLE  OF  CASES. 


In  this  Table  each  case  which  has  the  names  of  two  parties  is  entered  twice,  that  is  to 
say,  under  both  names,  —  except  where  these  are  identical.  Ejectment  cases  are  entered  a 
third  time,  under  the  name  of  the  fictitious  party.  As  regards  cases  in  the  notes,  mere 
citations  are  omitted.  Cases  that  are  cited  in  the  text  of  another  case  and  somewhat  fully 
stated  or  explained,  are  sometimes  entered  in  the  Table. 


Ableiran  v.  Booth  479  n. 
Adams  v.  Chic,  Burl.,  &  No.  R.  R. 

Co.  1137 
^tna  L.  I.  Co.,  Pleasant  Township  v.    16 

Alabama  v.    Nashv.    &c.  Ry.    Co. 

797  n.,  2075  n. 

Smith  a.  797,  20(J8 

Alger,  Com.  v.  69.3 

Allen,  Darcy  v.  15 

Hewlett  V.  944  n. 

V.  Inhab.  of  Jay  1212 

Mech.  Sav.  Bk.  v.  1505 

Ailing,  Sherlock  v.  1973 

Almy  V.  Cal.  1924 

Am.  Ins.  Co.  v.  Canter  350 

Anioskeag  Co.,  Head  y.  760 

Amy  Warwick,  The  23.39 

Anderson,  Terry  v.  672 

Anonymous  11 

Application  of  Senate  181 

Apthorp,  Portland  Bank  v.  1416 

Arensberg,  People  v.  2180 

Arkansas,  Beers  v.  1556 

Ash  V.  The  People  1274 

Asher  v.  Texas  2063  n. 

Assessors,  The,  Van  Allen  v.  1358 

Austin  V.  Cem.  Ass.  1749  n. 


B. 


Babcock,  Crease  v.  1642 

Bacheller,  Phoenix  Nat.  Bk.  v.  1612  n. 

Bain,  Wells  v.  228 

Baker,  U.  S.  v.  258 

Baldwin  v.  Hale  1610  n. 

Ball,  Daniel,  The,  1930 

Ball,  Kimmish  v.  757  n. 

B:i]timore,  Barney  v.  350  n. 

V.  Radecke  864 

Mayor,  &c.  of,  Barron  v.  449 

Baltimore  &  Oh.  R.  R.  Co.,  Marye 

V.  2132 

Wash.  &  Bait.  Tpk.  Co.  t>.        1641  n. 


Pago 
Baltimore  &  N.  Y.  R.  R.  Co.,  Stock- 
ton V.  2067  n.,  2162 
Bank  of  Commerce  v.  N.  Y.  City        1357 
Bank  Ky.,  Briscoe  v.  1840  n. 
Bank  v.  Supervisors                          1351  n. 
Bank  of  Commerce  v.  N.  Y.  City        1357 
Banks,  The,  v.  The  Mayor              1851  n. 
Bank  Tiix  Vase  1357 
Barber,  Minn.  v.                                   2112 
Barbier  v.  Connolly  623 
Barney  v.  Baltimore                          350  n. 
Barron  v.  Mayor,  &c.  of  Bait.                449 
Bartemeyer  v.  Iowa                                632 
Bayard,  Den  d.,  v.  Singleton  78 
Beasley,  Burlington  v.                     1241  n. 
Beecher,  Evergreen  Cem.  Ass.  u.        1004 
Beer  Co.  v.  Mass.                                     757 
Beers  v.  Arkansas                                 1656 
Belfast,  The                                      1822  n. 
Bell's  Gap  R.  R.  Co.  v.  Pa.                  1407 
Bennett,  Dennv  v.                            1610  n 
Bertholf  v.  O'R'eilly                    168  n.,  725 
Biddle,  Green  v.                                1553  n. 
Billings,  Prov.  Bank  v.                        1623 
Binghamton  Bridge                              1753 
Bird,  Cora.  v.                                      1563  n. 
Birm.  Min.  R.  R.  Co.  v.  Parsons            850 
Blackbird  Creek  Marsh  Co.,  Will- 
son  V.                                               1837 
Blacker,  McPherson  v.                      158  n. 
Blake,  Loughborough  i'.                    349  n. 
Bliss,  Gary  Library  v.                 1043,  1580 
Bloomington,  Gridley  v.                        828 
Board  of  Wardens,  Cooley  v.             1879, 
1963  n.,  2191 
Bohm  V.  Metr.  Elev.  Ry.  Co.           11.30  n. 
Boit,  DeLovio  v.                               1822  n. 
Bolles,  Eustis  v.                                    1538 
Bollman  &  Swartwout,  Ex  parte,       2372, 

2374  n. 
Bonham's  Case  48  n. 

Booth,  Ableman  v.  479  n. 

Borden,  Luther  i-.         192,  254,  2352,  2391 
Bostick  V.  The  People  1275  n. 

Boston,  Dorgan  v.  1296 


xu 


TABLE  OF  CASES. 


Boston,  Lowell  v. 
Norris  v. 
Parks  r. 
Roberts  i'. 


Page 
1224 
1865 

968  n. 
576  n. 


Boston,  Cone,  &  Mont.  E.  R.,  Ea- 
ton V.  1064 

Boston  &  Lowell  R.  R.  Co.  v.  Salem 
&L.  R.  R.  Co.  977 

Boston  &  Roxbury  Mill  Corp.  v.  New- 
man 1005 

Boston  Water  Power  Co.  v.  Bost.  & 
Wore.  R.  R.  Co.  969 

Boston  &  Wore.  R.  R.  Co.,  Bost.  W. 
P.  Co.  V.  969 

Bowman  v.  Chic.  &c.  Ry.  Co.    2080,  2109 
V.  Middleton  53  n. 

Bovle  V.  Zacharie  1609  n. 

Braceville  Coal  Co.  v.  People  923 

Bradshaw,  Rogers  v.  984 

Bremen,  Garbade  v.  146  n. 

Krieger  v.  149 

Brennan  v.  Titusville  2156 

Brevoort  i:  Grace  882 

Brewer,    Inhab.   of.   Brewer  Brick 
Co.  I'.  1218 

Brick  Co.  v.  Inhab.  of  Brewer     1218 

Brickett  v.  Haverhill  Aqued.  Co.         1183 

Bridge  Co.,  Cardwell  v.  2009  n. 

V.  U.  S.  1719,  2153 

Bridgeport,  Farist  Steel  Co.  v.        1031  n. 

Brigantine  William,  U.  S.  v.  1786 

Brilliante,  Tlie  2339 

Brimmer  v.  Rebman  2118  n. 

Briscoe  r.  Bk.  Ky.  1840  n. 

Bristol,  N.  Y.  &c.  R.  R.  Co.  v.  687, 1773  n. 

Brockton,  Kingman  v.  1029  n. 

Bronson  v.  Kinzie  1645 

V.  Rodes  2215 

Brookhaven,  Chrisman  v.  576  n. 

Brooklyn,  Gnest  v.  1295  n. 

Mayor  of,  People  v.  1286 

Brown  v.  Houston  1773,  2022 

V.  Md.  1826,  1852,  1925,  1960 

Man.  Co..  State  r.  1406 _n. 

Brummell,  Lehew  v.  574 

Buddi;.  N.Y.  671,804 

Buffalo  East  Side  R.  R.  Co.  v.  Buff. 
St.  R.  R.  Co.  1738 

Buffalo  St.  R.  R.  Co.  v.  Buff.  East 
Side  R.  R.  Co.  1738 

Bull,  Calder  r.  890,  1435 

Bunljury,  Wcimer  v.  1203 

Burgess  v.  Seligman  1545  n. 

Burlington  r.  Beasley  1241  n. 

Butchers'  Un.,  &c.  Co.  v.  Cresc.  City, 
&c.  Co.  537 

Butz  V.  Muscatine  1546  n. 

Byrne,    Adm'rs    of,  v.    Adm'rs    of 
"Stewart  154 


c. 


Calder  v.  Bull 
Caldwell  V.  Texas 
California,  Almy  v. 


890, 1435 

683 
1924 


Page 
California  v.  Cent.  Pac.  R.  R.  Co.      1394, 

2163 

Hooper  v.  2137  n. 

Hurtado  v.  616 

Callan  v.  Wilson  358 

Callender  v.  Marsh  1048 

Cambridge,  Howe  v.  1308 

Camden,  &c.  Ry.  Co.,  West  Jersey 

Ry.  Co.  v.  1157  n. 

Camp,  Olmstead  v.  1011  n. 

Campbell  v.  Hall  40 

Can.  So.  Ry.  v.  Gebhard  1610 

Cannon,  People  v.  841 

Canter,  Am.  Ins.  Co.  v.  350 

Cardwell  v.  Bridge  Co.  2009  n. 

Carleton  v.  Rugg  680  n. 

Carter,  Com.  v.  836 

V.  Thurston  1935  n. 

Carthage  v.  Frederick  831 

Gary  Library  v.  Bliss  104.3,  1580 

Cast  Plate  Manufs,  Gov.  &  Co.  of, 

V.  Meredith  1045 

Caton,  Commonwealth  v.  55 

Cavendish,  in  the  Matter  of  12 

Cem.  Ass.  Austin  v.  1749  n. 

Central    Pac.    R.    R.    Co.,   Califor- 
nia 1-.  1394,  2163 

V.  Gallatin  1693 

Chamberlain,  City  of  Norfolk  v.      1294  n. 
Charles    River    Bridge   v.    Warren 

Bridge  1553  n.,  1628,  1759  n. 

Charleston,  Jenkins  v.  1267  n. 

Murray  i'.  1267  n. 

Weston  V.  1346 

Charlotte,  &c.  R.  R.  Co.  v.  Gibbes       684 
Cherokee  Trust  Funds  591  n. 

Chicago,  Escanaba  Co.  v.  2002 

Harman  v.  2011  n. 

V.  O'Brien  830  n. 

Rigney  v.  1085 

V.  Taylor  1083 

Transp.  Co.  v.  1081 

Chicago,  Burl.,  &  North.  R.  R.  Co., 

Adams  v.  1137 

Chicago,  Burl.,  &c.  R.  R.  Co.  v.  Iowa 

1978  n. 
Chicago  &c.,  Ry.  Co.,  Bowman  v.       2080 

Lawrence  v.  1975 

V.  Minnesota  660, 1749  n. 

Peik  V.  1975 

Chicago  &  G.  T.  Ry.  Co.  v.  Wellman     170 
Chirac  v.  Chirac  373  n. 

Chisliohn  v.  Georgia  205 

Chrisman  i-.  Brookhaven  576  n. 

Christensen,  Crowley  v.  798 

Church  V.  Kelsey  1554  n. 

Chy  Lung  i\  Freeman  1965  n. 

Civil  Rights  Cases  554 

Clark  r.  Clark  1513 

Mitchell  V.  2402 

N.  0. V.  1529 

U.  S.  V.  2413 

Clinton  v.  Engelbrecht  357 

Close,  Fifield  r.  1375 

Clymer,  Norris  v.  145  n. 


TABLE   OF   CASES. 


Xll] 


Page 

Coe  V.  Errol  2033 

Cohens  v.  Virginia  285 

Cole  V.  La  Grange  1240  n. 

Collector,  The,  p.  Day  1378 

Collier  v.  Frierson  202 

Coni'rs  V.  Moesta  1025  n. 

People  V.  1190,  13G3 

Com'rs  of  Erie  Co.,  Dobbins  v.  1352 

Com'rs  of  Immigration  v.  No.  Germ. 

Lloyd  1961 

Com.  i'.  Alger  093 

V.  Bird  1563  n. 

V.  Carter  830 

V.  Caton  55 

V.  Coving.  Bridge  Co.  1753  n. 

V.  Gilbert  890 

Green  v.  177 

V.  H.am.  Man.  Co.  917 

V.  King  1935  n. 

Com  Nat.  B'k  v.  1363  n. 

V.  Perry  918 

V.  Smith  155  n. 

V.  Westinghouse  Co.  1397  n. 

V.  Wyman  1497  n. 

Com.  Kentucky  v.  Dennison  195  n. 

Com.  Mass.,  Plumley  v.  2173 

Compagnie  Ge'n.  Trans.,  People  v.  1967  n. 

Conn.  Riv.  Co.,  Holyoke  W.  P.  Co.  v. 

1015  n. 
Conn.  Rlv.  Lumb.  Co.,  Harrigan  v.  1934  n. 
Conn.  Riv.  R.  R.  Co.  v.  Co.  Com'rs 

of  Franklin  1179 

Connolly,  Barbier  v.  623 

Converse,  In  re  681 

Conway  v.  Taylor's  Ex'r.  1906,  2170 

Cook  V.  Pa.  1989 

People  V.  1693  n. 

Cooley  V.  Board  of  Wardens  1879, 1963  n., 

2191 
Coombs,  U.  S.  V.  1822  n. 

Cooper  V.  Telfair  105 

Corbett,  Donnelly  v.  1609  n. 

Corfield  ('.  Coryell  453,  1824 

Coryell,  Corfield  v.  453,  1824 

Coster,  Ti.le  Water  Co.  v.  1302 

County  of  Mobile  v.  Kimball  1997 

County  of  Pike,  Douglass  v,  1545  n. 

County  (Com'rs,  Norwich  v.  1194 

County  Com'rs  of  Franklin,  Conn. 

Riv.  R.  R.  Co.  V.  1179 

Covington  Br.  Co.,  Com'rs  v.  1753  n. 

Covington,  &c.  Br.  Co.  v.  Ky,         1978  n., 

2164 
Craig  V.  Missouri  2199 

Crandall  v.  Nevada  l.']64 

Crease  v.  Babcock  1642 

Crenshaw,  The  2-3.39 

Cresc.  City,  &c.  Co.,  Butcher's  Un., 

&c.  Co.  V.  5.37,  1773 

Crowninshield,  Sturges  v.  268,  1582, 

1601  n. 
Crovrley  v.  Christensen  798 

Crutcher  v.  Ky.  2135 

Cummings  v.  Mo.  1446 


D. 

Page 

Daniel  Ball,  The  1930 

Darcy  v.  Allen  15 

Dartmouth  Coll.  v.  Woodward  1564, 

1579  n. 

Dash  V.  Van  Kleeck  1498 

Davenport,  Fulton  v.  1203  n. 

Sinnot  v.  1900 

Davidson  v.  N.  O.  610 

Davis  c.  Mayor  N.  Y.  1731  n. 

Davis,  Parker  v.  2237 

Davis,  Raleigh  &  G.  R.  R.  Co.  v.  992 

Davis,  Tennessee  v.  316 

Day,  The  Collector  v.  1378 

V.  Savadge  50  n. 

Decatur,  III.  Cent.  R.  R.  Co.  v.  1310 

De  Cuir,  Hall  v.  1981 

Delaware,  &c.  Ry.  Co.,  Koch  v,  1079 

Deliesseline,  Elkison  v.  1849  n. 

De  Lovio  v.  Boit  1822  n. 

Den  d.  Bayard  v.  Singleton  78 
Den  d.  Murray  v.  Hoboken,  &c.  Co.     600 

Dennis,  Vicks.  R.  R.  Co.  v.  1078 

Dennison,  Com.  Ky.  v.  195  n. 

Denny  v.  Bennett  1610  n. 

Dering,  State  v.  869 

Detroit,  Paul  v.  1026  n. 

Devoe  v.  Penrose  Ferry  Br.  Co.  1894  n. 

Dewitt,  U.  S.  V.  735 

Dinsman  v.  Wilkes  2406 

Divine,  State  v.  851 

Dix,  West  Riv.  Br.  Co.  v.  976 

Dobbins  v.  Com'rs  of  Erie  Co.  1352 

Donnelly  v.  Corbett  1609  n. 

Dorgan  v.  Boston  1296 

Dorrance,  Vanhorne's  Lessee  v.  94 

Douglass,  /)(  re  1524  n. 

V.  Co.  of  Pike  1545  n. 

Doyle,  Str.  Ry.  Co.  v.  1159 

Drake  v.  Earhart  1059  n. 

Draper,  People  v.  165 

Dred  Scott  v.  Sandford  354  n. 

Drew,  Pierce  v.  11.33 
Dubuque,  Gelpcke  v.                   1541,  1547 

Duncan,  Johnson  v.  2.354 

V.  Mo.  1474  n. 

Dunham,  Ins.  Co.  v.  1822  n. 

Dupre,  /n  re  732 

Dyke  Board,  K.  v.  148 

Dynes  v.  Hoover  2333 


E. 

Eakin  r.  Raub  133 

Earhart,  Drake  v.  1059  n. 

East  Tenn.,  &c.  R.  R.  Co.,  Pickard  v. 

1682  n. 
Eaton  V.  Bost ,  Cone,  &  Mont.  R.  R.  1064 
Edwards  v.  Kearzey  1652  n. 

Eiienbecker  v.  Plym.  Co.  673 

Ela  r.  Smith  2279 

Elk  V.  Wilkins  587 

Elkison  v.  Deliesseline  1849  n. 

Eilzey,  Hepburn  v.  348 


XIV 


TABLE   OF   CASES. 


Emert  v.  Mo.  2160  n. 
Emery,  Hooper  v.  1209 
Emmons,  Minn.  &  St.  L.  Ry.  v.  1773  n. 
Engelbreclit,  Clinton  v.  357 
Eugerman,  U.  S.  r.  1183  n. 
Errol,  Coe  v.  2033 
Escanaba  Co.  r.  Chicago  2002 
Esse.x  Co.,  Hazen  v.  1012 
Eustis  V.  Bolles  1538 
Evans,  Minn.  &  St.  L.  Ry.  v.  1773  n. 
r.  Myers  2195  n. 
Evanston,  Stubbings  v.  967 
Evergreen  Cem.  Ass  r.  Beeclier  1004 
Evergreen  Ry.  Co.,  Borough  of  Mill- 
vale  i:  1094  n. 
Ewer,  People  v.  837 


F. 


Fairchild  i;.  St.  Paul  965 

Fall  River,  Wat.  Reserv.  Co.  v.      1015  n. 
Farist  Steel  Co.  r.  Bridgeport  1031  n. 

Farmer  s  <ico.  Bank  r.  Smith  1589  n. 

Farmer's  Loan  &c.  Co.,  Reagan  r.     1745, 

2190  n. 
Farris  c.  Henderson  1944  n. 

Fegeiy  et  uL,  Weaver  i;.  2195  n. 

Fenno,  Veazie  Bank  v.  1334 

Ferguson  i-.  Gies  573  n. 

Ferry  Co..  Tugwell  v.  2022  n. 

Ferreira,  U.  S.  v.  105  n.,  160 

Fertilizing  Co.  v.  Hyde  Park  1762 

Fickleii  V.  Shelby  Co.  2143 


Fifield  v.  Close 


1375 


Fifih  Nat.  Bk.,  N.  Y.  Elev.  R.  R.  v.  1119  n. 

Flngg,  People  v.  1196 

Flanders,  Rich  v.  1517 
Fletcher  i-.  Peck                        114,  1552  n. 

I'.  R.  I.  1851 

Fobes  r.  Rome,  Watert.,  &  Ogd.  R. 

R.  Co.  1115  n. 

Fong  Yu('  Ting  v.  U.  S.  374 

P'orbes,  Lynch  i\  1041 
Foreign  Held  Bonds,  State  Tax  on     12-38 

Forster  v.  Scott  1187 

V.  For.ster  1526 

Forty-three  Gallons,  U.  S.  v.  373  n. 

Foster,  Lewis  !.  1511  n. 

Franklin,  Franklin  Needle  Co.  v.  1223  n. 

Franklin  Needle  Co.  v.  Franklin  1223  n. 

Frederick,  Cartilage  v.  831 

Fredericks.  Sproule  v.  250 

Freeman.  Chy  Lung  v.  1965  n. 

Pre i gilt  Co.,  Greenwood  i>.  1710 

Fri.Tson,  Collier  i:  262 

Fnelirinc,  Reinken  v.  832 

Fiilkcr,  State  v.  2100  n. 

FMiltr,  R.  H.  Co.  V.  1952  n. 

Fulton  r.  Davenport  1203  n. 


G. 

Gage,  >Lich.  Co.  i'. 
Gage  County,  Wagner  v. 


1992  n. 
1177 


Gallatin,  Centr.  Pac.  R.  R.  Co.  v.        1693 
Garbade  v.  Bremen  146  n. 

Gardner  v.  Newburgh,  Trustees  of        979 
Garland,  Ex  jnirte  1453  n. 

Garrett  v.  Lake  Rol.  El.  Ry.  Co.    1144  n. 
Garrison  r.  N.  Y.  1554  n. 

Garza,  Neilson  v.  1969 

Gebhard,  Can.  So.  Ry.  v.  1610 

Gelpcke  v.  Dubuque  1541,  1547 

Geofrey  v.  Riggs  373  n. 

Georgia,  Chisholm  v.  '295 

So.  Ca.  V.  1894  n. 

V.  Stanton  201 

Worcester  v.  583 

Gibbes,  Charlotte,  &c.  R.  R.  Co.  v.       684 
Gibbons  i:  Ogden         266,  269,  730,  1799, 

1802 
Gibbons,  Ogden  v.  1800 

Gies,  Ferguson  v.  573  n. 

Gilbert,  Com.  v.  890 

Gillan  v.  Gillan  1234  n. 

Gillson,  People  v.  169 

Gilman  v.  Pa.  1912 

Giozza  V.  Tiernan  158  n. 

Gleason  v.  McKay  1419 

Gloucester  Ferry  Co.  v.  Pa.       2013,  21G9 
Glover,  Huse  r.  1333  n.,  2010  n. 

Goddard,  Pet'r  825 

Godden  v.  Hales  29 

Gordon  v.  U.  S.  188 

Goshen  v.  Stonington  .  1506 

Grace,  Brevoort  r.  882 

Grand  Rapids  Booming  Co.  i'.  Jar- 
vis  1078  n. 
Grand  Trunk  Ry.  Co.,  Lafarier  v.      2056 

Maine  i".  2139,2147 

Gray,  Kent  v.  1517 

Trage.<!er  v.  876  n. 

Green  v.  Biddie  1553  n. 

V.  Commonwealth  177 

Green  Bay  Co.,  Pumpelly  v.  1060 

Greenniaii,  Juilliard  v.  2255 

Greenwood  r   Freight  Co.  1710 

Gridley  v.  RIoomington  828 

Griswold,  Hepburn  v.  2222 

Groves  v.  Slaughter  18^,0 

Guest  V.  Brooklyn  1295  n. 

Gwaltenev  v.  Scottish,  &c.  Timber 
Co.        '  1936  n. 

H. 

Haas,  U.  S.  r.  1909 

Hagar  r.  Reclamation  Dist.  1302  n. 

Hale,  Biildwin  v.  1610  n. 

Hales,  (Jodclen  v.  29 

Hall,  Campbell  i:  40 

r.  DeCuir  T.18I 

Hali!py  !,'.  Rapid  Tran."!.  Str.  h\v.  Co.   1151 
Hamilton,  Ham.  Gasl.  Co.  r. 

1692  n.,  1713  n. 

Ga.<il.  Co.  r.  Hamilton  1692  n.,  1713  n. 

Man.  Co.,  Com.  v.  917 

Hammett  v.  Phila.  1045  n.,  1.308  n. 

Hancock,  Savannah  v.  1041  n. 


TABLE  OF  CASES. 


XV 


Hans  V.  La. 
Happersett,  Minor  v. 
Hardin,  Leisy  v. 
Hannan  v.  Cliicago 
Harmony,  Mitchell  v. 


293 

459 

2104,  2179 

2011  n. 

2409 


Harrigan  v.  Conn.  Riv.  Lumber  Co. 

1934  n. 
Harrington,  Stoddard  v.  1011  n. 

Harris  v.  Jex  1550  n.,  2254  n. 

Hart  V.  Henderson  1523 

White  V.  259 

Hartung  v.  People  1474,  1486 

Harvey  (;.  Thomas  990 

Willard  v.  1515  n. 

Hastings  v.  Haug  824  n. 

Hatch,  Willamette  Bridge  Co.  v.         2075 
Haug,  Hastings  i>.  824  n. 

Haverhill  Aqued.  Co.,  Brickett  v.       1183 
Hayburn's  Case  105  n.,  159,  160 

Hayes,  People  v.  1495 

Hays  V.  Kislier  991  n. 

Hay  ward,  McCracken  v.  1651  n. 

Hazen  v.  Essex  Co.  1012 

Head  v.  Amoskeag  Man.  Co.  760 

Money  Cases,  The  758,  1340  n. 

Heine  v.  Levee  Com'rs  Co.  1657 

Heineniann,  State  v.  876  n. 

Henderson,  Farris  v.  1944  n. 

Hart  V.  1523 

('.  Mayor  of  N.  Y.  738,1961 

Hennick,  Stoutenhurgh  v.  2098 

Hepburn  v.  Ellzey  348 

V.  Griswold  2222 

Hewlett  V.  Allen  944 

Higginson  v.  Nahant  1026 

Hill,  Koehler  v.  252 

Hinson  v.  Lott  1926  n. 

Hoagland,  Wurts  v.  768 

Hoboken,  &c.  Co.,  Den.  d.  Murray  v.    600 
Hodges,  Ex  parte  859 

Holiien  V.  James  882  n. 

Holliday,  U.  S.  v  731,  1909 

Holman,  Watkins  i;.  160 

Holyoke  Water  Power  Co.  v.  Conn. 

Hiv.  Co.  1015  n. 

Home  of  Friendless  v.  Rouse  1676  n. 

Home  Ins.  Co.  v.  N.  Y.  1399 

Hooper  v.  Emery  1209 

V.  California  2137  n. 

Hoover,  Dynes  v.  28-33 

Hopkins,  Wo  Lee  v.  Hi 

Yick  Wo  V.  632  n.,  774 

Hopt  V.  Utah  1469  n. 

Horn  Silver  Min.  Co.  v.  N.  Y.  1412 

Horton,  Miller  v.  1079  n. 

Hot  Springs  11.  R.  Co.  v.  Williamson 

1089  n. 
Hotchkiss,  Kirtland  v.  1268 

Houston,  Brown  (•.  1773,  2022 

V.  Williams  184 

Howe  V.  Cambridge  1308 

Hudson,  Talbot  v.  1016 

Hunt  V.  Hunt  1566  n. 

Hunter's  Lessee.  Martin  v.  123 

Hurtado  v.  California  616 


Page 
Huse  V.  Glover  1333  n.,  2010  n. 

Husen,  R.  R.  Co.  r.  753,2182 

Hyattsville,  Wells  v.  1191 

Hyde  Park,  Fertiliz.  Co.  v.  1762 

Hylton  V.  U.  S.  1315 

L 

Illinois  Cent.  R.  R.  Co.  v.  Decatur     1310 

V.  Illinois  1778 

Illinois,  111.  C.  R.  R.  Co.  v.  1778 

Munn  V.  170,  743 

Wabash,  &c.  Ry.  Co.  v.  2045 

In  re  Est.  of  Swift  1271 

Petition  of  U.  S.  1185  n. 

Phil.  &  Trenton  R.  R.  Co.  1090 

Rahrer  2123 

Indiana  Nat.  Gas  Co.,  Kincaid  v.  1107  n. 

Ins.  Co.  V.  Dunham  1822  n. 

Iowa,  Bartemeyer  v.  532 

Chic,  B.  &c.  R.  R.  Co.  v.  1978  n. 


Jacksonville,  Toledo,  &c.  Ry.  Co.  v.     856 

Jacobs,  In  the  Matter  of  627 

James,  Holden  v.  882  n. 

Jarvis,  Grand  Rapid  Boom.  Co.  v.  1079  n. 

Jay,  Inhab.  of,  Allen  v.  1212 

Jefferson  Bk.  i>.  Skelly  1676  n. 

Jenkins  ?•.  Charleston  1267 

Jessup,  Tomlinson  v.  1690 

Jewett,  Wilkins  i;.  892 

Jex,  Harris  v.  1550  n.,  2254  n. 

Johnson  v.  Duncan  2354 

Mississippi  v.  196 

Sinnickson  v.  983  n.,  986 

U.  S.  y.  1993 

Jones  I'.  U.  S.  364 

IJ.  S.  V.  952 

Juilliard  v.  Greenman  2255 

Jumel,  La.  v.  1559 

Justices,  Opinion  of   178,  221,  223,  270  n., 

901,  905,  2287,  2294 


K. 


K.  V.  The  Dyke  Board  148 

Kagama,  U.  S.  v.  363  n.,  501 

Kansas,  Mugler  v.  782 

V.  Ziebold  782 

Kearzey,  Edwards  v.  1652  n. 

Keene,  Perry  i\  1247 

Kelly  y.  Pittsburgh  1197 

Kelsey,  Church  v.  1554  n. 

Kent  I'.  Gray  1517 

Kentnckj',  Bk.  of  Briscoe  v.  2i07 

Covington,  &c.  Bridge  Co.  v.  1978  n., 

2164 

Crutch er  v.  2135 

Kidd  V.  Pearson  796  n. 

Kimball,  Mobile  v.  1997 

Kimmish  v.  Ball  757  n. 


XVI 


TABLE   OF   CASES. 


Page 
Kincaid  v.  Indiana  Nat.  Gas  Co.     1167  n. 

King,  Com.  v.  1^35  n. 

People  V.  ^6y 

Kingman  v.  Brockton  1029  n. 

Kingn)an  et  al.,  Pet'rs  1234  n. 

Kinzie,  Bronsou  v.  1645 

Kirtland  i-.  Hotchkiss  1268 

Knight  Co.,  E.  C,  U.  S.  v.  2185 

Kneedler  v.  Lane  2ol6 

Knoop,  Piqua  Br.  St.  Bk.  i;.  1673 

Knox  V.  Lee  2237 

Koch  I'.  Del.,  &c.  Ry.  Co.  1079 

Koehler  v.  Hill  252 

Kohl  V.  U.  S.  956 

Kramer,  Omaha  v.  1090  n. 

Krieger  v.  Bremen  149 

Kring  v.  Mo.  1458 


La  Grange,  Cole  v.  1240 

Lackey,  Oh.  &  M.  Ry.  Co.  v.  854 

Lafarier  v.  G.  T.  Ry.  Co.  2056  n. 

Latarier,  Grand  Trunk  Ry  Co.  v.  2237 
Lahr  v.  Metrop.  Elev.  Ry.  Co.  1113  u. 
Lake  Roland  Elev.  Ry.  Co.,  Garrett 

V.  1144  n. 

Lake  Shore,  &c.  Ry.  Co.,  Morley  v.    683, 

1555  n. 
Lane,  Kneedler  t;.  2316 

Lane,  Smith,  v.  2316 

Lawrence  v.  Chic.  &  N.  W.  Ry.  Co.  1975 
Lawton  v.  Steele  817 

Leader  v.  Moxon 
Lechniere,  Winthrop  v. 
Lee,  Knox  v. 

Sing,  In  re 

State  V. 
Leep  V.  St.  Louis  Ry.  Co. 
Legal  Tender  Cases 


Lehew  v.  Brummel 
Lehman,  Nickels  v. 
Leisy  v.  Hardin 
Leiand,  Wilkinson  v. 
I^eloup  V.  Mobile 
Lemmon  r.  People 
Lent  I'.  Tillson 
Levee  Com'rs,  Heine  v, 
Lewis  V.  Foster 

Seibert  v. 

State  V. 
License  Tax  Cases 


673  n. 

34 

2237 

861 

1961  n. 

928 

2237 

574 

2316 

2104,  2128,  2179 

1507  n. 

2095 

496,  1904 

654 

16.57 

1511  n. 

1060 

824  n. 

737  n.,  1276,  1851, 


Lottawanna,  The 
Lott,  Hinson  ;;. 
Loughborough  v.  Blake 
Louisiana,  Hans  v. 

V.  Jumel 

New  Hampshire  v. 
Louisiana,  Morgan  v. 


Page 

1822  n. 

1926  n. 

349  n. 

293 

1559 

302  n. 

1682  n. 


Louisiana  Bd.   Health,  Morgan   St. 

Co.  r.  2040 

Louisiana  Light  Co.,  N.  0.  Gas  Co.  v.  1773 
Louisiana  Sug.,  &c.  Co.,  No.  Water 

Co.  V.  1536  n. 

Louisv.  R.  R.  Co.  v.  Miss.  2101 

Lowell  V.  Boston  1224 

Lumberville  Co.  i'.  State  Board  of 

Assessors  1415  n. 

Luther  v.  Borden  192,  254,  2352,  2391 
Luxton  V.  No.  Riv.  Br.  Co.  2160 

Lynch  v.  Forbes  1041 

Lyng  V.  Mich.  2111  n. 


M. 

McBride,  State  i'.  263 

M'Cracken  r.  Hayward  1651  n. 

M'Culloch  r.  Maryland  271,  1340 

McDevitt  V.  People's  Nat.  Gas  Co.     1163 

1664 

1419 

1644 

1589  n.,  1601  n. 

1589  n.,  1601  n. 

158  n. 

1992  n. 

646 

107 


1919,  1925,  2083,  2094 
Livingston,  North  Riv.  Stmb.  Co.  r.  266, 
1819  n.,  1822  n. 

V.  Van  Tngen  266,  1794 

Loan  Association  v.  Topeka  169,  1235 
Logan  V.  U.  S.  343 

Lond.  &  N.  W.  Ry.  Co.,  Pickering 

Phipps  V.  1749  n. 

Look  Tin  Sing,  In  re  578 

Loomis,  State  v.  929 

Lord  V.  Meadv.  Water  Co.  1015  n. 

Lord,  Treat  v.  1935  n. 


McGahey  v.  Va 

McKay,  Gleason  v. 

M'Laren  i\  Pennington 

M'Millan  v.  M'Neill 

M'Neill,  M'Millau  v. 

McPherson  v.  Blacker 

Machine  Co.  v.  Gnge 

Mackey,  Mo.  I'ac.  Hy.  Co.  v 

Madison,  Marbury  v. 

Maine  v.  G.  T.  Ry.  Co.  2139,  2147 

Maltby  i'.  Reading,  &c.  R  R.  Co.        1262 

Manistee  Riv.,  &c.  Co.,  Sands  v.     2011  n. 

Mann,  State  v.  473 

Marbury  i-.  Madison  107 

Marchant  v.  Pa.  R.  R.  Co.  1167 

Marsh,  Callender  v.  1048 

Martin  v.  Hunter's  Lessee  123 

V.  Mott  2290 

Marx,  People  r.  632 

Marye  r.  B.  &  O.  R.  R.  Co.  2132 

Maryland,  Brown  v  1826,  1925 

M'Culloch  V.  271, 1340 

R.  R.  Co.  V.  1953 

Singer  v.  874 

Turner  v.  2120  n. 

Ward  V.  1410 

Mass.,  Beer  Co.  v.  757 

Plumley  v.  2173 

Thurlow  V.  1851 

AVcstern  Un.  Tel.  Co.  v.  131)0 

Matthewson,  Satterlee  v.  I(n7 

Mayor,  The  Banks  v.  1351  n. 

V.  Twenty-third  St.  Ry.  Co.      1740  n. 

Mayor  of  Brooklyn,  People  i\  1286 

Mayor  N.  Y.,  Davis  v.  1731  n. 

Henderson  v.  1961 


Miller  v. 


1546  n.,  2008 


TABLE   OF   CASES. 


XVU 


Mayor  N.  Y.  v.  Miln 
Mayor  of  Newark,  State  v. 
Mayor  of  Paterson,  State  v. 
Mayor  of  Pliila.,  Sharpless  v. 
Meadville  Water  Co.,  Lord  v 
Mech.  Sav.  Bank  v.  Allen 
Medley,  Pet'r 
Meeker,  Peart  v. 
Memphis  Gasl.  Co 


Page 

1840 

1304 

1307  n. 

l"2o6  n. 

1015  n. 

1505 

1470  n. 

1056 

Taxing  Dist. 

1627  n. 
Mercer,  Watson  v.  I'l-l^ 

Merchant,  Spencer  v.  <347 

Merchant's  Bank,  Tappan  v.  1267 

Meredith,  Gov.  &  Co.  of  Cast  Plate 

Manuf's  v.  1045 

Merryman,  Ex  parte  2301 

Met.  Elev.  Ry.  Co.,  Bohm  v.  1130  n. 

Lahr  v.  1113  n. 

Newman  v.  1125 

Pond  V.  1118 

Miantinomi,  The  2192 

Michigan,  Lyng  v.  2111  n. 

Wallintr  V.  2028 

Middleton,  Bowman  v.  53  n. 

Miles,  West  Chester,  &c.  Co.  v.        578  n. 

Milhau  V.  Sliarp  1732 

Miller  v.  Horton  1079  n. 

Miller  v.  Mayor  N.  Y.  2008  n. 

Miller,  Pa.  R.  R.  Co.  v.  1740  n. 

y.  State  1716  n. 

V.  U.  S.  2305 

Milligan,  Ex  parte  2376 

Millvale,  Borough  of,  v.  Evergreen 

Ry.  Co.  1094  n. 

Miln,  Mayor  N.  Y.  v.  1840 

Milnor  v.  N.  J.  R.  R.  Co.  1896 

Minnesota  v.  Barber  2112 

Chic.,  &c.  Ry.  Co.  v.         660,  1749  n. 
Minnesota  &  St.  Louis  Ry.  v.  Evans 

1773  n. 

Minor  v.  Happersett  450 

Minot  V.  Winthrop  1422 

Mississippi  r.  Johnson  196 

Louisv.  R.  R.  Co.  V.  2101 

Stone  V.  1771 

Missouri,  Craig  v.  2199 

Cummings  v.  1446 

Duncan  v.  1474  n. 

Emert  v.  2160  n. 

Kring  v.  1458 

Welton  V.  1957 

Missouri  Pac.  Ry.  Co.  v.  Mackey  646 

Mitciiell  V.  Clark  2402 

V.  Harmony  2409 

Mobile  V.  Kimball  1997 

Leloup  V.  2095 

Osborne  v.  1950 

Mobile  &  Ohio  R.  R.  Co.  v.  Tenn.       1684 

Moesta,  Com'rs  v.  1025  n. 

Monongahela  Nav.  Co.  v.  U.  S.  2149 

Monopolies,  Case  of  15 

Montello,  The  1822  n. 

Moore  v.  Sanford  1025  n. 

Moran  v.  N.  O.  1904  n.,  2021  n. 

Morford  i'.  Unger  1201  n. 

VOL.  n.  —  b 


Page 
Morgan  v.  La,  1682  n. 

Morgan,  Peete  v.  1333  n. 

Morgan's  Stp.  Co.  v.  La.  Bd.  Health  2040 
Morley  v.  Lake  Shore,  &c.  Ry.  Co. 

683,  1555  n. 
Mormon  Church  v.  U.  S. 
Mott,  Martin  i\ 
Moxon,  Leader  v. 
Mugler  i\  Kansas 
Munn  V.  111. 
Murray  v.  Charleston 
Murray,   Den  d 
Co. 


Muscatine,  Butz  v. 
Myers,  Evans  v. 


361 

2290 

673  n. 

782 

170,  743 

1267  n. 

Hoboken,  &c. 

600 
1546  n. 
2195  n. 


N. 


Nahant,  Higginson  v.  1026 

Nashville,  &c.  Ry.  v.  Ala.  797  n.,  2075  n. 
National  Bank  v.  Commonwealth  1363  u. 
Ncagle,  In  re  33o 

Neilson  v.  Garza  1969 

Nelson  County,  North  Dakota  v.  1242 
Nevada,  Crandall  v.  1364 

New  Hampshire,  Louisiana  v.  302  n. 

Peirce  v.  1851 

New    Hampshire    Bridge, 

Piscat.  Br.  v. 
New  Jersey  v.  Wilson 

V.  Yard 
New  Jersey  R.  R.  Co.,  Milnor  v. 


Propr's 

1067  n. 

1561 

1693  n. 

1894  n., 

1806 

610 

1529 

1904  n. 

350  n. 


New  Orleans,  Davidson  v. 
V.  Clark 
Moran  v. 
V.  Winter 

New  Orleans  Gas  Co.  v.  La.  Lt.  Co.     1773 
New  Orleans  Wat.  Co.  v.  La.  Sugar 

&c.  Co.  1536  n. 

New  York,  Budd  v.  671,  804 

Garrison  c.  1554  n. 

Home  Ins.  Co.  v.  1399 

Horn  Silver  Min.  Co.  v.  1412 

V.  Walsh  804 

New  York  City,  Bk.  of  Commerce  r.  1357 

New  York  Elev.  Ry.  Co.  v.  Fifth  Nat. 

Bk.  1119  n. 

Story  V.  1095 

New  York,  Lack.,  &  West.  Ry.  Co  , 

Reining  v.  1119  n. 

New  York,  Lake  Erie,  &c.  Ry.  Co. 

V.  Pa.  1741 

New  York,  Mayor  of,  Henderson  v.      738 
New   York  &  N.    E.    R.    R.  Co.    v. 

Bristol  687,  1773  n. 

Newark,  Mayor  of.  State  r.  1304 

Newburgh,  Trustees  of,  Gardner  v.       979 
Nevvby  v.  Platte  County  1170 

Newell,  State  v.  591  n. 

Newman,    Bost.    &    Roxbury    Mill 
Corp.  V.  1005 

r.  Motr.  Elev.  Ry.  Co.  1125 

Newton,  Waterbury  v.  2181 


XVIU 


TABLE   OF   CASES. 


Page 
Niagara  Falls  &  Whirlpool  Ky.  Co., 

In  re  1029  ii. 

Nickels  v.  Lehman  2316 

Norfolk,  City  of,  v.  Chamberlain    1294  n. 
Norris  (.  Boston  1865 

V.  Clymer  145  n. 

North  Dakota  v.  Nelson  Co.  1242 

North  German  Lloyd,  Com'rs  of  Im- 
migration 1961 
North  River  Br.  Co.,  Luxton  v.  2160 
North  River  Steamboat  Co.  v.  Liv- 
ingston, 266,  1819  n.,  1822  n. 
Norton,  Pritchard  v.  1652  n. 
Norwicli  V.  County  Com'rs  1194 
Nye,  Turner  v.  893 


o. 

O'Brien,  People  v. 

V.  Phila. 

Chicago  V. 
O'Connor  v.  Pittsburgh 
Ogden  V.  Gibbons 


1722 

1055  n. 

830 

1054 

1800 


Gibbons  v.  266,  269,  730,  1799,  1802 
f.  Saunders  155n.,  15'.)0 

Oliio  &  M.  Ry.  Co.  v.  Lackey  854 

Olcott,  Supervisors  v.  1257  n. 

Old  Settlers,  United  States  v.  191  n. 

Olmstead  v.  Camp  1011  n. 

Omaha  c.  Kramer  1090  n. 

Omaha  So.  Ry.  Co.  v.  Todd  1179  n. 

Opinion  of  Justices  178,  221,  223,  270  n., 
901,  905,  2287,  2204 

O'Reilly,  Bertholf  v.  168  n.,  725 

Osawkee  Townsh.,  State  v.  1247  n. 

Osborn  v.  U.  S.  Bank  1340  n. 

Osborne  v.  Mobile  1950 

Otoe,  R.  R.  Co.  V.  1256  n. 


Pacific  R.  R.,  Thomson  v.  1369 

Palairet's  Appeal  1034 

Parham,  Woodruff  v.  1922 

Parker  v.  Davis  2237 

Parkman,  Rice  v.  880 

Parks  v.  Boston  968  n. 

Parsons,  Birm.  Min.  Co.  v.  850 
Passaic  Bridges,  The  1894  n.,  1896 
Passenger  Cases,  The             1848  n.,  1865 

Paterson,  ^layor  of.  State  v.  1307  n. 

Patterson  r.  Ky.  737  n. 

Paul  V.  Detroit  1026  n. 

Paul  V.  Virginia  468,  1928 

Paulsen  i:  Portland  985  n. 

Pax  ton's  Case  48 

Pearson,  Kidd  v.  796  n. 

Peart  v.  Meeker  1056 

Pease,  Starr  i-.  880 

Peck,  Fletcher  v.  114, 15.52  n. 

Peete  v.  Morgan  133.S  n. 

Peik  V.  Chic,  &c.  R.  R.  Co.  1975 

Peirce  v.  N.  H.  1851 

Pembina  Co.  i;.  Pa.  1406  n. 


Pembina  Mining,  &c.  Co.  v.  Pa.  468 

Peuistou,  R.  R.  Co.  v.  1383 

Pennington,  M'Laren  v.  1644 

Pennoyer,  State  v.  876  n.  . 

Pennsylvania,  Bell's  Gap  R.  R.  Co.  v.  1407 
Cook  i:  1989 

Oilman  v.  1912 

Glouc.  Ferry  Co.  v.  2013,  2169 

N.  Y.,  Lake  Erie,  &c.Ry.  Co.  D.     1741 
Pembina  Co.  v.  1406  n. 

Pembina  Mining,  &c.  Co.  v.  468 

V.  Phil.,  &c.  St.  Co.  206.3,  2142 

Powell  V.  637 

Reading  R.  R.  Co.  v.  1938,  1945 

r.  Standard  Oil  Co.  2017 

V.  Wheel.  &  B.  Br.  Co.        1889,  2161 
Pennsylvania  College  Cases  1710  n. 

Pennsylvania  R.  R.  Co.,  Marchant  v.  1167 
V.  Miller  1740  n. 

Pullm.  Pal.  Car.  Co.  v.  21-30 

Penrose  Ferry  Br.  Co.,  Devoe  v.  1894  n. 
Pensac.  Tel.  Co.  v.  W.  U.  Tel.  Co.  1985 
People  V.  Arensberg  2180 

Ash  V.  1274 

Bostick  V.  1275  n. 

Braceville  Coal  Co.  v.  923 

Cannon  r.  841 

V.  Com'rs  1190,  1363  n. 

V.  Corap.  Gen.  Trans.  1967  n. 

V.Cook  1693  n. 

V.  Draper  165 

V.  Evifer  837 

V.  Flagg  1196 

V.  Gillson  169 

Hartung  v.  1474,  1486 

V.  Hayes  1495 

V.  King  568 

Lemmon  v.  496,  1904 

V.  Marx  632 

V.  Mayor  of  Brooklyn  1286 

V.  O'Brien  1722 

V.  Pliippin  876  n. 

Ramsey  v.  928  n. 

Eatsky  v.  1489 

I'.  Salem  945 

Shepherd  v.  ^  1481 

V.  Smith  962 

V.  Supervisors  1526  n. 

V.  Toynbee  715 

White  V.  1310  n. 

Wynehamer  v.  715, 1239  n. 

People's  Nat.  Gas  Co.,  McDevitt  v.  1163 
Perry,  Com.  v.  917 

V.  Keene  1247 

Perth  Amboy,  State  v.  1186 

Petition  of  U.  S.,  In  re  1185  n. 

Philadelphia,  Ilammett  v.  1045  n. 

Philadelphia,  N.  Y.,  &c.  R}'.  Co.  v.     1741 
O'Brien  v.  1055  n. 

Philadelphia,  Mayor  of,  Sharpless  v. 

1256  n 
Philadelphia,  &c.  St.  Co.  v.  Pa.  2063, 

2142 
Philadelphia  &  Trenton  R.  R.  Co., 
In  re  1090 


TABLE   OF   CASES. 


XIX 


Phippin,  People  v.  876  n. 

Phoenix  Nat.  Bk.  v.  Bateheller  1612  n. 
Pickanl  r.  East  Tenn.,  &c.  R.  R.  Co.  1682 
V.  Pullman  So.  Car  Co.  20;38 

Pickering  Pliipps  v.  L.  &  N.  VV.  Ry. 

Co.  1749  n. 

Pierce  v.  Drew  1133 

Pike,  County  of,  Douglas  v.  1545  n. 

Piqua  Brancli  State  Bk.  v.  Knoop  1673 
Piscataqua  Bridge,  Prop'rs  of,  v.  New 

Hamp.  Bridge  1067  n. 


Pitot,  Sere  v. 

349 

Pittsburgh,  O'Connor  v. 

1054 

Place,  Taylor  v. 

159 

Platte  County,  Newby  v. 

1170 

Pleasant  Township  v.  jEtna  L. 

Ins. 

Co. 

1545  n. 

Pluniley  v.  Com.  Mass. 

2173 

Plymouth  Co.,  Eilenbecker  v. 

673 

Pomeroy,  Tyler  v. 

2305 

Pond  I'.  Metrop.  Elev.  Ry.  Co. 

1118 

Portland,  Paulsen  v. 

985  n. 

Portland  Bank  v.  Apthorp 

1416 

Port  Wardens,  Cooley  v. 

1879 

Pound  V.  Turck 

1978 

Powell  '.'.  Pa. 

637 

Price  County,  Wise.   Cent.  R. 

R. 

Co.  V. 

1397 

Prigg  V.  Pa. 

476 

Pritchard  i'.  Norton 

1652  n. 

Prize  Cases,  The 

2339 

Protector,  The 

2353 

Providence  Bk.  v.  Billings 

1623 

Pueblo,  City  of,  ;•.  Strait 

1090  n. 

Pullman  So.  Car  Co  ,  Pickard  v 

2038 

Pullman's  Pal.  Car  Co.  v.  Pa. 

2130 

Pumpelly  v.  Green  Bay  Co. 

1060 

Q. 

Quincy,  Von  Hoffman  v. 


1654 


R. 


Radecke,  Mayor,  &c.  of  Bait.  v.  864 

Rahrer,  In  re  2123,  2179,  2190  n. 

R.  R.  Commission  Cases  1733 

Railroad  Co.  v.  Husen  753,  2182 

V.  Fuller  1952  n. 

V.  Md.  1953 

V.  Otoe  1256  n. 

V.  Peniston  1383 

V.  Tenn.  1558  n. 

Railway  Co.  v.  Rock  1534 

Raleigh  &  Gaston  R.  R.  Co.  v  Davis     092 

Ramsey  v.  People  928  n. 

Rapid  Trans.  Str.  Ry.  Co.,  Halsey 

V.  11.51 

Rapier,  In  re  732 

Rat  sky  v.  People  1489 

Raub,  Eakin  i\  133 

Reading  R.  R.  Co  v.  Pa.  19-38,  1945 

Reading  &  Col.  R.  R.  Co.,  Maltby  v.  1262 


Page 

Reagan  v.  Farmer's  Loan,  &c.  Co.     1745, 

2190  n. 
Rebman,  Brimmer  y.  2118  n. 

Reclamation  Dist.,  Hagar  v.  1302  n. 

Reeves  v.  Treas.  of  Wood  Co  1293  n. 

Reining  r.  N.  Y.,  L.,  &  W.  Ry.  Co.       11 U) 
Reinken  v.  Fuehring  832 

lihode  Island,  Fletcher  v.  1851 

Rhodes,  U.  S.  v.  506 

Rice  L'.  Park  man  880 

Rich  V.  Flanders  1517 

Riggs,  Geofroy  v.  373  n. 

V.  State  2419 

Rigney  v.  Chicago  1085 

Risher,  Hays  v.  991  n. 

Robbins  v.  Shelby  Co.  Tax  Dist.        2056 
Roberts  v.  Boston  576  n. 

Rohy  V.  Smith  457 

Rock,  Ry.  Co.  v.  1534 

Ixodes,  Bronson  c.  2215 

Rogers  v   Bradshaw  984 

Rome,    Wat.,   &   Ogd.    R.   R.   Co., 

Fobes  I'.  1115  n. 

Ross,  In  re  366 

Rouse,  Home  of  Friendless  v.         1676  n. 

Wash.  Univ.  v.  1676  n. 

Rugg,  Carleton  r.  680  n. 

Rutgers  v.  Waddington  63 

Rutland  &  Burl.  R.  R.  Co.,  Thorpe  v. 

157,  706 


St.  Louis  V.  West.  Un.  Tel.  Co.  1279 

East,  Wiggins  Ferry  Co.  v.  2039 

St.  Louis  Ry.  Co.,  Leep  v.  928 

St.  Paul,  Fairchild  v.  965 

Salem,  People  t-.  945 

Salem  &  Lowell  R.  R.  Co.,  B.  &  L. 

R.  R.  Co.  V.  977 

Sanborn,  fn  re  187 

Sandford,  Dred  Scott  r.  .354  n.,  480 

Sands  v.  Manistee  Riv.  &c.  Co.  2011  n. 
Sanford,  Moore  v.  1025  n. 

Satterlee  v.  Matthewson  1617 

Saunders,  Ogden  v.  155  n.,  1590 

Savadge,  Day  r.  50  n. 

Savannah  v.  Hancock  1041  n. 

Schottler,  Spring  Val.  Wat.  Wks  v.  810 
Scott,  Forster  v.  1187 

Scott,  Dred,  v.  Sandford  354  n.,  480 

Scottish,    &c.    Timber  Co.,    Gwal- 

teney  v.  19.36  n. 

Seibert  i'.  Lewis  1660 

Seligman,  Burgess  v.  1545  n. 

Sere  v.  Pitot  349 

Sharp,  Milhau  v.  1732 

r.  Wakefield  673  n.,  804  n. 

Sharpless  v.  Mayor  of  Phila.  1256  n. 

Shelby  Co.,  Ficklen  I'.  2143 

Shelby  Co.  Tax  Dist.,  Robbins  v.  2056 
Shepherd  i\  People  1481 

Sherlock  ?'.  Ailing  1973 

Ship-Monev,  Case  of  17 

Shoemaker  v.  U.  S.  1030 


XX 


TABLE   OF   CASES. 


Page 

SieboiQ,  Ex  parte  3l!t) 

Silver  Bow  Co.,  Talbott  v.  1358 

Sing,  In  re  Look  Tin  578 

Singer  v.  Md.  874 

Singleton  Uen  d.  Bayard  v.  78 

Sinking  Fund  Cases  155  n.,  1693 

Sinniekson  r.  Johnson  983  n.,  986 

Sinnot  i'.  Davenport  1900 

Sioux  City,  Sioux  City  R.  R.  Co.  v.  1710n. 

Sioux  Citv  R.  R.Co.  v.  Sioux  City  1710  n. 

Skelly,  Je"ff"erson  Bk.  v.  1676  n. 

Slaughter,  Groves  v.  1850 

Slaughter-House  Cases  516 

Smith  V.  Ala.  797,  2068 

Com.  V.  155  n. 

Ela  I'.  2279 

Farmer's,  &c.  Bk.  v.  1589  n. 

I'.  Lane  2316 

People  V.  962 

Roby  V.  457 

V.  Turner  1865 

t\  Washington  1056  n. 

South  Carolina  i\  Ga.  1894 

Spencer  c.  Merchant  647 

Spring    Valley    Water    Works    v. 

Schottler  810 

Springer  v.  U.  S.  1321 

Sproule  r.  Fredericks  250 

Stanton,  Georgia  v.  201 

Starr  iv  Pease  889 

State  V.  Brown  Man.  Co.  1406  n. 

V.  Dering  869 

V.  Divine  851 

V.  Fulker  2109  n. 

V.  Heinemann  876  n. 

r.  Lee  1961  n. 

V.  Lewis  824  n. 

V.  Loomis  929 

V.  Mc  Bride  263 

V.  Mann  473 

V.  Mavor  of  Newark  1304 

Miller"  v.  1716  n. 

V.  Newell  591  n. 

V.  Osawkee  Townsh.  1247  n. 

f.  Paterson  1307  n. 

V.  Pennoyer  876  n. 

V.  Perth  Araboy  1186 

Riggs  V.  2419 

V.  Toledo  912 

V.  Wheeler  163 

r.  Yopp  867  n. 

State  Bk.,  Piqua  Branch  of  1673 

State  Board  of  Assessors,  Lumberv. 

Co.'-.  1415  n. 

State  Freight  Tax  1938,  2084 
State  Tax  on  Foreign  Held  Bonds      1258 

State  Tax  on  Ky.  Gross  Rec'ts  1045 

State  Tonnage  Tax  Cases  1327 

Steffens,  U.  S.  v.  1993 

Stetson,  Wales  v.  1551 
Stewart.Adm'rsof.Adm'rsof  Byrnei".  154 
Stockton  V.  Bait.  &  N.  Y.  R.  R.  Co. 

2067  n.,  2162 

Stoddard  v.  Harrington  1611  n. 

Stone  V.  Miss.  1771 


Stonington,  Goshen  t;.  1506 

Story  V.  N.  Y.  Elev.  Ry.  Co.  1095 

Stoul  V.  Miss.  1771 

Stoutenburgli  v.  Hennick  2098 

Strait,  City  of  Pueblo  v.  1090  n. 

Strautler  v.  West  Va.  543 

Street  Railway  Co.  v.  Doyle  1159 

Stubbings  v.  Evanston  967 

Sturges  V.  Crowninshield  268, 1582 

Suffolk  Ins.  Co.,  Williams  v.  258 

Supervisors,  Bank  v.  1351  n. 

Olcott  V.  1257  n. 

People  V.  1526  n. 
Swartwout,  Bollman  &,  Ex  parte,      2372, 

2374  n. 

Swift,  Estate  of,  In  re  1271 


T. 


Tabor  v.  Ward  1532 

Talbot  r.  Hudson  1016 

Talbott  v.  Silver  Bow  Co.  1358  n. 

Talcott,  Township  v.  1544  n. 

Tappan  v.  Merchant's  Bank  1267 

Tarble's  Case  2299 

Tarpley,  Watson  r.  1548  n. 
Taxing  Dist.,  Memph.  Gasl.  Co.  v.  1627  n. 

Taylor,  Ciiicago  v.  1083 

V.  Place  159 
Taylor's  Ex'r,  Conway  v.           1906,  2170 

Tel.  Co.  V.  Texas  1989  n. 

Telfair,  Cooper  v.  105 

Tennessee  v.  Davis  316 

Mob.  &  Oh.  R.  R.  Co.  v.  1684 

R.  R.  Co.  V.  1558  n. 
Van  Brocklin  v.                 9C1,  1398  n. 

Terry  v.  Anderson  672 

Texas,  Asher  v.  2063  n. 

Caldwell  v.  683 

Tel.  Co.  V.  1989  n. 

U.  S.  V.  310 

V.  White  302 

Thomas,  Harvey  i-.  990 
Thomas,  Yazoo  &c.  R.  R.  Co.  v.     1683  n. 

Thomson  v.  Pac.  R.  R.  1369 

Thorpe  r.  R.  &  B.  R.  R.  Co.  157,  706 

Thurlow  r.  Com.  Mass.  1851 

Thurston,  Carter  v.  1935  n. 

Tide  Water  Co.  c.  Coster  1302 

Tiernan,  Giozza  v.  158  n. 

Tilison,  Lent  r.  654 

Ting,  Fong  Yue,  v.  U.  S.  374 

Titusville.  Brennan  v.  2156 

Todd.  Omaha  So.  Ry.  Co.  v.  1179  n. 

Todd's  Case  105  n. 

Toledo,  State  r.  912 
Toledo,  &c.  Ry.  Co.  v  Jacksonville      856 

Tomlinson  v.  Jessup  1690 

Tonnage  Tax  Cases  157  n. 
Topeka,  I  oan  Ass.  v.                     169, 1335 

Township  v.  Talcott  1544  ji. 

Toynhee,  People  v.  715 

Tradc-Mark  Cases,  The  1993 

Trageser  i-.  Gray  876  n. 


TABLE   OF   CASES. 


XXI 


Page 

Transportation  Co.  v.  Chicago  1081 

Treasurer  of  Wood  Co.,  Reeves  v.  1293  n. 
Treat  v.  Lord  1935  n. 

Trevett  r.  Weeden  73 

Tugwell  V.  Ferry  Co.  2022  n. 

Turck,  Pound  v.  1978 

Turner  v.  Md.  2120  n. 

V.  Nye  893 

Smitli  V.  1865 

Twenty-tliird  St.  Ry.  Co.,  Mayor  v. 

1740  n. 
Tyler  v.  Pomeroy  2305 


u. 


Unger,  Morford  v. 

1201  n. 

Union  Pac.  R.  R.  Co.  v.  U.  S. 

1693 

United  States,  In  re  Petition 

of       1185  n. 

V.  Baker 

258 

Bridge  Co.  v. 

1719,  2153 

V.  Brigantine  William 

1786 

V.  Clark 

2413 

V.  Coombs 

1822  n. 

V.  Devvitt 

735 

V.  Engerman 

1183  n. 

V.  Ferreira 

105  n.,  160 

Fong  Yue  Ting  v. 

374 

V.  Forty-three  Gallons 

373  n. 

Gordon  v. 

188 

V.  Haas 

11)09 

Hilton  I'. 

1315 

V.  HoUiday 

731,  1909 

V.  Johnson 

1993 

V.  Jones 

952 

Jones  V. 

364 

V.  Kagama 

363  n.,  591 

V.  E.  C.  Knight  Co. 

2185 

Kohl  V. 

956 

Logan  V. 

343 

Miller  v. 

2395 

Mon.  Nav.  Co.  v. 

2149 

Mormon  Church  v. 

361 

V.  Old  Settlers 

191  n. 

V.  Rhodes 

506 

Shoemaker  v. 

1030 

Springer  v. 

1321 

V.  Steffens 

1993 

V.  Texas 

310 

Un.  Pac.  R.  R.  Co.  v. 

1693 

V.  Wittemann 

1993 

United  States  Bank,  Osborn 

V.        1346  n. 

Utah,  Hopt  u. 

1469  n. 

V. 


Van  Allen  v.  The  Assessors  1358 

Van  Brocklin  v.  Tenn.  961,  1398  n. 

Van  Ingen,  Livingston  v.  266,  1794 

Van  Kleeck,  Dash  v.  1498 

Veazie  Bank,  Fenno  v.  1334 

Vicksb.  R.  R.  Co.  v.  Dennis  1678 

Virginia,  Cohens  v,  285 

Virginia,  Ex  parte  548 


Virginia,  McGahey  v. 

Paul  V. 
Voigiit  V.  Wright 
Von  Hoffman  v.  Quincy 


W. 


i6t;4 

468,  1928 

2119  n. 

1654 


Wabash,  &c.  Ry.  Co.  v.  111.  2045 

Waddington,  Rutgers  v.  63 

Wagner  2'.  Gage  County  1177 

Wakefield,  Sharp  v.  673  n.,  804  n. 

Wales  V.  Stetson  1551 

Walling  V.  Mich.  20-J8 

Ward  V.  Maryland  1410 

Tabor  v.  1532 

Warren   Bridge,   Charles    River   v. 

1553  n.,  1628,  1759  n. 
Warwick,  Amy,  The  2339 

Washington,  Smith  v.  1056  n. 

Washington  &  Bait.  Tpk.  Co.  v.  B. 

&  O.  R.  R.  Co  1641  n. 

Washington  Univ.  v.  Rouse  1676  n. 


Waterbury  v.  Newton 
Watkins  v.  Holman 
Watson  V.  Mercer 

V.  Tarpley 
Watuppa  Reserv.  Co. 


2181 

160 

1443 

1548  n. 

V.  Fall  River 

1015  n. 
73 
1203 


Weeden,  Trevett  v. 
Weimer  v.  Bunbury 
Wellington  et  al.,  Pet'rs  155  n. 

Wellman,  Chic.  &  G.  T.  Ry.  Co.  v.       170 
Wells  V.  Bain  228 

V.  Hyattsville  1191 

Welton  V.  Mo.  1957 

West  Chester,  &c.  R.  R.  Co.  v.  Miles 

578  n. 
West  Jersey  Ry.  Co  v.  Camden,  &c 


Ry.  Co. 
West  River  Bridge  Co.  v.  Dix 
West  Va.,  Strauder  v. 
Western  Un.  Tel.  Co.  v.  Mass. 

Pensac.  Tel.  Co.  v. 

St.  Louis  V. 

V.  Williams 
Westinghouse  Co.,  Com.  v. 
Weston  i\  Charleston 
Wheeler,  State  v. 
Wheeling  &  Belm.  Br.   Co., 


1157  n. 
976 
543 
1390 
1985 
1279 
1145 
1397  n. 
1346 
163 
Pa.  V. 
1889,  2161 
Wheeling  &  Belm.  Br.  Co.  v.  Wheel- 
ing Br.  Co.  1761  n. 
Wheeling  Bridge  Co.,  Wheeling  & 

Belm.  Br.  Co.  v.  1761  n. 

White  V.  Hart  •      2-59 

V.  Tlie  People  1310  n. 

Texas  r.  302 

Wiggins  Ferry  Co.  v.  East  St.  Louis  2039 

Wilkes,  Dinsman  v.  2406 

Wilkins,  Elk  v.  587 

V.  Jewett  892 

Wilkinson  r.  Leland  1507  n. 

Willamette  Bridge  Co.  v.  Hatch         2075 

Willard  v.  Harvey  1515  n. 


xxu 


TABLE  OF  CASES. 


Page 

William,  Brigantine,  U.  S.  v.  1786 

Williams,  Houston  v.  184 

V.  Suffolk  Ins.  Co.  258 

West.  Un.  Tel.  Co.  v.  1145 

Williamson,  Hot  Sp.  R.  R.  Co.  v.  1090  n. 

Willson  V.  Blackbird  Cr.  M.  Co.  1837 

Wilson,  Callan  v.  358 

N.  J. V.  1561 

Wiimick,  Woart  v.  1508 

Winter,  N.  0.  v.  350 

Wintlirop  v.  Lechmere  34 

Minot  V.  1422 
Wisconsin  Cent.  R.  R.  Co.  v.  Price  Co.  1397 

Wiitemann,  U.  S.  v.  1993 

Wo  Lee  v.  Hopkins  774 

Woart  V.  Wiiinick  1508 

Wood  Co.,  Treas'r  of,  Reeves  v.  1293  n. 

Woodruff  V.  Parhani  1922 

Woods's  Appeal  239 

Woodward,  Dartm.  Coll.  v.    1664,  1579  n. 


Worcester  v.  Georgia  583 

Wright,  Voight  v.  2119  n. 

Wurts  V.  Hoagland  768 

Wyman,  Com.  v.  1497  n, 

Wynehamer  v.  The  People  715,  1239  n. 


Yale  Todd's  Case  105  n. 

Yarborough,  Ex  parte  551 

Yard,  N.J.  f.  1693  n. 

Yazoo,  &c.  Ry.  Co.  v.  Thomas  1683  n. 
Yick  Wo  V.  Hopkins  532  n.,  774,  868  n. 
Yopp,  State  v.  867  n. 


Zacharie,  Boyle  v. 
Ziebold,  Kansas  v. 


1609  n. 

782 


CASES   ON   CONSTITUTIONAL   LAW. 


PAUT   I. 


CHAPTER  I. 

CONSTITUTIONS  OF  GOVERNMENT.  -  THE  THREE  DEPARTMENTS.  - 
THE  OFFICE   OF  THE  JUDICIARY. 

SECTION    I. 

PRELIMINARY. 

.  A  CONSTITUTION  bas  been  well  defined  as  "  L'ensemble  des  institu- 
tions et  des  lois  fondamentales,  destinees  a  regler  Faction  de  I'adminis- 
tration  et  de  tons  les  citoyens."  '  It  is  often,  as  in  England,  an  unwritten 
body  of  custom,  though,  since  the  assertion  of  the  "rights  of  man" 
which  preceded  the  French  Revolution,  the  written  enactment  of  such 
fundamental  principles  has  been  not  uncommon,  as  well  on  the  Euro- 
pean continent  as  in  America.  A  written  constitution  usually  contauis 
provisions  which  make  innovation  less  easy  than  in  the  case  of  custom- 
ary constitutions,  such  as  that  of  England,  any  part  of  which  may  be 
modified  by  an  ordinary  Act  of  Parliament.^—  Holland,  Ulem.  Jurisp. 
(6th  ed.)  323. 

In  every  form  of  government  (no\iT(la)  there  are  three  departments 
(fiSpia),  and  in  every  form  the  wise  law-giver  must  consider,  what,  in 
respect  to  each  of  these,  is  for  its  interest.  If  all  is  well  with  these,  all 
must  needs  be  well  with  it,  and  the  differences  between  forms  of  gov- 
ernment are  differences  in  respect  to  these.  Of  these  three,  one  is  the 
part  which  deliberates  (t6  ^ov\(v6,Aeuov) «  about  public  affairs  ;  the  second 

1  Ahrens,  Conrs,  iii.  p.  380.  «   •   -j  » 

2  Ahrens  Cours,  iii.  p.  381.    Mr.  Bryce  has  suggested  the  use  of  the  terms     rigid 
and  "  flexible  "  to  express  this  distinction.     See  Dicey,  Law  of  the  Constitution,  p.  84, 
and  Professor  Dicey's  own  instructive  and  ingenious  applications  of  the  distinctions, 

lb.  pp.  114-125.  ,      ,       ,        .       „    ,  mi,     -D     IX 

»  The  Greek  legislature  of  the  present  day,  a  single  chamber,  is  called  The  Bouie. 

—  Ed. 

VOL.  I.  —  1 


2  PRELLMINAKY.  [CHAP.  I. 

is  that  which  has  to  do  uith  the  offices  .  .  .  ;  and  the  third  is  the  judi- 
cial part  {to  8iKdCoi>).  — Aristotle,  Politics,  book  vi.  c.  xiv. 

11  y  a  dans  chaque  Etat  trois  sortes  de  pouvoirs  :  la  puissance  legis- 
lative, la  puissance  execiitrice  des  choses  qui  dependent  du  droit  des 
gens,  et  la  puissance  executrice  de  celles  qui  dependent  du  droit  civil. 

Par  la  premiere,  le  prince  ou  le  magistrat  fait  des  lois  .  .  .  et  corrige 
on  abroge  celles  qui  sont  faites.  Par  la  seconde,  il  fait  la  paix  ou  la 
guerre,  envoie  ou  recoit  des  ambassades,  etablie  la  surete,  previent 
les  invasions.  Par  la  troisieme,  il  punit  les  crimes,  ou  juge  les  diffe- 
rends  des  particuliers.  On  appellera  cette  derniere  la  puissance  de 
juger,  et  I'autre  simplement  la  puissance  executrice  de  TEtat.  .  .  . 

Lorsque  dans  la  meme  personne  ou  dans  le  meme  corps  de  magistra- 
ture,  la  puissance  legislative  est  reunie  a  la  puissance  executrice,  il  n'y 
a  point  de  liberte  ;  parce  qu'on  peut  craindre  que  le  meme  monarque  ou 
le  meme  se'nat  ne  fasse  des  lois  tyranniques  pour  les  executer  tyran- 
niquement. 

II  n'y  a  point  encore  de  liberte  si  la  puissance  de  juger  n'est  pas 
separee  de  la  puissance  legislative  et  de  I'executrice.  Si  elle  etoit  jointe 
a  la  puissance  legislative,  le  pouvoir  sur  la  vie  et  la  liberte  des  citoyens 
seroit  arbitraire  :  car  le  juge  seroit  legislateur.  Si  elle  etoit  jointe  a  la 
puissance  executrice,  le  juge  pourroit  avoir  la  force  d'un  oppresseur. 

Tout  seroit  perdu  si  le  meme  homme,  ou  le  meme  corps  des  princi- 
paux,  ou  des  nobles,  ou  du  peuple,  exercoient  ces  trois  pouvoirs :  celui 
de  fairs  des  lois,  celui  d'executer  les  resolutions  publiques,  et  celui  de 
juger  les  crimes  ou  les  differends  des  particuliers.  —  Montesquieu, 
V Esprit  des  Lois,  livre  xi.  c  vi.  (17-i8).^ 

Le  corps  politique  a  les  memes  mobiles :  on  y  distingue  de  meme  la 
/orce  et  la  volonte  ;  celle-ci  sous  le  nom  de  2^uissance  legislative,  I'autre 
sous  le  nom  de  ^^?a"ssa;ice  executive.  Rien  ne  s'y  fait  ou  ne  sV  doit  faire 
sans  leur  concours. 

Nous  avons  vu  que  la  puissance  legislative  appartient  an  peuple,  et  ne 
peut  appartenir  qu'a  lui.  II  est  aise  de  voir,  au  contraire,  par  les  prin- 
cipes  ci-dcA'ant  etablis,  que  la  puissance  executive  ne  peut  appartenir  a 

^  It  may  be  confidently  laid  down,  that  neither  the  institution  of  a  Supreme  Court, 
nor  the  entire  structiire  of  the  Constitution  of  the  United  States,  were  the  least  likely 
to  occur  to  anybody's  mind  before  the  publication  of  the  "Esprit  des  Lois."  We  have 
already  observed  that  the  "  Federalist "  regards  the  opinions  of  Montesquieu  as  of 
paramount  authority,  and  no  opinion  had  more  weight  with  its  writers  than  that  which 
affirmed  the  essential  separation  of  the  Executive,  Legislative,  and  Judicial  powers. 
The  distinction  is  so  familiar  to  us,  that  we  find  it  hard  to  believe  that  even  the  differ- 
ent nature  of  the  P^xecutive  and  Legislative  powers  was  not  recognized  till  the  four- 
teenth century ;  it  occurs  in  the  Defensor  Pacts  of  the  great  Ghibelline  jurist,  Marsilio 
da  Padova  (1327),  with  many  other  curious  anticipations  of  modern  political  ideas,  but 
it  was  not  till  the  eighteenth  that  the  "  Esprit  des  Lois  "  made  the  analysis  of  the 
various  powers  of  the  State  part  of  the  accepted  political  doctrine  of  the  civilieed 
world.  —  >LA.i>rE,  Popular  Government,  218.  —  £d. 


SECT.  I.]  PRELIMINARY.  3 

la  generalite  comme  Legislatvice  ou  Souveraiue ;  parce  que  cette  puis- 
sance ne  consiste  qu'en  des  actes  particuliers  qui  ne  sont  point  du  ressort 
de  la  lot,  ni  par  consequent  de  celui  du  Souverain,  dont  tous  les  actes  ne 
peuvent  etre  que  des  lois. 

II  faut  done  a  la  force  publique  un  agent  propre  qui  la  reunisse  et  la 
mette  en  oeuvre  selon  les  directions  de  la  volonte  generale,  qui  serve  a 
la  communication  de  I'Etat  et  du  Souverain,  qui  fasse  en  quelque  sorte 
dans  la  personne  publique  ce  que  fait  dans  I'homme  I'union  de  I'ame  et 
du  corps.  Voila  quelle  est  dans  I'Etat,  la  raison  du  gouvernement, 
confondu  mal  a  propos  avec  le  Souverain,  dont  il  n'est  que  le  ministre. 

Qu'est-ce  done  que  le  Gouvernement?  Un  corps  intermediaire  etabli 
entre  les  sujets  et  le  Souverain  pour  leur  mutuelle  correspondance, 
charge  de  I'execution  des  lois,  et  du  maintien  de  la  liberte,  tant  civile 
que  politique.  .  .  . 

J'appelle  done  G Oliver nement  ou  supreme  administration  I'exercice 
legitime  de  la  puissance  executive,  et  Prince  ou  magistral  Thomme 
ou  le  corps  charge  de  cette  administration.  —  Rousseau,  Du  Contrat 
jSocial,  livre  iii.  c.  i.   (1762). 

Le  prineipe  de  la  vie  politique  est  dans  I'autorite  Souveraine.  La 
puissance  legislative  est  le  cceur  de  TEtat,  la  puissance  executive 
en  est  le  cerveau,  qui  donne  le  mouvement  a  toutes  les  parties.  Le 
cerveau  pent  tomber  en  paralysie  et  I'individu  vivre  encore.  Un 
homme  reste  imbecile,  et  vit :  mais  sitot  que  le  coeur  a  cesse  ses 
fonctions,  I'animal  est  mort.  —  Jb.  c.  xi. 

In  all  t3Tannical  governments,  the  supreme  magistracy,  or  the  right 
both  of  making  and  of  enforcing  the  laws,  is  vested  in  one  and  the  same 
man,  or  one  and  the  same  body  of  men ;  and  wherever  these  two 
powers  are  united  together,  there  can  be  no  public  liberty.  The  magis- 
trate may  enact  tyrannical  laws,  and  execute  them  in  a  tyrannical 
manner,  since  he  is  possessed,  in  quality  of  dispenser  of  justice,  with 
all  the  power  which  he,  as  legislator,  thinks  proper  to  give  himself. 
But,  where  the  legislative  and  executive  authority  are  in  distinct  hands, 
the  former  will  take  care  not  to  intrust  the  latter  with  so  large  a  power 
as  may  tend  to  the  subversion  of  its  own  independence,  and  therewith 
of  the  liberty  of  the  subject.  With  us,  therefore,  in  England,  this 
supreme  power  is  divided  into  two  branches :  the  one  legislative,  to 
■wit,  the  Parliament,  consisting  of  king,  lords,  and  commons  ;  the  other 
executive,  consisting  of  the  king  alone.  It  will  be  the  business  of  this 
chapter  to  consider  the  British  Parliament,  in  which  the  legislative 
power,  and  (of  course)  the  supreme  and  absolute  authority  of  the  State, 
is  vested  by  our  constitution.  —  1  Blackst.  Com.  (1st  ed.)  142  (1765).^ 

The  original  power  of  judicature,  by  the  fundamental  principles  of 
society,  is  lodged  in  the  society  at  large :  but  as  it  would  be  impracti- 

1  At  p.  52  Blackstone  had  already  remarked :  "  I  proceed  to  observe  that,  as  the 
power  of  making  laws  constitutes  the  supreme  authority,  so  wherever  the  supreme 
authority  iu  any  State  resides,  it  is  the  right  of  that  authority  to  make  laws."  —  Ed. 


4  PKELIMINARY.  [CHAP.  T- 

cable  to  render  complete  justice  to  ever}-  individual,  by  the  people  in 
their  collective  capacity,  therefore  every  nation  has  committed  that 
power  to  certain  select  magistrates,  who  with  more  ease  and  expedition 
can  hear  and  determine  complaints  ;  and  in  England  this  authority  has 
immemorially  been  exercised  by  the  king  or  his  substitutes.  He  there- 
fore has  alone  the  right  of  erecting  courts  of  judicature  ;  for,  though  the 
constitution  of  the  kingdom  hath  intrusted  him  with  the  whole  execu- 
tive power  of  the  laws/  it  is  impossible,  as  well  as  improper,  that  he 
should  personally  carry  into  execution  this  great  and  extensive  trust : 
it  is  consequently  necessary  that  courts  should  be  erected,  to  assist  him 
in  executing  this  power;  and  equally  necessary  that,  if  erected,  they 
should  be  erected  by  his  authority.  And  hence  it  is,  that  all  jurisdic- 
tions of  courts  are  either  mediately  or  immediately  derived  from  the 
Crown,  their  proceedings  run  generally  in  the  king's  name,  they  pass 
under  his  seal,  and  are  executed  by  his  officers.  —  lb.  2G6,  267. 

Two  features  have  at  all  times  since  the  Norman  Conquest  charac- 
terized the  political  institutions  of  England. 

The  first  of  these  features  is  the  omnipotence  or  undisputed  suprem- 
acy throughout  the  whole  countrj'  of  the  central  government.  This 
authority  of  the  State  or  the  nation  was,  during  the  earlier  periods  of 
our  history,  represented  by  the  power  of  the  Crown.  The  king  was  the 
source  of  law  and  the  maintainer  of  order.  The  maxim  of  the  courts, 
''  Tout  fuit  in  luy  et  vient  de  lui  al  commencement,"  was  originally  the 
expression  of  an  actual  and  undoubted  fact.  This  royal  supremacy 
has  now  passed  into  that  sovereignty  of  Parliament  which  has  formed 
the  main  subject  of  the  foregoing  chapters. 

The  second  of  these  features,  which  is  closeh'  connected  with  the 
first,  is  the  rule  or  supremacy  of  law.  This  peculiarity  of  our  polity  is 
well  expressed  in  the  old  saw  of  the  courts,  "La  ley  est  le  plus  haute 
inheritance,  que  le  roy  ad ;  car  par  la  le}'  il  m^me  et  toutes  ses  sujets 
sont  rults,  ct  si  la  ley  ne  fuit,  nul  roi,  et  nul  inheritance  sera."  —  Dicey, 
Law  of  the  Const,  (-ith  ed.)  c  iv.  1 73. 

It  has  been  already  pointed  out  that  in  many  countries,  and  espe- 
cialk  in  France,  servants  of  the  State  are  in  their  official  capacit}'  to  a 
great  extent  protected  from  the  ordinary  law  of  the  land,  exempted 
from  the  jurisdiction  of  the  ordinary  tribunals,  and  subject  to  official 
law,  administered  by  official  bodies.  This  scheme  of  so-called  admin- 
istrative law  is  opposed  to  all  English  ideas,  and  \>y  waj'  of  contrast 
admirably  illustrates  the  full  meaning  of  that  rule  of  law  which  is  an 
essential  characteristic  of  our  constitution.  .  .  . 

The  term  droit  udministratif  is  one  for  which  English  legal  phra- 
seology supplies  no  proper  equivalent.  The  words  "administrative 
law,"  which  are  its  most  natural  rendering,  are  unknown  to  English 

*  He  could  not  agree  that  the  jndiciarv,  which  was  part  of  the  executive,  should 
be  bound  to  say  that  a  direct  violation  of  the  constitution  was  law.  —  Gouverneur 
Morris,  5  Ell.  Deb.  429.  —  Ed. 


SECT.  I.]  PRELIMINARY.  5 

judges  and  counsel,  and  are  in  themselves  liardl}'  intelligible  without 
further  explanation. 

This  absence  from  our  language  of  any  satisfactory  equivalent  for 
the  expression,  droit  admiiiistratif,  is  significant;  the  want  of  a  name 
arises  at  bottom  from  our  non-recognition  of  the  thing  itself.  In  Eng- 
land, and  in  countries  which,  like  the  United  States,  derive  their  civil- 
ization from  English  sources,  the  system  of  administrative  law,  and  the 
very  princi[)les  on  which  it  rests,  are  in  truth  unlinown.  .   .   . 

Droit  cuhninistratif,  or  "  administrative  law,"  has  been  defined  by 
French  authorities  in  general  terms  as  "  the  body  of  rules  which  reg- 
ulate the  relations  of  the  administration  or  of  the  administrative  au- 
thority towards  private  citizens ;  "  and  Aucoc,  in  his  work  on  droit 
admiiiistratif,  describes  his  topic  in  this  ver}'  general  language  :  "  Ad- 
ministrative law  determines  (1)  the  constitution  and  the  relations  of  those 
organs  of  society  which  are  charged  with  the  care  of  those  social  inter- 
ests (interets  collecd/s)  which  are  the  object  of  public  administration, 
b}'  which  term  is  meant  the  different  representatives  of  societ}'  among 
which  the  State  is  the  most  important,  and  (2)  the  relation  of  the  ad- 
ministrative authorities  towards  the  citizens  of  the  State." 

These  definitions  are  obviously  wanting  in  precision,  and  their 
vagueness  is  not  without  significance.  As  far,  however,  as  an  English- 
man ma\'  venture  to  deduce  the  meaning  of  droit  cuhnvnistratif  from 
foreign  treatises  and  reports,  it  may  (at  an}'  rate  for  our  present  pur- 
pose) be  best  described  as  that  portion  of  French  law  which  determines 
(i.)  the  position  and  liabilities  of  all  State  officials,  and  (ii.)  the  civil 
rights  and  liabilities  of  private  individuals  in  their  dealings  with  offi- 
cials as  representatives  of  the  State,  and  (iii.)  the  procedure  by  which 
these  riglits  and  liabilities  are  enforced. 

The  effect  of  this  description  is  most  easily  made  intelligible  to  Eng- 
lish students  by  giving  examples  of  the  sort  of  matters  to  which  the 
rules  of  administrative  law  applj'.  If  a  minister,  a  prefect,  a  police- 
man, or  any  other  official,  commits  acts  in  excess  of  his  legal  authority' 
(exces  de  pouvoirs),  as,  for  example,  if  a  police  officer,  in  pursuance 
of  orders,  say  from  the  Minister  of  the  Interior,  wrongfully  arrests 
a  private  person,  the  rights  of  the  individual  aggrieved  and  the  mode 
in  which  these  rights  are  to  be  determined  is  a  question  of  adminis- 
trative law.  If,  again,  a  contractor  enters  into  a  contract  with  any 
branch  of  the  administration,  e.  g.,  for  the  supply  of  goods  to  the  gov- 
ernment, or  for  the  purchase  of  stores  sold  off  by  a  public  office,  and  a 
dispute  arises  as  to  whether  the  contract  has  been  duly  performed,  or 
as  to  the  damages  due  from  the  government  to  the  contractor  for  a 
breach  of  it,  the  riglits  of  the  contracting  parties  are  to  be  determined 
in  accordance  with  tlie  rules  of  administrative  law,  and  to  be  enforced 
(if  at  all)  b}'  the  methods  of  procedure  which  that  law  provides.  All 
dealings,  in  short,  in  which  the  rights  of  an  individual  in  reference  to 
the  State,  or  officials  representing  the  State,  come  in  question,  fall 
within  the  scope  of  administrative  law.  .  .  . 


6  PRELIMINARY.  [CHAP.  L 

The  second  of  the  general  ideas  on  which  rests  the  system  of  admin- 
istrative law  is  the  necessity  of  maintaining  the  so-called  separation  of 
powers  (separatio7i  de  j^ouvoirs),  or,  in  other  words,  of  preventing 
the  government,  the  legislature,  and  the  courts  from  encroaching  upon 
one  another's  province. 

The  expression  "separation  of  powers,"  as  applied  by  Frenchmen  to 
the  relations  of  the  executive  and  the  courts,  with  which  alone  we  are 
here  concerned,  may  easily  mislead.  It  means,  in  the  mouth  of  a 
French  statesman  or  lawyer,  something  different  from  what  we  mean 
in  England  by  the  "independence  of  the  judges,"  or  the  like  expres- 
sions. As  interpreted  by  French  history,  by  French  legislation,  and  by 
the  decisions  of  French  tribunals,  it  means  neither  more  nor  less  than 
the  maintenance  of  the  principle  that  while  the  ordinar}-  judges  ought 
to  be  irremovable  and  thus  independent  of  the  executive,  the  govern- 
ment and  its  officials  ought  (whilst  acting  officially)  to  be  independent 
of  and  to  a  great  extent  free  from  the  jurisdiction  of  the  ordinary' 
courts.  It  were  curious  to  follow  out  the  historical  growth  of  the 
whole  theory  as  to  the  "separation  of  powei-s."  It  rests  apparently 
upon  Montesquieu's  "  Esprit  des  Lois,"  book  xi.  c.  6,  and  is  in  some 
sort  the  offspring  of  a  double  misconception  ;  Montesquieu  misunder- 
stood on  this  point  the  principles  and  practice  of  the  English  Constitu- 
tion, and  his  doctrine  was  in  turn,  if  not  misunderstood,  exaggerated 
and  misapplied  by  the  French  statesmen  of  the  Revolution,  whose  judg- 
ment was  biassed,  at  once  by  knowledge  of  the  inconveniences  which 
had  resulted  from  the  interference  of  the  French  "parliaments"  in 
matters  of  State,  and  by  the  characteristic  and  traditional  desire  to 
increase  the  force  of  the  central  government.  The  investigation,  how- 
ever, into  the  varying  fate  of  a  dogma  which  has  undergone  a  different 
development  on  each  side  the  Atlantic  would  lead  us  too  far  from  our 
immediate  topic.  All  that  we  need  note  is  the  extraordinary  influence 
exerted  in  France,  and  in  all  countries  which  have  followed  French 
examples,  by  this  part  of  Montesquieu's  teaching,  and  the  extent  to 
which  it  underlies  the  political  and  legal  institutions  of  the  French 
Republic.  .  .  . 

SVc  can  now  understand  the  wa}'  in  which  the  existence  of  a  droit 
nfhinnifttratif  nffecis  the  whole  legal  position  of  French  public  servants, 
and  renders  it  quite  different  from  that  of  English  officials. 

Persons  in  the  employment  of  the  government,  who  form,  be  it  ob- 
served, a  much  larger  and  more  important  part  of  the  community  than 
do  the  whole  body  of  the  servants  of  the  English  Crown,  occupy  in 
France  a  position  in  some  respects  resembling  that  of  soldiers  in 
England.  For  the  breach  of  official  discipline  they  are,  we  may  safely 
assume,  readily  punishable  in  one  form  or  another.  But  if  like  Eng- 
lish soldiers  thoy  are  subject  to  official  discipline,  they  have  what 
oven  soldiers  in  England  do  not  possess,  a  ver}'  large  amount  of  pro- 
tection against  legal  proceedings  for  wrongs  done  to  private  citizens. 
The  party  wronged  by  an  official  must  certainh-  seek  relief,  not  from 


SECT.  I.]  PEELLMINARY.  7 

the  judges  of  the  land,  but  from  some  official  court.  Before  such  a 
body  the  question  which  will  be  mainlj-  considered  is  likely  to  be,  not 
whether  the  complainant  has  been  injured,  but  whether  the  defendant, 
say  a  policeman,  has  acted  in  discharge  of  his  duties  and  in  bond  fide 
obedience  to  the  commands  of  his  superiors.  If  the  defendant  has  so 
acted  he  will,  we  maj*  almost  certainl}-  assume,  be  sure  of  acquittal, 
even  though  his  conduct  may  have  involved  a  technical  breach  of  law. 
.  .  .  We  may  further  draw  the  general  conclusion  that  under  the  French 
system  no  servant  of  the  government  who,  without  any  malicious  or 
corrupt  motive,  executes  the  orders  of  his  superiors,  can  be  made 
civilly  responsible  for  his  conduct.  He  is  exempted  from  the  jurisdic- 
tion of  the  civil  courts  because  he  is  engaged  in  an  administrative  act ; 
he  is  safe  from  official  condemnation  because  the  act  complained  of  is 
done  in  pursuance  of  his  official  duties. 

To  tliis  must  be  added  a  further  consideration,  to  which  for  the  sake 
of  clearness  no  reference  has  hitherto  been  made.  French  law  ap- 
pears to  recognize  an  indefinite  class  of  "acts  of  State,"  —  acts,  that 
is  to  sa}-,  which  are  done  by  the  government,  as  matters  of  police,  of 
high  policy,  of  public  security,  and  the  like,  and  acts  of  this  class  do 
not  fall  within  the  control  either  of  the  administrative  or  of  any  other 
courts.  It  would,  for  example,  appear  that  in  questions  of  extradi- 
tion, as  regards  persons  who  are  not  French  citizens,  the  government 
can  act  freel}'  on  its  own  discretion,  and  that  a  foreigner  threatened  with 
expulsion  or  expelled  from  French  territory  b}'  orders  of  the  govern- 
ment will  not  be  able  to  obtain  protection  or  redress  in  an}'  French 
court  whatever ;  the  executive  possesses,  under  the  French  constitution, 
"prerogatives" — no  other  word  so  well  expresses  the  idea  —  which 
are  above  and  beyond,  rather  than  opposed  to,  the  law  of  the  land. 

What  may  be  the  precise  limits  wliich  the  system  of  administrative 
law  taken  together  with  the  authority  ascribed  in  France  to  the  exec- 
utive in  matters  of  State  imposes  on  the  jurisdiction  of  the  civil  tribu- 
nals, no  foreigner  can  pronounce  with  certainty.  These  limitations 
are,  however,  as  we  have  seen,  in  many  instances  very  strict,  and  are 
certainly  sufficient  to  prevent  the  judges  of  the  land  from  pronouncing 
judgment  on  wi'ongs,  not  amounting  to  actual  crimes,  done  by  officials 
to  private  citizens.  These  restrictions  on  the  authority  of  the  courts 
must,  at  any  rate  as  an  Englishman  would  think,  diminish  the  moral 
influence  of  the  whole  judicial  bodj',  and  deprive  the  French  judicature 
of  that  dignity  which  the  English  Bench  have  derived  from  their  un- 
doubted power  to  intervene,  indirectly  indeed,  but  none  the  less  effi- 
ciently, in  matters  of  State.  The  condemnation  of  general  warrants  — 
a  condemnation  which,  whatever  be  the  French  law  of  arrest,  could  not 
(it  would  seem)  be  at  the  present  day  pronounced  bj-  any  court  in 
France —  did  as  much  in  the  last  centuiy  to  raise  the  reputation  of  the 
Bench  as  to  protect  the  freedom  of  the  subject.  Our  judges  would 
with  difficulty  retain  the  reverence  with  which  their  traditions  surround 
them  if  the  decisions,  even  of  the  House  of  Lords,  were,  whenever 


8  PRELIMINARY.  [CHAP.  I. 

the}-  were  alleged  to  interfere  with  the  prerogative  of  the  Crown,  or 
the  discretionar}'  powers  of  the  miuistr}-,  liable  to  be  invalidated  by 
some  official  body.  The  separation  of  powers,  as  the  doctrine  is  in- 
terpreted in  France,  means,  it  would  seem  to  an  Englishman,  the 
powerlessness  of  the  courts  in  any  conflict  with  the  executive.  How- 
ever this  may  be,  it  assuredly  means  the  protection  of  official  persons 
from  the  liabilities  of  ordinary  citizens. 

Compare  for  a  moment  with  the  position  of  French  officials  under 
the  system  of  droit  administratif  the  situation  of  servants  of  the 
Crown  in  England. 

Among  modern  Englishmen  the  political  doctrines  which  have  in 
France  created  the  system  of  droit  administratif  are  all  but  unknown. 
Our  law  bears  ver}'  few  traces  indeed  of  the  idea  that  when  questions 
arise  between  the  State  or,  as  we  should  say,  the  Crown  or  its  ser- 
vants and  private  persons,  the  interests  of  the  government  should  be 
in  any  sense  preferred  or  the  acts  of  its  agents  claim  any  special  pro- 
tection. Our  laws,  again,  lend  no  countenance  to  the  dogma  of  the 
"  separation  of  powers"  as  that  doctrine  is  understood  by  Frenchmen. 
The  common  law  courts  have  constantl}'  hampered  the  action  of  the 
executive,  and  by  issuing  the  writ  of  habeas  corpus  as  well  as  by 
other  means  do  in  fact  exert  a  strict  supervision  over  the  proceedings 
of  the  Crown  and  its  servants.  .  .  . 

The  doctrine  propounded  under  various  metaphors  by  Bacon  that 
the  prerogative  was  something  beyond  and  above  the  ordinary  law,  is 
like  the  foreign  doctrine  that  in  matters  of  high  policy  the  adminis- 
tration has  a  discretionary  authority  which  cannot  be  controlled  by 
any  court.  The  celebrated  dictum  that  the  judges,  though  they  be 
"  lions,"  yet  should  be  "  lions  under  the  throne,  being  circumspect  that 
they  do  not  check  or  oppose  any  points  of  sovereignty,"  is  a  curious 
anticipation  of  the  maxim  formulated  by  French  revolutionary  states- 
manship, that  the  judges  are  under  no  circumstances  to  disturb  the 
action  of  the  administration,  and  would,  if  logically  worked  out,  have 
led  to  the  exemption  of  every  administrative  act,  or,  to  use  English 
terms,  of  every  act  alleged  to  be  done  in  virtue  of  the  prerogative 
from  judicial  cognizance.  The  constantly  increasing  power  of  the 
Star  Chamber  and  of  the  Council  gave  practical  expression  to  prevalent 
theories  as  to  the  royal  prerogative,  and  it  is  hardly  fanciful  to  com- 
pare these  courts,  which  were  in  reality  portions  of  the  executive 
government,  with  the  Co7iseil  d'etat  and  other  Tribunaux  administra- 
tifs  of  France.  Nor  is  a  parallel  wanting  to  the  celebrated  Article  75 
of  the  Constitution  of  the  Year  VIII.  This  parallel  is  to  be  found  in 
Bacon's  attempt  to  prevent  the  judges,  by  means  of  the  writ  De  non 
procedendo  Rege  i}}cons.ulto,  from  proceeding  with  any  case  in  which 
the  interests  of  the  Crown  were  concerned.  "  The  working  of  this 
writ,"  observes  Mr.  Gardiner,  '^  if  Bacon  had  obtained  his  object, 
would  liave  been  to  some  extent  analogous  to  that  provision  whicli  has 
been  found  in  so  many  French  constitutions,  according  to  which  no 


SECT.  I.]  PRELIMINARY.  9 

agent  of  the  government  can  be  summoned  before  a  tribunal,  for  acts 
done  in  the  exercise  of  his  office,  without  a  preliminary  authorization 
of  the  Council  of  State.  The  effect  of  the  English  writ  being  confined 
to  cases  where  the  king  himself  was  supposed  to  be  injured,  would 
have  been  of  less  universal  application,  but  the  principle  on  which  it 
rested  would  have  been  equally  bad."  The  principle,  moreover,  ad- 
mitted of  unlimited  extension,  and  this,  we  may  add,  was  perceived 
by  Bacon.  "  The  writ,"  he  writes  to  the  king,  "  is  a  mean  provided 
by  the  ancient  law  of  England  to  bring  any  case  that  may  concern 
your  Majesty  in  profit  or  power  from  the  ordinary  Benches^  to  he  tried 
and  judged  before  the  Chancellor  of  England,  by  the  ordinary  and  legal 
part  of  this  power.  And  your  Majesty  knoweth  your  Chancellor  is 
ever  a  principal  counsellor  and  instrument  of  monarchy,  of  immediate 
dependence  on  the  king;  and  therefore  like  to  he  a  safe  and  tender 
guardian  of  the  regal  rights.  "  Bacon's  innovation  would,  if  suc- 
cessful, have  formally  established  the  fundamental  dogma  of  admin- 
istrative law  that  administrative  questions  must  be  determined  by 
administrative  bodies. 

The  analogy  between  the  administrative  ideas  which  still  prevail  on 
the  Continent  ^  and  the  conception  of  the  prerogative  which  was  main- 
tained by  the  English  Crown  in  the  seventeenth  century  has  consid- 
erable speculative  interest.  That  the  administrative  ideas  supposed 
by  many  French  writers  to  have  been  originated  by  the  statesmanship 
of  the  great  Revolution  or  of  the  first  Empire  are  to  a  great  extent 
developments  of  the  traditions  and  habits  of  the  French  monarchy  is 
almost  past  a  doubt,  and  it  is  a  curious  inquiry  how  far  the  efforts 
made  by  the  Tudois  or  Stuarts  to  establish  a  strong  government  were 
influenced  by  foreign  examples.  This,  however,  is  a  problem  for 
historians.  A  lawyer  may  content  himself  with  noting  that  French 
history  throws  light  on  the  causes  both  of  the  partial  success  and  of 
the  ultimate  failure  of  the  attempt  to  establish  in  England  a  strong 
administrative  system.  The  endeavor  had  a  partial  success,  because 
circumstances,  siu^ilar  to  those  which  made  French  monarchs  ulti- 
mately despotic,  tended  in  England  during  the  sixteenth  and  part  of 
the  seventeenth  century  to  increase  the  influence  of  the  Crown.  The 
attempt  ended  in  failure,  partly  because  of  the  personal  deficiencies 
of  the  Stuarts,  but  chiefly  because  the  whole  scheme  of  administrative 
law  was  opposed  to  those  habits  of  equality  before  the  law  which  had 
long  been  essential  characteristics  of  English  institutions.  —  Dicey, 
J^aic  of  the  Const,  c.  xii.^ 

It  must  be  recollected  that  in  the  Continental  States  of  Europe  the 
courts  of  law  have  not,  as  a  rule,  the  power  to  decide  upon  the  legality 

1  It  is  worth  noting  that  tlie  system  of  "  administrative  law,"  thongh  more  fnlly 
developed  in  France  than  elsewhere,  exists  iu  one  form  or  aoiother  iu  most  of  the 
Continental  States. 

2  Renrinted  here  by  permission  —  Ed. 


10  PRELIMINARY.  [CHAP.  I. 

or  illegality  of  the  administrative  acts  of  executive  officials.  Such 
questions  seem  to  be  regarded  as  matters  of  public  right  and  so  prop- 
erly withheld  from  the  courts,  whose  jurisdiction  over  civil  rights 
should  not  extend  beyond  private  right.  It  can  hardly  be  denied  that 
every  American  lawyer,  who  holds  that  judicial  courts  are  competent 
to  decide  questioned  laws  to  be  constitutional  or  unconstitutional,  pre- 
supposes that  the  same  courts  are  competent  to  decide  questioned 
executive  acts  to  be  legal  or  illegal.  Indeed,  it  is  safe  to  assert,  that 
every  American  must  ponder  long  before  he  can  understand  how  a 
judiciary  which  cannot  question  an  executive  act,  can  question  an 
act  of  legislation.  When  judicial  power  was  in  America  extended  to 
cases  arising  under  written  constitutions,  which  involved  the  unconsti- 
tutionality and  resultant  invalidity  of  legislation,  that  extension  was 
partially  due  to  originality  in  creating  new  institutions  and  was  par- 
tially the  effect  of  existing  causes.  One  of  the  most  potent  of  existing 
causes  must  have  been  that  the  judges  in  every  land  of  the  common  law 
could  decide  upon  the  legality  or  illegality  of  the  executive  acts  of 
officials.  It  has  been  said  in  France  that  judges  should  not  be  com- 
petent to  decide  laws  to  be  unconstitutional  because  the  judiciary  is  a 
feeble  power.  Doubtless,  it  is  correct  to  say  that  the  judiciary  is  a 
feeble  power  in  France  and  other  civil  law  countries.  But  in  all  the 
lands  of  the  common  law,  whether  in  the  Eastern,  the  Western,  or  the 
Southern  hemisphere,  the  judiciary  is  not  a  feeble  power,  and  never 
has  been.  —  Bkinton  Coxb,  Judicial  Poiver  and  Unconstitutional 
Legislation,  102. 

In  approaching  the  histor}'  of  the  mediaeval  church,  we  may  regard 
the  spiritualt}'  of  England,  the  clergy  or  clerical  estate,  as  a  body 
completely  organized,  with  a  minutely  constituted  and  regulated^  hie- 
rarch}',  possessing  the  right  of  legislating  for  itself  and  taxing  itself, 
having  its  recognized  assemblies,  judicature  and  executive,  and,  al- 
though not  as  a  legal  corporation  holding  common  property,  yet  com- 
posed of  a  great  number  of  persons,  each  of  whom  possesses  corporate 
property  b}-  a  title  which  is  either  conferred  by  ecclesiastical  authority, 
or  is  not  to  be  acquired  without  ecclesiastical  assent.  .  .  .  The  spirit- 
ualty is  by  itself  an  estate  of  the  realm ;  its  leading  members,  the 
bishops  and  certain  abbots,  are  likewise  members  of  the  estate  of  bar- 
onage ;  the  inferior  clerg}',  if  they  possess  \a,y  property'  or  temporal 
endowments,  are  likewise  members  of  the  estate  of  the  commons.  .  .  . 
As  an  estate  of  the  realm  the  spiritualt}'  recognizes  the  headship  of 
the  king,  as  a  member  of  the  Church  Catholic  it  recognizes,  according 
to  the  mediaeval  idea,  the  headship  of  the  pope.  .  .  .  They  recognize 
the  king  as  supreme  in  matters  temporal,  and  the  pope  as  supreme  in 
matters  spiritual;  but  there  are  questions  as  to  the  exact  limits  be- 
tween the  spiritual  and  the  temporal,  and  most  important  questions 
touching  the  precise  relations  between  the  Crown  and  the  Papacy.  On 
mediaeval  theory  the  king  is  a  spiritual  son  of  the  pope ;  and  the  pope 


SECT.  I.]  PRELIMINARY.  H 

may  be  the  king's  superior  in  things  spiritual  only,  or  in  things  tem- 
poral and  spiritual  alike.  ... 

The  idea  of  placing  in  one  and  the  same  hand  the  direct  control  of 
all  causes  temporal  and  spiritual  was  not  unknown  in  the  Middle  Ages. 
The  pope's  spiritual  supremacy  being  granted,  complete  harmony  might 
be  attained  not  only  by  making  the  pope  supreme  in  matters  temporal, 
but  by  delegating  to  the  king  supremacy  in  matters  spiritual.  .  .  .  There 
were  not  wanting  men  who  would  try  to  persuade  him  [Henry  II.]  that 
even  without  any  such  counnission  he  was  supreme  in  spiritual  as  well  as 
in  temporal  matters.  Reginald  Fitz  Urse,  when  he  was  disputing  with 
Becket  just  before  the  murder,  asked  him  from  whom  he  had  the  arch- 
bishopric ?  Thomas  replied,  "  The  spirituals  I  have  from  God  and  my 
lord  the  pope,  the  temporals  and  possessions  from  my  lord  the  king." 
"Do  you  not,"  asked  Reginald,  "  acknowledge  that  you  hold  the  whole 
from  the  king?"  "No,"  was  the  prelate's  answer;  ''we  have  to  ren- 
der to  the  king  the  things  that  are  the  king's,  and  to  God  the  things 
that  are  God's."  The  words  of  the  archbishop  embody  the  commonly 
received  idea ;  the  words  of  Reginald,  although  they  do  not  represent 
the  theory  of  Henry  II.,  contain  the  germ  of  the  doctrine  which  was 
formulated  under  Henry  VIII.  —  3  Stubbs,  Const.  Hist.  Eng.  ch.  xix. 
§§  376,  377. 

A  case  of  1505-6  (Y.  B.  21  H.  VII.,  1,  1),  is  stated  by  Coxe  (Judic. 
Power  and  Unconst.  Leg.  147),  in  which  the  validity  of  an  Act  of 
Parhament  was  debated.  In  this  case  Kingsmill,  J.  (fol.  2  a),  said : 
"  But,  sir,  the  Act  of  Parliament  cannot  make  the  king  a  parson, 
for  we,  by  our  law,  cannot  make  any  temporal  man  have  spiritual 
jurisdiction  ;  no  one  can  do  this  except  the  Supreme  Head  "  \i.  e.,  the 
pope].  Later  on  Palmes,  "one  of  the  new  sergeants"  (fol.  2i),  ar- 
gued :  "  No  temporal  Act  can  make  a  temporal  man  have  spiritual  juris- 
diction ;  if  it  were  ordained  by  Act  that  so  and  so  should  not  offer  any 
tithes  to  his  curate,  the  Act  would  be  void.  And  at  the  end  of  the  case 
Fro  WIRE,  C.  J.  (fol.  4  ?>),  said:  "  As  to  the  other  matter,  whether  the 
king  can  be  parson  by  the  Act  of  Parliament,  —  as  I  understand,  it  is 
no  great  matter  for  argument ;  I  have  never  seen  that  any  temporal 
man  can  be  a  parson  without  the  assent  of  the  Supreme  Head.  .  .  . 
And  so  a  temporal  Act,  without  the  assent  of  the  Supreme  Head, 
cannot  make  the  king  a  parson." 

Coxe,  uhi  supra,  p.  148,  remarks  :  "  It  may  seem  strange  to  many  of 
Blackstone's  readers  that  parliamentary  power  should  be  spoken  of  as 
limited ;  but  it  would  have  seemed  stranger  to  Englishmen  before  the 
Reformation  for  any  one  to  say  that  the  temporal  Parliament  could 
legislate  with  unlimited  power  in  ecclesiastical  matters  regardless  of 
the  pope's  wishes  and  authority.  It  required  the  Reformation,  that  is 
to  say,  an  ecclesiastical  revolution,  for  Parliament  to  obtain  its  modern 
plenitude  of  power  in  matters  ecclesiastical." 

This  "ecclesiastical  revolution"  came  within  thirty  years  after  the 


12  MATTER   OF   CAVENDISH.  [CHAP.  L 

debate  above  referred  to,  —  within  the  lifetime  of  those  who  heard  it. 
In  153J:  the  Convocations  of  Canterbury  and  York  announced  that  "  the 
Bishop  of  Rome  has  no  greater  jurisdiction  conferred  on  him  b}'  God 
in  this  kingdom  of  England  than  any  other  foreign  bishop  "  (Acland 
and  Ransome,  Polit.  Hist,  of  England,  75) ;  and  in  the  next  year  the 
"  Supreme  Head"  of  the  Church  of  England  was  declared  by  Act  of 
Parliament  to  be  the  King  of  England  (Stat.  26  H.  VIII.  c.  i.). 


In  the  Matter  of  CAVENDISH. 
Common  Bench.     1587. 

[1  Anderson,  152.]  l 

One  R.  Cavendish  suggested  to  the  queen  that  she  had  power  to 
establish  the  office  of  making  all  the  writs  of  supersedeas  quia  improvide 
emanavit  in  the  Common  Bench :  whereupon  the  queen,  b}'  her  letters- 
patent,  granted  to  the  said  Cavendish  the  office  of  making  the  said 
writs  for  some  years,  with  words  of  const ituimus ;  after  making  which 
patent,  the  judges  were  commanded  orally,  by  a  messenger,  to  admit 
the  said  Cavendish  to  the  said  office.  The  judges  did  not  do  it ;  and 
thereupon  Cavendish  procured  the  directing  of  a  letter  to  the  said 
judges,  under  the  sign-manual  and  signet,  in  these  words  :  — 

"  Trust}-  and  well-beloved,  we  greet  you  well ;  whereas  we  perceive 
that  notwithstanding  our  grant  unto  our  well-beloved  servant,  Richard 
Cavendish,  of  the  writs  of  su])ersedeas  upon  exigent  in  that  court, 
he  is  as  3-et  impeached  from  the  exercise  thereof,  a  matter  that  we  can- 
not but  think  strange,  being  contrary'  to  our  meaning,  and  to  the  expec- 
tation we  had  of  more  conformity  to  be  found  to  the  yielding  to  our 
said  grant  than  yet  we  perceive ;  so  as  thereby  our  said  servant  re- 
maineth  as  3'et  frustrate  of  the  commodity  and  benefit  due  to  the  said 
office ;  We  let  you.  weet  that  our  express  will  and  commandment  is, 
that  forthwith  j'ou  give  order  that  a  sequestration  of  all  the  profits 
already  grown  since  our  grant  to  our  said  servant,  and  continuing  to 
grow  of  the  said  office,  be  made  and  committed  unto  such  persons  as 
you  shall  think  meet,  with  whom  you  shall  take  order  by  bond  or  other 
sufficient  manner  to  answer,  and  yield  the  same  profits  unto  our  said 
servant,  or  to  any  other  to  whom  the  same  shall  be  due  immediately 
after  the  controversy  for  the  execution  of  the  said  office  shall  be  decided 
or  ordered,  whereof  we  eftsoones  will  j'ou  not  to  fail,  &c." 

The  justices  considered  this  letter,  and  thought  that  they  could  not 
lawfully  act  according  to  the  contents  of  the  said  letter  and  its  order, 
because  it  might  be  tliat  l)y  such  sequestration  others,  alleging  the  right 
to  make  these  writs,  might  be  disseised  of  their  freehold,  claimed  by 

-  Translatea  from  the  Reporter  s  Frencti.  —  ii^o. 


SECT.  I  ]  MATTER   OF   CAVENDISH-  13 

them,  in  the  making  of  tliese  writs  and  fees  thereupon.  All  this  was 
told  the  queen  by  great  men,  friends  of  Cavendish.  Thereupon  another 
letter,  under  the  signet  and  sign-manual,  was  directed  to  the  justices, 
as  follows :  — 

"  Trust}'  and  well-beloved,  ...  we  greet  3'ou  well,  whereas  we 
granted  to  our  trust}'  and  well-beloved  servant,  Richard  Cavendish, 
Esquire,  by  our  letters-patent,  under  our  great  seal  of  P2ngland,  the 
making  and  writing  of  all  supersedeases  upon  exigent  issuing  out  of 
our  Court  of  Common  Pleas,  and  have  divers  times  sent  unto  you 
for  his  admittance  into  the  said  office,  as  well  by  message  delivered 
b}'  persons  near  about  us  as  otherwise,  which  nevertheless  hath  been 
neglected,  in  consideration  whereof  we,  for  that  our  said  servant 
was  to  depart  into  the  Low  Countries  for  a  season,  gave  command- 
ment for  the  sequestration  de  les  profits  of  the  said  office  until  our 
further  pleasure  therein  should  be  declared  ;  wherefore  for  that  we 
look  for  some  more  dutiful  regard  to  be  had  by  you  of  our  prerogative 
royal,  we  have  thought  good  to  signify  our  further  pleasure  unto  you 
in  this  behalf,  which  is  that  our  said  servant  be  no  longer  vvithliolden 
from  the  benefit  and  use  of  our  said  grant;  and  these  are  therefore  to 
will  and  command  you  and  ever}'  of  you,  that  immediately  upon  the 
sight  thereof,  without  any  further  delay,  you  cause  present  payment  to 
be  made  unto  them  [him]  or  to  his  assignee  of  all  the  foresaid  profits 
since  the  day  of  our  said  grant  upon  bond  with  condition  that  if  from  time 
of  his  admission  into  the  said  office,  he,  his  deputy  or  deputies,  shall  by 
virtue  of  our  said  grant  hold  and  enjoy  the  same  without  lawful  evic- 
tion or  recovery  thereof  out  of  the  hands  of  him  or  his  deputy  or 
deputies  by  any  other  pretending  title  to  the  making  and  writing  of  the 
said  writs,  that  then  the  said  obligation  to  be  void,  &c.  And  further- 
more our  will  and  pleasure  is,  and  thereunto  we  will  and  command  you 
that  upon  our  said  servant  offering  of  himself  unto  you  in  our  said 
court  this  next  term,  you  presently  without  any  further  delay  admit 
him  unto  the  use,  execution,  and  profits  of  the  said  office  according  to 
our  said  grant ;  for  that  we  be  nothing  ignorant  that  if  any  of  your 
clerks  have  any  such  title  or  interest  as  they  pretend,  both  our  laws  lie 
open  for  their  remedy,  and  also  they  be  persons  both  for  wealth  and 
skill  able  to  recover  their  own  right  if  any  such  be.  In  consideration 
whereof  we  look  that  you  and  every  of  you  should  dutifully  fulfil 
our  commandment  therein,  and  these  our  letters  shall  be  your  war- 
rant, &c." 

This  letter  was  delivered  to  the  justices  in  presence  of  the  Lord 
Chancellor  of  England  and  the  Earl  of  Leicester  at  the  beginning  01 
the  Easter  Term,  in  the  twenty-ninth  year  of  the  queen  [1587]  ;  and 
the  Lord  Chancellor  declared  to  the  judges  that  the  queen  had  made 
the  said  patent  to  Cavendish  upon  a  great  desire  that  she  had  to  pro- 
vide advancement  for  him  ;  that  she  understood  that  by  this  means  he 
tnight  enjoy  this  [right],  and  that  she  cared  much  about  it.  On  which 
account  she  had  commanded  him  and  the  said  viscount  [sj'cj  to  hear 


14  MATTER   OF   CAYENDISH.  [CHAP.  I. 

the  answer  of  the  justices  to  the  contents  of  the  letter  last  mentioned. 
Thereupon  the  justices  took  the  letter,  and  desired  a  little  time  to  inspect 
and  consider  it;  which  was  thought  convenient.  After  perusing  the 
letter,  they  went  at  once  to  the  said  lords  and  said  for  their  answer  that 
in  all  lawful  points  they  would  dutifully  and  in  humble  manner  obey  her 
Majesty,  but  as  regards  this  case  they  could  not  without  being  per- 
jured ;  and  this,  as  they  said,  they  well  knew  that  the  queen  would  not 
knowingly  command  or  require. 

Upon  this  they  departed ;  and  the  said  answer  was  reported  to  the 
queen,  who  commanded  the  said  Chancellor,  the  Chief  Justice  ot  the 
King's  Bench,  and  the  Master  of  the  Rolls  to  hear  from  the  said  judges 
the  reasons  and  grounds  which  moved  them  to  make  such  an  an- 
swer ;  and  also  what  they  had  to  sa}'  against  the  prerogative  and 
right  of  the  queen  in  this  matter ;  and  therewith  the  learned  counsel  of 
the  queen  were  commanded  to  attend.  All  these  being  assembled,  the 
queen's  sergeant  showed  that  the  queen  had  the  right  and  prerogative 
of  granting  the  making  of  these  writs.  ...  To  which,  for  the  judges, 
it  was  protested  that  with  all  their  power  they  would  aid  her  Majesty 
in  all  her  rights,  being  bound  thereto  not  only  by  common  duty,  but  bj' 
oath,  which  rights  they  wished  might  be  maintained  and  preserved  ;  but 
for  their  answer  it  was  said  that  this  mode  of  proceeding  was  out  of 
the  course  of  justice,  and  therefore  they  would  not  make  answer  to  those 
who  had  spoken.  Their  reasons  they  gave  as  follows,  viz. :  that  they  had 
and  claimed  nothing  as  to  the  making  of  the  said  writs,  but  the  preno- 
taries  and  divers  exigenters  of  the  same  place,  —  who  claimed  it  as  a  free- 
hold for  their  lives.  These,  in  law  and  reason,  should  be  brought  to 
answer,  and  not  the  judges  ;  for  these,  and  no  others,  were  they  who  were 
to  be  touched  as  regards  profit  or  damage  b}'  this ;  and  always  they 
who  have  the  thing  in  controvers}*  are  the  persons  to  answer  as  to  what 
is  in  question.     On  this  point  no  other  answer  was  made. 

When  this  was  ended,  the  letters  above  recited  were  shown,  and  the 
judges  were  charged  with  not  having  obeyed  the  orders  therein  con- 
tained. To  this  they  said  that  they  must  needs  confess  that  they  had 
not  performed  the  orders ;  but  this  was  no  offence  or  contempt  to  her 
Majesty,  for  the  orders  were  against  the  law  of  the  land  {It  leyde  terre), 
in  which  case  it  was  said,  no  one  is  bound  to  obey  such  an  order:  and 
they  offered  to  show  what  had  been  adjudged  heretofore  to  prove  what 
they  said  to  be  true. 

And  they  said  that  the  queen  herself  was  sworn  and  took  oath  to 
keep  her  laws,  and  the  judges  also,  as  regards  their  willingly*  breaking 
them.  As  to  this  matter,  so  far  as  it  concerned  the  judges,  the}'  an- 
swered again  that  if  they  obeyed  these  orders  the}'  should  act  otherwise 
than  the  laws  warranted,  and  merely  and  directly  against  them  ;  and 
that  was  contrary  to  their  oath,  and  in  contempt  of  God,  her  Majesty, 
and  the  country  and  commonwealth  in  which  they  were  born  and  lived ; 
of  which,  if  the  fear  of  God  were  gone  from  them,  yet  the  examples  of 
others  and  the  punishment  of  those  who  had  formerly  violated  the  laws, 


SECT.  I.]  DARCY   V.   ALLEl!?.  15 

reminded  them,  and  recalled  them  from  such  offences.  The  examples 
and  precedents  in  these  matters  were  remembered  ;  namely  :  [Then  fol- 
lowed brief  statements  as  to  Hugh  Despenser,  Lord  Chamberlain  of 
Edward  II.,  Thorp,  J.,  in  the  time  of  Edward  III.,  "  certain  precedents 
of  the  time  of  Richard  II.,"  and  last  the  indictments  against  Empson, 
lately  councillor  to  King  Henry  VII.  ;  one  of  which  only  is  recited  at 
\a.vgQ,  pur  avoyder  tecUousness.  Then  Magna  Carta,  c.  29  (9  H.  III.) 
was  cited,  and  statutes  5  Ed.  III.  c.  9,  and  28  Ed.  III.  c.  3  ;  and  another 
of  11  Ricli.,  providing  "  tliat  neither  letters  of  signet,  nor  of  the  king's 
secret  seal,  shall  be  from  henceforth  sent  in  damage  or  prejudice  of  the 
realm."] 

By  wliich  laws  the  office  and  duty  of  judges  appears  and  of  all  others 
whomsoevei- ;  and  also  b}'  the  precedents  before  cited  it  appears  what 
an  offence  it  is  willingl}'  to  break  the  laws  of  the  land.  .  .  .  For  these 
reasons,  and  because  the  queen  and  the  judges  are  sworn,  they  said 
that  they  would  not  act  according  to  the  said  letters.  The  oath  of 
the  queen  and  the  judges  appears  in  print,  and  so  it  need  not  be 
written  here. 

All  this  was  reported  by  the  said  Lord  Chancellor  to  the  queen  with 
his  good  allowance  of  the  matters  aforesaid  and  reasons  alleged ;  which 
her  Majest}',  as  I  have  heard,^  well  accepted.  But  nothing  more  was 
done  or  heard  by  the  judges  in  the  said  Easter  Term,  or  in  the  Trinity 
Terra  then  next  following ;  which  moves  the  judges  to  think  that  no 
more  will  ever  be. 


DARCY  V.  ALLEN.     (The  Case  of  Monopolies.) 
King's  Bench.     1603. 

[Moore,  671 ;  s.  c.  11  Co.  84  6.]  ^ 

In  the  King's  Bench  ;  an  action  on  the  case ;  and  a  count  that, 
whereas  men  of  mean  trades  and  occupations  in  the  commonwealth 
apply  themselves  to  idle  games  with  cards,  the  queen,  by  way  of 
redress  and  restraint  of  this  enormit}',  made  letters-patent  to  Ralph 
Bowes,  authorizing  him  and  his  factors  and  deputies  to  provide  playing- 
cards,  and  prohibiting  all  others  to  import  playing-cards  into  the  realm 
or  to  make  or  sell  them  in  the  realm  for  a  certain  term  of  years  now 
expired,  and  (reciting  the  grant)  she  made  another  like  grant  to  Darcy, 
wlio  provided  cards  accordingl}' :  yet  the  defendant  brought  cards  into 
the  realm  and  sold  them  and  did  things  contrary  to  the  pri\ilege  granted 
to  the  plaintiff,  and  to  his  damage  to  the  amount  of  £2,000.    The  defend- 

1  It  is  Anderson,  the  Chief  Justice  of  the  court,  who  is  reporting  the  case.  —  Ed. 

2  The  statement  of  the  case  and  a  part  of  the  argument  are  translated  from  the 
French  of  Moore.  The  opinion  is  not  given  by  him,  and  so  far  as  here  presented,  is 
taken  from  Coke.  —  Ed. 


16  DAECY  V.   ALLEN.  [CHAP.  L 

ant  pleaded  the  custom  of  London,  that  a  freeman  may  buy  and  sell  all 
things  merchantable,  and  that,  since  he  was  a  freeman  and  haberdasher 
of  London,  and  cards  were  things  merchantable,  he  bought  and  sold 
them;  and  he  demanded  judgment.  The  plaintiff  demurred  in  law;  and 
it  was  argued  first,  Trin.  44  Eliz.  [1602],  by  Altham,  with  the  plaintiff, 
and  Dyer,  with  the  defendant.  .  .  .  Afterwards,  Mich.  44  and  45  Eliz. 
[1602],  it  was  argued  by  Dodder iclge,  against  the  patent,  and  l)y 
Fleming,  solicitor,  with  the  patent;  and  afterwards,  the  same  term,  b}- 
Fuller,  against  the  patent,  and  CoTce,  Attorney-General,  with  the  patent. 
And  Dodder idge  said  that  the  case  was  tender,  concerning  the  prince's 
prerogative  and  the  subject's  liberty,  and  must  be  argued  with  much 
caution  ;  for  he  that  heios  above  his  hand  chips  tcillfall  into  his  eyes, 
and  qui  majestatem  scrutatur  princijns  opprivietur  sjylcndore  ejus. 
Yet  since  it  is  the  honor  and  safety  of  the  prince  to  govern  by  the  laws, 
...  as  Bracton  sa3"8,  merito  retrihuat  Rex  legi  quod  lex  attrihuat  ei^ 
therefore  the  princes  of  this  realm  have  always  been  content  that  their 
patents  and  grants  should  be  examined  by  the  laws,  and  so  is  her 
Majesty  that  now  is.  In  this  examination  it  has  always  been  held  b}' 
the  judges  that  the  queen's  grants  procured  against  the  usual  and  set- 
tled liberty  of  the  subjects  are  void,  and  also  those  which  tend  to  their 
grievance  and  oppression. .... 

It  was  .  .  .  resolved  b^'  Popham,  Chief  Justice,  etper  totam  curiam, 
that  the  said  grant  to  the  plaintiff  of  the  sole  making  of  cards  within 
the  realm  was  utterly  void,  and  that  for  two  reasons :  1.  That  it  is  a 
monopoly,  and  against  the  common  law.  2.  That  it  is  against  divers 
Acts  of  Parliament.  .  .  . 

3.  The  queen  was  deceived  in  her  grant ;  for  the  queen,  as  b}' 
the  preamble  appears,  intended  it  to  be  for  the  weal  public,  and  it  will 
be  employed  for  the  private  gain  of  the  patentee,  and  for  the  prejudice 
of  the  weal  public ;  moreover  the  queen  meant  that  the  abuse  should 
be  taken  away,  which  shall  never  be  by  this  patent,  hut  potius  the  abuse 
will  be  increased  for  the  private  benefit  of  the  patentee,  and  therefore, 
as  it  is  said  in  21  E.  3,  47,  in  the  Earl  of  Kent's  case,  this  grant  is  void 
jure  Regio.  4.  This  grant  is  primes  imjjressioins,  for  no  such  was 
ever  seen  to  pass  by  letters-patent  under  the  great  seal  before  these 
days,  and  therefore  it  is  a  dangerous  innovation,  as  well  without  any 
precedent,  or  example,  as  without  authority  of  law  or  reason.  .  .  . 
And  therefore  it  was  resolved,  that  the  queen  could  not  suppress  the 
making  of  cards  within  the  realm,  no  more  than  the  making  of  dice, 
bowls,  balls,  hawks'  hoods,  bells,  lures,  dog-couples,  and  other  the  like, 
which  are  works  of  labor  and  art,  although  they  serve  for  pleasure, 
recreation,  and  pastime,  and  cannot  be  suppressed  but  by  Parliament,  nor 
a  man  restrained  from  exercising  any  trade,  but  by  Parliament,  37  E. 
3,  cap.  16,  5  Eliz.  cap.  4.  .  .  . 

1  Attribuat  igitur  rex  legi,  quod  lex  attribuit  ei,  videlicet,  dominationem  et  potes- 
tatem.    Bracton,  5  6.  —  Ed. 


SECT.  I.]  THE   CASE   OF   SHIP-MONEY.  17 

Also  such  charter  of  a  monopoly,  against  the  freedom  of  trade  and 
traffic,  is  against  divers  Acts  of  Parliament,  sc.  9  E.  3,  c.  1  &  2,  which 
for  the  advancement  of  the  freedom  of  trade  and  traffic  extends  to  all 
things  vendible,  notwithstanding  any  charter  of  franchise  granted  to  the 
contrary,  or  usage,  or  custom,  or  judgment  given  upon  such  char- 
ter, which  charters  are  adjudged  by  the  same  Parliament  to  be  of 
no 'force  or  effect,  and  made  to  the  derogation  of  the  prelates,  earls, 
barons,  and  grandees  of  the  realm,  and  to  the  oppression  of  the  Com- 
mons. And  by  the  statute  of  25  E.  3,  cap.  2,  it  is  enacted  that  the  said 
Act  of  9  E.  3,  shall  be  observed,  holden,  and  maintained  in  all  points. 
And  it  is  further  by  the  same  Act  provided,  that  if  any  statute,  charter, 
letters-patent,  proclamation,  command,  usage,  allowance,  or  judgment 
be  made  to  the  contrary,  that  it  shall  be  utterly  void.  Vide  Magna 
Charta,  cap.  18,  27  E.  3  cap.  11,  &c.  .  .  • 

And  nota,  reader,  and  well  observe  the  glorious  preamble  and  pre- 
tence of  this  odious  monopoly.  And  it  is  true  quod  pHvilegia  qum  re 
vera  sunt  in  prcejudicium  reipubliccB,  magis  tamen  speciosa  habent 
frontispicia,  et  boni  publici  pnetextum.  quam  bonce  et  legales  conces- 
siones,  sed prcetextu  liciti  non  debet  admitti  ilUcitum.  And  our  lord 
the  kino-  that  now  is,  in  a  book  which  he  in  zeal  to  tlie  law  and  justice 
coraraaiKled  to  be  printed  anno  lG10,i  entitled,  "  A  Declaration  of  His 
Majesty's  Pleasure,  &c.,"  p.  13,  has  published,  that  monopohes  are 
things  against  the  laws  of  this  realm,  and  therefore  expressly  commands 
that  no  suitor  presume  to  move  him  to  grant  any  of  them,  &c. 

In  the  famous  Case  of  Ship-Money,  3  How.  St.  Tr.  825,  in  1637, 
the  prerogative  of  the  Crown  was  much  discussed.  Hallam  (Const. 
Hist.  c.  vii.),  gives  a  convenient  abstract  of  it. 

"The  first  writ  issued  from  the  council  in  October,  1634.  It  was 
directed  to  the  magistrates  of  London  and  other  sea-port  towns.  Re- 
citing the  depredations  lately  committed  by  pirates,  and  slightly  ad- 
verting to  the  dangers  imminent  in  a  season  of  general  war  on  the 
Continent,  it  enjoins  them  to  provide  a  certain  number  of  ships  of  war 
of  a  prescribed  tonnage  and  equipage,  empowering  them  also  to  assess 
all  the  inhabitants  for  a  contribution  toward  this  armament  according 
to  their  substance.  .  .  . 

"  This  desire  of  being  at  least  prepared  for  war,  as  well  as  the  general 
system  of  stretching  the  prerogative  beyond  all  limits,  suggested  an 
extension  of  the  former  writs  from  the  sea-ports  to  the  whole  kingdom. 
Finch,  Chief  Justice  of  the  Common  Pleas,  has  the  honor  of  this  im- 
provement on  Noy's  scheme.  He  was  a  man  of  little  learning  or 
respectability,  a  servile  tool  of  the  despotic  cabal,  who,  as  speaker 
of  the  last  Parliament,  had,  in  obedience  to  a  command  from  the  king 
to  adjourn,  refused  to  put  the  question  upon  a  remonstrance  moved  in 
tlie  House.    By  the  new  writs  for  ship-money,  properly  so  denominated, 

1  This  volume  of  Coke's  Reports  was  published  in  1615  —Ed. 
VOL.  I   — 2 


18  TUE    CASE    OF   SHIP-MONEY.  [CHAP.  I. 

since  the  former  had  only  demanded  the  actual  equipment  of  vessels, 
for  which  inland  counties  were  of  course  obliged  to  compound,  the 
sheriffs  were  directed  to  assess  every  land-holder  and  other  inhabitant 
according  to  their  judgment  of  his  means,  and  to  enforce  the  payment 
b}'  distress.  .  .  . 

'•  The  first  that  resisted  was  the  gallant  Richard  Chambers,  who  brought 
an  action  against  the  lord  mayor  for  imprisoning  him  on  account  of  his 
refusal  to  pay  his  assessment  on  the  former  writ.  The  magistrate 
pleaded  the  writ  as  a  special  justification  ;  when  Berkley,  one  of  the 
judges  of  the  King's  Beach,  declared  that  there  was  a  rule  of  law  and 
a  rule  of  government ;  that  many  things  which  could  not  be  done  by 
the  first  rule,  might  be  done  by  the  other,  and  would  not  suffer  counsel 
to  argue  against  the  lawfulness  of  ship  mone}'.  The  next  were  Lord 
Say  and  Mr.  Hampden,  both  of  whom  appealed  to  the  justice  of  their 
country ;  but  the  famous  decision  which  has  made  the  latter  so  illus- 
trious, put  an  end  to  all  attempts  at  obtaining  redress  by  course  of  law. 

"  Hampden,  it  seems  hardly  necessary  to  mention,  was  a  gentleman  of 
good  estate  in  Buckinghamshire,  whose  assessment  to  the  contribution 
for  ship-money  demanded  from  his  county  amounted  onl}'  to  twenty- 
shillings.  The  cause,  though  properly  belonging  to  the  Court  of  Ex- 
chequer, was  heard,  on  account  of  its  magnitude,  before  all  the  judges 
in  the  Exchequer  Chamber.  The  precise  question,  so  far  as  related  to 
Mr.  Hampden,  was.  Whether  the  king  had  a  right,  on  his  own  allega- 
tion of  public  danger,  to  require  an  inland  county  to  furnish  ships,  or 
a  prescribed  sum  of  money  by  way  of  commutation,  for  the  defence  of 
the  kingdom?  It  was  argued  by  St.  John  and  Holborne  in  behalf 
of  Hampden,  and  by  the  Solicitor-General  Littleton  and  the  Attorney- 
General  Banks  for  the  Crown.  .  .  . 

"  Some  of  the  judges  who  pronounced  sentence  in  this  cause  .  .  .  de- 
nied the  power  of  Parliament  to  limit  the  high  prerogatives  of  the  Crown. 
.  .  .  '  Where  Mr.  Holborne,'  says  Justice  Berkley,  '  supposed  a  fun- 
damental policy  in  the  creation  of  the  frame  of  this  kingdom,  that  in 
case  the  monarch  of  England  should  be  inclined  to  exact  from  his  sub- 
jects at  his  pleasure,  he  should  be  restrained,  for  that  he  could  have 
nothing  from  them  but  upon  a  common  consent  in  Parliament ;  he  is 
utterly  mistaken  herein.  The  law  knows  no  such  king-yoking  policy. 
The  law  is  itself  an  old  and  trusty  servant  of  the  king's  ;  it  is  his  instru- 
ment or  means  whicli  he  useth  to  govern  his  people  by  :  I  never  read 
nor  heard  that  lex  was  rex  ;  but  it  is  common  and  most  true  that  rex  is 
lex.'  Vernon,  another  judge,  gave  his  opinion  in  few  words  :  '  That 
the  king,  pro  bono  publico,  may  charge  his  subjects  for  the  safet}'  and 
defence  of  tlie  kingdom,  notwithstanding  any  Act  of  Parliament,  and 
that  a  statute  derogatory  from  the  prerogative  doth  not  bind  the  king ; 
and  the  king  may  dispense  with  any  law  in  cases  of  necessitv-'  Finch, 
the  adviser  of  tlie  ship-mone}',  was  not  backward  to  employ  the  same 
argument  in  its  behalf.  *No  Act  of  Parliament,'  he  told  them,  'could 
bar  a  king  of  his  regality,  as  that  no  land  should  hold  of  him,  or  bar  him 


SECT.  I.]  THE   CASE   OF   SIIIP-MONEY.  19 

of  the  allegiance  of  bis  subjects  or  the  relative  on  his  part,  as  trust  and 
power  to  defend  his  people  ;  therefore  Acts  of  Parliament  to  take  away 
his  royal  power  in  the  defence  of  his  kingdom  are  void  ;  they  are  void 
Acts  of  Parliament  to  bind  the  king  not  to  command  the  subjects,  their 
persons  and  goods,  and  I  say,  their  money  too,  for  no  Acts  of  Parliament 
make  any  difference.'  ^ 

"  Seven  of  the  twelve  judges,  namely-,  Finch,  Chief  Justice  of  the 
Common  Pleas,  Jones,  Berkley,  Vernon,  Crawley,  Trevor,  and  Weston, 
gave  judgment  for  the  Crown.  Brampston,  Chief  Justice  of  the  King's 
Bench,  and  Daveni)ort,  Chief  Baron  of  the  Exchequer,  pronounced  for 
Hampden,  but  on  technical  reasons,  and  adhering  to  the  majority  on  the 
principal  question.  Denham,  another  judge  of  the  same  court,  being 
extremely  ill,  gave  a  short  written  judgment  in  favor  of  Hampden  ;  but 
Justices  Croke  and  Hutton,  men  of  considerable  reputation  and  expe- 
rience, displayed  a  most  praiseworthy  intrepidity  in  denying,  without 
the  smallest  qualilicalion,  the  alleged  prerogative  of  the  Crown  and  the 
lawfulness  of  the  writ  for  ship-money."^ 

1  "  The  soil  of  the  sea,"  said  Finch  in  his  opinion,  "  belongs  to  the  king,  who  is  lord 
and  sole  proprietor  thereof.  .  .  .  The  king  holds  this  diadem  of  God  only ;  all  others 
hold  tlieir  lauds  of  iiini,  and  he  of  none  but  God."  —  Eu. 

2  All  these  proL-oediugs  about  slup-inouey,  judicial  and  other,  were  declared  illegal 
by  Act  of  Parliament  (Stat.  16  Car.  I.  c.  14),  in  May,  1641.    The  Act  rau  as  follows : 

"  Whereas  divers  writs  of  late  time  issued  under  the  great  seal  of  England,  commonly 
called  ship-writs,  for  the  cliarging  of  the  ports,  towns,  cities,  boroughs,  and  counties  of 
tliis  realm  respectively,  to  provide  and  furnish  certain  ships  for  his  Majesty's  service  : 
(2)  And  whereas  upon  tlie  execution  of  the  same  writs  and  returns  of  certioraries 
thereupon  made,  and  the  sending  the  same  by  iniltimus  into  the  Court  of  Exchequer, 
process  hatli  been  thence  made  against  sundry  persons  pretended  to  be  charged  by  way 
of  contribution,  for  the  making  up  of  certain  sums  assessed  for  the  providing  of  the 
said  ships,  and  in  especial  in  Easter  Term  in  the  thirteenth  year  of  the  reign  of  our 
sovereign  lord  the  king  that  now  is,  a  writ  of  scire  facias  was  awarded  out  of  the  Court 
of  Exchequer,  to  the  then  sheriff  of  Buckinghamshire,  against  John  Hampden,  Esquire, 
to  appear  and  show  cause,  why  he  should  not  be  charged  with  a  certain  sum  so  assessed 
upon  him  ;  (3)  upon  whose  appearance  and  demurrer  to  the  proceedings  therein,  the 
barons  of  the  Exchequer  adjourned  the  same  case  into  the  Exchequer  Chamber,  where 
it  was  solemnly  argued  divers  days,  and  at  length  it  was  there  agreed  by  the  greater 
part  of  all  tlie  justices  of  tlie  Courts  of  King's  Bench  and  Common  Pleas,  and  of  the 
barons  of  the  Exchequer,  there  assembled,  That  the  said  John  Hampden  should  be 
charged  with  the  said  sum  so  as  aforesaid  assessed  on  him ;  (4)  the  main  grounds  and 
reasons  of  the  said  justices  and  barons  which  so  agree,  being,  that  when  the  good  and 
safety  of  the  kingdom  in  general  is  concerned,  and  the  whole  kingdom  in  danger,  the 
king  might  by  writ  under  the  great  seal  of  England,  command  all  the  subjects  of  this 
his  kingdom,  at  their  charge,  to  provide  and  furnish  such  number  of  ships  with  men, 
victuals,  and  munition,  and  for  such  time  as  the  king  should  think  fit,  for  the  defence 
and  safeguard  of  tlie  kingdom  from  such  danger  and  peril,  and  that  by  law  the 
king  might  compel  tiie  doing  thereof,  in  case  of  refusal  or  refractoriness;  (5)  and 
that  the  king  is  tiie  sole  jndge,  both  of  the  danger  and  when  and  how  the  same  is  to 
be  prevented  and  avoided  ;  (6)  according  to  which  grounds  an^  reasons,  all  the  justices 
of  the  said  Courts  of  King's  Bench  and  Common  Pleas,  and  the  said  barons  of  the 
Exchequer,  having  been  formerly  consulted  with  by  his  Majesty's  command,  had  set 
their  hands  to  an  extrajudicial  opinion,  expressed  to  the  same  purpose  ;  which  opinion, 
with  their  names  thereunto,  was  also  by  his  Majesty's  command  enrolled  in  the  Courts 
of  Chancery,  King's  Bench,  Common  Pleas  and  Exchequer,  and  likewise  entered 


20  THE   INSTRUMENT   OF   GOVERNMENT.  [CHAP.  L 

The  Government  of  the  Commonwealth  of  England,  Scotland,  and 
Ireland,  and  the  Dominions  thereto  belonging,  as  it  was  publicly 
declared  at  Westminster,  the  16th  day  of  December,  1653,  ...  at 
which  time  and  place  his  Highness,  Oliver  Lord  Protector  of  the  said 
Commonwealth,  took  a  solemn  oath  for  observing  the  same.  Pub- 
lished by  his  Highness  the  Lord  Protector's  Special  Commandment. 
Printed  in  the  year  1653.^ 

I.  That  the  supreme  legislative  authorit}'  of  the  Commonwealth  of 
England,  Scotland,  and  Ireland,  and  the  dominions  thereto  belonging, 
shall  be  and  reside  in  one  person,  and  the  people  assembled  in  Parlia- 
ment ;  the  style  of  which  person  shall  be  Lord  Protector  of  the  Com- 
monwealth of  England,  Scotland,  and  Ireland. 

among  the  remembrances  of  the  Court  of  Star  Chamber,  and  according  to  the  said 
agreement  of  the  said  justices  and  barons,  judgment  was  given  by  the  barons  of  Ex- 
chequer, That  the  said  John  Hampden  should  be  charged  with  the  said  sum  so  assessed 
on  hira;  (7)  and  whereas  some  other  actions  and  process  depend,  and  have  depended, 
in  the  said  Court  of  Exchequer,  and  in  some  other  courts  against  other  persons,  for  the 
like  kind  of  charge,  grounded  upon  the  said  writs,  commonly  called  s/iip-icrits,  all 
which  writs  and  proceedings  as  aforesaid,  were  utterly  against  the  law  of  the  land; 

"  II.  Be  it  therefore  declared  and  enacted  by  the  king's  most  excellent  Majesty,  and 
the  lords  and  commons,  in  this  present  Parliament  assembled,  and  by  the  authority  of 
the  same,  That  the  said  charge  imposed  upon  the  subject,  for  the  providing  and  furnish- 
ing of  ships,  commonly  called  ship-money,  and  the  said  extrajudicial  opinion  of  the  said 
justices  and  barons,  and  the  said  writs,  and  every  of  them,  and  the  said  agreement  or 
opinion  of  the  greater  part  of  the  said  justices  and  barons,  and  the  said  judgment  given 
against  the  said  Jolin  Hampden,  were  and  are  contrary  to  and  against  the  laws  and 
statutes  of  this  realm,  the  right  of  property,  the  liberty  of  the  subjects,  former  reso- 
lutions in  Parliament,  and  the  petition  of  right  made  in  the  third  year  of  tlie  reign  of 
his  Majesty  that  now  is. 

"  III.  And  it  is  further  declared  and  enacted  by  the  authority  aforesaid.  That  all  and 
ever}-  the  particulars  prayed  or  desired  in  the  said  petition  of  right,  shall  from  hence- 
forth be  put  in  execution  accordingly,  and  shall  be  firmly  and  strictly  holden  and 
observed,  as  in  the  same  petition  they  are  prayed  and  expressed  ;  (2)  and  that  all  and 
every  the  records  and  remembrances  of  all  and  every  the  judgment,  enrolments,  entry, 
and  proceedings  as  aforesaid,  and  all  and  every  the  proceedings  whatsoever,  upon  or 
by  pretext  or  color  of  any  of  the  said  writs,  commonly  called  ship-irriis,  and  all  and 
every  the  dependants  on  any  of  them,  shall  be  deemed  and  adjudged  to  all  intents, 
constructions,  and  purposes,  to  be  utterly  void  and  disannulled;  and  that  all  and  every 
the  said  judgment,  enrolments,  entries,  proceedings,  and  dependants  of  what  kind 
soever,  shall  be  vacated  and  cancelled  in  such  manner  and  form  as  records  use  to 
be  that  are  vacated." 

On  Jan.  30,  1648-49,  came  the  execution  of  the  king,  and  on  the  17th  of  the 
next  March  tlie  abolition  of  the  office  of  king  (2  Scobell,  7) ;  on  the  19th  of  the  same 
March,  the  abolition  of  the  House  of  Lords  by  "  the  Commons  of  England,  assembled 
in  Parliament "  (2  Scobell,  8) ;  and  on  the  19th  of  the  next  May  (2  Scoliell,  35)  it  was 
"  iloclared  and  enacted  by  tliis  present  Parliament  .  .  .  that  the  people  of  England  .  .  . 
are  and  sliall  be  ...  a  Commonwealtli  and  Free  State,  and  shall  from  henceforth  be  gov- 
erned as  |such]  .  .  .  by  the  Supreme  Authority  of  this  Nation,  tlie  Representatives  of 
the  people  in  Parliament,  and  by  such  as  they  shall  appoint  and  constitute  as  officers 
and  ministers  umler  them."  ...  —  Ed. 

^  'I'liis  docnment,  known  as  "The  Instrument  of  Government,"  "was  drawn  up  by 
Cromwell's  leading  supporters  and  accejjted  by  himself." — Gardiner's  Student's  Hist. 
Enq.  ,568.  See  6  Somers's  Tracts  (2d  ed.),  284,  Gardiner's  Const.  Doc.  Purit.  Rev. 
lvi.3U.  —  El). 


SECT.  I.]  THE   INSTRUMENT   OF   GOVIIRNMENT.  21 

II.  That  the  exercise  of  the  chief  magistracy  and  administration  of 
the  government  over  the  said  countries  and  dominions,  and  the  people 
thereof,  shall  be  in  the  Lord  Protector,  assisted  with  a  council ;  tlie 
number  whereof  shall  not  exceed  twenty-one,  nor  be  less  than  thirteen. 

III.  That  all  writs,  processes,  commissions,  patents,  grants,  and 
other  things,  which  now  run  in  the  name  and  style  of  the  keepers 
of  the  liberty  of  England  by  authority  of  Parliament,  shall  run  in  the 
name  and  style  of  the  Lord  Protector,  from  whom,  for  the  future,  shall 
be  derived  all  magistracj'  and  honors  in  these  three  nations  ;  and  shall 
have  the  power  of  pardons  (except  in  case  of  murder  and  treason),  and 
benefit  of  all  forfeitures  for  the  public  use  :  And  shall  govern  the  said 
countries  and  dominions  in  all  things  by  the  advice  of  the  council,  and 
according  to  these  presents  and  the  laws. 

IV.  That  the  Lord  Protector,  the  Parliament  sitting,  shall  dispose 
and  order  the  militia  and  forces  both  by  sea  and  land,  for  the  peace 
and  good  of  the  three  nations,  by  consent  of  Parliament ;  and  that  the 
Lord  Protector,  with  the  advice  and  consent  of  the  major  part  of  the 
council,  shall  dispose  and  order  the  militia  for  the  ends  aforesaid,  in 
the  intervals  of  Parliament. 

V.  That  the  Lord  Protector,  by  the  advice  aforesaid,  shall  direct,  in 
all  things,  concerning  the  keeping  and  holding  of  a  good  correspondence 
with  foreign  kings,  princes,  and  States  ;  and  also,  with  the  consent  of 
the  major  part  of  the  council,  have  the  power  of  war  and  peace. 

VL  That  the  laws  shall  not  be  altered,  suspended,  abrogated,  or  re- 
pealed, nor  any  new  law  made,  nor  any  tax,  charge,  or  imposition  laid 
upon  the  people,  but  by  common  consent  in  Parliament,  save  onl}'  as  is 
expressed  in  the  30th  article. 

VII.  That  there  shall  be  a  Parliament  summoned  to  meet  at  West- 
minster upon  the  third  day  of  September,  one  thousand  six  hundred 
fifty-four ;  and  that  successively  a  Parliament  shall  be  summoned 
once  in  every  third  year,  to  be  accounted  from  the  dissolution  of  the 
preceding  Parliament. 

VIII.  That  neither  the  Parliament  to  be  next  summoned,  nor  any 
successive  Parliaments,  shall,  during  the  time  of  five  months,  to  be 
accounted  from  the  da}'  of  their  first  meeting,  be  adjourned,  prorogued, 
or  dissolved,  without  their  own  consent.   .  .   . 

XVII.  That  the  persons  who  shall  be  elected  to  serve  in  Parliament, 
shall  be  such  (and  no  other  than  such)  as  are  persons  of  known  integrit}', 
fearing  God,  and  of  good  conversation,  and  being  of  the  age  of  one  and 
twenty  years. 

XVIII.  That  all  and  every  person  and  persons,  seized  or  possessed 
to  his  use,  of  any  estate,  real  or  personal,  to  tlie  value  of  two  hundred 
pounds,  and  not  within  the  aforesaid  exceptions,  shall  be  capable  to 
elect  members  to  serve  in  Parliament  for  counties.  .  .  . 

XXII.  That  the  persons  chosen  and  assembled  in  manner  aforesaid, 
or  any  sixty  of  them,  shall  be,  and  be  deemed  the  Parliament  of  Eng- 
land, Scotland,  and  Ireland,  and  the  supreme  legislative  power  to  be 


22  THE   INSTRUMENT   OF   GOVERNMENT.  [CHAP.  L 

and  reside  in  the  Lord  Protector  and  such  Parliament,  in  manner  herein 
expressed. 

XXIII.  That  the  Lord  Protector,  with  the  advice  of  the  major  part 
of  the  council,  shall  at  any  other  time  than  is  before  expressed,  when 
the  necessities  of  the  State  shall  require  it,  summon  Parliaments  in 
manner  before  expressed,  which  shall  not  be  adjourned,  prorogued, 
or  dissolved,  without  their  own  consent,  during  the  first  three  months 
of  their  sitting :  And  in  case  of  future  war  with  an}-  foreign  State,  a 
Parliament  shall  be  forthwith  summoned  for  their  advice  concerning 
the  same. 

XXIV.  That  all  bills  agreed  unto  by  the  Parliament  shall  be  pre- 
sented to  the  Lord  Protector  for  his  consent ;  and  in  case  he  shall  not 
give  his  consent  thereto  within  twenty  days  after  they  shall  be  presented 
to  him,  or  give  satisfaction  to  the  Parliament,  within  the  time  limited, 
that  then,  upon  declaration  of  the  Parliament,  that  the  Lord  Protector 
hath  not  consented,  nor  given  satisfaction,  such  bills  shall  pass  into, 
and  become  laws,  although  he  shall  not  give  his  consent  thereunto ; 
provided  such  bills  contain  nothing  in  them  contrary  to  the  matters 
contained  in  these  presents.   .  .  . 

XXX.  That  the  raising  of  money  for  defraying  the  charge  of  present 
extraordinary  forces,  both  at  land  and  sea,  in  respect  of  the  present 
wars,  shall  be  by  consent  in  Parliament,  and  not  otherwise,  save  only 
that  the  Lord  Protector,  with  the  consent  of  the  major  part  of  the  coun- 
cil, for  preventing  the  disorders  and  dangers  wliich  may  otherwise  fall 
out  both  at  sea  and  land,  shall  have  power,  until  the  meeting  of  the  first 
Parliament,  to  raise  money  for  the  purposes  aforesaid,  and  also  to  make 
laws  and  ordinances  for  the  peace  and  welfare  of  these  nations,  where  it 
shall  be  necessary,  which  shall  be  binding  and  in  force,  until  order  shall 
be  taken  in  Parliament  concerning  the  same.  .  .  . 

XXXII.  That  the  ofldce  of  the  Lord  Protector,  over  these  nations, 
shall  be  elective,  and  not  hereditary ;  and  upon  the  death  of  the  Lord 
Protector,  another  fit  person  shall  be  forthwith  elected  to  succeed  him 
in  the  government,  which  election  shall  be  by  the  council ;  who,  imme- 
diately upon  the  death  of  the  Lord  Protector,  shall  assemble  in  the 
chamber  where  they  usually  sit  in  council ;  and  having  given  notice  to 
all  their  number  of  the  cause  of  their  assembling,  shall,  being  thirteen 
at  least  present,  proceed  to  the  election,  and  before  they  depart  out  of 
the  said  chamber,  shall  elect  a  fit  person  to  succeed  in  the  government, 
and  forthwith  cause  proclamation  thereof  to  be  made  in  all  the  three 
nations  as  shall  be  requisite :  And  the  person  that  they  or  the  major 
part  of  them  shall  elect,  as  aforesaid,  shall  be,  and  shall  be  taken  to  be 
Lord  Protector  over  these  nations  of  England,  Scotland,  and  Ireland, 
and  the  dominions  thereto  belonging ;  provided  that  none  of  the  chil- 
dren of  the  king,  nor  any  of  his  line,  or  family,  be  elected  to  be  Lord 
Protector,  or  other  chief  magistrate  over  these  nations,  or  an}'  of  the 
dominions  thereto  belonging :  And  until  the  aforesaid  election  be  past, 
the  council  shall  take  care  of  the  government,  and  administer  in  all 


SECT.  I.]  vane's   healing   QUESTION.  23 

things  as  full}'  as  the  Lord  Protector,  or  the  Lord  Protector  and  council 
are  enabled  to  do. 

XXXIII.  That  Oliver  Cromwell,  Captain-General  of  the  forces  of 
England,  Scotland,  and  Ireland,  shall  be,  and  is  hereby  declared  to 
be  Lord  Protector  of  the  Commonwealth  of  England,  Scotland,  and 
Ireland,  and  the  dominions  thereto  belonging  for  his  life. 

XXXIV.  That  the  Chancellor,  Keeper,  or  Commissioners  of  the  Great 
Seal,  the  Treasurer,  Admiral,  Chief  Governors  of  Ireland  and  Scotland, 
and  the  Chief  Justices  of  both  the  benches,  shall  be  chosen  b\'  the  appro- 
bation of  Parliament,  and  in  the  intervals  of  Parliament,  by  the  approba- 
tion of  tlie  major  part  of  the  council,  to  be  afterward  approved  by  the 
Parliament.  .  .  . 

XXXVII.  That  such  as  profess  faith  in  God  b}-  Jesus  Christ  (though 
differing  in  judgment  from  the  doctrine,  worship,  or  discipline,  publicly 
held  forth)  shall  not  be  restrained  from,  but  shall  be  protected  in  the 
profession  of  the  faith,  and  exercise  of  their  religion,  so  as  the}'  abuse 
not  this  liberty,  to  the  civil  injury  of  others,  and  to  the  actual  disturb- 
ance of  the  public  peace  on  their  parts  ;  provided  this  liberty  be  not 
extended  to  Poper}-  or  prelacy,  nor  to  such  as,  under  the  profession  of 
Christ,  hold  forth  and  practise  licentiousness. 

XXXVIII.  That  all  laws,  statutes,  ordinances,  and  clauses  in  any 
law,  statute,  and  ordinance  to  the  contrar}-  of  the  aforesaid  libert}', 
shall  be  esteemed  as  null  and  void.  .  .  . 

XLI.  That  every  successive  Lord  Protector  over  these  nations  shall 
take  and  subscribe  a  solemn  oath,  in  the  presence  of  the  council,  and 
such  others  as  the}'  shall  call  to  them.  That  he  will  seek  the  peace, 
quiet,  and  welfare  of  these  nations,  cause  law  and  justice  to  be  equally 
administered,  and  that  he  will  not  violate  or  infringe  the  matters  and 
things  contained  in  this  writing ;  and  in  all  other  things  will,  to  his 
power,  and  to  the  best  of  his  understanding,  govern  these  nations, 
according  to  the  laws,  statutes,  and  customs. 

XLII.  That  each  person  of  the  council  shall,  before  they  enter  upon 
their  trust,  take  and  subscribe  an  oath.  That  they  will  be  true  and  faith- 
ful in  their  trust,  according  to  the  best  of  their  knowledge  ;  and  that. 
in  the  election  of  every  successive  Lord  Protector,  they  shall  proceed 
therein  impartiall}',  and  do  nothing  therein  for  any  promise,  fear,  favor, 
or  reward.^ 

Where  there  is,  then,  a  righteous  and  good  constitution  of  govern- 
ment, there  is  first  an  orderly  union  of  many  understandings  together, 
as  the  public  and  common  supreme  judicature  or  visible  sovereignty,  set 

1  See  the  Constitutional  Bill  of  the  First  Parliament  of  the  Protectorate  (1654), 
Gardiner's  Doc.  Purit.  Kev.  Ix.  353.  The  adoption  of  this  was  prevented  by  a  disso- 
lution. The  Second  Parliament,  in  1657,  presented  amendments  to  the  existing  in- 
strument under  the  name  of  "  The  Humble  Petition  and  Advice  "  (2  Scobell,  378), 
including  the  establishment  of  a  second  chamber.  Most  of  these  were  accepted  by 
the  Protector.  Meantime  interesting  speculations  were  put  forward  by  Yane  and 
Harrington.  —  Ed. 


24  vane's  healing  question.  [chap.  i. 

in  a  way  of  free  and  orderly  exercise  for  the  directing  and  applying  the 
use  of  the  rulhig  power  or  the  sword  to  promote  the  interest  and  common 
welfare  of  the  whole.  ... 

A  supreme  judicature  thus  made  the  representative  of  the  whole  is 
that  which  we  say  will  most  naturally  care  and  most  equally  provide  for 
the  common  good  and  safety.  .  .  .  And  if  this  which  is  so  essential 
to  the  well-being  and  right  constitution  of  government  were  once  ob- 
tained, .  .  .  what  could  be  propounded  afterwards,  as  to  the  form  of 
administration,  that  would  much  stick?  Would  a  standing  council  of 
State  settled  for  life  in  reference  to  the  safety  of  the  commonwealth, 
and  for  the  maintaining  intercourse  and  commerce  with  foreign  States, 
under  the  inspection  and  oversight  of  the  supreme  judicature,  but  of 
the  same  fundamental  constitution  with  themselves,  —  would  this  be  dis- 
liked? Admitting  their  orders  were  binding  in  the  intervals  of  supreme 
national  assemblies,  so  far  only  as  consonant  to  the  settled  laws  of  the 
commonwealth ;  the  vacancy  of  any  of  which,  by  death  or  otherwise, 
might  be  supplied  by  the  vote  of  the  major  part  of  themselves.  Nay, 
would  there  be  any  just  exception  to  be  taken,  if,  besides  both  these,  it 
should  be  agreed,  as  another  part  of  the  fundamental  constitution  of  the 
government,  to  place  that  branch  of  sovereignty  which  chiefly  respects 
the  execution  of  laws  in  a  distinct  office  from  that  of  the  legislative 
power,  and  yet  subordinate  to  them  and  to  the  laws,  capable  to  be 
intrusted  into  the  hands  of  one  single  person,  if  need  require,  or  in 
a  greater  number,  as  the  legislative  power  should  think  fit ;  and  for  the 
greater  strength  and  honor  unto  this  office,  that  the  execution  of  all 
laws  and  orders,  that  are  binding  may  go  forth  in  his  or  their  name ; 
and  all  disobedience  thereunto,  or  contempt  thereof,  be  taken  as  done 
to  the  people's  sovereignty,  whereof  he  or  they  bear  the  image  or  rep- 
resentation, subordinate  to  the  legislative  power,  and  at  their  will  to  be 
kept  up  and  continued  in  the  hands  of  a  single  person  or  more,  as  the 
experience  of  the  future  good  or  evil  of  it  shall  require.  ... 

And  unto  this  the  wisdom  and  honesty  of  the  persons  now  in  power 
maj'  have  an  opportunity  eminentl}'  to  come  into  disco verj- ;  for  in  this 
case,  and  upon  the  grounds  already  laid,  the  very  persons  now  in  power 
are  the}'  unto  whose  lot  it  would  fall  to  set  about  this  preparatory  work, 
and  by  their  orders  and  directions  to  dispose  the  whole  body  and  bring 
them  into  the  meetest  capacity  to  effect  the  same.  The  most  natural 
way  for  which  would  seem  to  be  by  a  general  council,  or  convention  of 
faithful,  honest,  and  discerning  men,  chosen  for  that  purpose,  liy  the 
free  consent  of  the  whole  body  of  adherents  to  this  cause,  in  the  several 
parts  of  the  nations,  and  observing  the  time  and  place  of  meeting  ap- 
pointed to  them,  with  other  circumstances  concerning  their  election,  by 
order  from  the  present  ruling  power,  but  considered  as  general  of  the 
army.  Which  convention  is  not  properly  to  exercise  the  legislative 
power,  but  only  to  debate  freely,  and  agree  upon  the  particulars,  that, 
by  way  of  fundamental  constitutions,  shall  be  laid  and  inviolabh'  ob- 
served, as  the  conditions  upon  which  the  whole  body  so  represented 


SECT.  I.]  HARRINGTON.  25 

doth  consent  to  cast  itself  into  a  civil  and  politic  incorporation,  and 
under  tlie  visible  form  and  administration  of  government  therein  de- 
clared, and  to  be  by  each  individual  member  of  the  body  subscribed  in 
testimon}-  of  his  or  their  particular  consent  given  thereunto.  Which 
conditions  so  agreed,  and  amongst  them  an  act  of  oblivion  for  one 
will  be  without  danger  of  being  broken  or  departed  from,  consider- 
ing of  what  it  is  they  are  the  conditions,  and  the  nature  of  the  con- 
vention wherein  they  are  made,  —  which  is  of  the  people  represented 
in  their  highest  state  of  sovereignty,  as  they  have  the  sword  in  their 
hands  unsubjected  unto  the  rules  of  civil  government,  but  what  them- 
selves, orderly  assembled  for  that  purpose,  do  think  fit  to  make.  And, 
the  sword,  upon  these  conditions,  subjecting  itself  to  the  supreme  judi- 
cature thus  to  be  set  up,  how  suddenly  might  harmony,  righteousness, 
love,  peace,  and  safety  unto  the  whole  bod}'  follow  hereupon,  as  the 
happy  fruit  of  such  a  settlement,  if  the  Lord  have  any  delight  to  be 
amongst  us,  —  Sir  Henry  Vane,  A  Sealing  Question  Propounded 
and  Resolved^  published  in  1656,  6  Somers's  Tracts  (2d  ed.),  304.^ 

The  power  or  function  of  the  prerogative  ^  is  of  two  parts,  the  one  of 
result  [i.  e.,  of  deciding,  or  coming  to  a  result,  upon  the  propositions 
of  the  Senate],  in  which  it  is  the  legislative  power ;  the  other,  that  of 
judicature,  in  which  regard  it  is  the  highest  court,  and  the  last  appeal 
in  this  commonwealth.  .  .  .  But  the  prerogative  tribe  has  not  only 
the  result,  but  is  the  supreme  judicature,  and  the  ultimate  appeal  in 
this  commonwealth.  For  the  popular  government  that  makes  account 
to  be  of  any  standing,  must  make  sure  in  the  first  place  of  the  appeal 
to  the  people.  '  As  an  estate  in  trust  becomes  a  man's  own  if  he  be  not 
answerable  for  it,  so  the  power  of  a  magistracj^  not  accountable  to  the 
people  from  whom  it  was  received,  becoming  of  private  use,  the  com- 
monwealth loses  her  liberty.  Wherefore  the  right  of  supreme  judica- 
ture in  the  people  (without  which  there  can  be  no  such  thing  as 
popular  government)  is  confirmed  by  the  constant  practice  of  all  com- 
monwealths.—  Harrington,  Oceana  (published  in  1656);  Works  (3d 
ed.)  155,  158.8 

Where  the  people  are  not  overbalanced  by  one  man,  or  by  the  few, 
the}'  are  not  capable  of  any  other  superstructures  of  government,  or  of 
any  other  just  and  quiet  settlement  whatsoever,  than  of  such  only  as 
consists  of  a  senate  as  their  councillors,  of  themselves  or  their  represen- 
tatives as  sovereign  lords,  and  of  a  maglstrac}-  answerable  to  the  people, 
as  distributors  and  executioners  of  the  laws  made  by  the  people.  And 
thus  much  is  of  absolute  necessity  to  an}'  or  every  government,  that  is 
or  can  be  properly  called  a  commonwealth,  whether  it  be  well  or  ill 
ordered. 

^  See  Professor  Hosmer's  Life  of  Vane.  —  Ed. 

2  By  this  term  Harrington  means  the  Assembly  of  the  Representatives  of  the 
People.  —  Ed. 

*  See  an  account  of  Harrington  in  2  Pol.  So.  Quart.  I  (I8S5)  by  Professor  Dwiglit 


26  HARRINGTON.  [CHAP.  L 

But  the  necessary  definition  of  a  commonwealth,  anything  -well  or- 
dered, is,  that  it  is  a  government  consisting  of  the  Senate  proposing, 
the  people  resolving,  and  the  magistracy  executing. 

Magistracy  is  a  style  proper  to  the  executive  part :  yet  because  in  a 
discourse  of  this  kind  it  is  liardly  avoidable,  but  that  sucli  as  are  of  the 
proposing  or  resolving  assemblies,  will  be  sometimes  comprised  under 
this  name  or  style,  it  shall  be  enough  for  excuse  to  say,  that  magistracy 
may  be  esteemed  of  two  kinds  ;  the  one  pi-oper  or  executive,  the  other 
improper  or  legislative.  —  Ih.  The  Art  of  Lawgiving,  393  (1659). 

The  Humble  Petition  of  Divers  Well-affected  Persons,  deUvered  the 
6"'  da}'  of  July,  1659.     With  the  Parliament's  Answer  thereto. 

To  the  Supreme  Authority",  the  Parliament  of  the  Commonwealth  of 
England.     The  humble  petition  of  divers  well-affected  persons  shows  : 

That  your  petitioners  have  for  many  3'ears  observed  the  breathings 
and  longings  of  this  nation  after  rest  and  settlement,  and  that  upon 
mistaken  grounds  the}'  have  been  ready  even  to  sacrifice  and  yield  up 
part  of  their  own  undoubted  right,  to  follow  after  an  appearance  of  it. 
.  .  .  Upon  serious  thoughts  of  the  premises,  3'our  petitioners  do  presume 
with  all  humilit}',  and  submission  to  your  wisdom,  to  oflfcr  to  your  Hon- 
ors their  principles  and  proposals  concerning  the  government  of  tins 
nation  :  whereupon,  they  humbly  conceive,  a  just  and  prudent  govern- 
ment ought  to  be  established,  viz. :  — 

1.  That  the  constitution  of  the  civil  government  of  England  hj  king, 
lords,  and  commons,  being  dissolved,  whatever  new  constitution  of 
government  can  be  made  or  settled  according  to  any  rule  of  righteous- 
ness, it  can  be  no  other  than  a  wise  order  or  method,  into  which  the  free 
people's  deputies  shall  be  formed  for  the  making  of  their  laws,  and  tak- 
ing care  for  their  common  safet}'  and  welfare  in  the  execution  of  them  : 
for,  the  exercise  of  all  just  authorit}'  over  a  free  people,  ought  (under 
God)  to  arise  from  their  own  consent. 

2.  That  the  government  of  a  free  people  ought  to  be  so  settled,  that 
the  governors  and  governed  ma}-  have  the  same  interest  in  preserving 
the  government,  and  each  other's  properties  and  liberties  respectively ; 
that  being  the  only  sure  foundation  of  a  commonwealth's  unity,  peace, 
strength,  and  prosperity. 

3.  That  there  cannot  be  a  union  of  the  interests  of  a  whole  nation  in 
the  government,  where  those  who  shall  sometimes  govern,  be  not  also 
sometimes  in  the  condition  of  the  governed  ;  otherwise  the  governors 
will  not  be  in  a  capacity  to  feel  the  weight  of  the  government,  nor  tlie 
governed  to  enjoy  the  advantages  of  it:  and  then  it  will  be  the  interest 
of  the  major  part  to  destroy  the  government,  as  much  as  it  will  be  the 
interest  of  the  minor  part  to  preserve  it. 

4.  That  there  is  no  security  that  the  supreme  authority  shall  not  fall 
into  factions,  and  be  led  by  their  private  interest  to  keep  themselves 
always  in  power,  and  direct  the  government  to  their  private  advantages, 
if  that  supreme  authority  be  settled  in  any  single  assembly  whatsoever, 
that  shall  have  the  entire  power  of  propounding,  debating,  and  resolving 
laws. 


SECT.  I.]  HARRINGTON.  27 

5.  That  the  sovereign  autliorit}'  in  every  government,  of  what  kind 
•  soever,  ought  to  be  certain  in  its  perpetual  successions,  revolutions,  or 

descents  ;  and  without  possibilit}'  (by  the  judgment  of  human  prudence) 
of  a  death  or  failure  of  its  being,  because  the  whole  form  of  the  govern- 
ment is  dissolved  if  that  should  happen,  and  the  people  in  the  utmost 
imminent  danger  of  an  absolute  tyranny  or  a  war  among  themselves, 
or  rapine  and  confusion  —  And  therefore  where  the  government  is  pop- 
ular, the  assemblies  in  whom  reside  the  supreme  authority,  ought  never 
to  die  or  dissolve,  though  the  persons  be  annually  changing :  neither 
ought  they  to  trust  the  sovereign  care  of  the  strength  and  safet}'  of  the 
people  out  of  their  own  hands,  b}'  allowing  a  vacation  to  themselves, 
lest  those  that  should  be  trusted  be  in  love  with  such  great  autliorit}-, 
and  aspire  to  be  their  masters,  or  else  fear  an  account,  and  seek  the 
dissolution  of  the  commonwealth  to  avoid  it. 

6.  That  it  ought  to  be  declared  as  a  fundamental  order  in  the  consti- 
tution of  this  commonweaUh,  that  the  Parliament  being  the  supreme 
legislative  power,  is  intended  onl}-  for  the  exercise  of  all  those  acts  of 
authority  that  are  proper  and  peculiar  to  the  legislative  power ;  and  to 
provide  for  a  magistracy,  to  whom  should  appertain  the  whole  executive 
power  of  the  laws :  and  no  case  either  civil  or  criminal  to  be  judged  in 
Parliament,  saving  that  the  last  appeals  in  all  cases,  where  appeals  shall 
be  thought  fit  to  be  admitted,  be  only  to  the  popular  assembly  ;  and 
also  that  to  them  be  referred  the  judgment  of  all  magistrates  in  cases  oi' 
maladministrations  in  their  offices. 

And  in  prosecution  of  these  principles,  your  petitioners  humbl}'  pro- 
pose for  the  settlement  of  this  commonwealth,  that  it  be  ordained, 

1.  That  the  Parliament,  or  the  supreme  authority  of  England,  be 
chosen  by  the  free  people,  to  represent  them  with  as  much  equality  as 
ma}'  be. 

2.  That  a  Parliament  of  England  shall  consist  of  two  assemblies,  the 
lesser  of  about  three  hundred,  in  whom  shall  reside  the  entire  power  of 
consulting,  debating,  and  propounding  laws  :  the  other,  to  consist  of  a 
far  greater  number,  in  whom  shall  rest  the  sole  power  of  resolving  all 
laws  so  propounded. 

3.  That  the  free  people  of  England,  in  their  respective  divisions  at 
certain  days  and  places  appointed,  shall  forever  annuall}^  choose  one 
third  part  to  each  assembly,  to  enter  into  their  authority,  at  certain 
days  appointed :  the  same  days,  the  authorit}'  of  a  third  of  each  of  the 
said  assemblies  to  cease,  only  in  the  laying  the  first  foundation  in  this 
commonwealth's  constitution  :  the  whole  number  of  both  the  assemblies 
to  be  chosen  by  the  people  respectively,  viz.,  one  third  of  each  assembl}' 
to  be  chosen  for  one  year,  one  third  for  two  j-ears,  and  one  third  for 
three  years. 

4.  That  such  as  shall  be  chosen,  having  served  their  appointed  time 
in  either  of  the  said  assemblies  of  Parliament,  shall  not  be  capable 
to  serve  in  the  same  assembly  during  some  convenient  interval  or 
vacation. 


28  HARRINGTON.  [CHAP.  I. 

5.  That  the  legislative  power  do  wholly  refer  the  execution  of  the 
laws  to  the  magistracy,  according  to  the  sixth  principle  herein  mentioned.* 

6.  That  in  respect  to  religion  and  Christian  liberty,  it  be  ordained 
that  the  Christian  religion  by  the  appointment  of  all  succeeding  Parlia- 
ments, be  taught,  and  promulgated  to  the  nation,  and  public  preachers 
thereof  maintained :  and  that  all  that  shall  profess  the  said  religion, 
though  of  different  persuasions  in  parts  of  the  doctrine,  or  discipline 
thereof,  be  equall}'  protected  in  the  peaceable  profession,  and  public 
exercise  of  the  same  ;  and  be  equally  capable  of  all  elections,  magis- 
tracies, preferments  in  the  commonwealth,  according  to  the  order  of  the 
same.  Provided  alwa3S,  that  the  public  exercise  of  no  religion  contrary 
to  Christianity  be  tolerated  ;  nor  the  public  exercise  of  any  religion, 
though  professedly  Christian,  grounded  upon,  or  incorporated  into  the 
interest  of  any  foreign  State  or  prince.  .  .  . 

Wednesda}-,  July  the  6'*",  1659.  The  House  being  informed,  that 
divers  gentlemen  were  at  the  door  with  a  petition,  thej-  were  called  in, 
and  one  of  the  petitioners  in  behalf  of  himself  and  the  rest  said,  We 
humbly  present  you  a  petition,  to  which  we  might  have  had  many  thou- 
sand hands,  but  the  matter  rather  deserves  your  serious  consideration 
than  any  public  attestation ;  and  therefore  we  do  humbly  present  it  to 
this  honorable  House.  Which,  after  the  petitioners  were  withdrawn, 
was  read,  and  was  entitled,  The  humble  petition  of  divers  well-affected 
persons. 

Resolved,  that  the  petitioners  have  the  thanks  of  the  House. 

The  petitioners  were  again  called  in,  and  Mr.  Speaker  gave  them  this 
answer :  — 

Gentlemen,  the  House  has  read  over  your  petition,  and  find  it  with- 
out any  private  end,  and  onl}'  for  the  public  interest ;  and  I  am  com- 
manded to  let  you  know,  that  it  lies  much  upon  them  to  make  such  a 
settlement  as  may  be  most  for  the  good  of  posterity' :  and  the}-  are  about 
that  work,  and  intend  to  go  forward  with  it  with  as  much  expedition  as 
may  be.  And  for  5'our  parts,  they  have  commanded  me  to  give  you 
thanks ;  and  in  their  names  I  do  give  j'ou  the  thanks  of  this  House 
accordingly. 

Tho.  St.  Nicholas,  Clerk  of  the  Parliament, 

Harrington,  Works  (3d  ed.),  514.^ 

1  Charles  II.  returned  to  Westminster,  May  29,  1660.  —  Ed. 


SECT.  I.]  GODDEN   V.   HALES.  29 

GODDEN   V.   HALES. 
King's  Bench.     1686. 

[Coinberhach,  21  ;  s.  C.  2  Shower,  475.]  ^ 

Debt  upon  the  statute  25  Car.  2,  cap.  2,  for  the  penalty  of  £500, 
wherein  the  plaintiff  declares,  that  whereas  it  was  provided  by  the 
statute,  &c.  (setting  forth  the  statute),  notwithstanding  which,  the  de- 
fendant having  a  commission  to  serve  the  king  as  a  colonel  of  foot,  and 
not  having  received  the  sacrament,  nor  taken  the  oaths  and  test,  &c., 
within  the  times  prescribed  b3'  the  Act ;  that  after  the  times  expired, 
wherein  he  ought  to  have  received  the  sacrament,  and  taken  the  oaths 
and  tests,  as  aforesaid,  he  did  execute  the  said  office,  and  continued  to 
act  by  color  of  the  said  commission,  of  which  he  was  indicted  and  con- 
victed at  the  assizes  in  Kent,  whereby  the  action  accrues  to  the  plain- 
tiff, for  the  penalty  of  £500.  The  defendant  pleads,  that  before  the 
times  expired,  &c.,  he  had  a  dispensation  under  the  broad  seal  to  act, 
non  obstante  that  statute  ;  to  which  the  plaintiff  demurs. 

Northy^  pro  quer\  Solicitor-General,  for  the  defendant.   .   .   . 

At  another  day  the  Chief  Justice  [Herbert]  declared,  that  b}*  the 
opinion  of  eleven  of  the  judges,  the  case  of  2  Hen.  7,  of  sheriffs 
holding  above  one  year  by  dispensation,  &c.,  is  good  law. 

And  as  to  the  case  in  question,  we  have  resolved  the  points  following 
(Street  only  dissenting). 

1.  That  the  king  is  a  sovereign  (or  absolute)  prince. 

2.  That  the  laws  of  the  land  are  the  king's  laws. 

3.  That  to  dispense  with  penal  laws  (where  the  subject  hath  no  par- 
ticular damage)  for  necessary  and  urgent  occasions,  is  an  inseparable 
prerogative  of  the  king. 

4.  That  the  king  is  sole  judge  of  such  necessity  [and]  that  no  Act  of 
Parliament  could  take  away  that  power. 

5.  That  this  trust  residing  in  him,  came  not  from  the  people,  but  was 
a  sovereign  right  of  the  king  ab  antiqico. 

6.  That  the  dispensation  in  this  case  is  a  good  bar  to  the  plaintiff's 
action,  because  it  came  within  three  months  before  anj'  disability 
incurred.  Judicium  quod  quer'  nil  capiat  per  Billam? 

1  This  report  is  made  up  from  both  of  these  volumes.  In  Comh.  21,  the  case  is 
styled  Godwin  i'.]Hales.  —  Ed. 

2  Shower's  report  gives  Powell,  with  Street,  as  doubting.  Coxe  (Judic.  Power, 
166)  remarks  :  "The  decision  in  this  case  is  celebrated  in  English  history  as  intimately 
connected  with  tlie  causes  of  the  revolution  of  1688.  The  altolition  of  the  royal  power 
of  dispensing  with  any  statute,  made  in  tlie  first  year  of  William  and  Mary,  was  caused 
by  the  existence  of  this  decision.  The  case  is  discu.ssed  at  length  by  Macaulay,  who 
criticises  both  the  decision  and  the  motives  of  the  court  with  great  severity.  The 
second  paragraph  of  the  Bill  of  Rights  in  the  Statute  of  1  Willi;uu  and  Mary,  sess.  2, 
cap.  2,  formally  declares  to  be  illegal  what  the  decision  declared  to  be  legal." 

By  Stat.  1  Wm.  &  Mary,  c.  6  (1688)  the  coronation  oath  binds  the  sovereign  "to 
govern  the  people  of   this   kingdom  .  .  .  according  to  the  statutes  in  Parliament 


30  LOCKE  ON  GOVERNMENT.  [CHAP.  L 

95.  Men  being,  as  has  been  said,  by  nature  all  free,  equal,  and  inde- 
pendent, no  one  can  be  put  out  of  his  estate  and  subjected  to  tlie 
political  power  of  another  without  his  own  consent,  which  is  done  by 
agreeing  with  otlier  men,  to  join  and  unite  into  a  community  for  their 
comfortable,  safe,  and  peaceable  living,  one  amongst  another,  in  a 
secure  enjoyment  of  their  properties,  and  a  greater  security  against  any 
that  are  not  of  it.  .  .  .  97.  And  thus  every  man,  by  consenting  with 
others  to  make  one  body  politic  under  one  government,  puts  himself 
under  an  obligation  to  every  one  of  that  society  to  submit  to  the  deter- 
mination of  the  majority',  and  to  be  concluded  by  it ;  or  else  this  orig- 
inal compact,  whereby  he  with  others  incorporates  into  one  society, 
would  signify  nothing,  and  be  no  compact  if  he  be  left  free  and  under 
no  other  ties  than  he  was  in  before  in  the  state  of  nature.  —  Locke, 
Tioo  Treatises  on  Government,  book  ii.  c.  viii.  (Licensed  for  printing 
Aug.  23,  1689.)^ 

143.  The  legislative  power  is  that  which  has  a  right  to  direct  how 
the  force  of  the  commonwealth  shall  be  emplo^^ed  for  preserving  the 
communit}'  and  the  members  of  it.  But  because  those  laws  which  are 
to  be  constantly  executed,  and  whose  force  is  always  to  continue,  may 
be  made  in  a  little  time  ;  therefore  there  is  no  need  that  the  legislative 
should  be  always  in  being,  not  having  always  business  to  do.  And 
because  it  may  be  too  great  temptation  to  human  frailty,  apt  to  grasp 
at  power,  for  the  .same  persons  who  have  the  power  of  making  laws 
to  have  also  in  their  hands  the  power  to  execute  them,  whereby  they 
may  exempt  themselves  from  obedience  to  the  laws  tliey  make,  and 
suit  the  law,  both  in  its  making  and  execution,  to  their  own  private 
advantage,  and  thereby  come  to  have  a  distinct  interest  from  the  rest 
of  the  community,  contrary  to  the  end  of  society  and  government. 
Therefore  in  w-ell-ordered  commonwealths,  where  the  good  of  the  whole 
is  so  considered  as  it  ought,  the  legislative  power  is  put  into  the  hands 
of  divers  persons  who,  duly  assembled,  have  by  themselves,  or  jointly 
with  others,  a  power  to  make  laws,  which  when  they  have  done,  being 
separated  again,  they  are  themselves  subject  to  the  laws  thej'  have 
made  ;  which  is  a  new  and  near  tie  upon  them  to  take  care  that  they 
make  them  for  the  public  good. 

144.  But  because  the  laws  that  are  at  once,  and  in  a  short  time  made, 
have  a  constant  and  lasting  force,  and  need  a  perpetual  execution,  or 

agreed  on,  and  the  laws  and  customs  of  the  same."  By  the  Bill  of  Rights,  Stat.  1 
Wm.  &  Mary,  sess.  2,  c.  2  (16S9)  "the  pretended  power  of  suspending  of  laws  or  the 
execution  of  laws,  hy  regal  authority,  without  consent  of  Parliament,"  and  also  that  of 
"dispensing  with  laws  or  the  execution  of  laws,  by  regal  authority,  as  it  hatli  been 
assumed  and  exercised  of  late,"  are  declared  illegal.  By  the  Act  of  Settlement,  Stat. 
11  &  12  Wm.  III.  c.  2,  s.  3  (1700),  it  was  provided  that  "  judges'  commissions  be  made 
Qnnmdiu  se  bene  fjesserint,  and  their  salaries  ascertained  and  established  ;  but  upon  the 
address  of  both  Houses  of  Parliament  it  may  be  lawful  to  remove  them." 

For  an  account  of  the  removal  of  judges  in  the  seventeeuth  century,  see  12  Hott. 
St.  Tr.  2.57,  7wte  —  Ed. 

1  "  With  the  Revolution  came  John  Locke  as  its  interpreter."  H.  Morlet's  Intro- 
duction to  the  Two  Treatises  on  Government.  —  Ed. 


SECT.  I.]  LOCKE   ON   GOVERNMENT.  31 

an  attendance  thereunto,  therefore  it  is  necessary  there  should  be  a 
power  always  in  being  which  should  see  to  the  execution  of  the  laws 
that  are  made,  and  remain  in  force.  And  thus  the  legislative  and 
executive  power  come  often  to  be  separated. 

145.  There  is  another  power  in  every  commonwealth  which  one  may 
call  natural,  because  it  is  that  which  answers  to  the  power  ever}-  man 
naturally  had  before  he  entered  into  society.  For  tliough  in  a  common- 
wealth tlie  members  of  it  are  distinct  persons,  still,  in  reference  to  one 
another,  and,  as  such,  are  governed  by  the  laws  of  the  society,  j'et,  in 
reference  to  the  rest  of  mankind,  they  make  one  body,  which  is,  as 
ever}'  member  of  it  before  was,  still  in  the  state  of  nature  with  the  rest 
of  mankind,  so  tliat  the  controversies  that  happen  between  any  man 
of  the  society  with  those  that  are  out  of  it  are  managed  by  the  public, 
and  an  injury  done  to  a  member  of  their  body  engages  the  whole  in  the 
reparation  of  it.  So  that  under  this  consideration  the  whole  commu- 
nity is  one  body  in  the  state  of  nature  in  respect  of  all  other  States  or 
persons  out  of  its  communit\'. 

146.  This,  therefore,  contains  the  power  of  war  and  peace,  leagues 
and  alliances,  and  all  the  transactions  with  all  persons  and  commu- 
nities without  the  commonwealth,  and  ma}'  be  called  federative  if  any 
one  pleases.  So  the  thing  be  understood,  I  am  indifferent  as  to  the 
name.  .  .  . 

149.  Though  in  a  constituted  commonwealth  standing  upon  its 
own  basis  and  acting  according  to  its  own  nature  —  that  is,  acting 
for  the  preservation  of  the  comraunit}' —  there  can  be  but  one  supreme 
power,  which  is  the  legislative,  to  which  all  the  rest  are  and  must  be 
subordinate,  yet  the  legislative  being  only  a  fiduciar}'  power  to  act  for 
certain  ends,  there  remains  still  in  the  people  a  supreme  power  to 
remove  or  alter  the  legislative,  when  they  find  the  legislative  act  con- 
trary to  the  trust  reposed  in  them.  .  .  .  And  thus  the  community  may 
be  said  in  this  respect  to  be  alwa3S  the  supreme  power,  but  not  as  con- 
sidered under  any  form  of  government,  because  this  power  of  the  people 
can  never  take  place  till  the  government  be  dissolved. 

150.  In  all  cases  whilst  the  government  subsists,  the  legislative  is  the 
supreme  power.  For  what  can  give  laws  to  another  must  needs  be 
superior  to  him,  and  since  the  legislative  is  no  otherwise  legislative  of 
the  society  but  b}'  the  right  it  has  to  make  laws  for  all  the  parts,  and 
every  member  of  the  society'  prescribing  rules  to  their  actions,  and  giv- 
ing power  of  execution  where  the}'  are  transgressed,  the  legislative 
must  needs  be  the  supreme,  and  all  other  powers  in  any  members  or 
parts  of  the  society  derived  from  and  subordinate  to  it. 

151.  In  some  commonwealths  where  the  legislative  is  not  alwa3's  in 
being,  and  the  executive  is  vested  in  a  single  person  who  has  also  a 
share  in  the  legislative,  there  that  single  person,  in  a  very  tolerable 
sense,  may  also  be  called  supreme  ;  not  that  he  has  in  himself  all  the 
supreme  power,  which  is  that  of  law-making,  but  because  he  has  in  him 
the  supreme  execution  from  whom  all  inferior  magistrates  derive  all 


32         ,        LOCKE  ON  GOVERNMENT.  [CHAP.  I. 

their  several  subordinate  powers,  or,  at  least,  the  greatest  part  of  them  ; 
having  also  no  legislative  superior  to  him,  there  being  no  law  to  be 
made  without  his  consent,  which  cannot  be  expected  should  ever  sub- 
ject him  to  the  other  part  of  the  legislative,  he  is  properl}-  enough  in 
this  sense  supreme.  But  yet  it  is  to  be  observed  that  though  oaths  of 
allegiance  and  fealtj*  are  taken  to  him,  it  is  not  to  him  as  supreme  legis- 
lator, but  as  supreme  executor  of  the  law  made  by  a  joint  power  of  him 
with  others,  allegiance  being  nothing  but  an  obedience  according  to  law, 
which,  when  he  violates,  he  has  no  right  to  obedience,  nor  can  claim  it 
otherwise  than  as  the  public  person  vested  with  the  power  of  tlie  law, 
and  so  is  to  be  considered  as  the  image,  phantom,  or  representative  of 
the  commonwealth,  acted  by  the  will  of  the  society  declared  in  its  laws, 
and  thus  he  has  no  will,  no  power,  but  that  of  the  law.  But  when  he 
quits  this  representation,  this  public  will,  and  acts  b}*  his  own  private 
will,  he  degrades  himself,  and  is  but  a  single  private  person  without 
power  and  without  will ;  the  members  owing  no  obedience  but  to  the 
public  will  of  the  society. 

152.  The  executive  power  placed  anywhere  but  in  a  person  that  has 
also  a  share  in  the  legislative  is  visibly  subordinate  and  accountable  to 
it,  and  ma}-  be  at  pleasure  changed  and  displaced  ;  so  that  it  is  not  the 
supreme  executive  power  that  is  exempt  from  subordination,  but  the 
supreme  executive  power  vested  in  one,  who  having  a  share  in  the  legis- 
lative, has  no  distinct  superior  legislative  to  be  subordinate  and  account- 
able to,  farther  than  he  himself  shall  join  and  consent,  so  that  he  is  no 
more  subordinate  than  he  himself  shall  think  fit,  which  one  may  cer- 
tainly conclude  will  be  but  very  little.  Of  other  ministerial  and  subor- 
dinate powers  in  a  commonwealth  we  need  not  speak,  they  being  so 
multiplied  with  infinite  variety  in  the  different  customs  and  constitutions 
of  distinct  commonwealths,  that  it  is  impossible  to  give  a  particular 
account  of  them  all.  Only  thus  much  which  is  necessary  to  our  present 
purpose  we  maj'  take  notice  of  concerning  them,  that  the}-  have  no 
manner  of  authorit}-,  an}'  of  them,  beyond  what  is  by  positive  grant 
and  commission  delegated  to  them,  and  are  all  of  them  accountable  to 
some  other  power  in  the  commonwealth. 

153.  It  is  not  necessary,  no,  nor  so  much  as  convenient,  that  the 
legislative  should  be  always  in  being ;  but  absolutely  necessary  that 
the  executive  power  should,  because  there  is  not  always  need  of  new 
laws  to  be  made,  but  always  need  of  execution  of  the  laws  that  are 
made.  "When  the  legislative  hath  put  the  execution  of  the  laws  they 
make  into  other  hands,  they  have  a  power  still  to  resume  it  out  of  those 
hands  when  they  find  cause,  and  to  punish  for  any  maladministration 
against  the  laws.  The  same  holds  also  in  regard  of  the  federative 
power,  that  and  the  executive  being  both  ministerial  and  subordinate  to 
the  legislative,  which,  as  has  been  showed,  in  a  constituted  common- 
wealth is  the  supreme.  The  legislative  also  in  this  case  being  supposed 
to  consist  of  several  persons  (for  if  it  be  a  single  person  it  cannot  but 
be  always  in  being,  and  so  will,  as  supreme,  naturally  have  the  supreme 


SECT.  I.] 


LOCKE  ON  GOVERNMENT.  33 


executive  power,  together  with  the  legislative) ,  may  assemble  and  exer- 
dse  their  legislative  at  the  times  that  either  their  ongmal  constitutiou 
or  their  own  adjournment  appoints,  or  when  they  please,  if  neither  of 
these  hath  appointed  any  time,  or  there  be  no  other  way  Pj-escnbed  to 
convoke  them.     For  the  supreme  power  being  placed  in  them  b}  the 
neople,  't  is  alwavs  in  them,  and  they  may  exercise  it  when  they  please, 
unless  by  their  original  constitution  they  are  limited  to  certain  seasons, 
or  by  an  act  of  tlieir  supreme  power  they  have  adjourned  to  a  certain 
time,  and  when  that  time  comes  they  have  a  riglit  to  assemble  and  act 
j^o-ain  —  lb.,  cc.  xii.,  xiii. 
°159    Where  the  legislative  and  executive  power  are  in  distinct  hands, 
as  they  are  in  all  moderated  monarchies  and  well-framed  governments 
there  the  good  of  the  society  requires  that  several  things  should  be  left 
to  the  discretion  of  hi.n  that  has  the  executive  power,     tor  the  legis- 
lators  not  being   able  to   foresee    and    provide  by  laws  for  all  that 
may  be  useful  to  the  community,   the  executor  of  the  laws,  having 
the  power  in  his  hands,  has  by  the  common  law  of  nature  a  right  to 
make  use  of  it  for  the  good  of  the  society,  in  many  cases  where  the 
municipal  law  has  given  no  direction,  till  the  legislative  can  conve- 
niently be  assembled  to  provide  for  it;   nay,  many  things  there  are 
which  the  law  can  by  no  means  provide  for,  and  those  must  necessanly 
be  left  to  the  discretion  of  him  that  has  the  executive  power  in  his 
hands,  to  be  ordered  by  him  as  the  public  good  and  advantage  shall 
require  •  nay,  it  is  fit  that  the  laws  themselves  should  in  some  cases 
eive  way  to  the  executive  power,  or  rather  to  this  fundamental  law  of 
Nature  and  government,  viz.,  that  as  much  as  may  be  all  the  mem- 
bers of  the  society  are  to  be  preserved.     For  since  many  accidents  may 
happen  wherein  a  strict  and  rigid  observation  of  the  laws  may  do  harm, 
as  not  to  pull  down  an  innocent  man's  house  to  stop  the  fire  when  the 
next  to  it  is  burning  ;  and  a  man  may  come  sometimes  within  the  reach 
of  the  law  which  makes  no  distinction  of  persons,  by  an  action  that  may 
deserve  reward  and  pardon  ;  it  is  fit  the  ruler  should  have  a  power  in 
many  cases  to  mitigate  the  severity  of  the   law,  and   pardon  some 
offenders,  since  the  end  of  government  being  the  preservation  of  all  as 
much  as  may  be,  even  the  guilty  are  to  be  spared  where  it  can  prove  no 
prejudice  to  the  innocent. 

160  This  power  to  act  according  to  discretion  for  the  public  good, 
without  the  prescription  of  the  law  and  sometimes  even  against  it,  is 
that  which  is  called  prerogative  ;  for  since  in  some  governments  the 
law-making  power  is  not  always  in  being  and  is  usually  too  numerous, 
and  so  too  slow  for  the  despatch  requisite  to  execution,  and  because, 
also,  it  is  impossible  to  foresee  and  so  by  laws  to  provide  for  all  acci- 
dents and  necessities  that  may  concern  the  public,  or  make  such  laws 
as  will  do  no  harm,  if  they  are  executed  with  an  inflexible  rigor  on  all 
occasions  and  upon  all  persons  that  may  come  in  their  way,  theretore 
there  is  a  latitude  left  to  the  executive  power  to  do  many  things  ot 
choice  which  the  laws  do  not  prescribe. 
VOL.  I.  — 3 


34  WINTHROP   V.   LECHMERE.  [CHAP.  I. 

161.  This  power,  whilst  employed  for  the  benefit  of  the  community 
and  suitably  to  the  trust  and  ends  of  the  government,  is  undoubted 
prerogative,  and  never  is  questioned.  For  the  people  are  very  seldom 
or  never  scrupulous  or  nice  in  the  point ;  they  are  far  from  examining 
prerogative  whilst  it  is  in  any  tolerable  degree  employed  for  the  use  it 
was  meant  —  that  is,  the  good  of  the  people,  and  not  manifestly 
against  it.  .   .   . 

168.  The  old  question  will  be  asked  in  this  matter  of  prerogative, 
"  But  who  shall  be  judge  when  this  power  is  made  a  right  use  of  ?  "  I 
answer  :  Between  an  executive  power  in  being,  with  such  a  prerogative, 
,and  a  legislative  that  depends  upon  his  will  for  their  convening,  there 
can  be  no  judge  on  earth.  As  there  can  be  none  between  the  legisla- 
tive and  the  people,  should  either  the  executive  or  the  legislative,  when 
they  have  got  the  power  in  their  hands,  design,  or  go  about  to  enslave 
or  destroy  them,  the  people  have  no  other  remedy  in  this,  as  in  all  other 
cases  where  they  have  no  judge  on  earth,  but  to  appeal  to  Heaven  ;  for 
the  rulers,  ia  such  attempts  exercising  a  power  the  people  never  put 
into  their  hands,  who  can  never  be  supposed  to  consent  that  anybody 
should  rule  over  them  for  their  harm,  do  that  which  they  have  not  a 
right  to  do.  And  where  the  body  of  the  people,  or  any  single  man, 
are  deprived  of  their  right,  or  are  under  the  exercise  of  a  power 
without  right,  having  no  appeal  on  earth  they  have  a  liberty  to  appeal 
to  Heaven  whenever  they  judge  the  cause  of  sufficient  moment.  And 
therefore,  though  the  people  cannot  be  judge,  so  as  to  have,  by  the  con- 
stitution of  that  society,  any  superior  power  to  determine  and  give 
effective  sentence  in  the  case,  yet  they  have  reserved  that  ultimate 
determination  to  themselves  which  belongs  to  all  mankind,  where  there 
lies  no  appeal  on  earth,  by  a  law  antecedent  and  paramount  to  all  posi- 
tive laws  of  men,  whether  they  have  just  cause  to  make  their  appeal  to 
Heaven.  —  lb.,  c.  xiv.^ 


WINTHROP  V.   LECHMERE. 

Privy  Council.     1727-28. 

[4  Conn.  Ilist.  Soc.  Coll.,  94  n.  ;  5  Mass.  Hist.  Sac.  Coll.  (6th  Series),  440-511.] 

Wait  Still  Wintiirop,  commonly  called  Wait  Winthrop,  formerly 
Chief  Justice  of  the  Superior  Court  of  Judicature  of  Massachusetts, 
died  intestate  in  1717,  leaving  a  considerable  estate  in  Connecticut. 
His  two  children  were  John  Winthrop  of  Connecticut,  and  Anne,  wife 
of  Thomas  Lechmere  of  Boston.  John  became  administrator  of  the 
estate,  and  claimed  all  the  real  estate,  under  the  common  law  of  Eng- 
land.    Lechmere,  in  right  of  his  wife,  claiming  a  share  of  the  real 

'  For  certain  passages  from  Montesquieu  (1748),  Rousseau  (1762),  and  Blackstone 
(1765),  see  ante,  p.  2.  — Ed. 


SECT.  I.]  WINTHROP   V.   LECHMERE.  35 

estate  under  an  Act  of  the  colony  of  Connecticut,  which  divided  an 
intestate's  property  among  his  children,  began  proceedings  in  the 
Probate  Court  of  that  colony  to  enforce  his  claim.  After  a  long  litiga- 
tion the  Superior  Court  of  Connecticut,  in  1725-26,  vacated  AVinthrop's 
letters  of  administration,  and  substituted,  in  his  place,  Lechmere  and 
his  wife.  Wiuthrop  sought  relief  from  the  General  Assembly,  threat- 
ening an  appeal  to  the  King  in  Council.  He  was  taken  into  custody 
for  c^ontempt ;  but  escaped  (as  it  was  alleged),  and  went  to  England. 
where  he  brought  his  appeal.  The  General  Assembly,  in  Marcli,  172G, 
passed  an  Act  authorizing  Lechmere  to  sell  a  part  of  the  real  estate. 

Winthrop's  "Brief  in  Appeal,"  together  with  short  memoranda  of  the 
arguments  of  counsel  on  the  other  side,  are  found  in  the  volume  of 
the  Massachusetts  Historical  Society,  mentioned  above,  pp.  440-496. 
The  Decree  is  given  in  the  same  volume,  pp.  496-511. 

It  appears  (pp.  457,  461,  463)  that  Winthrop's  claim,  before  the 
courts  in  Connecticut,  was  under  "  the  law  and  custom  of  England  .  .  . 
the  said  law  of  the  colony  notwithstanding,"  —  "  both  by  Act  of  Par- 
liament and  by  the  Royal  Charter ; "  that  he  was  denied  an  appeal 
(p.  460),  "  the  court  saying  they  were  not  under  your  Majesty's  gov- 
ernment, and  their  charter  knew  nothing  of  your  Majesty  in  Council." 
He  argued,  in  part,  as  follows  (p.  484)  :  "  The  appellant  insists  the 
Assem°bly  granting  the  said  Lechmere  a  power  to  sell  the  lands  of  the 
intestate  to  pay  the  debt  and  costs  in  Lechmere's  petition  to  the  Assem- 
bly mentioned  without  hearing  your  petitioner,  the  undoubted  heir  to 
such  lands,  and  leaving  Lechmere  to  sell  what  part  thereof  and  in  what 
manner  he  saw  proper,  is  against  the  common  and  statute  law  of  this 
realm,  and  destructive  of  the  liberty  and  property  of  the  subject,  and 
against  reason,  and  as  such  contrary  to  the  royal  charter  of  the  pro- 
vrnce,  and  the  Assembly  fining  the  appellant  in  £20  for  his  opposing 
the  said  measures  was  equally  unwarrantable  and  unjustifiable.  .  .   . 

"  What  Lechmere's  counsel  will  insist  on  to  support  the  whole  of 
his  proceedings  is  a  printed  Act  they  find  amongst  the  Connecticut 
printed  laws,"fol.  60,  entitled  an  Act  for  Settlement  of  Intestates' 
Estates.  .  .  .  [Here  the  statute  is  recited,  by  which  it  appears  that  an 
intestate's  real  and  personal  estate,  after  providing  for  the  widow's 
dower,  was  to  go  equally  to  the  children,  except  that  the  oldest  son 
had  a  double  portion.] 

"  But  as  to  this  Act  we  answer  and  insist  (first)  that  it  is  an  obso- 
lete Act,  made  in  the  infancy  of  the  province,  and  long  since  out  of 
use  and  not  of  any  force  or  regard  in  the  province,  and  the  time  when 
it  was  made  does  not  appear  save  that  it  was  made  when  courts  of 
assistants  were  also  in  use  there,  which  have  been  long  since  abol- 
ished, which  is  plainly  evidenced  from  the  loss  Lechmere  was  at  what 
steps  to  take  in  this  affair,  and  from  the  extraordinary  applications  of 
Lechmere  for  an  interposition  of  the  Assem.bly  therein,  and  there  is 
not  the  least  proof  made  by  Lechmere  of  this  being  a  law  in  force  or 
practised  at  this  time  in  Connecticut,  tliough  we  insisted  before  the 


36  WINTHROP   V.    LECHMERE.  [CHAP.  I. 

courts  below  that  notwithstanding  this  law  we  were  entitled  to  the 
whole  real  estate  of  our  father ;  though  if  this  law  was  not  obsolete, 
"we  insist  (secondly)  that  the  same  is  void  in  itself  as  being  not  war- 
ranted by  the  Charter,  and  can  no  ways  influence  the  present  case. 
For  by  the  Charter  their  power  of  making  laws  is  restrained  and  limited 
in  a  very  special  manner  (namely),  such  laws  must  be  wholesome  and 
reasonable,  and  [not]  contrary  to  the  laws  of  this  realm  of  England, 
and  then  by  the  charter  the  inhabitants  may  have,  take,  possess,  &c., 
lands,  &c.,  and  the  same  dispose  of  as  other  the  liege  people  of  the 
realm  of  England,  and  were  to  enjoy  all  liberties  and  immunities  of 
natural-born  subjects,  and  the  soil  of  the  whole  province  is  granted  to 
the  governor  and  company,  and  their  successors  and  assigns  forever, 
upon  trust  and  for  the  use  and  benefit  of  themselves  and  their  asso- 
ciates, tlieir  heirs  and  assigns,  to  be  holden  of  his  Majesty,  as  of  the 
manor  of  East  Greenwich  in  free  and  common  socage. 

"  By  the  common  law  of  England,  which  is  what  the  Charter  has  a 
view  to,  it  is  undoubted  that  real  estates  descend  to  the  eldest  son  of 
him  that  was  last  seized  in  fee  as  his  heir-at-law,  and  neither  an  ad- 
ministrator nor  an  ecclesiastical  court  have  anything  to  do  therewith, 
and  by  the  law  of  England  an  only  daughter  cannot  be  co-heir  with  an 
only  son,  but  the  son  is  absolute  and  sole  heir  to  the  father,  and  must 
as  such  inherit  his  real  estate  undevised  by  will,  and  we  take  it  that 
where  an  estate  of  inheritance  is  granted  under  the  Great  Seal  of  Great 
Britain,  which  this  Charter  does,  that  the  same  is  descendible  accord- 
ing to  tlie  course  of  the  common  law,  and  we  also  take  it  that  all  our 
plantations  carry  with  them  the  common  law  of  their  mother  country, 
which  prevails  in  all  the  plantations,  and  we  know  of  no  part  of  the 
plantations  but  where  real  estates  descend  to  the  heir-at-law  as  with  us, 
and  the  first  governor,  the  appellant's  grandfather,  on  receiving  the 
Charter,  was  obliged  to  swear  before  a  Master  in  Chancery  that  he  and 
his  successors  would  observe  and  keep  the  common  law  of  England. 
There  have  been  also  several  Acts  of  Parliament  passed  here  which  as 
we  apprehend  support  the  right  of  descent,  and  by  the  Charter  the 
tenure  of  the  lands  in  Connecticut  is  declared  to  be  held  under  the 
Crown  as  lord  of  the  fee  under  the  most  free  tenure  possible,  and  it  is 
against  reason  as  well  as  law  that  an  only  daughter  should  be  co-heir 
with  an  onl}'  son.  We  therefore  insist  this  law  is  null  and  void,  as 
being  contrary  to  the  law  of  this  realm,  unreasonable,  and  against  the 
tenor  of  their  Charter,  and  consequently  the  province  had  no  power  to 
make  such  a  law  and  the  same  is  void. 

"  Note.  The  laws  of  Connecticut  are  not  by  their  Charter  directed  to 
be  laid  before  the  Crown  for  their  approbation  or  disallowance,  so  that 
there  is  no  other  way  to  avoid  any  laws  they  shall  make  but  by  seeing 
if  they  are  agreeable  to  the  powers  of  their  Charter,  which  if  they  are 
not,  tlien  we  apprehend  they  cannot  be  considered  as  any  laws  at  all, 
since  a  formal  repeal  of  them  cannot  be  had  otherwise  than  by  voiding 
the  Charter.  .  .  . 


SECT.  I.]  WINTHROP  V.   LECHMERE.  37 

"  What  we  are  to  pray  is, 

"  First,  That  the  resolve  of  the  General  Assembly  declaring  Lech- 
mere  might  and  ought  to  be  relieved  by  the  Court  of  Probates  may  be 
declared  null  aud  void. 

"  Secondly,  That  tlie  inventory  tendered  by  us  to  the  Court  of  Pro- 
bates of  all  our  father's  personal  estate  may  be  declared  a  right  and 
proper  inventory,  and  ought  to  be  accepted  as  such,  and  that  the 
sentences  rejecting  the  same  may  be  reversed. 

"  Thirdly,  That  the  sentence  of  the  Superior  Court  granting  admin- 
istration to  Mr.  Lechmere  and  his  wife  may  be  reversed  and  set  aside, 
and  Lechmere's  action  demanding  the  same  be  dismissed. 

"  Fourthly,  That  the  administration  granted  to  Lechmere  may  be 
called  in  and  vacated,  and  the  administration  before  granted  to  the 
appellant  ordered  to  stand. 

"Fifthly,  That  the  inventory  exhibited  by  Mr.  Lechmere  and  his 
wife  of  the  appellant's  real  estate,  and  also  of  his  charges,  and  the 
debt  due  to  Lattemore,  may  be  vacated  and  taken  off  the  file,  and 
the  order  allowing  the  same  aud  directing  the  same  to  be  recorded  may 
be  discharged. 

"  Sixthly,  That  the  order  of  the  General  Assembly  empowering  the 
said  Lechmere  to  sell  the  appellant's  lands,  and  the  order  of  the  Supe- 
rior Court  founded  thereon,  dated  27  Sept.,  1726,  allowing  of  Lech- 
mere's makiug  such  sale,  and  the  sale  itself,  may  be  declared  null  and 
void,  and  expurged  the  record ;  and  generally. 

"  Seventhly,  That  all  which  Mr.  Lechmere  hath  done  under  the  said 
administration,  together  with  the  said  law  for  settling  intestate's 
estates  may  be  declared  void,  and  that  the  appellant  is  entitled  to 
succeed  to  the  real  estate  of  his  father  as  heir-at-law,  according  to  the 
common  law  of  the  land.   .   .   . 

"  If  they  should  oppose  our  going  into  the  merits  for  that  we  ought 
to  have  appealed  to  the  Assembly,  that  is  overruled  by  his  Majesty's 
having  allowed  us  an  appeal.  Besides,  we  have  before  shown  the 
Assembly  to  be  no  court  of  judicature,  and  that  the  judgment  of  the 
Superior  Court  is  final  there,  and  in  all  appeals  from  that  province 
hither  the  same  have  been  from  the  judgments  of  the  Superior 
Court." 

The  Decree,  Feb.  15,  1727-28  (p.  49G),  was  as  follows:  — 

"  Upon  reading  this  day  at  the  Board  a  report  from  the  Right  Hon- 
orable the  Lords  of  the  Committee  for  hearing  appeals  from  the  plan- 
tations, dated  the  20th  day  of  December  last,  in  the  words  following, 
viz.  .  .   .   [Here  the  matter  of  the  petition  is  set  forth  at  large.] 

"  Tlieir  Lordships  having  heard  all  parties  concerned  by  their  coun- 
sel learned  in  the  law  on  the  said  petition  and  appeal,  and  there  being 
laid  before  their  Lordships  an  Act  passed  by  the  Governor  and  Com- 
pany of  that  colony  entitled  An  Act  for  the  Settlement  of  Intestates' 
Estates,  by  which  act  (amongst  other  things)  administrators  of  per- 
sons dying  intestate  are  directed  to  inventory  ail  the  estate  whatsoever 


38  WINTIIROP   V    LECHMERE.  [CHAP.  I. 

of  the  person  so  deceased,  as  well  movable  as  not  movable,  and  to 
deliver  the  same  upon  oath  to  the  Court  of  Probates,  and  by  the  said 
Act  (debts,  funerals,  and  just  expenses  of  all  sorts,  and  the  dower  of 
the  wife  (if  any)  being  first  allowed)  the  said  Court  of  Probates  is  em- 
powered to  distribute  all  the  remaining  estate  of  any  such  intestate,  as 
well  real  as  personal,  by  equal  portions  to  and  amongst  the  children 
and  such  as  legally  represent  them,  except  the  eldest  son  who  is  to 
have  two  shares  or  a  double  portion  of  the  whole,  the  division  of  the 
estate  to  be  made  by  three  sufficient  freeholders  on  oath,  or  any  two 
of  them,  to  be  appointed  by  the  Court  of  Probates  :  Their  Lordships, 
upon  due  consideration  of  the  whole  matter,  do  agree  humbly  to  report 
as  their  opinion  to  your  Majesty,  that  the  said  Act  for  the  iSettlemeut 

0f_JjltPStlti^F'    Fst^^^'^g    fcLr.ii1r1    hfl -finni n i-nrl    null    nnrl    vmVlj    hpjno;    qqu- 

trary  to  the  laws  of  England.,  in  regard  it  makes  lands  of  inherit- 
ance distributable  as  personal  estates,  and  is  not  warranted__by_tIJL£. 
Charter  of  that  colony  ;  and  that  the  said  three  sentences  of  the  29th 
of  June,  1725.  of  28th  September,  1725,  and  of  the  22d  da}^  of  March, 
1725-6  .  .  .  may  be  all  reversed  and  set  aside.  .  .  .  [Here  follow 
other  matters  which  are  all  included  in  what  follows.] 

"  His  Majesty,  taking  the  same  into  his  royal  consideration,  is  pleased, 
with  the  advice  of  his  Privy  Council,  to  approve  of  the  said  report, 
and  confirm  the  same  in  every  particular  part  thereof,  and  pursuant 
thereunto  to  declare  that  the  aforementioned  Act  entitled  An  Act  for 
the  Settlement  of  Intestates'  Estates  is  null  and  void,  and  the  same  is 
hereby  accordingly  declared  to  be  null  and  void  and  of  no  force  or 
effect  whatever.  And  his  Majesty  is  hereby  further  pleased  to  order, 
that  all  the  aforementioned  sentences  of  the  29th  of  June,  1725,  of 
the  28th  of  September,  1725,  and  of  the  22d  of  March,  1725-G,  and 
every  of  them,  be  and  they  are  hereby  reversed  and  set  aside  ;  and  that 
the  petitioner,  John  Winthrop,  be  and  he  is  hereby  admitted  to  exhibit 
an  inventory  of  the  personal  estate  only  of  the  said  intestate,  and  that 
the  Court  of  Probates  do  not  presume  to  reject  such  inventor}',  because 
it  does  not  contain  the  real  estate  of  the  said  intestate.  And  his 
Majesty  doth  hereby  further  order,  that  the  aforementioned  sentence 
of  the  22d  of  March,  1725-6,  vacating  the  said  letters  of  administra- 
tion granted  to  the  petitioner  and  granting  administration  to  the  said 
Thomas  and  Anne  Lechmere,  be  also  reversed  and  set  aside  ;  and  that 
the  said  letters  of  administration  so  granted  to  the  said  Thomas  Lech- 
mere and  Anne  his  wife  be  called  in  and  vacated  ;  and  that  the  said 
inventory  of  the  said  real  estate  exhibited  by  the  said  Thomas  Lech- 
mere and  Anne  his  wife  be  vacated.  And  that  the  order  of  the  29th 
of  April,  1726,  approving  of  the  said  inventory,  and  ordering  the 
same  to  be  recorded,  be  discharged  and  set  aside ;  and  that  the 
original  letters  of  administration  so  granted  to  the  petitioner  be  and 
they  are  hereby  established  and  ordered  to  stand.  And  that  all  such 
costs  as  the  petitioner  hatb  paid  unto  the  said  Thomas  Lechmere  by 
direction  of  the  said  sentences,  all,  every,  or  any  of  them,  be  forth- 


SECT.  I.]  WIXTHEOr   V.    LECHMERE.  39 

with  repaid  to  liim  by  the  said  Thomas  Lechmere ;  aud  that  the  suit 
brought  by  the  said  Thomas  Lechmere  and  Anne  his  wife,  on  which 
the  said  sentences  were  made,  be  and  they  are  hereby  dismissed  ;  and 
that  all  acts  aud  proceediugs  done  aud  had  under  the  said  sentences, 
all,  every,  or  auy  of  them,  or  by  virtue  or  pretence  thereof,  be  aud 
they  are  hereby  discharged  aud  set  aside  and  declared  null  and  void. 
And  his  Majesty  is  further  pleased  to  declare,  that  the  aforementioned 
Act  of  Assembly  passed  in  May,  172G,  empowering  the  said  Thomas 
Lechmere  to  sell  the  said  lauds,  is  null  aud  void  ;  and  also  that  tlie 
said  order  made  by  the  said  Superior  Court,  and  bearing  date  the 
27th  of  September,  1726,  pursuant  to  the  said  Act  of  Assembly  allow- 
ing the  said  Lechmere  to  sell  of  the  said  real  estate  to  the  value  of 
ninety  pounds  current  money  there  for  his  charges,  aud  three  hundred 
and  eighteen  pounds  silver  money,  is  likewise  null  and  void  ;  and  the 
said  Act  of  Assembly  aud  order  of  the  said  Superior  Court  are  accord- 
ingly hereby  declared  null  and  void,  and  of  no  force  or  effect  whatever. 
Aud  his  Majest}^  doth  hereby  likewise  further  order,  that  the  petitioner 
be  iumiediately  restored  and  put  into  the  full,  peaceable,  aud  quiet 
possession  of  all  such  parts  of  the  said  real  estate  as  may  have  been 
taken  from  him,  under  pretence  of  or  by  virtue  or  color  of  the  said 
sentences,  orders,  acts,  and  proceedings,  or  any  of  them  ;  aud  that  the 
said  Thomas  Lechmere  do  account  for  and  pa}'  to  the  said  petitioner 
the  rents  aud  profits  thereof,  aud  of  every  part  thereof,  received  by 
him,  or  any  one  under  him,  for  aud  during  the  time  of  such  his  unjust 
detention  tliereof.  Aud  the  Governor  aud  Company  of  liis  ^lajesty's 
Colony  of  Connecticut  for  the  time  being,  and  all  other  officers  and 
persons  whatsoever  whom  it  may  concern,  are  to  take  notice  of  his 
Majesty's  royal  pleasure  hereby  signified,  and  yield  due  obedience  to 
every  particular  part  thereof,  as  they  will  answer  the  contrary  at  their 
peril."  1 

1  Coxe  (Judic.  Power,  212)  expresses  the  opinion  that  this  decree,  in  so  far  as  it 
dealt  with  the  Intestates'  Act,  was  a  legishitive,  and  not  a  judicial  proceeding ;  he  con- 
cedes that  in  other  respects  it  was  judicial.  As  authority  for  this  view,  he  refers  to 
the  fact  that  in  a  subsequent  order  in  council  of  April  10,  1730,  it  "  is  expressly  called 
'  a  repeal '  of  that  Act;"  and  he  cites  4  Collections  Conn.  Hist.  Soc.  201.  This  may  well 
be  doubted.  The  proceedings,  given  above  in  the  text,  speak  for  themselves.  As 
regards  the  order  of  1 7W,  the  passage  cited  by  Coxe  occurs  in  a  recital  of  the  peti- 
tion of  tlie  Connecticut  Commissioners,  "  humbly  praying  that  notwithstanding  the 
said  Act  is  repealed,"  &c.  The  language  of  the  Committee  of  the  Council  itself  (p.  202) 
is  different ;  it  runs  thus  :  "  Ilis  Majesty  was  pleased  to  declare  an  Act  ...  to  be 
null  aud  void  " 

It  may  be  added  that  Wiuthrop,  in  a  counter  petition  to  the  Committee  of  the 
Council,  ou  occasion  of  the  proceedings  of  17.30  (4  Conn.  Hist.  Soc.  Coll.  393),  uses 
the  following  language  as  regards  the  former  case  :  — 

"  This  Act  being  for  the  reasons  above  mentioned,  in  its  own  nature  null,  void,  and 
repugnant  to  the  very  powers  granted  by  King  Charles  the  Second,  it  is  a  gross  mis- 
take in  the  petitioners  to  allege  that  the  same  was  annulled  by  his  Majesty's  order  in 
Council  of  the  5th  [15th]  of  February,  1727.  Whereas  his  Majesty  did,  upou  counsel 
heard  on  both  sides  thereof,  only  relieve  your  memorialist  as  a  subject  and  an  inhabi- 
tant of  the  Province  of  Connecticut,  who  resorted  to  his  royal  justice  for  relief  .against 


40  CAMPBELL  V.   HALL.  [CHAP.  L 


CAMPBELL  V.  HALL. 
King's  Bench.     1774. 

[Cowper,  204.] 

This  case  was  very  elaborately  argued  four  several  times  ;  and  now 
oil  this  day  Lord  Mansfield  stated  the  ease,  and  delivered  the  unani- 
mous opinion  of  the  court,  as  follows  : 

This  is  an  action  that  was  brought  by  the  plaintiff,  James  Campbell, 
who  is  a  natural-born  subject  of  this  kingdom,  and  who,  upon  the  3d  of 
March,  1763,  purchased  a  plantation  in  the  island  of  Grenada :  and  it 
is  brought  against  the  defendant,  William  Hall,  who  was  a  collector  for 
his  Majesty  of  a  duty  of  four  and  an  half  per  cent  upon  all  goods  and 
sugars  exported  from  the  island  of  Grenada.  And  the  action  is  brought 
to  recover  back  a  sum  of  money  which  was  paid,  as  this  duty  of  four 
and  an  half  per  cent,  upon  sugars  that  were  exported  from  the  island  of 
Grenada,  by  and  on  account  of  the  plaintiff.  The  action  is  an  action 
for  money  had  and  received  ;  and  it  is  brought  upon  this  ground  ; 
nameh',  that  the  money  was  paid  to  the  defendant  without  any  con- 
sideration ;  the  dut}',  for  which,  and  in  respect  of  which  he  received  it, 
not  having  been  imposed  b}'  lawful  or  sufficient  authority  to  warrant 
the  same.  It  is  stated  by  the  special  verdict,  that  that  money  still 
remains  in  the  hands  of  the  defendant,  not  paid  over  by  him  to  the  use 
of  the  king,  but  continued  in  his  hands,  and  so  continues  with  the 
privity  and  consent  of  his  Majesty's  Attorney-General,  for  the  express 
purpose  of  tiying  the  question  as  to  the  validity  of  imposing  this  duty. 

It  came  on  to  be  tried  at  Guildhall,  and  of  course,  from  the  nature  of 
the  question,  both  sides  came  prepared  to  have  a  special  verdict ;  and  a 
special  verdict  was  found,  which  states  as  follows. 

That  the  island  of  Grenada  was  taken  b}'  the  British  arras,  in  open 
war,  from  the  French  king. 

That  the  island  of  Grenada  surrendered  upon  capitulation,  and  that 
the  capitulation  on  which  it  surrendered,  was  by  reference  to  the  capi- 
tulation upon  which  the  island  of  Martinique  had  before  surrendered. 

The  special  verdict  then  states  some  articles  of  the  capitulation,  and 
particularly  the  5th  article,  by  which  it  is  agreed,  that  Grenada  should 
continue  to  be  governed  b}^  its  present  laws  until  his  Majesty's  further 
pleasure  be  known.     It  next  states  the  6th  article ;    where,  to  a  de- 

the  oppression  of  a  Court  of  Probates  acting  without  any  legal  jurisdiction,  under 
the  pretended  authority  of  an  Act  of  Assembly,  which  being  contrary  to  law  and 
to  their  charter  was  in  itself  void  and  null,  even  before  his  Majesty  for  the  future  in- 
formation of  his  Majesty's  subjects  in  Connecticut  was  graciously  pleased  to  declare 
it  so." 

This  seems  to  be  a  just  exyjosition  of  the  nature  of  the  decree  in  Winthrop  v.  Lech- 
mere.  'Die  word  "  annulling,"  however,  is  often  used  to-day  to  describe  the  effect  of 
judicial  action  in  such  cases,  —  as  the  equivalent  of  the  phrase  declaring  null  and 
void.  —  Ei>. 


g^CT.  I.]  CAMPBELL  V.   HALL.  41 

mand  of  the  inhabitants  of  Grenada,  requiring  tliat  they  should  be 
maintained  in  their  property  and  effects,  movable  and  immovable,  of 
what  nature  soever,  and  that  they  should  be  preserved  in  their  privi- 
leges, rights,  honors,  and  exemptions ;  the  answer  is,  the  inhabitants, 
beino-  subjects  of  Great  Britain,  will  enjoy  their  properties  and  privi- 
leo-es  in  like  manner  as  the  other  his  Majesty's  subjects  in  the  other 
British  Leeward  Islands :  so  that  the  answer  is,  that  they  will  have 
the  consequences  of  their  being  subjects,  and  that  they  will  be  as  much 
subjects  as  any  of  the  other  Leeward  Islands. 

Then  it  states  another  article  of  the  capitulation  ;  viz.,  the  7th  article, 
by  which  thev  demand,  that  they  shall  pay  no  other  duties  than  what 
they  before  paid  to  the  French  king ;  that  the  capitation  tax  shall  be 
the  same,  and  that  the  expenses  of  the  courts  of  justice,  and  of  the 
administration  of  government,  should  be  paid  out  of  the  king's  de- 
mesne :  in  answer  to  which  they  are  referred  to  the  answer  I  have 
stated,  as  given  to  the  foregoing  article ;  that  is,  being  subjects  they 
will  be  entitled  in  like  manner  as  the  other  his  Majesty's  subjects  in  the 
British  Leeward  Islands. 

The  next  thing  stated  in  the  special  verdict  is,  the  treaty  of  peace 
si<^ned  the  10th  February,  17G3  ;  and  it  states  that  part  of  the  treaty  of 
pe°ace  by  which  the  island  of  Grenada  is  ceded,  and  some  clauses  which 
are  not  at  all  material  for  me  to  state. 

The  next  instrument  is  a  proclamation  under  the  great  seal,  bearing 
date  the  7th  of  October,  1763,  wherein  amongst  other  things  it  is  said 
as  follows : 

Whereas  it  will  greatly  contribute  to  the  speedy  settling  our  said 
governments,  of  which  the  island  of  Grenada  is  one,  that  our  loving 
subjects  should  be  informed  of  our  paternal  care  for  the  security  of  the 
liberties  and  properties  of  those  who  are  and  shall  become  inhabitants 
thereof:  we  have  thought  fit  to  publish  and  declare  by  this  our  procla- 
mation, that  we  have  in  our  letters-patent  under  our  great  seal  of  Great 
Britain,  by  which  the  said  governments  are  constituted,  given  express 
power  and  direction  to  our  governors  of  the  said  colonies  respectively, 
that  so  soon  as  the  state  and  circumstances  of  the  said  colonies  will 
admit  thereof,  they  shall,  with  the  advice  and  consent  of  the  members 
of  our  council,  summon  and  call  general  assemblies,  within  the  said 
governments  respectively,  in  such  manner  and  form  as  is  used  and 
directed  in  those  colonies  and  provinces  of  America  which  are  already 
under  our  immediate  government ;  and  we  have  also  given  power  to 
the  said  governors,  with  the  consent  of  our  said  councils,  and  the 
representatives  of  the  people  to  be  summoned  as  aforesaid,  to  make, 
constitute,  and  ordain  laws,  statutes,  and  ordinances,  for  the  public 
peace,  welfare,  and  good  government  of  our  said  colonies  and  the 
inhabitants  thereof,  as  near  as  may  be  agreeable  to  the  laws  of  Eng- 
land, and  under  such  regulations  and  restrictions  as  are  used  in  our 
other  colonies. 

The  next  instrument  stated  in  the  special  verdict,  is  the  letters-patent 


42  CAMPBELL   V.    HALL.  [CHAP,  L 

under  the  great  seal,  or  rather  a  proclamation,  bearing  date  tiie  2GcIi 
March,  176i  ;  wherein,  the  king  recites  a  survey  and  division  of  the 
ceded  islands,  and  that  he  had  ordered  them  to  be  divided  into  allot- 
ments, as  an  invitation  to  purchasers  to  come  in  and  purchase  upon  the 
terms  and  conditions  specified  in  that  proclamation. 

The  next  instrument  stated,  is  the  letters-patent  under  the  great  seal, 
bearing  date  the  9th  of  April,  1764.  In  these  letters  there  is  a  com- 
mission appointing  General  Melville  governor,  with  a  power  to  summon 
an  assemblv  as  soon  as  the  state  and  circumstances  of  the  island  would 
admit,  and  to  make  laws  with  consent  of  the  governor  and  council,  with 
reference  to  the  manner  of  the  other  assemblies  of  the  king's  provinces 
in  America.  This  instrument  is  dated  the  9th  of  April,  1764.  The 
governor  arrived  in  Grenada  on  the  14th  December,  1764,  and  before 
the  end  of  the  year  1765,  an  assembly  actually  met  in  the  island  of 
Grenada.  But  before  the  arrival  of  the  governor  at  Grenada,  indeed 
before  his  departure  from  London,  there  is  another  instrument  upon 
the  validity  of  which  the  whole  question  turns,  which  iustrumeut  con- 
tains letters-patent  under  the  great  seal,  bearing  date  the  20th  July, 
1764.  Wherein,  the  king  reciting,  that  whereas,  in  Barbadoes,  and  in 
all  the  British  Leeward  Islands,  there  was  a  duty  of  four  and  an  half 
per  cent  upon  all  sugars,  &c.,  exported  ;  and  reciting  in  these  words  ; 
that  whereas  it  is  reasonable  and  expedient,  and  of  importance  to  our 
other  sugar  islands,  that  the  like  duty  should  take  place  in  our  said 
island  of  Grenada  ;  proceeds  thus  :  We  have  thought  fit,  and  our  royal 
will  and  pleasure  is,  and  we  do  hereby,  by  virtue  of  our  prerogative 
royal,  order,  direct,  and  appoint,  that  from  and  after  the  29th  day  of 
September  next  ensuing  the  date  of  these  presents,  a  duty  or  impost  of 
four  and  an  half  per  cent  in  specie  shall  be  raised  and  paid  to  us,  our 
heirs  and  successors,  upon  all  dead  commodities,  the  growth  and  pro- 
duce of  our  said  island  of  Grenada,  that  shall  be  shipped  off  from  the 
same,  in  lieu  of  all  customs  and  import  duties,  hitherto  collected  upon 
goods  imported  and  exported  into  and  out  of  the  said  island,  under  tlie 
authority  of  his  most  Christian  Majesty. 

The  special  verdict  then  states  that  in  fact  this  duty  of  four  and  an 
half  per  cent  is  paid  in  all  the  British  Leeward  Islands,  and  sets  forth 
the  several  Acts  of  Assembly  relative  to  these  duties.  They  are  public 
Acts:  therefore.  I  shall  not  state  them,  as  any  gentleman  may  have 
access  to  them ;  they  depend  upon  diflJerent  circumstances  and*  occa- 
sions, but  are  all  referable  to  those  duties  in  our  islands.  This,  with 
what  I  set  out  with  in  the  opening,  is  the  whole  of  the  special  verdict 
that  is  material  to  the  question. 

The  general  question  that  arises  out  of  all  these  facts  found  by  the 
special  verdict,  is  this  :  whether  the  letters-patent  under  the  great  seal, 
bearing  date  the  20th  July,  1764,  are  good  and  valid  to  abolish  the 
French  duties  ;  and  in  lieu  thereof  to  impose  the  four  and  half  per 
cent  duty  above  mentioned,  which  is  paid  in  all  the  British  Leeward 
Islands? 


SECT.  I.]  CAMPBELL   V.    HALL.  43 

It  has  been  contended  at  the  Bar,  that  the  letters-patent  are  void  on 
two  points  ;  the  first  is,  that  although  they  had  been  made  before  the 
proclamation  of  the  7th  October,  17G3,  yet  the  king  could  not  exercise 
such  a  legislative  power  over  a  conquered  country. 

The  second  point  is,  that  though  the  king  had  sufHcient  power  and 
autliority  before  tlie  7th  October,  1763,  to  do  such  legislative  act,  yet 
before  the  letters-patent  of  the  20th  July,  1764,  he  had  divested  himself 
of  that  authority. 

A  great  deal  has  been  said,  and  man}'  authorities  cited,  relative  to 
propositions,  in  which  both  sides  seem  to  be  perfectly  agreed  ;  and 
which,  indeed,  are  too  clear  to  be  controverted.  The  stating  some  of 
those  propositions  which  we  think  quite  clear,  will  lead  us  to  see  with 
greater  perspicuit}',  what  is  the  question  upon  the  first  point,  and  upon 
what  hinge  it  turns.  I  will  state  the  propositions  at  large,  and  the  first 
is  this  : 

A  country  conquered  by  the  British  arms  becomes  a  dominion  of  the 
king  in  the  right  of  ins  crown  ;  and,  therefore,  necessarily  subject  to 
the  legislature,  the  Parliament  of  Great  Britain. 

The  2d  is,  That  the  conquered  inhabitants  once  received  under  the 
king's  protection,  become  subjects,  and  are  to  be  universally  considered 
in  that  light,  not  as  enemies  or  aliens. 

The  3d,  That  the  articles  of  capitulation  upon  which  the  country  is 
surrendered,  and  the  articles  of  peace  by  which  it  is  ceded,  are  sacred 
and  inviolable  according  to  their  true  intent  and  meaning. 

Tlie  4th,  That  the  law  and  legislative  government  of  every  dominion 
equally  affects  all  persons  and  all  property  within  the  limits  thereof; 
and  is  the  rule  of  decision  for  all  questions  which  arise  there.  Whoever 
purchases,  lives,  or  sues  there,  puts  himself  under  the  law  of  the  place. 
An  Englishman  in  Ireland,  Minorca,  the  Isle  of  Man,  or  the  Planta- 
tions, has  no  privilege  distinct  from  the  natives. 

Tlie  5th,  That  the  laws  of  a  conquered  country  continue  in  force 
until  they  are  altered  by  the  conqueror :  the  absurd  exception  as  to 
Pagans,  mentioned  in  Calvin's  Case,  shows  the  universality  and  anti- 
quity of  the  maxim.  For  that  distinction  could  not  exist  before  the 
Christian  era ;  and  in  all  probability  arose  from  the  mad  enthusiasm  of 
the  Croisades.  In  the  present  case  the  capitulation  expressly  provides 
and  agrees,  that  they  shall  continue  to  be  governed  by  their  own  laws, 
until  his  Majesty's  further  pleasure  be  known. 

The  6th  and  last  proposition  is,  that  if  the  king  (and  when  T  say  the 
king,  I  always  mean  the  king  without  the  concurrence  of  Parliament) 
has  a  power  to  alter  the  old  and  to  introduce  new  laws  in  a  conquered 
country,  this  legislation  being  subordinate,  that  is,  subordinate  to  his 
own  authority  in  Parliament,  he  cannot  make  any  new  change  contrary- 
to  fundamental  principles :  he  cannot  exempt  an  inhabitant  from  that 
particular  dominion  ;  as  for  instance,  from  the  laws  of  trade,  or  from 
the  power  of  Parliament,  or  give  him  privileges  exclusive  of  his  other 
subjects  ;  and  so  in  many  other  instances  which  might  be  put. 


44  CAMPBELL   V.    HALL.  [CHAP.  I. 

But  the  present  cliange,  if  it  had  been  made  before  the  7th  October, 
1763,  would  have  been  made  recently  after  the  cession  of  Grenada  by 
treaty,  and  is  in  itself  most  reasonable,  equitable,  and  political;  for  it 
is  putting  Grenada,  as  to  duties,  on  the  same  footing  with  all  the  British 
Leeward  Islands.  If  Grenada  paid  more  it  would  have  been  detri- 
mental to  her ;  if  less,  it  must  be  detrimental  to  the  other  Leeward 
Islands  :  nay,  it  would  have  been  carrying  the  capitulation  into  execu- 
tion, which  gave  the  people  of  Grenada  hopes,  that  if  any  new  tax  was 
laid  on,  their  case  would  be  the  same  with  their  fellow-subjects  in  the 
other  Leeward  Islands. 

The  only  question  then  on  this  first  point  is,  Whether  the  king  had  a 
power  to  make  such  change  between  the  10th  of  Februar}',  1763,  the 
da^-  the  treat}'  of  peace  was  signed,  and  the  7th  October,  1763  ?  Taking 
these  propositions  to  be  true  which  I  have  stated,  the  only  question  is, 
"Whether  the  king  had  of  himself  that  power? 

It  is  left  by  the  Constitution  to  the  king's  authority  to  grant  or  refuse 
a  capitulation  :  if  he  refuses,  and  puts  the  inhabitants  to  the  sword  or 
exterminates  them,  all  the  lands  belong  to  him.  If  he  receives  the 
inhabitants  under  his  protection  and  grants  them  their  property,  he  has 
a  power  to  fix  such  terms  and  conditions  as  he  thinks  proper.  He  is 
intrusted  with  making  the  treaty  of  peace  :  he  may  yield  up  the  con- 
quest, or  retain  it  upon  what  terms  he  pleases.  These  powers  no  man 
ever  disputed,  neither  has  it  hitherto  been  controverted  that  the  king 
might  change  part  or  the  whole  of  the  law  or  political  form  of  govern- 
ment of  a  conquered  dominion. 

To  go  into  the  history  of  the  conquests  made  by  the  Crown  of 
England. 

The  conquest  and  the  alteration  of  the  laws  of  Ireland  have  been 
variously  and  learnedly  discussed  by  lawyers  and  writers  of  great  fame, 
at  different  periods  of  time  :  but  no  man  ever  said,  that  the  change  in 
the  laws  of  that  country  was  made  by  the  Parliament  of  England  :  no 
man  ever  said  the  Crown  could  not  do  it.  The  fact  in  truth,  after  all 
the  researches  which  have  been  made,  comes  out  clearl}'  to  be,  as  it  is 
laid  down  by  Lord  Chief  Justice  Vaughan,  that  Ireland  received  the 
laws  of  England,  by  the  charters  and  commands  of  Hen.  2,  King  John, 
Hen.  3,  and  he  adds  an  et  ccetera  to  take  in  Ed.  1  and  the  subsequent 
kings.  And  he  shows  clearly  the  mistake  of  imagining  that  the  char- 
ters of  the  12th  of  John  were  by  the  assent  of  a  Parliament  of  Ireland. 
Whenever  the  first  Parliament  was  called  in  Ireland,  that  change  was 
introduced  without  the  interposition  of  the  Parliament  of  England  ;  and 
must,  therefore,  be  derived  from  the  Crown. 

Mr.  Barrington  is  well  warranted  in  saying  that  the  statute  of  Wales, 
12th  Ed.  1st,  is  certainly  no  more  than  regulations  made  by  the  king  in 
his  council,  for  the  government  of  Wales,  which  the  preamble  says  was 
then  totally  subdued.  Though,  for  various  political  purposes,  he  feigned 
Wales  to  be  a  feoff  of  his  crown  ;  yet  he  governed  it  as  a  conquest. 
For  Ed.  1st  never  protended  that  he  could,  without  the  assent  of  Par- 
liament, make  laws  to  bind  any  part  of  the  realm. 


SECT.  I.]  CAMPBELL   V.    HALL.  45 

Berwick,  after  the  conquest  of  it,  was  governed  by  charters  from 
the  Crown  without  the  interposition  of  ParUanient,  till  the  reign  of 
Jac.  1st. 

All  the  alterations  in  the  laws  of  Gascon}-,  Guienne,  and  Calais, 
must  have  been  under  the  king's  authorit}- ;  because  all  the  Acts  of 
Parliament  relative  to  them  are  extant.  For  they  were  in  the  reign  of 
Edward  3d,  and  all  the  Acts  of  Parliament  of  that  time  are  extant. 
There  are  some  Acts  of  Parliament  relative  to  each  of  these  conquests 
that  I  have  named,  but  none  for  any  change  of  their  laws,  and  par- 
ticularl}- with  regard  to  Calais,  which  is  alluded  to  as  if  their  laws  were 
considered  as  given  b}'  the  Crown. 

Besides  tlie  garrison,  there  are  inhabitants,  propert}',  and  trade  in 
Gibraltar :  ever  since  that  conquest  the  king  has  made  orders  and 
regulations  suitable  to  those  who  live,  &c.,  or  trade,  or  enjo\'  property 
in  a  garrison  town. 

The  Attorney-General  alluded  to  a  variety  of  instances,  and  several 
ver}'  latel}-,  in  which  the  king  had  exercised  legislation  in  Minorca : 
there,  there  are  many  inhabitants,  much  propert}',  and  trade.  If  it  is 
said,  that  the  king  does  it  as  coming  in  the  place  of  the  King  of  Spain, 
because  their  old  constitution  remains,  the  same  argument  holds  here. 
For  before  the  7th  October,  1763,  the  original  Constitution  of  Grenada 
continued,  and  the  king  stood  in  place  of  their  former  sovereign. 

After  the  conquest  of  New  York,  in  which  most  of  the  old  Dutch  in- 
habitants remained,  King  Charles  2d  changed  the  form  of  their  con- 
stitution and  political  government,  by  granting  it  to  the  Duke  of  York, 
to  hold  of  his  Crown,  under  all  the  regulations  contained  in  the  letters- 
patent. 

It  is  not  to  be  wondered  at  that  an  adjudged  case  in  point  has  not 
been  produced.  No  question  was  ever  started  before,  but  that  the  king 
has  a  right  to  a  legislative  authorit}'  over  a  conquered  country  ;  it  was 
never  denied  in  AVestminster  Hall ;  it  never  was  questioned  in  Parlia- 
ment. Coke's  Report  of  the  arguments  and  resolutions  of  the  judges  in 
Calvin's  Case  lays  it  down  as  clear.  If  a  king  (says  the  book)  comes 
to  a  kingdom  by  conquest,  he  may  change  and  alter  the  laws  of  that 
kingdom  ;  but  if  he  comes  to  it  by  title  and  descent,  he  cannot  change 
the  laws  of  himself  without  the  consent  of  Parliament.  It  is  plain  he 
alludes  to  his  own  countr}-,  because  he  alludes  to  a  country  where 
there  is  a  parliament. 

The  authority  also  of  two  great  names  has  been  cited,  who  take  the 
proposition  for  granted.  In  the  3-ear  1722,  the  Assembly  of  Jamaica 
being  refractory,  it  was  referred  to  Sir  Philip  Yorke  and  Sir  Clement 
Wearge,  to  know  "■  what  could  be  done  if  the  Assembly  should  obsti- 
nately continue  to  withhold  all  the  usual  supplies."  They  reported 
thus:  "If  Jamaica  was  still  to  be  considered  as  a  conquered  island, 
the  king  had  a  right  to  levy  taxes  upon  the  inhabitants  ;  but  if  it  was 
to  be  considered  in  the  same  light  as  the  other  colonies,  no  tax  could 
be  imposed  on  the  inhabitants  but  by  an  Assembly  of  the  island,  or  by 
an  Act  of  Parliament." 


46  CAMPBELL   V.    HALL.  [CHAP.  I. 

The}'  considered  the  distinction  in  law  as  clear,  and  an  indispu- 
table consequence  of  the  island  being  in  the  one  state  or  in  the  other. 
Whether  it  remained  a  conquest,  or  was  made  a  colon}-,  they  did  not 
examine.  I  have  upon  former  occasions  traced  the  Constitution  of 
Jamaica,  as  far  as  there  are  papers  and  records  in  the  offices,  and  can- 
not find  that  an}'  Spaniard  remained  upon  the  island  so  late  as  the 
jftestoration  ;  if  any,  there  were  very  few.  To  a  question  I  lately  put 
to  a  person  well  informed  and  acquainted  with  the  country,  his  answer 
was,  there  were  no  Spanish  names  among  the  white  inhabitants,  there 
were  among  the  negroes.  King  Charles  2d  by  proclamation  invited 
settlers  there,  he  made  grants  of  lands :  he  appointed  at  first  a  gov- 
ernor and  council  only  :  afterwards  he  granted  a  commission  to  the 
governor  to  call  an  assembly. 

The  constitution  of  every  province,  immediately  under  the  king,  has 
arisen  in  the  same  manner ;  not  from  grants,  but  from  commissions  to 
call  assemblies  :  and,  therefore,  all  the  Spaniards  having  left  the  island 
or  been  driven  out,  Jamaica  from  the  first  settling  was  an  English 
colony,  who  under  the  authority  of  the  king  planted  a  vacant  island, 
belonging  to  him  in  right  of  his  crown  ;  like  the  cases  of  the  island  of 
St.  Helena  and  St.  John,  mentioned  by  Mr.  Attorney-General. 

A  maxim  of  constitutional  law  as  declared  by  all  the  judges  in  Cal- 
vbi's  Case,  and  which  two  such  men,  in  modern  times,  as  Sir  Philip 
Yorke  and  Sir  Clement  Wearge,  took  for  granted,  will  require  some 
authorities  to  shake. 

But  on  the  other  side,  no  book,  no  saying,  no  opinion  has  been  cited ; 
no  instance  in  any  period  of  history  produced,  where  a  doubt  has  been 
raised  concerning  it.  The  counsel  for  the  plaintiff  no  doubt  labored 
this  point  from  a  diffidence  of  what  might  be  our  opinion  on  the  second 
question.  But  upon  the  second  point,  after  full  consideration  we  are 
of  opinion,  that  before  the  letters-patent  of  the  20th  July,  1764,  the 
king  had  precluded  himself  from  the  exercise  of  a  legislative  authority 
over  the  island  of  Grenada, 

The  first  and  material  Instrument  is  the  proclamation  of  the  7th 
October,  1763.  See  what  it  is  that  the  king  there  says,  with  what  view, 
and  how  he  engages  himself  and  pledges  his  word. 

"  For  the  better  security  of  the  liberty  and  property  of  those  who  are 
or  shall  become  inhabitants  of  our  island  of  Grenada,  we  have  declared 
by  this  our  proclamation,  that  we  have  commissioned  our  governor  (as 
soon  as  the  state  and  circumstances  of  the  colony  will  admit)  to  call  an 
assembly  to  enact  laws,"  &c.  "With  what  view  is  this  made?  It  is  to 
invite  settlers  and  subjects  :  and  why  to  invite.  That  they  might  think 
their  properties,  &c.,  more  secure  if  the  legislation  was  vested  in  an 
assembly,  than  under  a  governor  and  council  only. 

Next,  having  established  the  constitution,  the  proclamation  of  the 
20th  March,  1764,  invites  them  to  come  in  as  purchasers :  in  further 
confirmation  of  all  this,  on  the  9th  April,  1764,  three  months  before 
July,  an  actual  commission  is  made  out  to  the  governor  to  call  an 


SECT.  I.]  CAMPBELL   V.   HALL.  47 

Hssemblj"  as  soon  as  the  state  of  the  island  would  admit  thereof.  You 
observe,  tliere  is  no  reservation  in  the  proclamation  of  any  legislature 
to  be  exercised  by  the  king,  or  by  the  governor  and  council  under  his 
authorit}'  in  any  manner,  until  the  assembly  should  meet ;  but  rather  the 
contrary  :  for  whatever  construction  is  to  be  put  upon  it,  which,  per- 
haps, may  be  very  difficult  through  all  the  cases  to  which  it  may  be 
applied,  it  alludes  to  a  government  b}'  laws  in  being,  and  b}-  courts  of 
justice,  not  by  a  legislative  authority",  until  an  assembly  should  be 
called.  There  does  not  appear  from  the  special  verdict,  any  impediment 
to  the  calHng  an  assembl}'  immediately  on  the  arrival  of  the  governor, 
which  was  in  December,  1764.  But  no  assembly  was  called  then  or  at 
any  time  afterwards,  till  the  end  of  the  year  1765. 

We  therefore  think,  that  by  the  two  proclamations  and  the  commis- 
sion to  Governor  Melville,  the  king  had  immediately  and  irrecover- 
ably granted  to  all  who  were  or  should  become  inhabitants,  or  who 
had,  or  should  acquu-e  property  in  the  island  of  Grenada,  or  more 
generall}-  to  all  whom  it  might  concern^that  the  subordinate  legislation 
over  the  island  should  be  exercised  b}'  an  assembly  with  the  consent  of 
the  governor  and  council,  in  like  manner  as  the  other  islands  belonging 
to  the  king. 

Therefore,  though  the  abolishing  the  duties  of  the  French  king  and 
the  substituting  this  tax  in  its  stead,  which  according  to  the  finding  in 
this  special  verdict  is  paid  in  all  the  British  Leeward  Islands,  is  just 
and  equitable  with  respect  to  Grenada  itself,  and  the  other  British  Lee- 
ward Islands,  yet,  through  the  inattention  of  the  king's  servants,  in 
inverting  the  order  in  which  the  instruments  should  have  passed,  and 
been  notoriously  published,  the  last  act  is  contradictory  to,  and  a  viola- 
tion of  the  first,  and  is,  therefore,  void.  How  proper  soever  it  maj-  be 
in  respect  to  the  object  of  the  letters-patent  of  the  20th  July,  1764,  to 
use  the  words  of  Sir  Philip  Yorke  and  Sir  Clement  Wearge,  "  it  can 
only  now  be  done,  by  the  assembly  of  the  island,  or  bj'  an  Act  of  the 
Parliament  of  Great  Britain." 

The  consequence  is,  judgment  must  be  given  for  the  plaintiflT. 


48  NOTE   TO   PAXTON'S    CASE.  [CHAP.  I 

SECTION  II. 

WRITTEN   CONSTITUTIONS    IN   THE    UNITED    STATES. 


NOTE  TO  PAXTON'S  CASE  OF  THE  WRIT  OF  ASSISTANCE  i  (Qcinct's 

Rep.  51).     (1761.) 

[Quinci/'s  Rep.,  Appendix  I.  520.] 

But  Otis,  while  he  recognized  the  jurisdiction  of  Parliament  over  the  Colonies,  de- 
nied that  it  was  the  final  arbiter  of  the  justice  and  constitutionality  of  its  own  acts; 
and  relying  upon  words  of  the  greatest  English  lawyers,  and  putting  out  of  sight  the 
circumstances  under  which  they  were  uttered,  contended  that  the  validity  of  statutes 
must  be  judged  by  the  courts  of  justice;  and  thus  foreshadowed  the  principle  of 
American  Constitutional  Law,  that  it  is  the  duty  of  the  judiciary  to  declare  unconsti- 
tutional statutes  void. 

His  main  reliance  was  the  well-known  statement  of  Lord  Coke  in  Dr.  Bonham's 
Case  —  "It  appeareth  in  our  books,  that  in  many  cases  the  common  law  will  control 
Acts  of  Parliament  and  adjudge  them  to  be  utterly  void ;  for  where  an  Act  of  Parlia- 
ment is  against  common  right  and  reason  or  repugnant  or  impossible  to  be  performed, 
the  common  law  will  control  it  and  adjudge  it  to  be  void."  ^    Otis  seems  also  to  have 

1  By  Horace  Gray,  Jr.,  Esq.,  now  Mr.  Justice  Gray,  of  the  Supreme  Court  of  the 

United  States. 

1  am  indebted  to  the  publishers,  Messrs.  Little,  Brown  &  Co.,  and  to  Josiah  Quincy, 
Esq.,  of  Boston,  the  owner  of  the  copyright,  for  permission  to  reprint  here  this  valu- 
able note.     Quincy's  Reports  were  published  in  1865.  —  Ed. 

2  8  Rep.  118  a,  quoted  by  Otis,  ante  [Quincy],  474.  Dr.  Bonham's  Case  (so  far  as  is 
material  to  exhibit  this  point)  was  an  action  of  false  imprisonment,  brought  against  the 
president  and  censors  of  the  College  of  Physicians  in  London,  for  committing  the  plain- 
tiff to  jail  for  practising  medicine  in  London  without  their  license.  The  defendants  jus- 
tified, on  the  ground  that  it  was  granted  in  their  charter,  and  since  confirmed  by  Act  of 
Parliament,  that  no  one  should  practise  medicine  in  London  without  license  from  them, 
under  penalty  of  100s.  for  each  mouth,  one  half  to  the  king,  and  one  half  to  the  college : 
and  it  was  moreover  granted  that  they  should  have  the  supervision  of  all  physicians 
practising  in  London,  and  the  punishment  of  them  for  malpractice,  and  the  scrutiny  of 
all  medicines:  "so  that  the  punishment  of  the  same  physicians  so  delinquent  in  th^ 
premises  might  be  by  fine  and  imprisonment,  and  other  suitable  manner."  Coke,  C.  J., 
Warburton  &  Daniel,  JJ.,  gave  judgment  for  the  plaintiff  upon  two  points:  1st.  That 
the  defendants  had  no  power  to  commit  the  plaintiff  for  the  cause  alleged.  2d.  That 
if  they  had  such  power,  they  had  not  pursued  it.  116  b,  117  a,  121  a.  The  2d  point 
need  not  be  further  noticed  here. 

Of  the  first  point  "  the  cause  and  reason  shortly  was  "  that  the  clause  giving  the 
power  to  fine  and  imprison  did  not  apply  to  those  practising  without  license,  but  only 
to  those  who  were  guilty  of  malpractice.  "  And  that  was  made  manifest  by  five  rea- 
sons, which  were  called  vividce  rationes,  because  they  had  their  vigor  and  life  from  th 
letters-patent  and  the  Act  itself,"  "  by  construction,  and  conferring  all  the  parts  of 
them  together."  117  a.  "And  all  these  reasons  were  proved  by  two  grounds  or  max- 
ims in  law :  1.  Generalis  clausula  non  porrigitur  ad  ea  qute  specialiter  sunt  comprekensa." 
118  6.  "2.  Verba  posteriora  propter  certitudinem  addita  ad  priora  qnce  certitudme  indigent 
tunt  referenda."    119  a. 

The  fourth  of  the  reasons  thus  derived  from  the  whole  context,  and  supported  by 


SECT.  II.]  NOTE   TO   1'AXTON'S   CASE.  49 

had  in  mind  the  equally  familiar  dictum  of  Lord  Hobart  —  "  Even  an  Act  of  Parliament 
made  against  natural  equity,  as  to  make  a  man  judge  in  his  own  case,  is  void  in  itself  : 

legal  maxims  for  restraining  tlie  application  of  general  words,  was  this :  "  The  censors 
cannot  be  judges,  ministers,  and  parties;  judges  to  give  sentence  or  judgment;  minis- 
ters to  make  summons ;  and  parties  to  have  tiie  moiety  of  tlie  forfeiture,  tiuia  alu/uis 
non  debet  ease  Judex  in  propria  causa,  iiiio  ini<[uum  est  a/iqutm  suit  rei  esse  jud  teem ;  and 
one  cannot  be  judge  and  attorney  for  any  of  the  parties."  "  And  it  appears  in  our 
books,  tiiat  in  many  cases,  the  common  law  will  control  Acts  of  Paidianieut,  and  some- 
times adjudge  them  to  be  utterly  void :  for  when  an  Act  of  Parliament  is  against  com- 
mon right  and  reason,  or  repugnant,  or  impossil)le  to  be  performed,  the  common  law 
will  control  it,  and  adjudge  such  Act  to  be  void."  118  a.     And  see  ^'.  C.  2  Browul.  265. 

Wlien  tliis  passage  wa^  made  one  of  tlie  points  of  attack  agaiust  him,  Coke  called  the 
king's  attention  to  tlie  fact  (which  had  been  omitted  iji  the  (juestious  drawn  up  by  his 
enemies.  Lord  Chancellor  Kllesniere  and  Sir  Francis  Bacon)  that  the  words  of  liis  report 
did  "  not  import  any  new  opinion,  but  only  a  relation  of  such  authorities  of  law,  as  had 
been  adjudged  and  resolved  in  ancient  and  former  times,  and  were  cited  in  the  argu- 
ment of  Bonham's  Vase  ;  "  "  and  tiierefore  the  begiuning  is,  It  appeareth  in  our  books, 
etc.  And  so  it  may  be  explained,  as  it  was  truly  intended."  6  Bacon's  Works  (ed. 
1824),  400,  405,  407.  One  of  the  authorities  tlius  referred  to  was  the  remark  of  Herle, 
C  J.,  in  Trei/or  v.  Vinuihau,  8  E.  3,  .30,  that  "some  statutes  are  made  against  law  and 
right,  which  tliey  that  made  them,  perceiving,  would  not  put  them  in  execution."  The 
others  are  either  cases  in  whicli  a  limited  construction  had  been  given  to  general  words 
in  ortler  to  avoid  an  absurdity ;  or  instances  of  rejecting  repugnant  or  unfavorable  pro- 
visions, as  in  other  English  and  American  cases.  Case  of  Alton  Woods,  1  Rep.  47. 
Cromwell's  Case,  4  Rep.  13.  Jenk.  Cent.  196,  pi.  4.  Riddle  v.  Wliite,  Gwillim's  Tithe 
Cases,  1387.  United  States  v.  Cantril,  4  Cranch,  167.  Sullivan  v.  Bobbins,  3  Gray, 
476.      Campbell's  Case,  2  Bland,  232.     Cheezem  v.  State,  2  Ind.  149. 

In  a  later  case  Coke  is  reported  to  have  said  "  tliat  Fortescue  and  Littleton  and  all 
others  agreed,  tliat  tlie  law  consists  of  three  parts:  First,  Common  Law:  Secondly, 
Statute  Law,  which  corrects,  abridges,  and  explains  the  common  law :  The  third,  Cus- 
tom, wliicli  takes  away  the  common  law :  but  tlie  common  law  corrects,  allows,  and 
disallows,  both  statute  law  and  custom ;  for  if  there  be  repugnancy  in  statute,  or  unrea- 
sonableness ill  custom,  the  common  law  disallows  and  rejects  it,  as  it  appears  by  Dr. 
Bonham's  Case,"  &c.  Howies  v.  Mason,  2  Brownl.  197,  198.  In  his  first  Institute  he 
repeats  the  same  classification,  adding,  "The  common  law  hath  no  controller  in  any 
part  of  it,  but  the  High  Court  of  Parliament."  Co.  Lit.  115  b.  Again  he  says,  in  a 
passage  which  seems  to  have  been  cited  by  Otis  (ante,  56),  "  the  surest  construction  of 
a  statute  is  by  the  rule  and  reason  of  the  common  law."  Co.  Lit.  272 1>.  S.  P.  Harbert's 
Case,  3  Rep.  13  b.  And  in  liis  second  Institute,  in  commenting  on  tlie  12th  chapter  of 
Magna  Charta,  declaring  that  assizes  should  "  not  be  taken  except  in  their  own  coun- 
ties," and  on  the  apparently  repugnant  decision  that  "  if  a  man  lie  disseised  of  a  com- 
mote or  lordship  marcher  in  Wales,  liolden  of  the  king  in  capite,"  the  assize  should  be 
taken  in  an  adjoining  county  in  England,  lie  says,  "the  reason  is  notable,  for  the  Lord 
Marcher,  though  he  had  jura  regalia,  yet  could  not  he  doe  justice  in  his  owne  case." 
"  Hereby  it  appeareth  (that  I  may  observe  it  once  for  all)  that  the  best  expositors  of 
this  and  all  other  statutes  are  our  bookes  and  use  or  experience."     2  Inst.  25. 

The  same  rules  of  construction  have  prevailed  ever  since.  Acts  of  Parliament  are 
always  to  be  construed  according  to  the  common  law  and  natural  right,  even  if  it  should 
be  necessary  for  this  purpose  to  adopt  what  would  otherwise  be  a  forced  construction. 
Fulmerston  v.  Steward,  Plow.  109.  Sheffield  v.  Ratcliffe,  Hob.  346.  Williams  v.  Pritch- 
ard,  4  T.  R.  3.  The  King  v.  Inhabitants  of  Cumberland,  6  T.  R.  194.  Dwarris  on  Sts. 
(2d  ed  )  484,  623.  The  rule  has  been  thus  expressed  by  one  of  the  most  exact  of  mod- 
ern English  judges:  "Tlie  rule  by  which  we  are  to  be  guided  in  construing  Acts  of 
Parliament  is  to  look  at  the  precise  words,  and  to  construe  them  in  their  ordinar}'  sense, 
unless  it  would  lead  to  any  absurdity  or  manifest  injustice;  and  if  it  should,  so  to  vary 

VOL.    I.  4: 


50  NOTE   TO   PAXTON'S    CASE.  [CHAP.  I. 

ioT  jura  natura  sunt  immutabilia,  and  tbey  are  leges  legum."'^  Lord  Holt  is  reported  to 
have  said,  "  What  my  Lord  Coke  says  in  Dr.  Bonham's  Case  iu  his  8  Rep.  is  far  from 
any  extravagancy,  for  it  is  a  very  reasonable  and  true  saying.  That  if  an  Act  of  Par- 
liament should  ordain  that  the  same  person  should  be  party  and  judge,  or  what  is  the 
same  thing,  judge  in  his  own  cause,  it  would  be  a  void  Act  of  Parliament."  ^ 


and  modifv  them  as  to  avoid  that  which  it  certainly  could  not  have  been  the  intention 
of  the  legislature  should  be  done."     Parke,  B.,  in  Perry  v.  Slcimei;  2  M.  &  W.  476. 

For  an  example  of  American  opinion  upon  this  subject,  it  is  sufficient  to  quote  from 
Chief  Justice  Marshall  the  following  "principles  in  the  exposition  of  statutes:"  "An 
Act  of  Cono-ress  ought  never  to  be  construed  to  violate  the  Law  of  Nations  if  any  other 
possible  construction  remains,  and  consequently  can  never  be  construed  to  violate  neu- 
tral rights,  or  to  affect  neutral  commerce,  further  than  is  warranted  by  the  Law  of 
Nations  as  understood  in  this  country."  "  Every  part  of  the  statute  is  to  be  considered, 
and  the  intention  of  the  legislature  to  be  extracted  from  the  whole;"  and  "where 
great  inconvenience  will  result  from  a  particular  construction,  that  construction  is  to 
be  avoided,  unless  the  meaning  of  the  legislature  be  plain,  in  which  case  it  must  be 
obeyed."  Murray  v.  The  Charmhig  Betsey,  2  Cranch,  118.  United  States  v.  Fisher, 
lb.  386. 

The  same  doctrine  has  been  applied  to  the  construction  of  a  written  constitution. 
Chief  Justice  Parsons,  and  his  associates  (and  afterwards  in  turn  successors)  Justices 
Sewall  and  Parker,  in  an  opinion  given  to  the  Massachusetts  House  of  Representatives 
in  1811,  said:  "The  natural  import  of  the  words  of  any  legislative  Act,  according  to 
the  common  use  of  them,  when  applied  to  the  subject-matter  of  the  Act,  is  to  be  consid- 
ered as  expressing  the  intention  of  the  legislature ;  unless  the  intention,  so  resulting 
from  the  ordinary  import  of  the  words,  be  repugnant  to  sound,  acknowledged  princi- 
ples of  national  policy.  And  if  that  intention  be  repugnant  to  such  principles  of  na- 
tional policy,  then  the  import  of  the  words  ought  to  be  enlarged  or  restrained,  so  that 
it  may  comport  with  those  principles ;  unless  the  intention  of  the  legislature  be  clearly 
and  manifestlv  repugnant  to  them.  For  although  it  is  not  to  be  presumed  tliat  a  legis- 
lature will  violate  principles  of  public  policy,  yet  an  intention  of  the  legislature,  repug- 
nant to  tliose  principles,  clearly,  manifestly  and  constitutionally  expressed,  must  have 
the  force  of  law."     Opinion  of  Justices,  7  Mass.  524,  525. 

Thus  bv  weighing  Coke's  words,  and  comparing  them  with  his  own  statements  and 
later  authorities,  they  are  relieved  from  the  misconstruction,  which  has  occasioned 
modern  commentators  either,  like  Chancellor  Kent,  to  praise  a  boldness  which  Coke 
never  assumed,  or,  like  Lord  Campbell,  to  sneer  at  what  they  would  not  take  the 
trouble  to  understand.  1  Kent  Com.  {6th  ed.)  448.  2  Campbell's  Lives  of  the  Chan- 
cellors, 248,  note.     1  Campbell's  Lives  of  the  Chief  Justices,  290". 

1  Dai/  V.  Saradge,  Hob.  87.  The  dispute  there  was  upon  the  liability  of  a  freeman 
of  London  to  pay  wharfage  to  the  city,  and  the  question  was  whether  tins  should  be 
tried  by  certificate  of  the  mayor  and  aldermen  according  to  the  customs  of  London 
(wliich  had  been  confirmed  by  Act  of  Parliament)  or  by  a  jury.  The  very  paragraph 
which  contains  the  dictum  quoted  in  the  text  shows  that  there  was  another  sulticient 
reason  for  ordering  a  trial  by  jury.  That  paragraph,  which  concludes  the  opinion,  is 
thus :  "  By  that  that  hath  been  said  it  appears,  that  though  in  pleading  it  were  con- 
fessed that  the  custome  of  certificate  of  the  customes  of  London  is  confirmed  by  Parlia- 
ment, yet  it  made  no  change  in  this  case,  both  because  it  is  none  of  the  customes  in- 
tended, and  because  even  an  Act  of  Parliament,  made  against  naturall  equitie,  as  to 
make  a  man  judge  in  his  owne  case,  is  void  in  it  selfe,  for  Jura  naturce  sunt  immutabilia, 
and  tliey  are  leges  legum." 

Bracton,  with  more  accuracy,  wrote,  "Jura  enim  natui-alia  dicuntur  immutabilia,  quia 
non  possunt  ex  toto  abrogari  vel  auferri,  poterit  tamen  eis  derogari  vel  detrahi  in  specie  vel 
in  parte."     Lib.  1,  c.  5,  §  8. 

2  City  nf  London  v.  Wood,  12  Mod.  687.  Approved  by  Wilde,  J.,  in  Commonwealth 
V.  Worcester,  3  Pick.  472,  and  by  Metcalf,  J.,  in  Williams  v.  Robinson,  6  Cush.  335.  336. 

Nemo  debet  esse  judex  in  sua  propria  causa  has  always  been  a  fundamental  maxim  of 


SECT.  II.]  NOTE   TO    PAXTON'S   CASE.  51 

The  law  was  laid  down  in  the  same  way,  on  the  authority  ,of  the  above  cases,  in 
Bacon's  Abridgment,  first  published  in  1735;  in  Viuer's  Abridgment,  published  1741- 
51,  from  which  Otis  quoted  it;  and  in  Comyn's  Digest,  puldished  1762-7,  but  written 
more  than  twenty  years  before.  And  there  are  older  auth(n-ities  to  the  same  effect. 
So  that  at  the  time  of  Otis's  argument  his  position  appeared  to  be  supported  by  some 
of  the  highest  authorities  in  the  English  law.^ 

the  common  law.  Chancellor  of  Oxford's  Case,  8  H.  6,  18;  Bro.  Ab.  Patent,  15.  Lit. 
§  212.  Co.  Lit.  141  a.  Derby's  Case,  12  Kep.  1 14;  4  List.  213.  2  Rol.  Ab.  Judges,  A. 
Hes/celkv.  Braddock,  3  Bur.  1858.  The  Qrceen  v.  Justices  of  Hertfordshire,  6  Q.  B.  753. 
Dimes  v.  Grand  Junction  Canal,  3  H.  L.  Cas.  759.  Egerton  v.  Brownloic,  4  H.  L.  Cas. 
240.  Pearce  v.  Atwood,  13  Mass.  340,  341.  Commonwealth  v.  McLane,  4  Gray,  427. 
Hush  V.  Sherman,  2  Allen,  597.  Washinyton  Ins.  Co.  v.  Price,  Hopk.  Ch.  1.  Peck  v. 
Freeholders  of  Essex,  Spencer,  475 ;  1  Zab.  657.  Governor  Winthrop,  when  accused 
before  the  General  Court  of  Massachusetts  in  1645  for  acts  done  by  him  as  a  magistrate, 
"coming  in  with  the  rest  of  the  magistrates,  placed  himself  beneath  witliin  the  bar  and 
so  sat  uncovered."  2  Winthrop's  Hist.  N.  E.  224.  And  so  did  Lord  Holt  upon  the 
trial  in  1693  of  a  suit  brought  by  the  Crown  to  test  his  right  as  C.  J.  K.  B.  to  appoint 
the  chief  clerk  for  enrolling  pleas  in  that  court.  Bride/man  v.  Holt,  Show.  P.  C.  111. 
Yet  an  interested  judge  may  act  if  no  other  has  jurisdiction  of  the  matter.  Anon,  cited 
8  H.  6,  19  h,  and  Bro.  Ab.  Judges,  6.  Great  Charte  v.  Kennini/ton,  2  Stra.  1173;  Bur. 
Set.  Cas.  194.  71ie  Queen  v.  Great  Western  Railwaij,  13  Q.  B.  327.  Ranger  v.  Great 
Western  Railwaij,  5  H.  L.  Cas.  88.  Commonwealth  v.  Ri/an,  5  Mass.  92.  Hill  v.  Wells, 
6  Pick.  109.  Commonwealth  V.  Finer  I/,  II  Cush.  411.  /n  re  Zee/e,  2  Barb.  Ch.  39.  Or 
if  he  is  e.\prcssly  authorized  by  statute.  The  King  v.  Justices  of  Essex,  5  M.  &  S.  513. 
Commonwealth  v.  Worcester,  3  Pick.  472.  Commonwealth  v.  Reed,  1  Gray,  474,  475. 
And  an  interested  judge  may  do  formal  acts  necessary  to  bring  the  case  before  the 
proper  tribunal.  The  King  v.  Yarpole,  4  T.  R.  71.  Dimes  v.  Grand  Junction  Canal, 
3  H.  L.  Cas.  787.  Jeffries  v.  SewaJl,  2  John  Adams's  Works,  138,  139.  Richardson  v. 
Boston,  1  Curt.  C.  C.  251.  Buckingham  v.  Davis,  9  Maryland,  329.  Hei/denfeldt  v. 
Towns,  27  Alab.  430.  But  if  a  judge  cau.ses  a  suit  in  whicli  he  is  interested  to  be 
brought  l)efore  him,  his  judgment  therein  will  be  void,  althougli  he  is  sole  judge  of  the 
court.  Mai/or  of  Hereford's  Case,  cited  7  Mod.  1 ;  2  Ld.  Raym.  766 ;  &  1  Salk.  201, 
396.  Richardson  v.  Welcome,  6  Cush.  332.  Judge  Rolle  was  of  opinion  that  even  con- 
sent of  parties  would  not  give  jurisdiction  to  an  interested  judge,  "  because  it  is  against 
natural  reason."  Smith  v.  Hancock,  Style,  138.  But  it  is  now  well  settled  that  the 
objection  of  interest  may  be  waived,  unless  it  is  made  h\  constitution  or  statute  an 
absolute  disriualification.  Regina  v.  Cheltenham  Commissioners,  1  Q.  B.  475.  Kent  v. 
Charlestown,  2  Gray,  281.  Tolland  v.  Count g  Commissioners,  13  Gray,  13.  Sigourney 
V.  Sihleij,  21  Pick.  106.  Paddock  v.  Wells,  2  Barb.  Ch.  335.  Oak'leg  v.  Aspinwall, 
3  Com.st.  547. 

1  Bac.  Ab.  Statutes,  A.  Vin.  Ab.  Statutes,  E.  6  pi.  15;  ante,  51.  Com.  Dig.  Par- 
liament, R.  27.  Story's  Miscellaneous  Writings,  125-133.  Doct.  &  Stud.  lib.  1,  cc.  2, 
6.  1  Finch,  c.  6.  Noy's  Max.  19.  John  Milton,  in  his  Defence  of  the  People  of  Eng- 
land, appealed  to  "that  fundamental  maxim  in  our  law,  by  which  nothing  is  to  be 
counted  a  law,  tliat  is  contrary  to  tiie  law  of  God,  or  of  reason."  6  Milton's  Prose 
Works  (ed.  18.")1),  204. 

Even  Sir  William  P.Iackstone  in  his  Commentaries,  first  published  in  1765,  admitted 
"that  the  rule  is  generally  laid  down  that  Acts  of  Parliament  contrary  to  reason  are 
void  ;  "  adding,  however,  "  but  if  the  Parliament  will  positively  enact  a  thing  to  be  done 
which  is  unreasonable,  I  know  of  no  power  that  can  control  it."  1  Bl.  Com.  91.  And 
so  the  law  was  stated  in  the  editions  })ublished  during  his  life,  the  eiglith  and  last  of 
which  was  published  in  1778.  In  the  posthumous  editions  his  statement  is  thus  modi- 
fied :  "I  know  of  no  power  in  the  ordinary  forms  of  the  Constitution,  that  is  vested 
with  authority  to  control  it;"  anil  the  qualifying  words  ap])ear  in  the  corrections  for 
the  press  made  in  his  own  handwriting  in  the  margin  of  a  copy  of  the  eighth  edition, 
now  owned  by  Mr.  Eraucis  E.  I'arker  of  Boston.     Perhaps  the  American  Revolution 


52  NOTE  TO  PAXTON'S  CASE.  [CHAP.  I. 

The  same  doctrine  was  repeatedly  asserted  by  Otis,^  and  was  a  favorite  in  the  Colo- 
nies before  the  Revolution.''     There  are  later  dicta  of  many  eminent  judges  to  the  effect 

forced  itself  more  distinctly  upon  the  notice  of  the  learned  commentator  between  1778 
and  his  death  in  1780. 

Opposite  the  statements  of  the  power  of  tlie  Parliament  in  1  Bl.  Com.  49,  97,  161, 
189,  Quincy  in  his  copy  wrote  "  Qu,"  and  references  to  Vattel's  Law  of  Nations,  Bk.  1, 
c.  3,  pp.  15-19,  and  Furneaux's  Letter  to  Blackstone,  81,  83.  And  at  Blackstone's 
statement,  "  It  must  be  owned  that  Mr.  Locke  and  other  theoretical  writers  liave  held 
that  'tliere  remains  still  inherent  in  the  people  a  supreme  power  to  remove  or  alter 
the  legislature,  when  they  find  the  legislative  Act  contrary  to  the  trust  reposed  in 
them ;  for  when  such  trust  is  abused,  it  is  thereby  forfeited,  and  devolves  to  those  who 
gave  it.'  But  however  just  this  conclusion  may  be  in  theory,  we  cannot  adopt  it,  nor 
argue  from  it,  under  any  dispensation  of  government  at  present  actually  existing."  — ■ 
1  Bl.  Com.  IGl,  162  —  the  words  liere  printed  in  italics  are  underlined  by  Quincy,  who 
adds  in  the  margin,  "  Tamen  qmere  whether  a  conclusion  can  be  just  in  theory,  that 
Avill  not  bear  adoption  in  practice."  This  very  passage  affords  another  instance  of 
Blackstone's  careful  revision  of  his  work.  In  the  sixth  and  subsequent  editions  the 
word  "  practically  "  is  inserted  before  the  word  "  adopt ; "  and  for  the  words  "  argue 
from  it"  are  substituted  "take  any  legal  steps  for  carrying  it  into  execution." 

1  Jeffries  v.  Sewall,  2  John  Adams's  Works,  139.  Rights  of  the  British  Colonies, 
41,  61,  62,  71,  72,  73,  109,  110. 

2  In  the  controversy  of  Massachusetts  with  the  other  Confederated  Colonies  of  New 
England  in  1653  upon  the  right  of  the  Confederation  to  make  offensive  war,  all  parties 
agreed  that  any  acts  or  orders  manifestly  unjust  or  against  the  law  of  God  were  not 
binding.  10  riym.  Col.  Rec.  215-223;  2  Hazard  Hist.  Coll.  270-283.  In  1688  "the 
men  of  Massachusetts  did  much  quote  Lord  Coke."  Lambert  MS.  quoted  in  2  Ban- 
croft's Hist.  U.  S.  428.  And  in  1765,  Hutchinson,  speaking  of  the  opposition  to  the 
Stamp  Act,  said,  "  The  prevailing  reason  at  this  time  is,  that  the  Act  of  Parliament  is 
against  Magna  Charta,  and  the  natural  riglits  of  Englishmen,  and  therefore,  according 
to  Lord  Coke,  null  and  void."  "  Summary  of  the  Disorders  in  the  Massachusetts  Prov- 
ince proceeding  from  an  Apprehension  that  the  Act  of  Parliament  called  the  Stamp 
Act  deprives  the  People  of  their  Natural  Rights,"  26  Mass.  Archives,  180,  183.  And 
see  Hutchinson  to  Jackson,  September  12, 1765,  quoted  ante,  441 ;  Arguments  of  Adams 
and  Otis  on  the  Memorial  of  Boston  to  tlie  Governor  and  Council,  ante,  200,  201,  205, 
206 ;  2  John  Adams's  Works,  158,  159,  note.  Even  the  judges  appointed  by  the  Royal 
Governor  do  not  seem  to  have  been  prepared  to  deny  this  principle.  John  Cushing, 
one  of  the  associate  justices,  in  a  letter  to  Chief  Justice  Hutchinson,  dated  "  In  a  hurry, 
Feby.  7, 1766,"  upon  the  question  whether  the  courts  sliould  Ije  opened  without  stamps, 
wrote,  "  Its  true  It  is  said  an  Act  of  Parliament  against  natural  Equity  is  void.  It 
will  be  disputed  whether  this  is  such  an  Act.  It  seems  to  me  tlie  main  Question  here 
is  whether  an  Act  which  cannot  be  carried  into  execution  should  stop  the  Course  of 
Justice,  and  tliat  the  Judges  are  more  confined  than  with  respect  to  an  obsolete  Act. 
If  we  admit  evidence  unstamped  ex  necessitate  Q.  if  it  can  be  said  we  do  wrong."  25 
Mass.  Archives,  55.  And  in  1776,  after  the  Governor  had  left,  and  the  Council  and 
House  of  Representatives  had  assumed  the  government,  John  Adams,  in  answering  a 
letter  of  congi'atnlation  upon  his  own  appointment  as  Chief  Justice  of  Massachusetts, 
from  AVilliam  Cushing,  his  senior  associate,  and  who  upon  Adams's  declination  became 
Chief  Justice  in  his  stead,  and  afterwards  a  Justice  of  the  Supreme  Court  of  the  United 
States,  wrote,  "  You  have  my  hearty  concurrence  in  telling  the  jury  the  nullity  of  Act? 
of  Parliament."     9  John  Adams's  Works,  390,  391,  &  note. 

In  a  case  before  the  General  Court  of  Virginia  in  1772,  George  Mason,  as  reported 
by  Thomas  Jefferson,  argued  that  the  provision  of  the  statute  of  that  Colony  of  1682, 
that  "  all  Indians  wliicli  shall  hereafter  be  sold  by  our  neighburing  Indians,  or  any 
other  trafiqueing  with  us  as  for  slaves,  are  hereby  adjudged,  deemed  and  taken  to  be 
slaves,"  was  "  originally  void,  because  contrary  to  natural  right  and  justice,"  citing 
Coke  and  Hobart,  ubi  sup.     The  only  authority  cited  on  the  other  side  was  1  Bl.  Com. 


SECT,  n.]  NOTE  TO  PAXTON's  CASE.  53 

that  a  statute  may  be  void  as  exceeding  the  just  limits  of  legislative  power; '  but  it  is 
believed  there  is  no  instance,  except  one  case  in  South  Carolina,'^  iu  wliicli  an  Act  of 
the  Lejrislature  has  been  set  aside  by  tlie  courts,  except  for  conflict  with  some  written 
constitutional  provision.** 

The  reduction  of  tiie  fundamental  principles  of  government  in  the  American  States 
to  the  form  of  written  constitutions,  established  by  the  people  tiieniselves,  and  beyond 
the  control  of  their  representatives,  necessarily  obliged  the  judicial  department,  iu  case 
of  a  conflict  between  a  constitutional  provision  and  a  legislative  act,  to  obey  the  Con- 
stitution as  the  fundamental  law  and  disregard  the  statute.  This  duty  was  recognized, 
and  unconstitutional  acts  set  aside,  by  courts  of  justice,  even  before  the  adoption  of  the 

91.  As  the  court  held  that  the  Act  of  1682  had  been  repealed  by  a  subsequent  statute, 
it  became  unnecessary  to  decide  the  question.  2  Heuing's  Sts.  at  Large,  491.  IMiin 
V.  Harchiwa;/,  Jefferson  11.  114,  118,  123.  And  iu  the  debates  on  the  adoption  of  the 
Constitution  of  the  Tnited  States,  Patrick  Henry  said  that  the  Virginia  judges  had 
opposed  unconstitutional  Acts  of  the  Legislature.  4  Elliott's  Deb.  {2d  ed.)  .325.  Et  vid. 
sup.  519,  note. 

1  Ellsworth,  in  3  IMadison  Deb.  1400;  5  Elliot's  Debates,  462.  Chase,  J.  in  Colder 
V.  Bull,  3  Dall.  388.  Marshall,  C.  J.  and  Johnson,  J.  in  Fletcher  v.  Peck,  6  Cranch, 
135,  136,  143.  Thompson,  J.  in  Oi/den  v.  Saunders,  12  Wheat.  304.  Story,  J.  iu  Wil- 
kinson \.  Leland,  2  Pet.  657,  658.  //«/«  v.  M' Claws,  1  Bay,  95.  5  Dane  Ab.  248. 
Parker,  C.  J.  in  Foster  v.  Essex  Bank,  16  Mass.  270,  271,  and  Ross's  Case,  2  Pick.  169. 
Richardson,  C.  J.  in  Opinion  of  Justices,  4  N.  H.  566.  Prentiss,  J.  in  Lyman  v.  Mower, 
2  Verm.  519.  Redfleld,  C.  J.  in  Hutch  v.  ]'ermont  Central  Railroad,  25  Verm.  66. 
Hosmer,  C.  J.  in  (ioshen  v.  Stonington,  4  Conn.  225.  Spencer,  C  J.  in  Bradshaw  v. 
Rogers,  20  Johns.  106.  Walworth,  C.  in  Varick  v.  Smith,  5  Paige,  159,  and  Cochran  v. 
Van  Surlai/,  20  Wend.  373.  Bronson,  C.  J.  in  Tai/lor  v.  Porter,  4  Plill,  144,  145. 
Jewett,  J.  iu  Powers  v.  Bergen,  2  Selden,  367.  Bland,  C.  in  Campbell's  Case,  2  Bland, 
231,  232. 

2  In  1792  the  Superior  Court  of  Soutli  Carolina  held  that  an  Act  passed  by  tlie  legis- 
lature of  the  Colony  in  1712,  which  took  away  the  freeliold  of  one  man  and  vested  it  In 
another,  was  "  against  common  right,  as  well  as  against  Magna  Charta,"  and  "  there- 
fore ipso  facto  void."  Bowman  v.  ]\Iiddleton,  1  Bay,  252.  [This  case  is,  in  truth,  no 
exception.  It  is  to  be  noticed  that  the  decision  pronounces  the  Act  invalid  as  of\l\-2, 
when  it  was  passed.  At  that  time  the  authority  of  Parliament,  and  so  of  the  statute 
of  Magna  Charta,  was  paramount  in  South  Carolina.  The  terms  of  the  decision  are 
as  follows:  "The  court  (present,  Ghimke  and  Bay,  Justices),  wlio  [sic],  after  a  full 
consideration  on  the  subject,  were  clearly  of  opinion,  that  the  plaintiffs  could  claim 
no  title  under  the  Act  in  question,  as  it  was  against  common  right,  as  well  as  .against 
Magna  Charta,  to  take  away  the  freehidd  of  one  man  and  vest  it  in  another,  and  that, 
too,  to  the  prejudice  of  third  persons,  without  any  compensation,  or  even  a  trial  by  the 
jury  of  the  country,  to  determine  the  right  in  question.  That  the  Act  was,  therefore, 
ipso  facto,  void.  That  no  length  of  time  could  give  it  validity,  being  originally  founded 
on  erroneous  principles.  That  the  parties,  however,  might,  if  they  chose,  rely  upon  a 
possessory  right,  if  tliey  could  establish  it."  It  may  be  added  th.it  at  the  time  of  this 
decision  the  Constitution  of  the  State  expressly  affirmed  the  principle  of  "  common 
right,"  which  is  here  in  question.  —  Ed.] 

8  It  was  said  by  Chief  Justice  Parsons,  and  repeated  by  Chief  Justice  Shaw,  th.at 
"the  legislature  m.ay  make  all  laws  not  repugnant  to  the  Constitution."  Stoughton  v. 
Baker,  4  M.ass.  529.  Commonwealth  v.  Alger,  7  Cush.  101.  And  see  Opinion  of  Jus- 
tices, 7  Mass.  525 ;  Patterson,  J.  in  Vanhorne  v.  Dorrance,  3  DjiU.  308 ;  Iredell,  J.  in 
Calder  v.  Bull,  3  Dall.  398,  399;  Washington,  J.  in  Beach  v.  WoodhuU,  Pet.  C.  C.  6; 
Baldwin,  J.  in  Bennett  v.  Bnggs,  Bald.  74 ;  1  Kent  Com.  448 ;  Verplanck,  Senator,  in 
Cochran  v.  Van  Surlay,  20  Wend.  382 ;  Bronson,  J.  in  People  v.  Fisher,  24  Wend.  220; 
Cowen,J.  in  Butler  v.  Palmer,  I  Hill  N.  Y.  329,  3.30;  Gib.son,  C.  J.  in  Harvey  v. 
Thomas,  10  Watts,  66,  67;  Rogers,  J.  in  Commonwealth  v.  M'Closkey,  2  Rawle,  374; 
Huston,  J.  in  Braddee  v.  Brownjield,  2  W.  &  S.  285. 


54  "WKITTEN    CONSTITUTIONS   IN    THE   UNITED    STATES.       [CHAP.  I. 

Constitution  of  the  United  States.^  Since  the  ratification  of  that  Constitution  the 
power  of  the  courts  to  declare  uuconstitutioual  statutes  void  has  become  too  well  set- 
tled to  require  an  accumulation  of  authorities.-  But  as  the  office  of  the  judiciary  is 
to  decide  particular  cases,  and  not  to  issue  general  edicts,  only  so  much  of  a  statute  is 
to  be  declared  void  as  is  repugnant  to  the  Constitution  and  covers  the  case  before  the 
court,  unless  the  constitutional  and  unconstitutional  provisions  are  so  interwoven  as  to 
convince  the  court  that  the  legislature  would  not  have  passed  the  one  without  the 
other.** 

There  will  be  found,  in  the  Appendix  to  Part  I.  (infra,  p.  381),  the 
text  of  the  Constitution  of  the  United  States  and  its  amendments,  and 
that  of  Massachusetts,  without  its  amendments.  Such  passages,  also, 
are  there  given  from  all  the  other  State  constitutions  which  preceded 
that  of  the  United  States,  and  from  the  colonial  charters  of  Con- 
necticut and  Rhode  Island,  as  are  likely  to  be  instructive  for  the  pur- 
poses of  this  book.  There  are  added,  as  indicating  the  conceptions 
which  find  expression  in  the  more  recent  instruments,  those  parts  of 
a  typical  modern  constitution  —  that  of  Colorado,  adopted  in  1876, 
"  the  year  of  the  Independence  of  the  United  States,  the  one  hun- 
dredth"—  which  are  most  characteristic.  The  relative  length  of  the 
older  and  the  later  instruments  may  be  seen  by  comparing  the  original 
Constitution  of  Massachusetts,  which  fills  a  little  over  sixteen  pages 
of  Poore's  Charters  and  Constitutions,  with  that  of  Colorado,  which 
covers  a  little  more  than  twenty-nine  pages. 

Finally  the  Appendix  has  certain  interesting  parts  of  an  American 
Constitution  outside  the  United  States,  viz,,  that  of  Colombia. 

The  Constitution  of  Massachusetts  has  a  peculiar  interest,  not  only 
as  being  the  original  Constitution  of  the  State,  and  the  oldest  of  all 
American  instruments  now  in  force,  but  also  as  being  the  first  any- 
where submitted  to   a   popular   vote   and   approved    by  the  people.* 

1  The  very  few  reports  which  have  been  preserved  of  the  judicial  decisions  of  that 
period  afford  two  such  examples.  In  1786  the  judges  of  the  Superior  Court  of  the 
State  of  Khode  Island  refused  to  act  under  a  statute  of  the  General  Assembly,  which 
provided  for  the  trial  of  an  offence  upon  iuformation  before  the  judges  without  a  jury, 
contrary  to  the  Constitution  of  the  State  as  embodied  iu  the  Royal  Charter  of  Charles  2. 
Trevp.tt  V.  Weeden,  reported  by  James  M.  Varnum,  Providence,  1787;  2  Chandler's 
Crim.  Trials,  279  Sf  seq.  And  in  1787  the  judges  of  the  Superior  Court  of  North  Caro- 
lina set  aside  an  Act  of  that  State,  which  deprived  a  citizen  of  his  property  without 
trial  bv  jurv,  in  violation  of  the  State  Constitution  of  1776.  Den  v.  Suujleton,  Martin 
N.  C.  49. 

2  Federalist,  No.  78.  Vanhorne  v.  Dorrance,  2  Ball.  .308.  Cooper  v.  Telfair,  4  Dall. 
19.  Mnrlmri/  Y.Madison,  1  Cranch,  177-180.  1  Wilson's  Works,  461,  462.  3  Story 
on  Const.  U.  S.  §§  1570,  1608.     1  Kent  Com.  449-454. 

"*  Bank  of  Hamilton  v.  Dudlei/,  2  Pet.  526.  Commonwealth  v.  Knox,  6  Mass.  77. 
Wel/inf/ton,  petitioner,  16  Pick.  95-97.  Commonicealt/i  v.  Kimball,  24  Pick.  361.  Norris 
V,  Boston,  4  Met.  288.  Fisher  v.  McGirr,  1  Gray,  21.  Warren  v.  Mayor  ^-  Aldermen 
of  Charlestown,  2  Gray,  98,  99.     Jones  v.  Rohhins,  8  Gray,  338,  339. 

*  John  Adams  wrote,  while  this  instrument  was  in  preparation  :  "  There  never  was 
an  example  of  such  precautions  as  are  taken  by  this  wise  and  jealous  people  in  the  form- 
ation of  their  government.  None  was  ever  made  so  perfectlv  upon  the  principle  of 
the  people's  rights  and  equality.  It  is  Locke,  Sidney,  and  Rousseau  and  De  Mably 
reduced  to  practice,  in  the  first  instance." —  4  Works  oj  John  Adams,  216.     Adams  was 


SECT.  II.]  COMMONWEALTH   V.   CATON   ET   AL.    '  55 

Omitting  Couuecticut  and  Rhode  Island,  which  lived  under  their  colo- 
nial charters  until  1618  and  184:2  respectively,  Massachusetts  was  the 
last  of  the  original  States  in  actually  adopting  a  written  constitution. 
Ten,  and,  if  Vermont  be  counted,  eleven  constitutions  had  previously 
gone  into  operation  ;  but  none  of  them  had  been  submitted  to  the 
popular  vote.  The  Massachusetts  Legislature,  in  1778,  had  submitted 
the  draft  of  a  constitution  to  the  people,  but  it  was  rejected.  So,  also, 
in  1779,  in  New  Hampshire,  a  proposed  second  constitution  was  sub- 
mitted to  the  people  and  rejected.  The  facts  relating  to  all  the  States 
will  be  found  carefully  gathered  in  Jamesou,  Constitutional  Coaven- 
tious  (4th  ed.  1887),  ss.  126-157,  and  in  the  Table,  lb.  643.  See 
also  the  notes,  under  the  various  instruments,  in  Poore's  Charters  and 
Constitutions. 

Of  this  reference  to  the  popular  vote,  sometimes  called  "  the  consti- 
tuting referendiun,"  and  by  the  French  the  "  plebiscite  constituaut," 
it  has  been  said  by  a  recent  writer :  ^  "  L'organisation  de  I'exercice  da 
pouvoir  constituaut,  telle  que  la  cousacrent  actuellement  les  legisla- 
tions americaiues,  appartient  tout  entifere  a  la  Nouvelle-Angleterre. 
Elle  est  basee,  non  seulement  sur  le  principe  que  I'autorite  coustituante 
appartient  au  peuple,  mais  encore  sur  cette  autre  conception,  ramenee 
dans  le  droit  moderne  par  la  Reforme  puritaine,  que  cette  autorite  ue 
pent  etre  representee." 


COMMONWEALTH  v.  CATON  et  al. 

Court  of  Appeals  of  Virginia.     1782. 

[4  Call,  5.] 

This  case  came  before  the  court  ^  by  adjournment  from  the  General 
Court,  and  was  as  follows  : 

John  Caton,  Joshua  Hopkins,  and  John  Lamb  were  condemned  for 
treason,  by  the  General  Court,  under  the  Act  of  Assembly  concerning 
that  offence,  passed  in  1776,  which  takes  from  the  executive  the 
power  of  granting  pardon  in  such  cases.*     The  House  of  Delegates  by 

a  member  of  the  conveution  wliicli  framed  the  Constitutiou,  and  had  a  leading  part  in 
preparing  it.  "I  had  the  honor,"  he  wrote,  in  1780,  "to  be  the  principal  engineer." 
Works,  ubi  supra. —  Ed. 

'  L'ElabUssemenl  et  la  Rerision  des  Constitutions  aux  Etats-Unis  d'Ame'rique,  by 
Charles  Borgeaud ;  Annales  de  I'Ecole  Libre  des  Sciences  Politiques  (1893). 

2  Which  at  that  time  consisted  of  the  jndges  of  the  High  Conrt  of  Chancery;  those 
of  the  General  Court ;  and  those  of  the  Admiralty  assembled  together.  Ck.  Rev.  102, 
And  the  sitting  members,  upon  the  present  occasion,  were  Edmund  Pendleton. 
George  Wythe,  and  John  Blair,  judges  of  the  High  Court  of  Chancery;  Paul 
Carrington,  Bartholomew  Dandridge,  Peter  Lyons,  and  James  Mercer, 
judges  of  the  General  Court;  and  Richard  Gary,  one  of  the  judges  of  the  Court  of 
Admiralty. 

3  The  words  of  the  Act  are,  "The  Governor,  or  in  case  of  his  death,  inability,  or 
necessary  absence,  the  councillor  who  acts  as  president,  shall  in  no  wise  have  or  exer- 


56  COMMONWEALTH  V.    CATON   ET   AL.  [CHAP,  I, 

resolution  of  the  18th  of  June,  1782,  granted  them  a  pardon,  and  sent 
it  to  the  Senate  for  concurrence  ;  which  they  refused.  The  men,  how- 
ever, were  not  executed,  but  continued  in  jail  under  the  sentence  ;  and, 
in  October,  1782,  the  Attorney-General  moved  in  the  General  Court, 
that  execution  of  the  judgment  might  be  awarded.  The  prisoners 
pleaded  the  pardon  granted  by  the  House  of  Delegates.  The  Attorney- 
General  denied  the  validity  of  the  pardon,  as  the  Senate  had  not  con- 
curred in  it :  and  the  General  Court  adjourned  the  case,  for  novelty 
and  difficulty,  to  the  Court  of  Appeals. 
•    The  resolution  of  the  House  of  Delegates  was  in  the  following  words : 

"In  the  House  of  Delegates, 

"  Tuesday  the  18th  of  June,  1782. 

"  Resolved  that  James  Lamb,  Joshua  Hopkins,  and  John  Caton, 
who  stand  convicted  and  attainted  of  treason  by  judgment  of  the  Gen- 
eral Court,  at  their  last  session,  and  appear  to  be  proper  objects  of 
mercy,  be  and  are  hereby  declared  to  be  pardoned  for  the  said  treason, 
and  exempted  from  all  pains   and  penalties  for  the   same  ;  provided 

they  and  each  of  them  repair  to  the  county  of  Augusta  within 

days  from  this  time,  and  continue  within  the  said  county  during  their 
natural  lives  respectively.  Ordered  that  Mr.  Patrick  Henry  do  carry 
the  said  resolution  to  the  Senate  and  desire  their  concurrence." 

The  cause  was  argued  in  the  Court  of  Appeals  by  3fr.  Randoljyh,  the 
Attorney-General,  for  the  Commonwealth,  and  by  3Ir.  Hardy  and  sev- 
eral other  distinguished  gentlemen  for  the  prisoners. 

For  the  Commonwealth  it  was  contended,  that  the  pardon  was  void, 
as  the  Senate  had  not  concurred.  That  the  clause  in  the  Constitution 
might  be  read  two  ways,  either  of  which  would  destroy  the  pardon. 
One  was,  to  throw  the  words,  "  or  the  law  shall  otherwise  particularly 
direct,"  into  a  parenthesis  ;  which  would  confine  the  separate  power  of 
the  Lower  House  to  cases  of  impeachment  only  ;  and  would  leave  those 
where  the  assembly  had  taken  it  from  the  executive  to  the  direction  of 
the  laws  made  for  the  purpose.  The  other  was,  to  take  the  whole 
sentence  as  it  stands,  and  then  the  construction  will,  according  to  the 
obvious  meaning  of  the  Constitution,  be  that,  although  the  House  of 
Delegates  must  originate  the  resolution,  the  Senate  must  in  all  cases 
concur,  or  it  will  have  no  effect.  For  it  would  be  absurd  to  suppose, 
that  the  same  instrument  which  required  the  whole  legislature  to  make 
a  law,  should  authorize  one  branch  to  repeal  it. 

For  the  prisoners,  it  was  contended,  that  the  language  of  the  Consti- 
tution embraced  both  sets  of  cases,  as  well  those  of  impeachment, 
as  those  where  the  assembly  should  take  the  power  of  pardoning  from 
the  executive  :  and,  in  both,  that  the  direction  was  express  that  the 

cise  a  right  of  grantiiis;  pardon  to  any  person  or  persons  convicted  in  manner  afore- 
said, but  m.iy  suspend  the  execution  until  the  meeting  of  the  General  Assembly,  who 
shall  determine  whether  such  person  or  persons  are  proper  objects  of  mercy  or  not, 
and  order  aecurdintrlv."  —  Ch.  Rev.  40. 


SECT.  II.]  COMMONWEALTH   V.   CATOX   ET   AL.  57 

power  of  pardoning  belonged  to  the  House  of  Delegates.  That  the 
words  of  the  Constitution,  and  not  conjectures  drawn  from  the  sup- 
posed meaning  of  the  framers  of  it,  should  give  the  rule.  That  the 
Act  of  Assembly  was  contrary  to  the  plain  declaration  of  the  Constitu- 
tion ;  and  therefore  void.  That  the  prisoners  were  misguided  and 
unfortunate  men ;  and  that  the  construction  ought,  in  favor  of  life, 
to  incline  to  the  side  of  mercy. 

The  Attorney-General,  in  reply,  insisted,  that  compassion  for  the 
prisoners  could  not  enter  into  the  case  ;  and  that  the  Act  of  Assembly 
pursued  the  spirit  of  the  Constitution.  But  that,  whether  it  did  or  not, 
the  court  were  not  authorized  to  declare  it  void.  Car.  adv.  vult. 

Wythe,  J.  Among  all  the  advantages  which  have  arisen  to  man- 
kind from  the  study  of  letters,  and  the  universal  diffusion  of  knowl- 
edge, there  is  none  of  more  importance  than  the  tendency  they  have 
had  to  produce  discussions  upon  the  respective  rights  of  the  sovereign 
and  the  subject ;  and  upon  the  powers  which  the  different  branches 
of  government  may  exercise.  For,  by  this  means,  tyranny  has  been 
sapped,  the  departments  kept  within  their  own  spheres,  the  citizens 
protected,  and  general  liberty  promoted.  But  this  beneficial  result 
attains  to  higher  perfection,  when  those  who  hold  the  purse  and  the 
sword,  differing  as  to  the  powers  which  each  may  exercise,  the  tribu- 
nals, who  hold  neither,  are  called  upon  to  declare  the  law  impartially 
between  them.  For  thus  the  pretensions  of  each  party  are  fairly  ex- 
amined, their  respective  powers  ascertained,  and  the  boundaries  of 
authority  peaceably  established.  Under  these  impi'essions,  I  approach 
the  question  which  has  been  submitted  to  us  ;  and  although  it  was 
said  the  other  day,  by  one  of  the  judges,  that,  imitating  that  great  and 
good  man  Lord  Hale,  he  would  sooner  quit  the  Bench  than  determine 
it,  I  feel  no  alarm  ;  but  will  meet  the  crisis  as  I  ought ;  and,  in  the 
language  of  my  oath  of  office,  will  decide  it,  according  to  the  best  of 
my  skill  and  judgment. 

I  have  heard  of  an  English  Chancellor  who  said,  and  it  was  nobly 
said,  that  it  was  his  duty  to  protect  the  rights  of  the  subject  against 
the  encroachments  of  the  Crown,  and  that  he  would  do  it,  at  every 
hazard.  But  if  it  was  his  duty  to  protect  a  solitary  individual  against 
the  rapacity  of  the  sovereign,  surely,  it  is  equally  mine,  to  protect  one 
branch  of  the  legislature,  and,  consequently,  the  whole  community, 
against  the  usurpations  of  the  other ;  and,  whenever  the  proper  occa- 
sion occurs,  I  shall  feel  the  duty,  and  fearlessly  perform  it.  When- 
ever traitors  shall  be  fairly  convicted,  by  the  verdict  of  their  peers, 
before  the  competent  tribunal,  if  one  branch  of  the  legislature,  with- 
out the  concurrence  of  the  other,  shall  attempt  to  rescue  the  offenders 
from  the  sentence  of  the  law,  I  shall  not  hesitate,  sitting  in  this  place, 
to  say  to  the  General  Court,  Fiatjustitia,  mat  coelum  ;  and,  to  the  usurp- 
ing branch  of  the  legislature,  you  attempt  worse  than  a  vain  thing ; 
for   although  you  cannot  succeed,  you  set  an  example  which  may 


58  COMMONWEALTH  V.    CATON  ET  AL.         [cHAP.  L 

convulse  society  to  its  centre.  Nay  more,  if  the  whole  legislature,  an 
event  to  be  deprecated,  slinnkl  nttpmpt  to  nvpHpnp  t.bp  i^pnnf^jc;  pi-^. 
scribed  to  them  by  the  people.  I,  in  administerino;  the  public  justice  of 
the  country,  will  m eet  the  united  powers  at  my_seat  in  this  tribnnni  ; 
and,  pointing  to  the  Constitution,  will  say  to  them,  here  is  the  limit  of 
your  authority,  and  hithpr  shnll  ynn  ^n^  \i\\t  no_Fnrthpv. 

Waiving,  however,  longer  discussion  upon  those  subjects,  and  pro- 
ceeding to  the  question  immediately  before  us,  the  case  presented  is, 
that  three  men,  convicted  of  treason  against  the  State,  and  condemned 
by  the  General  Court,  have  pleaded  a  pardon,  by  the  House  of  Delegates, 
upon  which  that  House  insists,  although  the  Senate  refuses  to  concur ; 
and  the  opinion  of  the  court  is  asked,  whether  the  General  Court  should 
award  execution  of  the  judgment,  contrary  to  the  allegation  of  the 
prisoners,  that  the  House  of  Delegates  alone  have  the  power  to  pardon 
them,  under  that  article  of  the  Constitution  which  says,  "  But  he  (the 
Governor)  shall,  with  the  advice  of  the  Council  of  State,  have  the 
power  of  granting  reprieves  or  pardons,  except  where  the  prosecution 
shall  have  been  carried  on  by  the  House  of  Delegates,  or  the  law  shall 
otherwise  particularly  direct ;  in  which  cases,  no  reprieve  or  pardon 
shall  be  granted,  but  by  resolve  of  the  House  of  Delegates." 

Two  questions  are  made, 

1.  Whether  this  court  has  jurisdiction  in  the  case? 

2.  Whether  the  pardon  is  valid? 

The  first  appears,  to  me,  to  admit  of  no  doubt ;  for  the  Act  constitut- 
ing this  court  is  express,  that  the  court  shall  have  jurisdiction  "  In 
such  cases  as  shall  be  removed  before  them,  bv  adjournment  from  tlie 
other  courts  before  mentioned,  when  questions,  in  their  opinion  new 
and  difficult,  occur."  Chan.  Rev.  102  :  which  emphatically  embraces 
the  case  under  consideration. 

The  sole  inquir}'  therefore  is,  whether  the  pardon  be  valid? 

If  we  consider  the  genius  of  our  institutions,  it  is  clear  that  the  pre- 
tensions of  the  House  of  Delegates  cannot  be  sustained.  For,  through- 
out the  whole  structure  of  the  government,  concurrence  of  the  several 
branches  of  each  department  is  required  to  give  effect  to  its  operations. 
Thus  the  Governor,  with  the  advice  of  the  Council  of  State,  may 
grant  pardons,  commission  officers,  and  embody  the  militia  ;  but  he 
can  do  neitlier  without  the  assent  of  the  council :  the  two  branches  of  the 
legislature  may  pass  laws,  but  a  bill  passed  by  one  of  them  has  no  force  : 
and  the  two  houses  of  assembly  may  elect  a  judge ;  but  an  appoint- 
ment, by  one  of  them  only,  would  be  useless.  This  general  requisi- 
tion of  union  seems  of  itself  to  indicate  that  nothing  was  intended  to 
be  done,  in  any  department,  without  it ;  and,  accordingly,  the  fourth 
section  of  the  Constitution  declares,  that  "The  legislature  shall  be 
formed  of  two  distinct  branches,  who,  together,  shall  be  a  complete 
legislature;"  and  the  eighth,  "  that  all  laws  shall  originate  in  the 
House  of  Delegates,  to  be  approved  or  rejected  by  the  Senate."  Thus 
requiring,  in  conformity  to  the  regulations  throughout  the  whole  fabric 


SECT.  II.]  COMMONWEALTH   V.    CATON    ET   AL.  59 

of  government,  an  union  Qf  the  two  branches,  to  constitute  a  legisla- 
ture ;  and  an  union  of  sentiment  in  the  united  body,  to  give  effect  to 
tlieir  acts.  And  it  is  not  to  be  believed,  that,  when  this  union  was  so 
steadfastly  demanded,  even  in  the  smallest  cases,  it  was  meant  to  be 
dispensed  with,  in  one  of  the  first  magnitude,  and  which  miglit  involve 
the  vital  interests  of  the  community. 

But  if  we  advert  to  the  motive  for  the  regulation,  the  necessity  for 
concurrence  will  be  more  apparent.  For  it  is  obvious,  that  the  contests 
in  England  between  the  House  of  Commons  and  the  Crown,  i-elative  to 
impeachments,  gave  rise  to  it,  as  the  king  generally, pardoned  th&_ 
offender,  and  frustrated  the  prosecution.  With  tliis  in  view,  the  power 
of  pardoning  cases'of  that  kind  was  taken  from  the  executive  here,  anjj 
committed  to  other  hands,  in  ordeFthat  the  evil  complained  of  there 
might  be  removed.  But  the  interprptntion  pontP^d'^'l  f*^^''  bythpTTnu^je 
of  Delegates,  in  effect,  revpi-sps  thp  nbJRct.  Thus  the  ohject  was  to 
put  a  check  to  prerogative  in  one  department :  the  effect  is  to  remove 
all  check,  and  establish  prerogative  in  another  department.  The  ob- 
ject was  to  prevent  disappointment,  by  one  department,  of  the  national 
will ;  the  effect  is  to  enable  less  than  a  department  to  defeat  it.   .   .   . 

These  arguments  receive  some  illustration  from  the  twentieth  section 
of  the  Constitution,  recognizing  the  power  of  the  whole  legislature, 
and  not  one  branch,  to  abolish  penalties  and  forfeitures  :  which  is  con- 
travened by  the  other  construction  ;  for,  if  the  House  of  Delegates  can 
remit  part  of  the  penalty,  they  may  the  whole,  as  well  the  forfeiture 
of  the  goods,  as  the  corporal  suffering.  An  idea  utterly  inconsistent 
with  the  recognition  of  a  power,  in  the  whole  legislature,  to  do  it. 

Every  view  of  the  subject,  therefore,  repels  the  construction  of  the 
House  of  Delegates  ;  and,  accordingly,  the  practice  is  said  to  have  been 
against  it,  ever  since  the  formation  of  the  government :  which  seems 
to  have  been  the  understanding  upon  the  present  occasion ;  for  the 
resolution  provides  that  it  shall  be  sent  to  the  Senate  for  concurrence. 

This  mode  of  considering  the  subject  obviates  the  objection  made 
by  the  prisoners'  counsel,  relative  to  the  constitutionality  of  the  law 
concerning  treason  ;  for,  according  to  the  interpretation  just  discussed, 
there  is  nothing  unconstitutional  in  it. 

I  am,  therefore,  of  opinion,  that  the  pardon  pleaded  by  the  prison- 
ers is  not  valid  ;  and  that  it  ought  to  be  so  certified  to  the  General 
Court. 

Pendleton,  President.  .  .  .  The  question,  upon  the  merits,  is  whether 
l)y  the  paper  stated  in  the  record  as  the  resolution  of  the  House 
of  Delegates,  these  three  unhappy  men  stand  pardoned  of  the  treason 
of  which  they  are  attainted  in  the  General  Court,  or  still  remain 
subject  to  the  execution  of  the  judgment  which  passed  against 
them  upon  their  conviction?  If  the  exclusive  power  of  the  House 
of  Delegates  on  this  occasion  was  to  be  admitted,  it  would  be 
difficult  to  maintain  that  this  resolution  should  operate,  as  a  pardon, 
since  those  who  made  it,  by  sending  it  to  the  Senate  for  their  con- 


60  COMMONWEALTH   V.    CATON    ET   AL.  [CHAP    I. 

currence,  appear  to  liave  suspended  its  operation  until  the  concur- 
rence of  the  Senate  should  be  obtained,  which  not  having  happened, 
the  force  of  it  stands  as  yet  suspended ;  or  rather  the  Senate,  by 
rejecting  this,  and  the  House  of  Delegates  not  passing  another,  their 
power  remains  unexercised,  and  the  attainder  retains  its  full  force. 
But,  as  I  do  not  make  this  the  ground  of  my  judgment,  I  shall  pass  to 
the  two  great  points  into  which  the  question  has  been  divided,  whether, 
if  the  constitution  of  government  and  the  Act  declaring  what  shall  be 
treason  are  at  variance  on  this  subject,  which  shall  prevail  and  be  the 
rule  of  judgment?  And  then,  whether  they  do  contravene  each  other? 
The  constitution  of  other  governments,  in  Europe  or  elsewhere,  seem 
to  throw  little  light  upon  this  question,  since  we  have  a  written  record 
of  that  which  the  citizens  of  this  State  have  adopted  as  their  social 
compact ;  and  beyond  which  we  need  not  extend  our  researches.  It 
has  been  very  properly  said,  on  all  sides,  that  this  Act,  declaring  the 
rights  of  the  citizens,  and  forming  their  government,  divided  it  into 
three  great  branches,  the  legislative,  executive,  and  judiciary,  assign- 
ing to  each  its  proper  powers,  and  directing  that  each  shall  be  kept 
separate  and  distinct,  must  be  considered  as  a  rule  obligatory  upon 
every  department,  not  to  be  departed  from  on  any  occasion.  But  how 
far  this  court,  in  whom  the  judiciary  powers  may  in  some  sort  be  said 
to  be  concentrated,  shall  have  power  to  declare  the  nullity  of  a  law 
passed  in  its  forms  by  the  legislative  power,  without  exercising  the 
power  of  that  branch,  contrary  to  the  plain  terms  of  that  constitution,  is 
indeed  a  deep,  important,  and  I  will  add,  a  tremendous  question,  the 
decision  of  which  might  involve  consequences  to  which  gentlemen  may 
not  have  extended  their  ideas.  I  am  happy  in  being  of  opinion  there 
is  no  occasion  to  consider  it  upon  this  occasion  ;  and  still  more  happy 
in  the  hope  that  the  wisdom  and  prudence  of  the  legislature  will  pre- 
vent the  disagreeable  necessity  of  ever  deciding  it,  by  suggesting  the 
propriety  of  making  the  principles  of  the  Constitution  the  great  rule  to 
direct  the  spirit  of  their  laws. 

It  was  argued  by  the  counsel  for  the  prisoners,  that  the  interpreta- 
tion, now  to  be  made,  ought,  in  favor  of  life,  to  incline  to  the  side  of 
mercy,  and  that  compassion  for  the  misguided  and  unfortunate  ought 
to  have  some  influence  on  our  decision. 

Mercy — divine  attribute  !  Of  ten  necessary  to  the  best,  sometimes 
due  to  the  worst,  and  from  the  infirmities  of  our  nature  always  to  be 
regarded,  when  circumstances  will  admit  of  it.  But  how,  in  public 
concerns,  this  is  to  be  accomplished  with  just  attention  to  the  general 
welfare,  has,  in  every  age,  been  o.  desideratum  with  statesmen  and  legis- 
lators. For,  in  human  associations,  other  considerations,  as  well  as 
the  dictates  of  mercy,  must  be  attended  to.  Compassion  for  the  indi- 
vidual must  frequently  yield  to  the  safety  of  the  community.  Society 
proceeds  upon  that  principle.  Men  surrender  part  of  their  natural 
rights  to  insure  protection  for  the  residue  against  domestic  violence, 
and  hostilities  from  abroad ;  which  can  only  be  effected  by  the  due 


SECT.  II.]  COMMON\VE.\LTH   V.    CATON    ET   AL.  61 

execution  of  wholesome  laws  calculated  to  maintain  the  rights  of  private 
citizens,  and  the  integrity  of  the  State.  But  how  would  this  be  pro- 
moted by  lettiug  loose,  notorious  offenders  to  burn,  to  rob,  and  to  mur- 
der, or  to  aid  a  foreign  foe  in  his  unjust  attempts  upon  the  liberties  of 
the  country?  JNIercy,  in  such  cases,  to  one,  would  be  cruelty  to  the 
rest. 

Aware  of  this,  the  makers  of  the  Constitution,  considering  that 
although,  in  representative  governments,  the  laws  should  be  mild, 
they  ought  to  be  rigidly  executed  ;  and  that,  although  a  power  to  par- 
don, which  had  often  been  abused  in  England,  should  exist  somewhere, 
it  ought  never  to  be  exercised  without  proper  cause,  framed  the  clause 
now  under  consideration ;  which  provides  that  the  Governor,  or  Chief 
Magistrate,  "shall  not,  under  any  pretence,  exercise  an}'  power  or 
prerogative  by  virtue  of  any  law,  statute,  or  custom  of  England  ;  but 
he  shall,  with  the  advice  of  the  Council  of  State,  have  the  power  of 
granting  reprieves  and  pardons  :  "  not  in  all  cases  indiscriminately,  but 
in  such  only  as  were  least  liable  to  abuse  ;  the  rest  were  confided  to 
agents  less  exposed  to  temptation. 

Thus  the  power  was,  in  general,  committed  to  the  executive :  but 
as  to  cases  concerning  the  conduct  of  public  officers,  and  those  which 
policy  might  suggest  to  the  legislature  as  proper  to  be  taken  from  the 
Chief  Magistrate  and  his  council,  it  was  thought  a  safer  depository,  be- 
yond the  reach  of  the  various  passions  and  motives  which  might 
influence  a  few  individuals,  would  be  found  in  the  General  Assembly  ; 
and  therefore  the  clause  excepts  cases  of  impeachment,  and  those 
which  the  law  might  otherwise  provide  for.  In  these,  the  power  of 
pardoning  is  reserved  to  the  representatives  of  the  people :  but 
whether  to  one  or  both  Houses  is  the  important  question.  A  question 
which  should  be  decided  according  to  the  spirit,  and  not  by  the  words 
of  the  Constitution. 

The  language  of  the  clause  is  inaccurate,  and  admits  of  both  the 
constructions  mentioned  by  the  Attorney-General,  that  is  to  say,  1 .  By 
throwing  the  words,  "  or  the  law  shall  otherwise  particularly  direct," 
into  a  parenthesis,  to  confine  the  power  of  pardoning,  by  resolution  of 
the  House  of  Delegates  alone,  to  cases  of  impeachment  only ;  and  to 
leave  those  which  the  General  Assembly  might  take  from  the  executive, 
to  the  direction  of  the  laws  made  for  tlie  purpose.  2.  By  taking  the 
clause  altogether,  to  make  the  representatives  of  the  people  the  source 
of  mercy,  provided  the  consent  of  the  Senate  was  obtained.  Either 
view  of  the  subject  satisfies  the  present  inquiry  ;  but  I  prefer  the  first, 
as  most  congenial  to  the  spirit,  and  not  inconsistent  with  the  letter, 
of  the  Constitution. 

The  treason  law  appears  to  have  been  framed  upon  this  idea  ;  and, 
in  passing  it,  the  legislature  have,  in  my  opinion,  pursued,  and  not 
violated,  the  Constitution.  Indeed,  the  House  of  Delegates  appear  to 
have  understood  it  so  themselves,  as  they  sent  the  resolution  to  the 


62  COMMON" WEALTH   V.    CATON    ET   AL,  [CHAP.  I. 

Senate  for  their  concurrence,   which  not  having   been  obtained,  the 
resolution  is  of  no  force,  and  the  pardon  falls  to  the  ground. 

Chancellor  Blair  and  the  rest  of  the  judges  were  of_opinion,  that^ 
thecourt  had  power  to  declare  any  resolution  or  Act  nf  the  T.pgislntm^ 
or  of  either  branch  of  it,  to  be  unconstitutional  and  void  :  and  that 
the  resolution  of  the  House  of  Dplpgntps,  in  this  cnsp.,  wns  innppvativp, 
ap  thp  S^pnnip  hi}r^  i^^j-,  r^opnnrr.^ri  \^  jf,,  _  That  this  would  be  the 
consequence  clearly  if  the  words,  "or  the  law  shall  otherwise  par- 
ticularly direct,"  were  read  in  a  parenthesis  ;  for  then  the  power  of 
pardoning  by  the  House  of  Delegates  would  be  expressly  confined 
to  cases  of  impeachment  by  that  House  ;  and,  if  read  without  the  paren- 
thesis, then  the  only  difference  would  be,  that  the  assent  of  the  two 
Houses  would  be  necessary ;  for  it  would  be  absurd  to  suppose  that  it 
was  intended  by  the  Constitution  that  the  Act  of  the  whole  Legislature 
should  be  repealed  by  the  resolution  of  one  branch  of  it,  against  the 
consent  of  the  other. 

The  certificate  to  the  General  Court  was  as  follows  :  — 

"The  court  proceeded,  pursuant  to  an  order  of  the  court  of  Thurs- 
day last,  to  render  their  judgment  on  the  adjourned  question,  from  the 
General  Court,  in  the  case  of  John  Caton,  Joshua  Hopkins,  and  James 
Lamb  ;  whereupon  it  is  ordered  to  be  certified,  to  the  said  General 
Court,  as  the  opinion  of  this  court,  that  the  pardon,  by  resolution  of  the 
House  of  Delegates,  severally  pleaded  and  produced  in  the  said  court,  by 
the  said  John  Caton,  Joshua  Hopkins,  and  James  Lamb,  as  by  the 
record  of  their  case  appears,  is  invalid," 

N.B.  — It  is  said,  that  this  was  the  first  ease  in  the  L'nited  States, 
where  the  question  relative  to  the  nullity  of  an  unconstitutional  law 
was  ever  discussed  before  a  judicial  tribunal :  and  the  firmness  of  the 
judges  (particularly  of  Mr,  Wythe)  was  highly  honorable  to  them,  and 
will  always  be  applauded,  as  having  incidentally  fixed  a  precedent, 
whereon  a  general  practice,  which  the  people  of  this  country  think 
essential  to  their  rights  and  liberty,  has  been  established.^ 

1  For  an  account  of  the  earliest  constitutional  cases  in  the  States  see  a  valuable 
article  in  19  Am.  Law  Rev.  175  (188.5),  by  William  M.  Meigs,  Esq.,  of  the  Philadelphia 
Bar.  The  earliest  judicial  decision  of  the  point  that  judges  may  disregard  legislative 
Acts  at  variance  with  the  Constitution,  appears  to  have  been  given  in  Holmes  v.  Walton, 
in  New  .Jersey  in  1780,  —  an  unreported  case,  cited  in  4  Halstead,  444.  The  exact  date 
was  determined  by  Professor  Scott,  of  Rutgers  College,  a  few  years  ago;  see  2  Am. 
Hist.  Assoc.  Papers,  45  (1886).  As  to  a  dubious  unreported  Virginia  case  of  1778, 
see  19  Am.  Law  Rev.  178.  Of  reported  cases  the  earliest  are  given  in  this  book.  In 
Coxe's  Jud.  Power  and  Unconst.  Legis.  219-271,  there  is  a  valuable  consideration 
of  the  early  precedents  in  the  States.  —  Ed, 


SECT.  II. ]  KUTGERS   V.   WADDINGTON.  63 


RUTGERS   V.   WADDINGTON.i 
Mayor's  Coukt,  City  of  New  York.     August  27,  1784. 

This  was  an  action  of  trespass  brought  against  the  defendant,  upon 
an  Act  of  the  Legislature  of  this  State,  passed  the  seventeenth  of 
March,  one  tliousand  seven  hundred  and  eighty-three,  for  the  occupa- 
tion of  a  brew-house  and  malt-house  of  the  plaintiff,  from  the  thirteenth 
day  of  August,  one  thousand  seven  hundred  and  seventy-eight,  until 
the  time  of  passing  the  Act  above  mentioned.  The  cause  came  on  to 
be  argued  upon  demurrer,  before  the  Honorable  James  Duane,  Esq., 
Mayor,  Richard  Varrick,  Esq  ,  Recorder,  Benjamin  Blagge,  Wil- 
liam W.  Gilbert,  William  Neilson,  Thomas  Randal,  and  Thomas 
IvERS,  Esquires,  aldermen,  on  Tuesday,  the  twenty-ninth  day  of  June 
past. 

The  counsel  for  the  plaintiff  were  Mr.  Lawrence,  assisted  by  the 
Attorney-General^  3fr.  Wilcox,  and  Mr.  Troupe.  Those  for  the  de- 
fendant were  Mr.  Ilamilton.,  assisted  by  Mr.  B.  Livingston.,  and  Mr. 
Lewis. 

Mr.  Lawrence  opened  the  pleadings  and  arguments  on  the  part  of 
the  plaintiff,  and  was  followed  by  Mr.  Wilcox.  Mr  Liringston,  Mr. 
Lewis,  and  J/r.  Hamilton,  were  next  successively  heard,  in  behalf  of 
the  defendant,  and  were  replied  to  by  Mr.  Lawrence,  Mr.  Troupe,  and 
the  Attorney-General.  The  arguments  on  both  sides  were  elaborate, 
and  the  authorities  numerous. 

The  court  took  time  to  advise,  until  Tuesday,  the  twenty-seventh 
day  of  August,  and  then  the  Honorable  the  Mayor  proceeded  to  de- 
liver the  judgment  of  the  court,  as  follows  :  — 

In  the  case  of  Elizabeth  llutgers  versus  Joshua  Waddington,  which 
we  gave  notice  should  be  determined  this  day,  the  court  now  proceed 
to  judgment.  It  is  represented  to  be  a  controversy  of  high  impor- 
tance ;  from  the  value  of  the  property,  which  in  this  and  other  actions 
depends  on  the  same  principles  ;  from  involving  in  it  questions  which 
must  affect  the  national  character :  —  questions  whose  decision  will 
record  the  spirit  of  our  courts  to  posterity  !  Questions  which  embrace 
the  whole  law  of  nations  ! 

It  were  to  be  wished,  that  a  cause  of  this  magnitude  was  not  to 
receive  its  first  impression  from  a  court  of  such  a  limited  jurisdiction, 
as  that  in  which  we  preside  ;  —  from  magistrates  actively  engaged  in 
establishing  the  police  of  a  disordered  city,  and  in  other  duties,  which 
cut  them  off  from  those  studious  researches  which  great  and  intricate 
questions  require.  If  we  err  in  our  opinion,  it  will  be  a  consolation, 
that  it  has  been  intimated,  "to  be  probable,  whatever  may  be  the  de- 
termination that  it  will  not  end  here." 

'  Pamphlet,  New  York.  Printed  by  Samuel  Loudon.  1784.  Edited,  with  an 
Historical  Introduction,  by  Henry  B.  Dawson.     Morrisania,  N.  Y.     1866. 


54  EUTGERS  V.    WADDINGTON.  [CHAP.  I. 

The  counsel  on  both  sides,  who  have  managed  this  cause,  and  by 
whose  diligence  and  abilities,  so  much  learning,  on  an  uncommon  sub- 
ject, hath  been  drawn  into  view,  have  spared  us  much  labor. 

We  cannot  but  express  the  pleasure  which  we  have  received,  in 
seeing  young  gentlemen,  just  called  to  the  Bar,  from  the  active  and 
honorable  scenes  of  a  military  life,  already  so  distinguished  as  public 
speakers,  so  much  improved  in  an  arduous  science. 

That  in  a  contest  (which  we  are  told)  is  not  considered  without  tem- 
porary prepossession,  we  may  express  our  sentiments  with  more  deliber- 
ation and  correctness  ;  and  that  nothing  to  be  offered  by  us,  may  be 
misunderstood  or  misapplied,  we  have  taken  the  trouble  to  preserve 
our  remarks  by  committing  them  to  paper. 

The  action  is  grounded  on  a  statute  of  this  State,  entitled,  "  an  Act 
for  granting  a  more  effectual  relief  in  cases  of  certain  trespasses," 
passed  the  seventeenth  day  of  March,  one  thousand  seven  hundred 
and  eighty-three ;  and  the  declaration  charges,  1st,  the  substance 
of  the  Act,  viz.,  "  That  it  shall  and  may  be  lawful  for  any  person  or 
persons,  who  are,  or  were  inhabitants  of  this  State,  and  who,  by 
reason  of  the  invasion  of  the  enemy,  left  his,  her,  or  their  place  or 
places  of  abode,  who  have  not  voluntarily  put  themselves  respectively 
i'lto  the  power  of  the  enemy,  since  they  respectively  left  their  places 
of  abode,  his,  her,  or  their  heirs,  executors,  or  administrators,  to  bring 
an  action  of  trespass  against  any  person  or  persons,  who  may  have 
occupied,  injured,  or  destroyed  his,  her,  or  their  estate,  either  real  or 
personal,  within  the  power  of  the  enemy." 

2.  Complains  that  the  defendant,  on  the  thirtieth  day  of  August, 
1778,  with  force  and  arms,  &c.,  occupied  one  brew-house,  and  one 
malt-house  of  the  plaintiff,  situate  in  the  east  ward  of  the  city  of  New 
York,  and  within  the  jurisdiction  of  this  court,  and  his  occupation 
thereof  so  continued,  from  the  said  13th  day  of  August,  in  the  year 
1778,  until  the  17th  day  of  March,  in  the  year  1783. 

3.  And  also,  that  he  the  said  Joshua,  with  force  and  arms,  &c., 
afterwards,  to  wit,  the  same  13th  day  of  August,  1778,  and  at  divers 
days  and  times,  between  the  said  13th  day  of  August,  1778,  and  the 
17th  day  of  March,  1783,  occupied  one  other  brew-house,  and  one 
other  malt-house,  of  her  the  said  Elizabeth,  within  the  city  and  ward, 
and  within  the  jurisdiction,  &c.,  et  alia  enormia,  to  the  great  damage, 
&c.,  against  the  peace,  &c.     And  the  said  Elizabeth  avers, — 

1st.  That  there  was  open  war  between  the  King  of  Great  Britain, 
his  vassals,  &c.,  and  the  people  of  the  State  of  New  York  aforesaid, 
on  the  10th  day  of  September,  1776,  to  wit,  at  the  east  ward,  &c.,  and 
within,  &c.,  and  that  the  said  open  war  continued  from  the  said  day 
until  the  time  of  passing  the  Act  aforesaid. 

2d.  That  the  King  of  Great  Britain,  his  vassals,  &c.,  and  the  enemy 
mentioned  and  intended  in  the  said  Act  are  one  and  the  same  and  not 
different. 

3d.  That  she  was  an   inhabitant  of  the  State  of  New  Y''ork,  and 


g^CT.  II.]  RUTGERS   V.   WADDINGTON.  65 

that  the  place  of  her  abode  was  the  city  of  New  York,  in  the  State  of 
New  York,  on  the  tenth  day  of  September,  in  the  year  last  aforesaid, 
to  wit,  in  the  east  ward,  &c.,  and  within  tlie  jurisdiction   &c. 

4th  That  by  reason  of  the  invasion  of  the  enemy,  she  the  said  Eliza- 
].etl  Afterwards,  to  wit,  the  said  tenth  day  of  September,  in  the  year 
aforesaid,  left  her  said  place  of  abode,  to  wit,  in  the  ward  aforesaid 

'"\:.' Thatth;  did  not,  at  any  time  after  she  left  her  said  place  of 
abode,  as  aforesaid,  voluntarily  put  herself  within  the  power  of  the 

'"etlf  Thit  the^brew-house  and  malt-house  aforesaid  were  parcel  of  the 
real  estate  of  the  said  Elizabeth,  and  at  the  days  and  times  they  were 
occupied  by  the  said  Joshua  were  in  the  power  of  the  enemy,  to  wit, 
it  the  east  ward,  «&c.,  and  within,  &c. 

WheiSore  th;  said  Elizabeth  saith   she  is  made  worse,  and  hath 
sustained  damage  to  eight  thousand  pounds  et  mde,  &c. 

The  defendant  to  thfs  charge,  as  to  the  force  and  arms  and  whatso- 
ever is  against  the  peace,  and  as  to  the  whole  of  the  trespass  aforesaid 
except  as  to  the  occupying  the  said  brew-house  and  malt-hoase  of  the 
aid  Elizabeth,  on  the  twenty-eighth  day  of  September,  lw8  and  con- 
tinuing the  occupation  thereof  until  the  seventeenth  day  of  Maich, 
17S-^   he  nleads  not  guilty  and  takes  issue. 

And  as  to  the  ofcupying  the  brew-house  and  malt-house,  on  the 
aforesaid  twenty-eighth  day  of  September,  1778,  and  continuing  the 
occin'tion  therJof  until  the  last  day  of  April,  1780,  inclusively   the 
said  defendant  saith,  that  the  said  Elizabeth  actionem  non,  qmadicit 
that  long  before  the  said  twenty-seventh  day  of  ^;eptem^3er,  1^8    to 
wit,  on  the  fourth  day  of  Jnly,  1776,  in  (substance    the  De^^^-;-"  ° 
Independence  by  Congress  [..-c],  who  did  then  and  there  declare,  that 
the  United  Colonies  were,  and  of  right  ought  to  be  free  -d  -^pen- 
dent States  ;  that  they  were  absolved  from  all  ^^^^f  ^^^^^^^L  Stlte 
Crown,  and  that  all  political  connection  between  them   and  the  State 
of  Great  Britain  was,  and  ought  to  be  totally  dissolved,  &c.     Thatthe 
said  declaration  was  on  the  ninth  of  July,  in  the  year  aforesaid,  ap- 
proved  of  by  the  Convention  of  the   State  of  Newlork:  and  aftei- 
wards,  on  the  8th  day  of  May,  1777,  the  same  was  recogmzed  and 
confirmed  by  the  legislature  of  this  State. 

That  upon  the  lOth  day  of  September,  1776,  and  from  that  time 
until  after  the  last  day  of  April,  1783,  there  being  open  war  between, 
&c.,  the  army  of  the  said  king,  on  the  10th  day  of  September,  1.6 
conquered  the  city  of  New  York,  and  continued  in  uninterrupted 
possession  thereof'  from  that  time  until  and  after  the  last  day  of 
April  1778  ;  and  the  said  army  so  being  in  possession,  the  said  biew- 
house  and  malt-house,  by  virtue  of  authority  ^-m  the  commande.m. 
chief  of  the  said  army,  on  the  10th  day  of  June,  InS  was  taken  pos 
session  of  by  the  commissary-general  of  the  said  army,  for  ^^^  use  of  t^e 
said  army--  as  by  the  laws,  &c.,  of  nations  in  time  of  war  he  lawfully 


vol..  I  — 5 


66  RUTGERS   V.   WADDINGTON.  [CHAP.  I. 

might  do  —  and  that  the  said  commissary  on,  &c.,  at,  &c.,  gave  his 
license  and  permission  to  Benjamin  Waddington  and  Evelyn  Pierre- 
pont,  residing  in  the  said  city  as  British  merchants,  under  the  protec- 
tion of  the  said  British  army,  and  having  been  from  their  birth  and 
still  being  subjects  of  the  King  of  Great  Britain,  to  enter  into,  use,  and 
occupy  the  said  malt-house  and  brew-house,  from  the  said  28th  day  of 
September,  1778,  inclusively,  to  the  last  day  of  April,  1780,  inclu- 
sively :  by  virtue  whereof  they  entered  and  occupied  the  premises, 
from  the  first  of  the  two  last-mentioned  days  to  the  last  inclusively ; 
and  the  defendant  as  their  servant  and  at  their  command,  from  time 
to  time,  and  at  divers  times  from  the  first  to  the  last  of  those  days, 
entered  into  and  occupied  the  said  brew-house  and  malt-house,  for  the 
benefit  of  the  said  Benjamin  and  Evelyn :  Quce  est  eadem^  &c. 
whereof  the  plaintiff  complains,  in  the  first  count  of  her  declaration. 

And  as  to  the  occupying  the  said  brew-house  and  malt-house,  from 
the  last  day  of  April,  1780,  to  the  17th  of  March,  1783,  he  pleads  over 
again  the  Declaration  of  Independence  of  tliese  States ;  the  approba- 
tion thereof  by  the  Constitution  of  the  State  ;  and  the  recognition  and 
confirmation  thereof  by  the  Convention  ;  the  conquest  of  the  city  of 
New  York  by  the  British ;  and  that  the  brew-house  and  malt-house 
being  out  of  the  possession  of  the  plaintiff,  the  commander-in-chief  of 
the  said  army,  on  the  last  day  of  April,  1780,  gave  his  license  and 
permission  (as  by  the  laws  of  nations  he  might  lawfully  do)  to  the  said 
Benjamin  and  P^velyn  (describing  them  as  in  the  other  plea)  to  enter 
into  and  occupy  the  said  brew-house  and  malt-house,  from  the  last  day 
of  April,  1780,  until  the  said  license  and  permission  should  be  revoked  ; 
paying  therefore  to  such  person  as  the  commander-in-chief  should 
authorize  to  receive  the  same,  at  the  rate  of  one  hundred  and  fifty 
pounds  for  each  year,  in  quarterly  payments,  (fee. 

He  then  avers  that  they  accordingly  entered  and  occupied  the  said 
brew-house  and  malt-house,  on  the  1st  day  of  May,  1780,  and  contin- 
ued the  occupation  thereof  until  the  17th  day  of  March,  1783,  till 
when  the  said  license  remained  in  force  ;  and  then  avers  as  before, 
that  he  as  their  servant,  and  at  their  command,  from  time  to  time  and 
at  divers  times,  between  the  two  last-mentioned  days,  did  enter  and 
occupy  the  said  brew-house  and  malt-house,  &c.,  qim  est  eaclem,  &c., 
concluding  with  an  averment,  that  the  said  Benjamin  and  Evelyn  did 
pay  the  said  one  hundred  and  fifty  pounds  a  year  to  John  Smith,  ap- 
pointed by  the  said  commander-in-chief  to  receive  the  same. 

For  further  plea  to  the  whole  of  the  trespass,  according  to  the  form 
of  the  statute,  the  defendant  saith,  that  the  plaintiff  actio7ienino7i^  &c. 
Because  he  saith,  that  after  the  passing  the  Act  of  the  Legislature 
of  this  State,  in  the  declaration  mentioned,  to  wit,  on  the  3d  day  of 
September,  1783,  at,  &c.,  a  certain  definitive  treaty  of  peace,  between 
the  King  of  Great  Britain  and  his  subjects,  and  the  United  States  and 
the  subjects  and  citizens  thereof  and  of  each  of  them,  was  entered 
into,  made  and  concluded  by  plenipotentiaries  on  the  part  of  the  said 


SECT.  II.]  RUTGERS   V.   WADDINGTON.  67 

king  and  States  respectively  (naming  them)  in  virtue  of  full  powers, 
(fee,  which  definitive  treaty,  on  the  Uth  day  of  January,  1784,  at  An- 
napolis, &c.,  by  the  United  States  of  America  in  Congress,  then  and 
there  assembled  in  due  form,  was  ratified  and  confirmed  ;  and  after- 
wards on  the  same  day,  announced  and  published  by  proclamation 
under  the  seal  of  the  United  States,  to  all  the  good  citizens  of  the 
said  United  States;  enjoining  all  magistracies,  legislatures,  &c.  to 
carry  into  effect  the  said  definitive  treaty,  &c.,  prout,  &c.  Ih  virtue  of 
which  said  definitive  treaty,  all  right,  claim,  &c.,  which  either  of  the 
said  contracting  parties,  and  the  subjects  and  citizens  of  either  of  them 
might  otherwise  have  had  to  any  compensation,  recompense,  retribu- 
tion, or  indemnity  whatsoever,  for  or  by  reason  of  any  injury,  or  dam- 
age, whether  to  the  public  or  individuals,  which  either  of  the  said 
contracting  parties,  and  the  subjects  and  citizens  of  either  might  have 
done  or  caused  to  be  done  to  the  other,  in  consequence  of,  or  in  any- 
wise relating  to  the  war  between  them,  from  the  time  of  the  commence- 
ment to  the  determination  thereof,  were  mutually  and  reciprocally, 
virtually  and  effectually,  relinquished,  renounced,  and  released  to  each 
other,  &c.  —  And  he  avers,  as  in  his  other  plea,  that  from  the  time  of 
his  birth,  and  at  all  times  since,  he  hath  been  and  still  is  a  subject  of 
the  King  of  Great  Britain  :  and  between  the  times  in  his  plea  men- 
tioned, as  a  subject  of  the  said  king,  resided  in  the  city  of  New  York, 
using  the  art,  trade,  &c.,  of  a  merchant,  under  the  protection  of  the 
army  of  the  said  king,  then  waging  war  against  the  said  State  ;  et  hoc 
paratus  est  verificari :  wherefore  he  prays  judgment  whether  the  said 
plaintiff,  her  action  against  him  ought  to  have  or  maintain  ;  with  this, 
that  the  said  Joshua  will  verify  that  the  whole  of  the  trespass  by  him 
supposed  to  be  committed,  is  for  certain  acts,  &c.,  by  him  supposed  to 
have  been  done  while  he  was  residing  as  a  subject  of  the  said  king, 
and  under  tlie  protection  of  the  army  of  the  said  king,  and  in  relation 
to  the  war  aforesaid. 

The  plaintiff  replies  as  to  the  plea  of  the  defendant,  as  to  the  resi- 
due of  the  trespass,  by  him  done  as  aforesaid,  by  him  above  pleaded 
in  bar,  that  she  by  reason  thereof  ought  not  to  be  barred  from  her 
said  action ;  because  she  says,  that  by  the  Act,  &c.,  for  granting  a 
more  effectual  relief  in  cases  of  certain  trespasses,  in  her  declaration 
in  part  recited,  it  is  also  among  other  things  enacted,  that  no  defendant 
or  defendants  shall  be  admitted  to  plead  in  justification  any  military 
order,  or  command  whatsoever  of  the  enemy,  for  such  occupancy :  and 
avers,  that  the  said  commissary-general  and  commander-in-chief  were, 
at  the  time  of  giving  the  permission  or  license,  subjects  to  the  said 
King  of  Great  Britain,  the  enemy  mentioned  and  intended  by  the  Act 
aforesaid,  and  in  the  military  service  of  the  said  king:  wherefore 
seeing  that  the  said  Joshua  hath  acknowledged  the  trespass  by  him 
done  as  aforesaid,  the  said  Elizabeth  prays  judgment  and  her  dam- 
ages, &c. 


68  KUTGERS   V.   WADDINGTON.  [CHAP.  L 

And  as  to  the  further  plea  of  the  said  Joshua,  to  the  whole  of  the 
trespass  aforesaid  by  him  pleaded  in  bar,  the  plaintiff  demurs. 

And  the  defendant  on  his  part  demurs  to  the  plea  of  the  plaintiff 
last  above  pleaded. 

The  pleadings  close  with  joinders  in  demurrer,  in  the  usual  forms. 

From  these  pleadings,  and  the  arguments  which  they  have  produced, 
three  questions  are  presented  for  our  consideration  :  — 

1st.  Whether  the  plaintiffs  case  is  within  the  letter  and  intent  of  the 
statute  on  which  this  action  is  grounded  ? 

Ildly.  "Whether  the  laws  of  nations  give  the  captors,  and  defendant 
under  them,  rights  which  control  the  operation  of  the  statute  and  bar 
the  present  suit? 

Illdly.  Whether  there  is  such  an  amnesty  included  or  implied  in  the 
definitive  treaty  of  peace,  as  virtually  or  effectually  relinquishes  or  re- 
leases the  plaintiffs  demand  under  the  said  statute?  .  .  .  [In  a  long 
and  learned  opinion,  the  court  answers  the  first  question  in  the  affirm- 
ative, and  the  second  and  third  in  the  negative.  As  regards,  how- 
ever, the  act  of  the  commander-in-chief  in  giving  possession  from 
April,  1780,  to  March,  1783,  unlike  the  previous  act  of  the  commis- 
sary-general, it  was  held  that  it  had  relation  to  the  war  and  was 
according  to  the  laws  of  war,  and  was  covered  by  the  amnesty  im- 
plied in  making  the  treaty  ;  and  that  as  regards  this  period  the  plain- 
tiff could  not  recover.  The  course  of  reasoning,  so  far  as  the  subject 
now  in  hand  is  concerned,  is  shown  by  the  passages  which  follow.] 

We  must  acknowledge  there  appears  to  us  very  great  force  in  the 
observation  arising  from  the  federal  compact.  By  this  compact  these 
States  are  bound  together  as  one  great  independent  nation  ;  and  with 
respect  to  their  common  and  national  affairs,  exercise  a  joint  sover- 
eignty, wiiose  will  can  only  be  manifested  by  the  acts  of  their  delegates 
in  Congress  assembled.  As  a  nation  they  must  be  governed  by  one 
common  law  of  nations  ;  for  on  any  other  principles  how  can  they  act 
with  regard  to  foreign  powers ;  and  how  shall  foreign  powers  act  to 
wards  them?  It  seems  evident  that  abroad  they  can  only  be  known  in 
their  federal  capacity.  What  then  must  be  the  effect?  What  the 
confusion?  if  each  separate  State  should  arrogate  to  itself  a  right  of 
changing  at  pleasure  those  laws,  which  are  received  as  a  rule  of  con- 
duct, by  the  common  consent  of  the  greatest  part  of  the  civilized 
world. 

We  shall  deduce  only  one  inference  from  what  hath  been  here  ob- 
served —  that  to  abrogate  or  alter  any  one  of  the  known  laws  or 
usages  of  nations,  by  the  authority  of  a  single  State,  must  be  contrary 
to  the  very  nature  of  the  confederacy,  and  the  evident  intention  of  the 
articles,  by  which  it  is  established,  as  well  as  dangerous  to  the  Union 
itself.  .   .  . 

It  has  been  further  objected,  that  Congress  could  form  no  treaty  of 
peace  to  reach  our  internal  police. 


SECT.  II.]  RUTGERS   V.    WADDINGTON.  69 

There  is  a  great  clistinctiou  between  the  authority  of  the  treaty,  and 
its  operation  and  effects. 

The  first  we  hold  to  be  sacred  and  shall  never,  as  far  as  we  have 
power,  suffer  it  to  be  violated  or  questioned. 

It  is  the  great  charter  of  America  —  it  has  formally  and  forever 
released  us  from  foreign  domination  —  it  has  confirmed  our  sovereignty 
and  independence  ;  and  ascertained  our  extensive  limits. 

Our  Union,  as  has  been  properly  observed,  is  known  and  legalized 
in  our  Constitution,  and  adopted  as  a  fundamental  law  in  the  first  Act 
of  our  Legislature.  The  federal  compact  hath  vested  Congress  with 
ful!  and  exclusive  powers  to  make  peace  and  war.  This  treaty  they 
have  made  and  ratified,  and  rendered  its  obligation  perpetual. 

And  we  are  clearly  of  opinion,  that  no  State  in  this  Union  can  alter 
or  abridge,  in  a  single  point,  the  federal  articles  or  the  treaty. 

But  the  operation  and  eflTects  of  the  treaty,  within  our  own  State,  are 
fit  subjects  of  inquiry  and  decision  :  according  to  its  spirit  and  true 
meaning  we  must  determine  our  judgment ;  nor  shall  any  man,  by  any 
act  of  ours,  be  deprived  of  the  benefits  which,  on  a  fair  and  reasonable 
construction,  he  ought  to  derive  from  it. 

On  this  occvision,  we  sa.y  with  the  sage,  J^iatjustitiaruatcoelum.  .   .  . 

The  counsel  for  the  defendant,  by  stating  a  number  of  pointed 
cases,  showed  clearly,  from  the  nature  of  things,  that  the  statute  must 
admit  of  exceptions.  Mr.  Attorney-General,  one  of  the  counsel  for 
the  plaintiff,  who  argued  the  cause  very  ably,  admitted  that  many 
cases  may  be  out  of  the  statute,  though  the  plaintiflTs  is  not  of  the 
number. 

Thus,  then,  it  seems  to  be  agreed,  on  both  sides,  that  the  provision  in 
the  statute,  being  general,  cannot  extend  to  all  cases,  and  must  there- 
fore receive  a  reasonable  interpretation  according  to  the  intention  ;  and 
not  according  to  the  latitude  of  expression  of  the  legislature :  it  fol- 
lows as  a  necessary  consequence,  that  the  interpretation  is  the  pro- 
vince of  the  court,  and,  however  difficult  the  task,  that  we  are  bound 
to  perform  it. 

The  authorities  which  have  been  cited  on  the  part  of  the  defendant, 
not  only  establish  this  general  principle,  but  bring  forward  a  number 
of  judicial  decisions,  wherein  the  courts  of  justice  have  exercised  that 
power. 

On  the  other  side,  the  uncontrollable  power  of  the  legislature,  and 
the  sanctity  of  its  laws,  have  been  earnestly  pressed  by  the  coun- 
sel for  the  plaintiff ;  and  a  great  number  of  authorities  have  been 
quoted  to  establish  an  opinion,  that  the  courts  of  justice  in  no  case 
ought  to  exercise  a  discretion  in  the  construction  of  a  statute. 

However  contradictory  these  authorities  may  appear  to  superficial 
observers,  they  are  not  only  capable  of  being  reconciled,  but  the  result 
of  the  whole  will  appear  to  be  wise,  suited  to  human  imperfection  and 
easily  explained. 

The  supremacy  of  the  legislature  need  not  be  called  into  question  ; 


70  RUTGERS   V.   WADDINGTON.  [CHAP.  I. 

if  they  think  fit  positively  to  enact  a  law,  there  is  no  power  which  can 
control  them.  "When  the  main  object  of  such  a  law  is  clearly  expressed, 
and  the  intention  manifest,  the  judges  are  not  at  liberty,  although  it 
appears  to  them  to  be  unreasonable,  to  reject  it ;  for  this  were  to  set 
the  judicial  above  the  legislative,  which  would  be  subversive  of  all 
government. 

But  when  a  law  is  expressed  in  general  words,  and  some  collateral 
matter,  which  happens  to  arise  from  those  general  words,  is  unreason- 
able, there  the  judges  are  in  decency  to  conclude,  that  the  conse- 
quences were  not  foreseen  by  the  legislature  ;  and  therefore  they  are 
at  liberty  to  expound  the  statute  by  equity,  and  only  quoad  hoc-  to 
disregard  it. 

When  the  judicial  make  these  distinctions,  they  do  not  control  the 
legislature  ;  they  endeavor  to  give  their  intention  its  proper  effect. 

This  is  the  substance  of  the  authorities,  on  a  comprehensive  view  of 
the  subject ;  this  is  the  language  of  Blackstone  in  his  celebrated 
commentaries,  and  this  is  the  practice  of  the  courts  of  justice,  from 
which  we  have  copied  our  jurisprudence,  as  well  as  the  models  of  our 
own  internal  judicatories.  To  apply  these  general  remarks  to  the  par- 
ticular case  under  our  consideration.  —  The  American  prisoners  of 
war,  in  the  power  of  the  enemy,  were  quartered  in  the  houses  of  the 
exiles :  they  in  fact  occupied  those  houses  by  a  military  order  or  com- 
mand, and  are  included  within  the  general  description  of  the  statute, 
which,  according  to  the  letter,  extends  to  all  persons  without  any  ex- 
ception, who  have  so  occupied  or  injured  such  houses.  But  can  we 
force  ourselves  to  believe,  that  tlie  legislature  could  have  been  so 
unjust  and  oppressive  as  to  add  to  the  sufferings  of  the  patriot  soldier, 
consigned,  after  fighting  the  battles  of  his  country,  to  a  long  captivity, 
by  making  him  pay  for  fetters  which  he  had  worn  in  the  service  of 
his  country,  or  for  want  of  means,  to  undergo  a  second  loss  of 
liberty  ? 

That  the  legislative,  judicial,  and  executive  powers  of  government 
should  be  indt^jendent  of  each  other,  is  essential  to  liberty. 

This  principle  entered  deeply  into  our  excellent  Constitution,  and  was 
one  of  the  inducements  to  the  establishment  of  the  Council  of  Revision, 
that  the  judicial  and  executive  of  whom  it  is  composed,  might  have 
the  means  of  guarding  their  respective  rights,  against  the  encroach- 
ments of  the  legislature,  whether  by  design,  "or  by  haste  or  unad- 
visedness."  For  this  and  other  purposes,  all  bills,  which  have  passed  the 
Senate  and  Assembly,  before  they  become  laws,  are  to  be  presented 
to  the  council  for  their  revisal  and  consideration  ;  that  if  it  should 
appear  improper  to  them  that  any  bill  should  become  a  law,  it  may  be 
returned  with  their  objections  for  further  consideration,  and  become 
subject  to  the  approbation  of  two-thirds  of  the  members  of  each  House, 
before  it  can  be  a  law. 

From  this  passage  of  our  Constitution,  Mr.  Attorney  seems  to  regard 
this  determination  of  the  Council  of  Revision  on  the  law  in  question, 


SECT.  II.]  RUTGERS   V.   WADDINGTON.  71 

in  the  light  of  a  judicial  decision,  by  which  this  court  ought  to  be 
guided,  for  the  sake  of  uniformity  in  the  dispensation  of  justice.  But 
surely  the  respect,  which  we  owe  to  this  honorable  council,  ought  not 
to  carry  us  such  lengths  ;  it  is  not  to  be  supposed,  that  their  assent  or 
objection  to  a  bill  can  have  the  force  of  an  adjudication  ;  for  what  in 
such  a  case  would  be  the  fate  of  a  law  which  prevailed  against  their 
sentiments?  Besides,  in  the  hurry  of  a  session,  and  especially^a^ran^e 
bello,  they  have  neither  leisure  nor  means  to  weigh  the  extent  and  con- 
sequences of  a  law  whose  provisions  are  general,  at  least  not  with  that 
accuracy  and  solemnity  which  must  be  necessary  to  render  their  rea- 
sons incontrovertible,  and  their  opinions  absolute.  The  institution  of 
this  council  is  sufficiently  useful  and  salutary,  without  ascribing  to 
their  proceedings,  effects  so  extraordinary  ;  nor  is  it  probable,  that  the 
high  judicial  powers  themselves,  would  in  the  seat  of  judgment 
always  be  precluded,  even  by  their  own  opinion  given  in  the  Council 
of  Revision  ;  for  instance,  if  they  had  consented  to  a  bill,  general  in 
its  provision,  and  in  the  administration  of  justice  they  discovered  that, 
according  to  the  letter,  it  comprehended  cases  which  rendered  its 
operation  unseasonable,  mischievous,  and  contrary  to  the  intention  of 
the  legislature,  would  they  not  give  relief?  Surely  it  cannot  be 
questioned. 

Upon  the  whole,  this  being  a  statute  is  obligatory,  and  being  gene- 
ral in  its  provisions,  collateral  matter  arises  out  of  the  general  words, 
which  happens  to  be  unseasonable.  The  court  is  therefore  bound  to 
conclude,  that  such  a  consequence  was  not  foreseen  by  the  legislature, 
to  explain  it  by  equity,  and  to  disregard  it  in  that  point  only,  where  it 
would  operate  thus  unseasonably. 

The  questions  then,  whether  this  statute  hath  in  any  respect  revoked 
the  law  of  nations,  or  is  repealed  by  the  definitive  treaty  of  peace,  or 
foreign  to  the  circumstances  of  the  case :  neither  will  happen,  nor 
ought  to  be  apprehended. 

There  is  not  a  tittle  in  the  treaty  to  which  the  statute  is  repugnant. 
The  amnesty  is  constructive,  and  made  out  by  reasoning  from  the  law 
of  nations  to  the  treaty. 

^  The  repeal  of  the  law  of  nations,  or  any  interference  with  it,  could 
not  have  been  in  contemplation,  in  our  opinion,  when  the  legisla- 
ture passed  this  statute ;  and  we  think  ourselves  bound  to  exempt  that 
law  from  its  operation  :  first,  because  there  is  no  mention  of  the  law  of 
nations,  nor  the  most  remote  allusion  to  it,  throughout  the  whole  statute  ; 
secondly,  because  it  is  a  subject  of  the  highest  national  concern  and 
of  too  much  moment  to  have  been  intended  to  be  struck  at  in  silence  ; 
and  to  be  controlled  implicatively  under  the  generality  of  the  terms  of 
the  provision  ;  thirdly,  because  the  provision  itself  is  so  indefinite,  that 
without  any  control  it  would  operate  in  other  cases  unreasonably,  to  the 
oppression  of  the  innocent,  and  contrary  to  humanity  ;  when  it  is  a  known 
maxim  "  that  a  statute  ought  to  be  so  construed,  that  no  man  who  is 
innocent  be  punished  or  endamaged ; "  fourthly,  because  the  statute 


72  RUTGERS   V.    ^yADDINGTON.  [CHAP.  I. 

under  our  consideration  doth  not  contain  even  the  common  non  obstante 
clause,  though  it  is  so  frequent  in  our  statute  book,  —  "  and  it  is  an  estab- 
lished maxim,  where  two  laws  are  seemingly  repugnant,  and  there  be  no 
clause  of  7ion  obstante  in  the  latter,  they  shall,  if  possible,  have  such  con- 
struction, that  tlie  latter  may  not  repeal  the  former  by  implication  ;  '* 
fifthly,  because  although  it  is  a  true  rule  that  pos^enores  leges  prior ibus 
derogant,  to  use  the  language  of  Sir  Thomas  Powis  in  the  Duchess  of 
Hamilton's  Case,  —  at  the  same  time  it  must  be  remembered,  that 
repeals  by  implication  are  disfavored  by  law,  and  never  allowed  of 
but  where  the  inconsistency  and  repugnancy  are  plain,  glaring,  and 
unavoidable  :  for  these  repeals  carry  along  with  them  a  tacit  reflection 
upon  the  legislature,  that  they  should  iguorantly,  and  without  know- 
ing it,  make  one  Act  repugnant  to  and  inconsistent  with  another  ;  and 
such  repeals  have  ever  been  interpreted  so  as  to  repeal  as  little  of  the 
precedent  law  as  possible. 

The  plaintiff's  counsel,  who  themselves  argued  in  favor  of  this  last 
proposition,  adduced  several  authorities  to  support  it. 

Whoever  then  is  clearly  exempted  from  the  operation  of  this  statute 
by  the  law  of  nations,  this  court  must  take  it  for  granted,  could  never 
have  been  intended  to  be  comprehended  within  it  by  the  legisla- 
ture.  .  .   . 

We  have  gone  further  perhaps  into  many  important  subjects,  whicb 
have  been  brought  into  view  by  this  controversy,  than  was  strictly 
necessary  ;  but  it  is  time  that  the  law  of  nations  and  the  nature  and 
effects  of  treaties  should  be  understood  :  and  in  the  infancy  of  our 
republic,  every  proper  opportunity  should  be  embraced  to  inculcate  a 
sense  of  national  obligation,  and  a  reverence  for  institutions,  on  which 
the  tranquillity  of  mankind,  considered  as  members  of  different  States 
and  communities,  so  essentially  depends. 

Besides  the  maxim  interest  reipublicceutsitjinis  litium,  never  applied 
more  forcibly  than  it  now  doth  to  us  in  our  present  circumstances  ;  and 
it  is  hoped  by  being  thus  explicit,  we  may  ease  the  minds  of  a  multi- 
tude of  suitors  whose  causes  are  depending  here  under  this  statute  —  at 
all  events  we  shall  relieve  this  court  from  an  unusual  weight  of  judicial 
examination,  which  a  want  of  time  renders  incompatible  with  our  other 
public  and  indispensable  duties. 

Upon  the  whole,  it  is  the  opinion  of  this  court,  that  the  plea  of  the 
defendant  as  to  the  occupancy  of  the  plaintiff's  brew-house  and  malt- 
house,  between  the  28th  day  of  September,  1778,  and  the  last  day  of 
April,  1780;  and  the  last  plea  of  the  defendant  as  to  the  whole  of 
the  trespass,  charged  in  the  plaintiff's  declaration,  are  insufficient  in 
the  law  ;  and  that  only  the  plea  of  the  defendant  in  justification  of  the 
occupancy  between  the  ?ast  day  of  April,  1780,  and  the  17th  day  of 
March,  1783,  is  good  and  sufficient  in  the  law. 

Let  judgment  be  €?it€red  accordingly.^ 

^  See  Mr.  Dawson's  introduction  for  an  account  of  the  excitement  to  which  this 
opinion  gave  rise.    A  meeting  was  called,  and  an  address  "  To  the  People  of  the 


SECT.  II.]  TREVETT   V.   WEEDEN.  73 


TREVETT  V.    WEEDEN. i 
Superior  Court  of  Judicature  of  Rhode  Island.     1786. 

Upon  the  last  Monday  of  September,  in  the  eleventh  year  of  the 
Independence  of  the  United  States,  in  the  city  of  Newport,  and 
State  of  Rhode  Island,  &e.,  was  heard,  before  the  Superior  Court  of 
Judicature,  Court  of  Assize,  and  General  Jail-Delivery,  a  certain  in- 
formation, John  Trevett  against  John  Weeden,  for  refusing  to  receive 
the  paper  bills  of  this  State,  in  payment  for  meat  sold  in  market,  equiv- 
alent to  silver  or  gold  ;  and  upon  the  day  following,  the  court  delivered 
the  unanimous  opinion  of  the  judges,  that  the  information  was  not 
cognizable  before  them.  [Coxe  (Jud.  Power  and  Uncoust.  Legis. 
245)  adds  this:  "The  following  constitutes  the  whole  of  the  brief 
extant  report  of  what  was  said  by  them :  *  '  The  court  adjourned  to 
next  morning,  upon  opening  of  which,  Judge  Howell,  in  a  firm,  sen- 
States"  was  issued  Nov.  4,  1784,  bitterly  complaiuiug  of  the  decisiou.  The  writers 
say :  "  From  what  has  beeu  said  we  think  that  no  oue  cau  doubt  of  the  meauiiig  of 
the  law.  It  remains  to  imiuire  whether  a  court  of  judicature  cau  con.*istently,  with  our 
Constitution  and  laws,  adjudge  contrary  to  the  plain  and  obvious  meaning  of  a  stat- 
ute. That  the  Mayor's  Courts  have  done  so  in  this  case  we  think  is  manifest  from  the 
aforegoing  remarks.  Tiiat  there  should  be  a  power  vested  in  courts  of  judicature, 
whereby  tiiey  miglit  control  tlie  supreme  legislative  power,  we  think  is  absurd  iu 
itself.  Such  power  in  courts  would  be  destructive  of  liberty,  and  remove  all  security 
of  property.  The  design  of  courts  of  justice  in  our  government  from  the  very  nature 
of  their  institution,  is  to  declare  laws,  not  to  alter  them.  Whenever  tliey  depart  from 
tliis  design  of  tlieir  institution,  they  confound  legislative  and  judicial  powers.  The  laws 
govern  where  a  government  is  free ;  and  every  citizen  knows  what  remedy  the  laws  give 
him  for  every  injury.  But  this  cannot  be  the  case  where  courts,  if  they  deem  a  law  to 
be  unreasonable,  may  set  it  aside.  Here,  liowever  plainly  the  law  may  be  in  his  favor, 
he  cannot  be  certain  of  redress  until  he  has  the  opinion  of  the  court."  This  address 
was  signed  by  Melancton  Smith,  Thomas  Tucker,  Peter  Riker,  Daniel  Shaw,  Jona- 
than Lawrence,  Adam  Gilchrist,  Jr.,  Anthony  Rutgers,  John  Wiley,  Peter  T.  Cur- 
teuius.  The  House  of  Assembly  of  the  State  at  about  the  same  time,  by  a  vote  of  25 
to  1.5,  adopted  a  preamble  and  the  following  resolution  :  "  '  Resolved,  that  the  judgment 
aforesaid  is,  in  its  tendency,  subversive  of  all  law  and  good  order,  and  leads  directly 
to  anarcliy  and  confusion ;  because  if  a  court  instituted  for  the  benefit  and  government 
of  a  corporation  may  take  upon  them  to  dispense  with  and  act  in  direct  violation  of 
a  plain  and  known  law  of  the  State,  all  other  courts,  either  superior  or  inferior,  may 
do  the  like ;  and  therewith  will  end  all  our  dear-bought  rights  and  privileges,  and 
legislatures  become  useless.'  It  is  said,"  continues  the  editor,  "that  Mr.  Waddiugton, 
alarmed  at  these  manifestations,  and  at  the  threatened  appeal  and  writ  of  error,  soon 
after  compromised  with  Mrs.  Rutgers;  and  the  entire  subject  became  matter  of  his- 
tory, and,  soon  after,  was  entirely  forgotten  by  the  great  body  of  those  who  were 
most  interested  iu  the  great  political  principles  which  have  been  involved  —  even 
those  who  had  been  most  active  iu  condemning  the  action  of  the  court,  appear  to  have 
thought  no  more  of  the  subject." 

For  comments  on  this  case  see  Coxe,  Jud.  Power  &  Unconst.  Legis.  223.  See  also 
the  Sijmsburij  Case,  Kirby  (Conn.),  444,  447  (1785),  and  76.  452  (1784).— -Ed. 

1  Pamphlet,  by  James  M.  Varnum.  Providence  :  John  Carter.  1787.  An  account 
of  the  case  is  given  in  2  Chandler's  Crim  Tr.  269.  —  Ei>. 

2  Providence  "  Gazette,"  Oct.  7,  1786 :  compare  American  Museum,  vol.  5,  p.  36. 


74  TREVETT   V.   WEEDEN.  [cHAP.  I. 

sible,  and  judicious  speech,  assigned  the  reasons  which  induced  him 
to  be  of  the  opinion  that  the  information  was  not  cognizable  by  the 
court — declared  himself  independent  as  a  judge  —  the  penal  law  to 
be  repugnant  ^  and  unconstitutional  —  and  therefore  gave  it  as  his 
opinion  that  the  court  could  not  take  cognizance  of  the  information  ! 
Judge  Devol  was  of  the  same  opinion.  Judge  Tillinghast  took  notice 
of  the  striking  repugnancy  of  the  expressions  of  the  act  —  Without 
trial  by  jury,  according  to  the  laws  of  the  land  —  and  on  that  ground 
gave  his  judgment  the  same  way.  Judge  Hazard  voted  against  taking 
cognizance.  The  Chief  Justice  declared  the  judgment  of  the  court 
without  giving  his  own  opinion.'"] 

That  this  important  decision  may  be  fully  comprehended,  it  will  be 
necessary  to  recur  to  the  Acts  of  the  General  Assembly,  which  superin- 
duced the  trial.  At  the  last  May  session,  an  Act  was  made  for  emitting 
the  sum  of  one  hundred  thousand  pounds,  lawful  money,  in  bills,  upon 
land  security,  which  should  pass  in  all  kinds  of  business  and  pay- 
ments of  former  contracts,  upon  par  with  silver  and  gold,  estimating 
an  ounce  of  coined  silver  at  six  shillings  and  eightpence.  Another  Act 
was  passed  in  the  June  following,  subjecting  every  person  who  should  re- 
fuse the  bills  in  payment  for  articles  offered  for  sale,  or  should  make  a 
distinction  in  value  between  them  and  silver  and  gold,  or  who  should  in 
an}'  manner  attempt  to  depreciate  them,  to  a  penalty  of  one  hundred 
pounds,  lawful  money ;  one  moiety  to  the  State,  and  the  other  moiety 
to  the  informer  ;  to  be  recovered  before  either  of  the  Courts  of  General 
Sessions  of  the  Peace,  or  the  Superior  Court  of  Judicature,  &c. 

Experience  soon  evinced  the  inadequacy  of  this  measure  to  the 
objects  of  the  administration  :  and  at  a  session  of  the  General  Assem- 
bly, specially  convened  by  his  Excellency  the  Governor,  upon  the  third 
Monday  of  the  following  August,  another  Act  was  passed,  in  addition 
to  and  amendment  of  that  last  mentioned,  wherein  it  is  provided,  that 
the  fine  of  one  hundred  pounds  be  varied  ;  and  that  for  the  future  the 
fine  should  not  be  less  than  six,  nor  exceed  thirty  pounds,  for  the  first 
offence.  The  mode  of  prosecution  and  trial  was  also  changed,  agree- 
ably to  the  following  clauses :  "  That  the  complainant  shall  apply  to 
either  of  the  judges  of  the  Superior  Court  of  Judicature,  &c.,  within 
this  State,  or  to  either  of  the  judges  of  the  Inferior  Court  of  Common 
Pleas  within  the  county  where  such  offence  shall  be  committed,  and 
lodge  his  certain  information,  which  shall  be  issued  by  the  judge  in  the 
following  form,"  &c.  It  is  then  provided,  that  the  person  complained 
of  come  before  a  court  to  be  specially  convened  by  the  judge,  in  three 
days ;  "  that  the  said  court,  when  so  convened,  shall  proceed  to  the 
trial  of  said  offender,  and  they  are  hereby  authorized  so  to  do,  without 
any  jury,  by  a  majority  of  the  judges  present,  according  to  the  laws  of 
the  land,  and  to  make  adjudication  and  determination,  and  that  three 
members  be  sufficient  to  constitute  a  court,  and  that  the  judgment  of 

1  "  Unjust,"  in  the  Museum's  text. 


SECT.  II.]  TKEVETT  V.   WEEDEN.  75 

the  court,  if  against  the  offender  so  complained  of,  be  forthwith  complied 
with,  or  that  he  stand  committed  to  the  county  jail,  where  the  said 
court  may  be  sitting,  till  sentence  be  performed,  and  that  the  said 
judgment  of  said  court  shall  be  final  and  conclusive,  and  from  which 
there  shall  be  no  appeal ;  and  in  said  process  no  essoin,  protec- 
tion, privilege,  or  injunction  shall  be  in  anywise  prayed,  granted,  or 
allowed." 

In  consequence  of  a  supposed  violation  of  this  Act,  John  Trevett 
exhibited  his  complaint  to  the  Hon.  Paul  Muniford,  Esq.,  Chief  Justice 
of  the  Superior  Court,  at  his  chamber,  who  caused  a  special  court  to 
be  convened ;  but  as  the  information  was  given  during  the  term 
of  the  court,  it  was  referred  into  the  term  for  consideration  and  final 
determination. 

John  Weeden,  being  demanded  and  present  in  court,  made  the  fol- 
lowing answer  :  "  That  it  appears  by  the  Act  of  the  General  Assembly, 
whereon  said  information  is  founded,  that  the  said  Act  hath  expired, 
and  hath  no  force  :  also,  for  that  by  the  said  Act  the  matters  of  com- 
plaint are  made  triable  before  special  courts,  uncontrollable  by  the 
Supreme  Judiciary  Court  of  the  State ;  and  also  for  that  the  court  is 
not,  by  said  Act,  authorized  and  empowered  to  impanel  a  jury  to  try 
the  facts  charged  in  the  information ;  and  so  the  same  is  unconstitu- 
tional and  void."  ,  .  .  [Omitting  only  the  verbatim  report  of  the 
writer's  argument,  the  report  continues  at  page  37  as  follows] :  — 

The  consequences  of  the  foregoing  determination  were  immediately 
felt.  The  shops  and  stores  were  generally  opened,  and  business 
assumed  a  cheerful  aspect.  Few  were  the  exceptions  to  a  general  con- 
gratulation, and  lavish  indeed  were  the  praises  bestowed  upon  the 
court.  The  dread  and  the  idea  of  informations  were  banished  together, 
while  a  most  perfect  confidence  was  placed  in  judicial  security.  The 
paper  currency  obtained  a  more  extensive  circulation,  as  every  one 
found  himself  at  liberty  to  receive  or  refuse  it.  The  markets,  which 
had  been  illy  supplied,  were  now  amply  furnished,  and  the  spirit  of 
industry  was  generally  diffused.  Every  prospect  teemed  with  return- 
ing happiness,  and  nothing  appeared  wanting  to  restore  union  and 
harmony  among  the  contending  parties. 

The  demon  however  of  discord  was  not  entirely  subdued  ;  for  upon 
the  next  succeeding  week  a  summons  was  issued  from  both  Houses  of 
Assembly,  requiring  an  immediate  attendance  of  the  judges,  "  to  ren- 
der their  reasons  for  adjudging  an  Act  of  the  General  Assembly  uncon- 
stitutional, and  so  void."  Three  of  the  judges  attended,  the  other  two 
being  unwell.  This  circumstance  induced  the  Assembly  to  dismiss 
them  at  that  time,  but  they  were  directed  to  appear  at  the  October 
session  next  following. 

Accordingly  three  of  the  judges  attended,  and  gave  notice  in  writing 
to  both  Houses,  "  that  they  waited  their  pleasure."  Thej'  were  in- 
formed that  the  Assembly  was  ready  to  hear  them,  and  would  proceed 
immediately  upon  the  business  for  which  they  were  in  attendance. 


76  TREVETT   V.   WEEDEN.  [CHAP.  I. 

Certain  ceremonies  being  adjusted,  and  the  records  of  the  court 
produced,  the  Honorable  Mr.  Howell,  the  youngest  justice^  addressed 
himself  to  the  Assembly  in  a  very  learned,  sensible,  and  elaborate  dis- 
course, in  which  he  was  upwards  of  six  hours  upon  the  floor. 

He  observed,  that  the  order  by  which  the  judges  were  before  the 
House  might  be  considered  as  calling  upon  them  to  assist  in  matters  of 
legislation,  or  to  render  the  reasons  of  their  judicial  determination,  as 
being  accountable  to  the  legislature  for  their  judgment. 

That  in  the  former  point  of  view,  the  court  was  ever  ready,  as  con- 
stituting the  legal_£ounse.11ors  of  the  State,  to  render  every  kind^  of 
assistance  to  thelegislative,  in  framing  ne^v^or  repealing  former  laws  :  * 
but  that  for  the  re"asons  of  their  fuctgmenrupon  any  questlQiTiudlcrallv 
before  them,  they  were  accountable  only  to  God  and  their  own 
consciences. 

Under  the  first  head,  the  honorable  gentleman  pointed  out  the  objec- 
tionable parts  of  the  Act  upon  which  the  information  w\as  founded,  and 
most  clearly  demonstrated,  by  a  variety  of  conclusive  arguments,  that 
it  was  unconstitutional,  had  not  the  force  of  a  law,  and  could  not  be 
executed.  His  arguments  were  enforced  by  many  authorities  of  the 
first  eminence,  in  addition  to  those  produced  upon  the  trial.  But  as 
this  part  of  the  subject  hath  in  a  great  measure  been  anticipated,  we 
shall  not  enter  into  a  further  detail,  concluding  that  the  legal  defence 
of  the  court,  in  showing  "  that  they  were  not  accountable  to  the  legis- 
lature for  the  reasons  of  their  judgment,"  will  be  more  interesting  to 
the  public. 

Here  it  was  observed,  that  the  legislature  had  assumed  a  fact,  in 
their  summons  to  the  judges,  which  was  not  justified  or  warranted  by 
the  records.  The  plea  of  the  defendant,  in  a  matter  of  mere  surplus- 
age, mentions  the  Act  of  the  General  Assembly  as  "  unconstitutional, 
and  so  void  ;  "  but  the  judgment  of  the  court  simply  is,  "  that  the  in- 
formation is  not  cognizable  before  them."  Hence  it  appears  that  the 
plea  hath  been  mistaken  for  the  judgment. 

Whatever  might  have  been  the  opinion  of  the  judges,  they  spoke  by 
their  records,  which  admitted  of  no  addition  or  diminution.  They 
might  have  been  influenced  respectively  by  different  reasons,  as  the 
whole  Act  was  judicially  before  them,  of  which,  it  being  general,  they 
could  judge  by  inspection,  without  confining  themselves  to  the  particular 
points  stated  in  the  plea.  It  would  be  out  of  the  power,  therefore,  of 
tbe_Geii£r^'  AQct^mhly  to  determine  upon  the  propriety  of  the  court^s 
judgment,  without  a  p.irticular  explanation.     If  this  could  be  required 

in   one    instnncp,  if   might   in  nil;    .gnH    sr>   t1ip    Ipcrisl.i.t.ivfi  would    become 

the  Su])reme  Judiciary.     A  perversion  of  power  totally  subversive  of 
civil  hhertv  ! 

Tf  it  ]ir.  fonoorlorl,  tjiat  the  equal  distribution_ofJustice  is  asj;ec[uisUe_ 
to  answor  x\\i\  [)urDOses  of  govern mjmt^^as  the  enacTing  of  saTiitary  laws, 

1  See  i/i/m,  Note  ou  Advisory  Opinions,  p.  175.  See  also  the  proceedings  against 
Holt,  C.  J.,  in  Kuovrles's  Case,  12  How.  State  Trials,  1167,  1178-1183;  2  Camp.  Lives 
of  the  Chief  Justices,  c.  24.  —  Ed. 


SECT.  II.]  TREVETT   V.   WEEDEN.  77 

it  is  evident  that  the  judiciary  power  should  be  as  independentasjhe 
Wislativc.  And  consequently  tji^judgcs  ea,nnot  l)c  answerabLeJoj, 
their  opinion,  unjess  dmrge_d_jvith  criminality^  .  .  . 
"Judge  Tillinghast  observed,  that  nothing  could  have  induced  the 
gentlemen  of  the  court  to  accept  the  office  to  which  they  were  appointed, 
but  a  regard  to  the  pubUc  good  ;  that  their  perquisites  were  trifling, 
and  their  salaries  not  worth  mentioning.  The  only  recompense  they 
expected,  or  could  receive,  was  a  consciousness  of  rectitude,  which  had 
supported  them,  and  he  was  confident  would  support  them,  through 
every  change  of  circumstances  ;  that  melancholy  indeed  would  be  the 
condition  of  the  citizens,  if  the  Supreme  Judiciary  of  the  State  was 
liable  to  reprehension,  whenever  the  caprice  or  the  resentment  of  a  few 
leading  men  should  direct  a  public  inquiry  ! 

That,  as  one  member  of  the  court,  he  felt  himself  perfectly  independ- 
ent, while  moving  in  the  circle  of  his  duty ;  and  however  he  might  be 
affected  for  the  honor  of  the  State,  he  was  wholly  indifferent  about  any 
consequences  that  might  possibly  respect  himself. 

That  the  opinion  he  had  given  resulted  from  mature  reflection  and  the 
clearest  conviction  ;  that  his  conscience  testified  to  the  purity  of  his 
intentions,  and  he  was  happy  in  the  persuasion,  that  his  conduct  met 
the  approbation  of  his  God  ! 

Judge  Hazard.  My  brethren  have  so  fully  declared  my  sentiments 
upon  this  occasion,  that  I  have  nothing  to  add  by  way  of  argument.  It 
gives  me  pain  that  the  conduct  of  the  court  seems  to  have  met  the  dis- 
pleasure of  the  administration.  But  their  obligations  were  of  too  sacred 
a  nature  for  them  to  aim  at  pleasing  but  in  the  line  of  their  duty. 

It  is  well  known  that  my  sentiments  have  full}'  accorded  with  the 
general  system  of  the  legislature  in  emitting  the  paper  currency  ;  but 
I  never  did,  I  never  will,  depart  from  the  character  of  an  honest  man, 
to  support  any  measures,  however  agreeable  in  themselves.  If  there 
could  have  been  a  prepossession  in  my  mind,  it  must  have  been  in 
favor  of  the  Act  of  the  General  Assembly ;  but  it  was  not  possible  to 
resist  the  force  of  conviction.  The  opinion  I  gave  upon  the  trial  was 
dictated  by  the  energy  of  truth:  I  thought  it  right  — I  still  think  so. 
Be  it  as  it  may,  we  derived  our  understanding  from  the  Almighty,  and 
to  Him  only  are  we  accountable  for  our  judgment. 

To  tlie  observations  of  the  judges,  succeeded  a  very  serious  and  in- 
teresting debate  among  the  members,  wherein  many  arguments  and 
observations  were  adduced  on  both  sides.  At  length  a  question  was 
taken,  "  whether  the  Assembly  was  satisfied  with  the  reasons  given  by 
the  judges  in  support  of  their  judgment?  "  It  was  determined  in  the 
negative. 

A  motion  was  then  made,  and  seconded,  "  for  dismissing  the  judges 

from    their   office."  ...  [A  memorial  and   protest   from  the  judges, 

dated  Nov.  4,  1786,  was  here  presented  to  the  Assembly,  and  Mr. 

Varnum  was  allowed  to  address  the  House  in  support  of  it.] 

The  claim  and  demand  of  the  judges,  as  stated  in  their  memorial, 


78  DEN   d.   BAYARD   AND   WIFE   V.   SINGLETON.  [CHAP.  I. 

and  enforced  b}'  their  counsel,  were  followed  by  a  concise,  but  rational 
debate,  in  whicli  the  fury  of  passion,  excepting  in  one  or  two  instances, 
surrendered  to  cool  reflection,  and  prepared  the  way  for  vindicating  the 
honor  of  the  law,  and  the  dignity  of  the  State.  In  vain  did  any  en- 
deavor to  recall  the  mind  to  a  predetermined  resolution !  Truth, 
"  which  is  lodged  in  a  secret  corner  of  the  heart,"  exerted  her  gentle 
influence,  while  prejudice  and  malice  retired  abashed  ! 

Amotion  was  made  b}'  an  honorable  member,  seconded,  and  agreed 
to,  that  the  opinion  of  the  Attorney-General  be  taken,  and  the  sentiments 
of  the  other  professional  gentlemen  requested,  whether  constitutionall}', 
and  agreeably  to  law,  the  General  Assembly  can  suspend,  or  remove 
from  office,  the  judges  of  the  Supreme  Judiciary  Court,  without  a  pre- 
vious charge  and  statement  of  criminality,  due  process,  trial,  and  con- 
viction thereon?  .  .  .  [Addresses  were  then  made  by  "  Mr.  Channing, 
the  Attorney-General,"  and  three  others,  to  the  effect  that  the  judges 
could  onl^'  be  removed  by  impeachment  or  other  regular  process.]  The 
two  professional  gentlemen  in  the  House,  the  Honorable  Mr.  March- 
ant  and  Mr.  Bourne,  confirmed  the  sentiments  of  their  brethren,  in 
the  leading  points,  by  a  masterly  display  of  legal  talents. 

The  only  question  remaining  was,  whether  the  judges  should  be  dis- 
charged from  an}'  further  attendance  upon  the  General  Assembly, 
as  no  accusation  appeared  against  them?  The  question  was  put,  and 
decided  by  a  ver}'  great  majority,  "  that  as  the  judges  are  not  charged 
with  any  criminality  in  rendering  the  judgment,  upon  the  information, 
Trevett  against  Weeden,  they  are  therefore  discharged  from  an}'  further 
attendance  upon  this  Assembly,  on  that  account."  ^ 


DEN   d.  BAYARD   and  WIFE  v.  SINGLETON. 

Court  of  Conference  of  North  Carolina.*     1787. 

[1  Martin,  N.  C.  42.] 

Ejectment.  This  action  was  brought  for  the  recovery  of  a  valuable 
house  and  lot,  with  a  wharf  and  other  appurtenances,  situate  in  the 
town  of  Newbern. 

The  defendant  pleaded  Not  guilty^  under  the  common  rule. 

He  held  under  a  title  derived  from  the  State,  by  a  deed,  from  a 
Superintendent  Commissioner  of  confiscated  estates. 

At  May  Term,  1786,  Nash^  for  the  defendant,  moved  that  the  suit 

1  Coxe,  Jud.  Power  and  Unconst.  Legis.,  237-38  (and  so  passim),  treats  this  case  as 
one  arising  under  an  unwritten  constitution.  This  view  seems  to  be  inadmissible. 
Before  the  Revohition,  the  charter  of  Rhode  Island,  so  far  as  it  went,  was  a  written 
constitution.    It  continued  to  have  the  same  character  throughout.  —  Ed. 

*  This  seems  to  have  been  the  name  of  the  highest  court  in  the  State,  before  1805. 
But  the  name  is  not  given  in  Martin's  Reports.     See  4  Green  Bag,  457.  — Ed. 


SECT.  II.J  DEN   d.   BAYARD   AND   WIFE   V.   SINGLETON.  79 

be  dismissed,  according  to  an  Act  of  the  last  session,  entitled  an  Act  to 
secure  and  quiet  iu  their  possession  all  such  persons,  their  heirs  and 
assigns,  who  have  purchased  or  may  hereafter  purchase  lands  and 
tenements,  goods  and  chattels,  which  have  been  sold  or  may  hereafter 
be  sold  by  commissioners  of  forfeited  estates,  legally  appointed  for 
that  purpose,  1785,  7,  553. 

The  Act  requires  the  courts,  in  all  cases  where  the  defendant  makes 
affidavit  that  he  holds  the  disputed  property  under  a  sale  from  a  com- 
missioner of  forfeited  estates,  to  dismiss  the  suit  on  motion. 

The  defendant  had  filed  an  afHdavit,  setting  forth  that  the  property 
in  dispute  had  been  confiscated  and  sold  by  the  commissioner  of  the 
district. 

Tiiis  brought  on  long  arguments  from  the  counsel  on  each  side,  on 
constitutional  points. 

The  court  made  a  few  observations  on  our  Constitution  and  system 
of  government. 

Ashe,  J.  observed,  that  at  the  time  of  our  separation  from  Great 
Britain,  we  were  thrown  into  a  similar  situation  with  a  set  of  people 
shipwrecked  and  cast  on  a  marooned  island,  —  without  laws,  without 
magistrates,  without  government,  or  any  legal  authority  —  that  being 
thus  circumstanced,  the  people  of  this  country,  with  a  general  union 
of  sentiment,  by  their  delegates,  met  in  Congress,  and  formed  that 
system  or  those  fundamental  principles  comprised  in  the  Constitution, 
dividing  the  powers  of  government  into  separate  and  distinct  branches, 
to  wit :  the  legislative,  the  judicial,  and  executive,  and  assigning  to 
each,  several  and  distinct  powers,  and  prescribing  their  several  limits 
and  boundaries :  this  he  said  without  disclosing  a  single  senti- 
ment upon  the  cause  of  the  proceeding,  or  the  law  introduced  in 
support  of  it.  Cur.  ado.  vull. 

At  May  Term,  1787,  Nash's  motion  was  resumed,  and  produced  a 
very  lengthy  debate  from  the  Bar. 

Whereupon  the  court  recommended  to  the  parties  to  consent  to  a 
fair  decision  of  the  property  in  question,  by  a  jury  according  to  the 
common  law  of  the  land,  and  pointed  out  to  the  defendant  tlie  uncer- 
tainty that  would  always  attend  his  title,  if  this  cause  should  be  dis- 
missed without  a  trial ;  as  upon  a  repeal  of  the  present  Act  (which 
would  probably  happen  sooner  or  later),  suit  might  be  again  com- 
menced against  him  for  the  same  property,  at  the  time  when  evi- 
dences, which  at  present  were  easy  to  be  had,  might  be  wanting.  But 
this  recommendation  was  without  effect. 

Another  mode  was  proposed  for  putting  the  matter  in  controversy 
on  a  more  constitutional  footing  for  a  decision,  than  that  of  the  motion 
under  the  aforesaid  Act.  The  court  then,  after  every  reasonable  en- 
deavor had  been  used  in  vain  for  avoiding  a  disagreeable  difference 
between  the  legislature  and  the  judicial  powers  of  the  State,  at 
length  with  much  apparent  reluctance,  but  with  great  deliberation  and 


80  DEN   d.   BAYAKD   AND   WIFE   V.   SINGLETON.  [CHAP.  L 

firmness,  gave  their  opinion  separately,  but  unanimously,  for  over- 
ruling the  aforementioned  motion  for  the  dismission  of  the  said  suits. 

In  the  course  of  which  the  judges  observed,  that  the  obligation  of 
their  oaths,  and  the  duty  of  their  office  required  them,  in  that  situation, 
to  give  their  opinion  on  that  important  and  momentous  subject ;  and 
that  notwithstanding  the  great  reluctance  they  might  feel  against 
involving  themselves  in  a  dispute  with  the  legislature  of  the  State, 
yet  no  object  of  concern  or  respect  could  come  in  competition  or 
authorize  them  to  dispense  with  the  duty  they  owed  the  public,  in 
consequence  of  the  trust  they  were  invested  with  under  the  solemnity 
of  their  oaths. 

That  they  therefore  were  bound  to  declare  that  they  considered,  that 
whatever  disabilities  the  persons  under  whom  the  plaintiffs  were  said 
to  derive  their  titles,  might  justly  have  incurred,  against  their  main- 
taining or  prosecuting  an}'  suits  in  the  courts  of  this  State ;  yet  that 
such  disabilities  in  their  nature  were  merely  personal,  and  not  by  any 
means  capable  of  being  transferred  to  the  present  plaintiffs,  either  by 
descent  or  purchase  ;  and  that  these  plaintiffs,  being  citizens  of  one  of 
the  United  States,  are  citizens  of  this  State,  by  the  confederation  of 
all  the  States  ;  which  is  to  be  taken  as  a  part  of  the  law  of  the  land, 
unrepealable  by  any  Act  of  the  General  Assembly. 

That  by  the  Constitution  every  citizen  had  undoubtedly  a  right  to  a 
decision  of  his  property  by  a  trial  by  jury.  For  that  if  the  legislature 
could  take  away  this  right,  and  require  him  to  stand  condemned  in 
his  property  without  a  trial,  it  might  with  as  much  authorit}'  require 
his  life  to  be  taken  away  without  a  trial  by  jury,  and  that  he  should 
sta^d  condemned  to  die,  without  the  formality  of  any  trial  at  all ;  that 
if  the  members  of  the  General  Assembly  could  do  this,  they  might  with 
equal  authority,  not  only  render  themselves  the  legislators  of  the 
State  for  life,  with5ut  any  further  election  of  the  people,  from  thence 
transmit  the  dignity  and  authority  of  legislation  down  to  their  heirs 
male  forever. 

/  But  that  it  was  clear,  that  no  Act  they  could  pass,  could  by  any 
'means  repeal  or  alter  the  Constitution,  because,  if  they  could  do  this, 
they  would  at  the  same  instant  of  time  destroy  their  own  existence 
as  a  legislature,  and  dissolve  the  government  thereby  established. 
Consequently  the  Constitution  (which  the  judicial  power  was  bound  to 
take  notice  of  as  much  as  of  any  other  law  whatever),  standing  in  full 
force  as  the  fundamental  law  of  the  land,  notwithstanding  tlie  Act  on 
which  the  present  motion  was  grounded,  the  same  Act  must  of  course, 
in  that  instance,  stand  as  abrogated  and  without  any  effect. 

Nash's  motion  was  overruled.  v 

And  at  this  term  the  cause  was  tried.  .  .  . 

[The  rest  of  the  case,  being  immaterial  as  regards  the  present 
topic,  is  omitted.]  ^ 

^  See  Coxe's  comments  on  this  case,  Jud.  Power  &  Unconst.  Legis.,248ef  seg.;  and 
especially  the  letters  of  Iredell,  afterwards  a  judge  of  the  Supreme  Court  of  the 


SECT.  II.]  RESOLUTION   OF   CONGRESS.  81 

Wednesday,  March  21,  1787.  ...  On  the  report  of  the  Secretary 
to  the  United  States  for  the  Department  of  Foreign  Affairs  .  .  .  Con- 
gress unanimously  agreed  to  the  following  resolutions  :  — 

Resolved.,  That  the  legislatures  of  the  several  States  cannot  of  right 
pass  any  Act  or  Acts,  for  interpreting,  explaining,  or  construing  a 
national  treaty  or  any  part  or  clause  of  it ;  nor  for  restraining,  limit- 
ing, or  in  any  manner  impeding,  retarding,  or  counteracting  the  opera- 
tion and  execution  of  the  same  ;  for  that  on  being  constitutionally 
made,  ratified,  and  published,  they  become  in  virtue  of  the  confedera- 
tion, part  of  the  law  of  the  land,  and  are  not  only  independent  of  the 
will  and  power  of  such  legislatures,  but  also  binding  and  obligatory 
on  them. 

Resolved,  That  all  such  Acts  or  parts  of  Acts  as  may  be  now  existing 
in  any  of  the  States,  repugnant  to  the  treaty  of  peace,  ought  to  be 
forthwith  repealed,  as  well  to  prevent  their  continuing  to  be  regarded 
as  violations  of  that  treaty,  as  to  avoid  the  disagreeable  necessity 
there  might  otherwise  be  of  raising  and  discussing  questions  touching 
their  validity  and  obligation. 

Resolved,  That  it  be  recommended  to  the  several  States  to  make 
such  repeal  rather  by  describing  than  reciting  the  said  Acts,  and  for 
that  purpose  to  pass  an  Act  declaring  in  general  terms,  that  all  such 
Acts  and  parts  of  Acts,  repugnant  to  the  treaty  of  peace  between  the 
United  States  and  his  Britannic  Majesty,  or  any  article  thereof,  shall 
be,  and  thereby  are  repealed,  and  that  the  courts  of  law  and  equity  in 
all  causes  and  questions  cognizable  by  them  respectively,  and  arising 
from  or  touching  the  said  treaty,  shall  decide  and  adjudge  according 
to  the  true  intent  and  meaning  of  the  same,  anything  in  the  said  Acts 
or  parts  of  Acts  to  the  contrary  thereof  in  anywise  notwithstanding.  — 
12  Journals  of  Congress  (ed.  1801),  23;  Coxe,  Jud.  Poicer  and 
Unconst.  Leg.,  387. 

Friday,  April  13,  1787.  .  .  .  The  Secretary  for  Foreign  Affairs  hav- 
ing, in  pursuance  of  an  order  of  Congress,  reported  the  draught  of  a 
letter  to  the  States  accompanying  the  resolutions,  passed  the  21st  day 
of  March,  1787,  the  same  was  taken  into  consideration  and  unani- 
mously agreed  to  as  follows :  .  .  .  Our  national  Constitution  having 
committed  to  us  the  management  of  the  national  concerns  with  foreign 
States  and  powers,  it  is  our  duty  to  take  care  that  all  the  rights  which 
they  ought  to  enjoy  within  our  jurisdiction  by  the  laws  of  nations  and 
the  faith  of  treaties,  remain  inviolate.   .   .   . 

Let  it  be  remembered  that  the  Thirteen  Independent  Sovereign  States 
have,  by  express  delegation  of  power,  formed  and  vested  in  us  a  gen- 
eral, though  limited,  sovereignty,  for  the  general  and  national  purposes 
specified  in  the  confederation.  In  this  sovereignty  they  cannot  sever- 
ally participate  (except  by  their  delegates)  nor  with  it  have  concurrent 

United   States,  written  in  August,  1786,  and  August,  1787,  and  reprinted  "by  Coxe 
(pp.  253-263)  from  McRee's  Life  and  Correspondence  of  James  Iredell.  —  Ed. 
VOL.  I.  —  6 


82  EESOLUTION   OF   CONGUESS.  [CHAP.  I. 

jurisdiction  ;  for  the  niuth  article  of  the  confederation  most  expressly 
conveys  to  us  the  sole  and  exclusive  right  and  power  of  determining 
on  war  and  peace,  and  of  entering  into  treaties  and  alliances,  &c. 

When,  therefore,  a  treaty  is  constitutionally  made,  ratified,  and  pub- 
lished by  us,  it  immediately  becomes  binding  on  the  whole  nation,  and 
superadded  to  the  laws  of  the  laud,  without  the  intervention  of  State 
legislatures.  Treaties  derive  their  obligation  from  being  compacts 
between  the  sovereign  of  this  and  the  sovereign  of  another  nation  ; 
whereas  laws  or  statutes  derive  their  force  from  being  the  Acts  of  a 
legislature  competent  to  the  passiug  of  them.  Hence  it  is  clear  that 
treaties  must  be  implicitly  received  and  observed  by  every  member  of 
the  nation  ;  for  as  State  legislatures  are  not  competent  to  the  making 
of  such  compacts  or  treaties,  so  neither  are  they  competent  in  that 
capacity,  authoritatively  to  decide  on  or  ascertain  the  construction 
and  sense  of  them.  When  doubts  arise  respecting  the  construction  of 
State  laws,  it  is  not  unusual  nor  improper  for  the  State  legislatures, 
by  explanatory  or  declaratory  Acts  to  remove  those  doubts.  But  the 
case  between  laws  and  compacts  or  treaties  is  in  this  widely  different ; 
for  when  doubts  arise  respecting  the  sense  and  meaning  of  a  treaty, 
they  are  so  far  from  being  cognizable  by  a  State  legislature,  that  the 
United  States  in  Congress  assembled,  have  no  authority  to  settle  and 
determine  them  ;  for  as  the  legislature  only,  which  constitutionally 
passes  a  law,  has  power  to  revise  and  amend  it,  so  the  sovereigns 
only,  who  are  parties  to  the  treaty,  have  power  by  mutual  consent  and 
posterior  articles,  to  correct  or  explain  it.  .   .  . 

How  far  such  legislative  Acts  would  be  valid  and  obligatory  even 
within  the  limits  of  the  State  passing  them,  is  a  question  which  we 
hope  never  to  have  occasion  to  discuss.  Certain,  however,  it  is  that 
such  Acts  cannot  bind  either  of  the  contracting  sovereigns,  and  conse- 
quently cannot  be  obligatory  on  their  respective  nations.  .  .   . 

Thus  much  we  think  it  useful  to  observe,  in  order  to  explain  the 
pi'inciples  on  which  we  have  unanimously  come  to  the  following  reso- 
lution, viz.  .  .  .  [Here  is  recited  the  first  of  the  three  resolutions 
given  above.] 

As  the  treaty  of  peace,  so  far  as  it  respects  the  matters  and  things 
provided  for  in  it,  is  a  law  to  the  United  States  which  cannot  by  all  or 
any  of  them  be  altered  or  changed,  all  State  Acts  establishing  pro- 
visions relative  to  the  same  objects  which  are  incompatible  with  it, 
must  in  every  point  of  view  be  improper.  Such  Acts  do  nevertheless 
exist ;  but  we  do  not  think  it  necessary  either  to  enumerate  them  par- 
ticularly, or  to  make  them  severally  the  subjects  of  discussion.  It 
appears  to  us  sufficient  to  observe  and  insist,  that  the  treaty  ought  to 
have  free  course  in  its  operation  and  execution,  and  that  all  obstacles 
interposed  by  State  Acts  be  removed.  We  mean  to  act  with  the  most 
scrupulous  regard  to  justice  and  candor  towards  Great  Britain,  and 
with  an  equal  degree  of  delicacy,  moderation,  and  decision  towards  the 
States  who  have  given  occasion  to  these  discussions. 


SECT.  II.]  PASSAGES   FllOM  THE   FEDERALIST.  83 

For  these  reasons  we  have  in  general  terms  .  .  .  [Here  the  second 
resolution  is  inserted.] 

Although  this  resolution  applies  strictly  only  to  such  of  the  States 
as  have  passed  the  exceptionable  Acts  alluded  to,  yet  to  obviate  all 
future  disputes  and  questions,  as  well  as  to  remove  those  which  now 
exist,  we  think  it  best  that  every  State  without  exception  should  pass 
a  law  on  the  subject.  We  have  therefore  .  .  .  [Here  the  third  reso- 
lution is  inserted.] 

Such  laws  would  answer  every  purpose  and  be  easily  formed.  The 
more  they  were  of  the  like  tenor  throughout  the  States  the  better. 
They  might  each  recite  .  .  .  [Here  is  inserted  the  draught  of  a  stat- 
ute, embodying  what  the  resolutions  advised.] 

Such  a  general  law  would,  we  think,  be  preferable  to  one  that 
should  minutely  enumerate  the  Acts  and  clauses  intended  to  be 
repealed,  because  omissions  might  accidentally  be  made  in  the  enume- 
ration, or  questions  might  arise,  and  perhaps  not  be  satisfactorily 
determined,  respecting  particular  Acts  or  clauses,  about  which  con- 
trary opinions  may  be  entertained.  By  repealing  in  general  terms  all 
Acts  and  clauses  repugnant  to  the  treaty,  the  business  will  be  turned 
over  to  its  proper  department,  viz.,  the  judicial,  and  the  courts  of  law 
will  find  no  difficulty  in  deciding  whether  any  particular  Act  or  clause 
is  or  is  not  contrary  to  the  treaty.   . 

By  order  of  Congress. 

(Signed)  Arthur  St.  Clair,  President.^ 

—  lb.  32  ;  CoxE,  ubi  supra,  388. 


NOTE. 

Passages  from  the  Federalist. 

One  of  the  principal  objections  inculcated  by  the  more  respectable  adversaries  to  the 
Constitution,  is  its  supposed  violation  of  the  political  maxim,  that  the  legislative,  execu- 
tive, and  judiciary  departments  ought  to  be  separate  and  distinct.  .  .  .  In  order  to  form 
correct  ideas  on  this  important  subject,  it  will  be  proper  to  investigate  the  sense  m 
which  the  preservation  of  liberty  requires  that  the  three  great  departments  of  power 
should  be  separate  and  distinct.  The  oracle  who  is  always  consulted  and  cited  on  this 
subject  is  the  celebrated  Montesquieu.  If  he  be  not  the  author  of  this  invaluable  pre- 
cept in  the  science  of  politics,  he  has  the  merit  at  least  of  displaying  and  recommending 
it  most  effectually  to  the  attention  of  mankind.  Let  us  endeavor,  in  the  first  place,  to 
ascertain  his  meaning  on  this  point.  The  British  Constitution  was  to  Moutesquieix 
what  Homer  has  been  to  the  didactic  writers  on  epic  poetry.  .  .  .  This  great  political 
critic  appears  to  have  viewed  the  Constitution  of  England  as  the  standard,  or  to  use 
his  own  expression,  as  the  mirror  of  political  liberty  ;  and  to  have  delivered,  in  the 
form  of  elementary  truths,  the  several  characteristic  principles  of  that  particular 
iystem.    That  we  may  be  sure,  then,  not  to  mistake  his  meaning  in  this  case,  let  us 

1  See  Mass.  Stat.  1786,  c.  86,  passed,  in  the  form  recommended  by  Congress,  on 
April  30,  1787. —  Ed. 


84  PASSAGES   FROM   THE  FEDERALIST.  [CHAP.  I. 

recur  to  the  source  from  which  the  maxim  was  drawn.  Ou  the  sliglitest  view  of  the 
British  CoDStitutiou,  we  must  perceive  that  the  legislative,  executive,  and  judiciary 
departments  are  by  no  means  totally  separate  and  distinct  from  each  otlier.  The  ex- 
ecutive magistrate  forms  an  integral  part  of  the  legislative  authority.  He  alone  has  the 
prerogative  of  making  treaties  with  foreign  sovereigns,  which,  when  made,  have,  under 
certain  limitations,  the  force  of  legislative  Acts.  All  the  members  of  the  judiciary  de- 
partment are  appointed  by  him,  can  be  removed  by  him  on  the  address  of  the  two 
Houses  of  Parliament,  and  form,  when  he  pleases  to  consult  them,  one  of  his  constitu- 
tional councils.  One  branch  of  the  legislative  department  forms  also  a  great  consti- 
tutional council  to  the  executive  chief,  as,  on  another  hand,  it  is  the  sole  depositary  of 
judicial  power  in  cases  of  impeachment,  and  is  invested  with  the  supreme  appellate 
jurisdiction  in  all  other  cases.  The  judges,  again,  are  so  far  connected  with  the  legis- 
lative department  as  often  to  attend  and  participate  in  its  deliberations,  though  not 
admitted  to  a  legislative  vote.  From  these  facts,  by  which  Montesquieu  was  guided,  it 
may  clearly  be  inferred  that,  in  saying  "  There  can  be  no  liberty  where  the  legislative 
and  executive  powers  are  united  in  the  same  person,  or  body  of  magistrates,"  or,  "  if 
the  power  of  judging  be  not  separated  from  the  legislative  and  executive  powers,"  he 
did  not  mean  that  these  departments  ought  to  have  no  partial  agency  in,  or  no  control 
over,  the  acts  of  each  other.  His  meaning,  as  his  own  words  import,  and  still  more 
conclusively  as  illustrated  by  the  example  in  his  eye,  can  amount  to  no  more  than  this, 
that  where  the  whole  power  of  one  department  is  exercised  by  the  same  hands  which 
possess  the  whole  power  of  another  department,  the  fundamental  principles  of  a  free 
constitution  are  subverted.  ...  If  we  look  into  tlie  constituticms  of  the  several  States, 
we  find  that,  notwithstanding  the  emphatical  and,  in  some  instances,  tlie  unqualified 
terms  in  which  this  axiom  has  been  laid  down,  there  is  not  a  single  instance  in  which 
the  several  departments  of  power  have  been  kept  absolutely  separate  and  distinct.  — 
The  Federalist  (Lodge's  ed.),  No.  47  i  (Madison). 

It  is  agreed  on  all  sides,  that  the  powers  properly  belonging  to  one  of  the  depart- 
ments ought  not  to  be  directly  and  completely  administered  by  either  of  the  other 
departments.  It  is  equally  evident,  that  none  of  tliem  ought  to  possess,  directly 
or  indirectly,  an  overruling  influence  over  the  others,  in  the  administration  of  their 
respective  powers.  It  will  not  be  denied,  that  power  is  of  an  encroaching  nature, 
and  that  it  ought  to  be  effectually  restrained  from  passing  the  limits  assigned  to  it. 
After  discriminating,  therefore,  in  theory,  the  several  classes  of  power,  as  they  may  in 
their  nature  be  legislative,  executive,  or  judiciary,  the  next  and  most  difficult  task  is  to 
provide  some  practical  security  for  each,  against  the  invasion  of  the  others.  What  this 
security  ought  to  be,  is  the  great  problem  to  be  solved.  Will  it  be  sufficient  to  mark, 
with  precision,  the  boundaries  of  these  departments,  in  the  constitution  of  the  govern- 
ment, and  to  trust  to  these  parchment  barriers  against  the  encroaching  spirit  of  power  ? 
This  is  the  security  which  appears  to  have  been  principally  relied  on  by  the  compilers 
lof  most  of  the  American  constitutions.  But  experience  assures  us,  that  the  efficacy 
of  the  provision  has  been  greatlj'  overrated ;  and  that  some  more  adequate  defence 
is  indispensably  necessary  for  the  more  feeble,  against  the  more  powerful,  members  of 
the  government.  The  legislative  department  is  everywhere  extending  the  sphere  of 
its  activity,  and  drawing  all  power  into  its  impetuous  vortex.  ...  In  a  representative 
republic,  where  the  executive  magistracy  is  carefully  limited,  both  in  the  extent  and 
the  duration  of  its  power  ;  and  where  the  legislative  power  is  exercised  by  an  assembly, 
which  is  inspired,  by  a  supposed  influence  over  the  people,  with  an  intrepid  confidence 
in  its  own  strength  ;  which  is  sufficiently  numerous  to  feel  all  the  passions  which  actu- 
ate a  multitude,  yet  not  so  numerous  as  to  be  incapable  of  pursuing  the  objects  of  its 
passions,  by  menus  which  reason  prescrites;  it  is  against  the  enterprising  ambition  of 
this  department  that  the  people  ought  to  indulge  all  their  jealousy  and  exhaust  all 

1  For  comments  on  the  Federalist,  a  collection  of  papers  published  at  intervals  in 
1787  and  1788,  with  the  object  of  securing  the  adoption  of  the  Federal  Constitution, 
see  Maine,  Popular  Govt.,  Essay  IV.  I  have  inserted  here  all  such  parts  of  the  Fed- 
eralist as  seem  important  for  the  purposes  of  this  book.  —  Ed. 


SECT.  II.]  PASSAGES   FROM  THE   FEDERALIST.  85 

their  precautions.  The  legislative  department  derives  a  superiority  in  our  govern- 
ments from  other  circumstances.  Its  constitutional  powers  being  at  once  more  exten- 
sive, and  less  susceptible  of  precise  limits,  it  can,  with  the  greater  facility,  mask,  under 
complicated  and  indirect  measures,  the  encroachments  which  it  makes  on  the  co-ordi- 
nate departments.  It  is  not  unfrequently  a  question  of  real  nicety  in  legislative  bodies, 
whether  the  operation  of  a  particular  measure  will,  or  will  not,  extend  beyond  the 
le"-islative  sphere.  On  the  other  side,  the  executive  power  being  restrained  within  a 
na^rrower  compass,  and  l)cing  more  simple  in  its  nature,  and  the  judiciary  being  de- 
scribed by  landmarks  still  less  uncertain,  projects  of  usurpation  by  either  of  these 
de])artnieuts  would  immediately  betray  and  defeat  themselves.  Nor  is  this  all :  as  the 
le"-i^lativo  department  alone  has  acces.s  to  the  pockets  of  the  people,  and  has  in  some 
constitutions  full  discretion,  and  in  all  a  prevailing  influence,  over  the  pecuniary  re- 
wards of  those  who  fill  the  other  departments,  a  dependence  is  thus  created  in  the 
latter,  which  gives  still  greater  facility  to  encroachments  of  the  former.  —  Ih.  No.  48 

(Madison).  .      .  . 

To  what  exi>edient,  then,  shall  we  finally  resort,  for  maintaining  in  practice  the  neces- 
sarv  partition  of  power  among  the  several  departments,  as  laid  down  in  the  Constitu- 
tion ^     The  onlv  answer  tliat  can  be  given  is,  that  as  all  these  exterior  provisions  are 
found  to  be  inadequate,  the  defect  must  be  supplied,  by  so  contriving  the  interior 
structure  of  the  government  as  tiiat  its  several  constituent  parts  may,  by  their  mutual 
relations,  be  the  means  of  keeping  each  other  in  tlieir  proper  places.  —  Without  presum- 
incr  to  undertake  a  full  development  of  tliis  important  idea,  I  will  hazard  a  few  gene- 
ra! observations,  which  mav  perhaps  place  it  in  a  clearer  light,  and  enable  us  to  form 
a  more  correct  judgment  of  the  ])rinciples  and  structure  of  the  government  planned  by 
the  convention.     In  order  to  lav  a  due  foundation  for  tliat  separate  and  distinct  exercise 
of  the  different  powers  of  government,  which  to  a  certain  extent  is  admitted  on  all  hands 
to  be  essential  to  the  preservation  of  liberty,  it  is  evident  that  each  department  should 
have  a  will  of  its  own  ;  and  conseipiently  sliould  be  so  constituted  tliat  the  members  of 
each  should  have  as  little  agency  as  possible  in  the  appointment  of  the  members  of  the 
others.     Were  this  principle  rigorously  adhered  to,  it  would  require  that  all  the  ap- 
pointments for  the  supreme  executive,  legislative,  and  judiciary  magistracies  should 
be  drawn  from  the  same  fountain  of  authority,  the  people,  through  channels  having  no 
communication  whatever  with  one  another.     Perhaps  such  a  plan  of  constructing  the 
several  departments  would  be  less  difficult  in  practice  than  it  may  in  contemplation 
appear.     Some  difficulties,  however,  and  some  additional  expense  would  attend  the 
execution  of  it.     Some  deviations,  therefore,  from  the  principle  must  be  admitted.     In 
the  constitution  of  the  judiciary  department  in  particular,  it  might  be  inexpedient  to 
insist  rjo-orou-^ly  on  tlie  principle  :  first,  because  peculiar  qualifications  being  essen- 
tial in  tlie  members,  the  primary  consideration  ought  to  be  to  select  that  mode  of 
choice  which  best  secures  these  qualifications;  secondly,  because  the  permanent  tenure 
bv  which  the  appointments  are  held  in  that  department,  must  soon  destroy  all  sense  of 
dependence  on  the  authority  conferring  them.  .   .  .  But  the  great  security  against  a 
gradual  concentration  of  the  several  powers  in  the  same  department,  consists  in  giving 
to  those  who   administer  each   department  the  necessary  constitutional   means  and 
personal  motives  to  resist  encroachments  of  the  others.  ...  A  dependence  on  the 
people  is,  no  doubt,  the  primary  control  on  the  government ;  but  experience  has  taught 
mankind  the  necessity  of  auxiliary  precautions.  .  .  .  But  it  is  not  possible  to  give  to 
each  department  an  eiiual  power  of  self-defence.     In  republican  government,  the  legis- 
lative authority  necessarily  predominates.     The  remedy  for  this  inconveniency  is  to 
divide  the  legislature  into  different  branches ;  and  to  render  them,  by  different  modes 
of  election  and  different  principles  of  action,  as  little  connected  with  each  otlier  as  the 
nature  of  their  common  functions  and  tlieir  common  dependence  on  the  society  will 
admit.     It  may  even  be  necessary  to  guard  against  dangerous  encroachments  by  still 
further  precautions.     As  the  weight  of  the  legislative  authority  requires  that  it  should 
be  thus  divided,  the  weakness  of  the  executive  may  require,  on  the  other  hand,  tliat  it 
§hould  be  fortified.     An  absolute  negative  on  the  legislature  appears,  at  first  view,  to 

be  the  natural  defence  with  which  the  executive  magistrate  should  be  armed.     But 


86  PASSAGES  FROM  THE  FEDERALIST.        [CHAP.  I 

perhaps  it  would  be  neither  altogether  safe  nor  alone  sufficient.  On  ordinary  occar 
sions  it  miglit  not  be  exerted  with  the  requisite  firmness,  and  on  extraordinary  occasions 
it  might  be  perfidiously  abused.  —  lb.  No.  51  (Hamilton  or  Madison). 

A  review  of  the  principal  objections  that  have  appeared  against  the  proposed 
court  for  the  trial  of  impeachments,  will  not  improbably  eradicate  the  remains  of 
any  unfavorable  impressions  which  may  still  exist  in  regard  to  this  matter.  The 
first  of  these  objections  is,  that  the  provision  in  question  confounds  legislative 
and  judiciary  authorities  in  the  same  body,  in  violation  of  that  important  and 
well-established  maxim  which  requires  a  separation  between  the  different  depart- 
ments of  power.  The  true  meaning  of  this  maxim  has  been  discussed  and  ascer- 
tained in  another  place,  and  has  been  shown  to  be  entirely  compatible  with  a  partial 
intermixture  of  those  departments  for  special  purposes,  preserving  them,  in  the 
main,  distinct  and  unconnected.  This  partial  intermixture  is  even,  in  some  cases,  not 
only  proper  but  necessary  to  the  mutual  defence  of  the  several  members  of  the  govern- 
ment against  each  otlier.  An  absolute  or  qualified  negative  in  the  executive  upon  the 
acts  of  the  legislative  body,  is  admitted,  by  the  ablest  adepts  in  political  science,  to  be 
an  indispensable  barrier  against  the  encroachments  of  the  latter  upon  the  former. 
And  it  may,  perhaps,  with  no  less  reason  be  contended,  that  the  powers  relating  to 
impeachments  are,  as  before  intimated,  an  essential  check  in  the  hands  of  that  body 
upon  the  encroachments  of  the  executive.  The  division  of  them  between  the  two 
branches  of  the  legislature,  assigning  to  one  the  right  of  accusing,  to  the  other  the 
right  of  judging,  avoids  the  inconvenience  of  making  the  same  persons  both  accusers 
and  judges ;  and  guards  against  the  danger  of  persecution,  from  the  prevalency  of  a 
factious  spirit  in  either  of  those  branches.  As  the  concurrence  of  two  tliirds  of  the 
Senate  will  be  requisite  to  a  condemnation,  the  security  to  innocence,  from  tliis  ad- 
ditional circumstance,  will  be  as  complete  as  itself  can  desire.  It  is  curious  to  observe, 
with  what  vehemence  this  part  of  the  plan  is  assailed,  on  the  principle  here  taken 
notice  of,  by  men  who  profess  to  admire,  without  exception,  the  Constitution  of  this 
State  [New  York] ;  while  that  Constitution  makes  the  Senate,  together  with  the  chan- 
cellor and  judges  of  the  Supreme  Court,  not  only  a  court  of  impeachments,  but  the 
highest  judicatory  in  the  State,  in  all  causes,  civil  and  criminal.  Tlie  proportion,  in 
point  of  numbers,  of  the  chancellor  and  judges  to  the  senators,  is  .so  inconsiderable, 
that  the  judiciary  authority  of  New  York,  in  the  last  resort,  may,  with  truth,  be  said  to 
reside  in  its  Senate.  If  the  plan  of  the  convention  be,  in  this  respect,  chargeable  with 
a  departure  from  the  celebrated  maxim  which  has  been  so  often  mentioned,  and  seems 
to  be  so  little  understood,  how  much  more  culpable  must  be  the  Constitution  of  New 
York.i  — 7i.  No.  66  (Hamilton). 

There  is  an  idea,  which  is  not  without  its  advocates,  that  a  vigorous  Executive 
is  inconsistent  with  the  genius  of  republican  government.  The  enlightened  well- 
wishers  to  this  species  of  government  must  at  least  hope  that  the  supposition  is 
destitute  of  foundation  ;  since  they  can  never  admit  its  truth,  without  at  the  samo  timo 
admitting  the  condemnation  of  their  own  principles.  Energy  in  the  Executive  is  a 
leading  character  in  the  definition  of  good  government.  It  is  essential  to  the  protec- 
tion of  the  community  against  foreign  attacks ;  it  is  not  less  essential  to  the  steady 
administration  of  the  laws  ;  to  the  protection  of  property  against  those  irregular  and 
high-handed  combinations  which  sometimes  interrupt  the  ordinary  course  of  justice  ;  to 
the  security  of  liberty  against  the  enterprises  and  assaults  of  ambition,  of  faction,  and 
of  anarchy.  Every  man  the  least  conversant  in  Roman  story,  knows  how  often  that 
republic  was  obliged  to  take  refuge  in  the  absolute  power  of  a  single  man,  under  the 
formidable  title  of  Dictator,  as  well  against  the  intrigues  of  ambitious  individuals  who 
aspired  to  the  tyranny,  and  the  seditions  of  whole  classes  of  the  community  whose 
conduct  threatened  the  existence  of  all  government,  as  against  the  invasions  of  exter- 
nal enemies  who  menaced  the  conquest  and  destruction  of  Rome.     There  can  be  no 

1  In  that  of  New  Jersey,  also,  the  final  judiciary  authority  is  in  a  branch  of  the  legis- 
lature. In  New  Hampshire,  Ma.ssachusetts,  Pennsylvania,  and  South  Carolina,  one 
branch  of  the  legislature  is  the  court  for  the  trial  of  impeachments.  —  Publius. 


SECT.  II.]         PASSAGES  FROM  THE  FEDERALIST.  87 

need  however,  to  multiply  arguments  or  examples  on  this  head.     A  feeble  Executive 
implies  a  feeble  execution  of  the  government.     A  feeble  execution  is  but  another 
phrase  for  a  bad  execution  ;  and  a  government  ill  executed,  whatever  it  may  be  m 
theory  must  be,  in  practice,  a  bad  government.     Taking  it  for  granted,  therefore,  that 
all  men  of  sense  will  agree  in  the  necessity  of  an  energetic  Executive,  il  will  only 
remain  to  inquire,  what  are  the  ingredients  which  constitute  this  energy  ?     How  far 
can  thev  be  combined  with  those  other  ingredients  which  constitute  safety  in  the  re- 
publican sense  ''     And  how  far  does  this  combination  characterize  the  plan  which  has 
been  reported  by  the  convention  ?     The  ingredients  which  constitute  energy  in  the 
Executive  are,  first,  unity ;  secondly,  duration  ;  thirdly,  an  adequate  provision  for  its 
support  ■  fourthly,  competent  powers.     The  ingredients  wliich  constitute  safety  in  the 
republican  sense  are,  first,  a  due  dependence  on  the  people;  secondly,  a  due  responsi- 
bilitv      Those  politicians  and  statesmen  who  have  been  the  most  celebrated  for  the 
soundness  of  their  principles  and  for  the  justice  of  their  views,  have  declared  in  favor 
of  a  single  Executive  and  a  numerous  legislature.     They  have,  with  great  propriety 
considered  energv  as  the  most  necessary  qualification  of  the  former,  and  have  regarded 
this   as   most  applicable   to  power  in   a  single  hand  ;  while  they   have,  with  equal 
propriety,  considered  the  latter  as  best  adapted  to  deliberation   and  wisdom  and  best 
calculated  to  conciliate  the  confidence  of  the  people  and  to  secure  their  privileges  and 
interests      That  unitv  is  conducive  to  energy  will  not  be  disputed.     Decision,  activity, 
secrecv  and  despatch  will  generally  characterize   the   proceedings  of  one  man  m  a 
much  more  eminent  degree  than  the  proceedings  of  any  greater  number  ;  and  in  pro- 
portion as  the  number  is  increased,  these  qualities  will  be  diminished,  —lb.  ^o.  <0 
(Hamilton). 

The  last  of  the  requisites  to  energy,  which  have  been  enumerated,  are  competent 
powers.     Let  us  proceed  to  consider  those  which  are  proposed  to  be  vested  in  the 
President  of  the  United  States.     The  first  thing  that  offers  itself  to  our  observation,  is 
the  qualified  negative  of  the  President  upon  the  Acts  or  resolutions  of  the  two  Houses 
of  the  legislature;  or,  in  other  words,  his  power  of  returning  all  bills  with  objections, 
to  have  tlie  effect  of  preventing  their  becoming  laws,  unless  they  should  afterwards  be 
ratified  by  two  thirds  of  each  of  the  component  members  of  the  legislative  body.     The 
propensity  of  the  legislative  department  to  intrude  upon  the  rights,  and  to  absorb  the 
powers,  of  the  other  departments,  has  been  already  suggested  and  repeated ;  the  insuf- 
ficiency of  a  mere  parchment  delineation  of  the  boundaries  of  each,  has  also  been 
remarked  upon ;  and  the  necessity  of  furnishing  each  with  constitutional  arms  for  its 
own  defence,  has  been  inferred  and  proved.     From  these  clear  and  indubitable  prin- 
ciples results  the  propriety  of  a  negative,  either  absolute  or  qualified,  in  the  Executive, 
upon  the  acts  of  the  legislative  branches.     Without  the   one  or  the  other,  the  for- 
mer would  be  absolutely  unable  to  defend  himself  against  the  depredations  of  the 
latter.     He  might  gradually  be  stripped  of  his  authorities  by  successive  resolutions,  or 
annihilated  by  a  single  vote.     And  in  the  one  mode  or  the  other,  the  legislative  and  exe- 
cutive powers  might  speedily  come  to  be  blended  in  the  same  hands.     If  even  no  propen- 
sity had  ever   discovered   itself  in  the  legislative  body  to  invade  the  rights  of  the 
Executive,  the  rules  of  just  reasoning  and  theoretic  propriety  would  of   themselves 
teach  us,  that  the  one  ought  not  to  be  left  to  the  mercy  of  the  other,  but  ought  to 
possess  a  constitutional  and  effectual  power  of  self-defence.    But  the  power  in  ques- 
tion has  a  further  use.     It  not  only  serves  as  a  shield  to  the  Executive,  but  it  furnishes 
an  additional  security  against  the  enaction  of  improper  laws.     It  establishes  a  salutary 
check  upon  the  legislative  body,  calculated  to  guard  the  community  against  the  effects 
of  faction,  precipitancy,  or  of  any  impulse  unfriendly  to  the  public  good,  which  may 
happen  to  influence  a  majority  of  that  body.  —  lb.  No.  73  (Hamilton). 

The  President  is  to  have  power,  "  by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties,  provided  two  thirds  of  the  senators  present  concur."  .  .  .  With  regard 
to  the  intermixture  of  powers,  I  shall  rely  upon  the  explanations  already  given  in  other 
places,  of  the  true  sense  of  the  rule  upon  which  that  objection  is  founded  ;  and  shall 
take  it  for  granted,  as  an  inference  from  them,  that  the  union  of  the  Executive  with  the 
Senate,  in  the  article  of  treaties,  is  no  infringement  of  that  rule.    I  venture  to  add,  that 


88  PASSAGES   FROM   THE   FEDERALIST.  [CHAF   L 

the  particular  nature  of  the  power  of  making  treaties  indicates  a  peculiar  propriety  in 
that  union.  Though  several  writers  on  the  subject  of  government  place  that  power  in 
the  class  of  executive  authorities,  yet  this  is  evidently  an  arbitrary  disposition  ;  for  if  we 
attend  carefully  to  its  operation,  it  will  be  found  to  partake  more  of  the  legislative  than 
of  the  executive  character,  though  it  does  not  seem  strictly  to  fall  within  the  definition 
of  either  of  tliem.  The  essence  of  the  legislative  authority  is  to  enact  laws,  or,  in 
other  words,  to  prescribe  rules  for  the  regulation  of  the  society ;  while  the  execution 
of  the  laws,  and  the  employment  of  the  common  strength,  either  for  this  purpose  or 
for  the  common  defence,  seem  to  comprise  all  the  functions  of  the  executive  magistrate. 
The  power  of  making  treaties  is,  plainly,  neither  the  one  nor  the  other.  It  relates  neither 
to  the  execution  of  the  subsisting  laws,  nor  to  the  enaction  of  new  ones ;  and  still  less 
to  an  exertion  of  the  common  strength.  Its  objects  are  contracts  with  foreign  nations, 
which  have  the  force  of  Law,  but  derive  it  from  the  obligations  of  good  faith.  They 
are  not  rules  prescribed  by  the  sovereign  to  the  subject,  but  agreements  between  sov- 
ereign and  sovereign.  The  power  in  question  seems  therefore  to  form  a  distinct 
department,  and  to  belong,  properly,  neither  to  the  legislative  nor  to  the  Executive. 
The  qualities  elsewhere  detailed  as  indispensable  in  the  management  of  foreign  nego- 
tiations point  out  the  Executive  as  the  most  fit  agent  in  tliose  transactions ;  while  the 
vast  importance  of  the  trust,  and  the  operation  of  treaties  as  laws,  plead  strongly  for  the 
participation  of  the  whole  or  a  portion  of  the  legislative  body  in  the  office  of  making 
them. — lb.  No.  75  (Hamilton). 

We  have  now  completed  a  survey  of  the  structure  and  powers  of  the  executive 
department,  which,  I  have  endeavored  to  show,  combines,  as  far  as  republican  prin- 
ciples will  admit,  all  the  requisites  to  energy.  The  remaining  inquiry  is:  Does  it 
also  combine  the  requisites  to  safety,  in  a  republican  sense,  —  a  due  dependence  on 
the  people,  a  due  responsibility  ?  The  answer  to  this  question  has  been  anticipated 
in  the  investigation  of  its  other  characteristics,  and  is  satisfactorily  deducible  from 
these  circumstances ;  from  the  election  of  the  President  once  in  four  years  by  persons 
immediately  chosen  by  the  people  for  that  purpose  ;  and  from  his  being  at  all  times 
liable  to  impeachment,  trial,  dismission  from  office,  incapacity  to  serve  in  any  other, 
and  to  forfeiture  of  life  and  estate  by  subsequent  prosecution  in  the  common  course  of 
law.  But  these  precautions,  great  as  they  are,  are  not  the  only  ones  which  the  plan  of 
the  convention  has  provided  in  favor  of  the  public  security.  In  the  only  instances  in 
which  the  abuse  of  the  executive  authority  was  materially  to  be  feared,  the  Chief 
Magistrate  of  the  United  States  would,  by  that  plan,  be  subjected  to  the  control  of  a 
branch  of  the  legislative  body.  What  more  could  be  desired  by  an  enlightened  and 
reasonable  people  ?  — lb.  No.  77  (Hamilton). 

We  proceed  now  to  an  examination  of  the  judiciary  department  of  the  proposed 
government    .  .  . 

According  to  the  plan  of  the  convention,  all  judges  who  may  be  appointed  by  the 
United  States  are  to  hold  their  offices  during  good  behavior  ;  which  is  conformable  to 
the  most  approved  of  the  State  constitutions,  and  among  the  rest,  to  that  of  this  State 
[New  York].  Its  propriety  having  been  drawn  into  question  by  the  adversaries  of  that 
plan,  is  no  light  symptom  of  the  rage  for  objection,  which  disorders  their  imaginations 
and  judgments.  The  standard  of  good  behavior  for  the  continuance  in  office  of  the 
judicial  magistracy,  is  certainly  one  of  the  most  valuable  of  the  modern  improvements 
in  the  practice  of  government.  In  a  monarchy  it  is  an  excellent  barrier  to  the  despot- 
ism of  the  prince  ;  in  a  republic  it  is  a  no  less  excellent  barrier  to  the  encroachments 
and  oppressions  of  the  representative  body.  And  it  is  the  best  expedient  which  can  be 
devised  in  any  government,  to  secure  a  steady,  upright,  and  impartial  administration 
of  the  laws. 

Whoever  attentively  considers  the  different  departments  of  power  must  perceive, 
that,  in  a  government  in  whicli  they  are  separated  from  each  other,  the  judiciary,  from 
the  nature  of  its  functions,  will  always  be  the  least  dangerous  to  the  political  rights  of 
the  Constitution;  because  it  will  be  least  in  a  capacity  to  annoy  or  injure  them.  The 
Executive  not  only  dispenses  the  honors,  but  holds  the  sword  of  .the  community.  The 
legislature  not  only  commands  the  purse,  but  prescribes  the  rules  by  which  the  duties 


SECT.  II.]        PASSAGES  FROM  THE  FEDERALIST.  89 

and  rights  of  every  citizen  are  to  be  regulated.  The  judiciary,  on  the  contrary,  has 
no  influence  over  either  the  sword  or  the  purse ;  no  direction  either  of  tlie  strength  or 
of  tlie  wealth  of  the  society  ;  and  can  take  no  active  resolution  whatever.  It  may  truly 
be  said  to  have  neither  force  nor  will,  but  merely  judgment ;  and  must  ultimately  depend 
upon  the  aid  of  the  executive  arm  even  for  the  efficacy  of  its  judgments. 

This  simple  view  of  the  matter  suggests  several  important  consequences.  It  proves 
incoutestably,  that  the  judiciary  is  beyond  comparison  the  weakest  of  the  three  depart- 
ments of  power ;  ^  that  it  can  never  attack  with  success  either  of  the  other  two  ;  and 
that  all  possible  care  is  requisite  to  enable  it  to  defend  itself  against  their  attacks.  It 
eijually  proves,  that  though  individual  oppression  may  now  and  then  proceed  from  the 
courts"of  justice,  the  general  liberty  of  the  people  can  never  be  endangered  from  that 
quarter  ;  I  mean  so  long  as  the  judiciary  remains  truly  distinct  from  both  the  legisla- 
ture and  the  Executive.  For  I  agree,  that  "  there  is  no  liberty,  if  the  power  of  judging 
be  not  separated  from  the  legi-slative  and  Executive  powers."  2  And  it  proves,  in 
the  last  place,  that  as  liberty  can  liave  notliiiig  to  fear  from  the  judiciary  alone,  but 
tvould  have  everything  to  fear  from  its  union  with  either  of  the  other  departments ; 
that  as  all  the  effects  of  such  a  union  must  ensue  from  a  dependence  of  the  former  on 
the  latter,  notwithstanding  a  nominal  and  apparent  separation  ;  that  as,  from  the  natu- 
ral feebleness  of  the  judiciary,  it  is  in  continual  jeopardy  of  being  overpowered,  awed, 
or  influenced  by  its  co-ordinate  branches  ;  and  that  as  nothing  can  contribute  so  much 
to  its  firmness  "and  independence  as  permanency  in  office,  this  quality  may  therefore 
be  justly  regarded  as  an  indispensable  ingredient  in  its  constitution,  and,  in  a  great 
measure,  as  the  citadel  of  the  public  justice  and  the  public  security.* 

The  complete  independence  of  the  courts  of  justice  is  peculiarly  essential  in  a  lim- 
ited constitution.  By  a  limited  constitution,  I  understand  one  which  contains  certain 
specified  exceptions  to  the  legislative  authority  ;  such,  for  instance,  as  that  it  sliall  pass 
no  bills  of  attainder,  no  ex-post-facto  laws,  and  the  like.  Limitations  of  this  kind  can 
be  preserved  in  practice  no  other  way  than  through  the  medium  of  courts  of  justice, 
whose  duty  it  must  be  to  declare  all  Acts  contrary  to  the  manifest  tenor  of  the  Consti- 
tution void.  Without  this,  all  the  reservations  of  particular  rights  or  privileges  would 
amount  to  nothing. 

Some  perplexity  respecting  the  rights  of  the  courts  to  pronounce  legislative  Acta 
void,  because  contrary  to  the  Constitution,  has  arisen  from  an  imagination  that  the  doc- 
trine would  imply  a  superiority  of  the  judiciary  to  the  legislative  power.  It  is  urged 
that  the  authority  which  can  declare  the  Acts  of  another  void,  must  necessarily  be 
superior  to  the  one  whose  Acts  may  be  declared  void.  As  this  doctrine  is  of  great  im- 
portance in  all  the  American  constitutions,  a  brief  discussion  of  the  ground  on  which 
it  rests  cannot  be  unacceptable. 

There  is  no  position  which  depends  on  clearer  principles,  than  that  every  act  of  a 
delegated  authority,  contrary  to  the  tenor  of  the  commission  under  which  it  is  exer- 
cised, is  void.  No  legislative  Act,  therefore,  contrary  to  the  Constitution,  can  be  valid. 
To  deny  this,  would  be  to  affirm,  that  the  deputy  is  greater  than  his  principal ;  that 
the  servant  is  above  his  master ;  that  the  representatives  of  the  people  are  superior 
to  the  people  themselves;  that  men  acting  by  virtue  of  powers,  may  do  not  only 
what  their  powers  do  not  authorize,  but  what  they  forbid. 

If  it  be  said  that  the  legislative  body  are  themselves  the  constitutional  judges  of 
their  own  powers,  and  that  the  construction  they  put  upon  them  is  conclusive  upon  the 


1  The  celebrated  Montesquieu,  speaking  of  them,  says:  "Of  the  three  powers 
above  mentioned,  the  judiciary  is  next  to  nothing."  —  Spirit  of  Laws,  vol.  i.  page 
186.  —  PUBLIUS. 

2  Idem,  p.age  181.  —  Publius. 

3  This  number  of  the  Federalist  was  published  in  May,  1788.  In  May,  1787,  the  Gen- 
eral Assembly  of  Rhode  Island  is  said  to  have  removed  from  office  four  of  the  judges 
who  had  decided  the  case  of  Treveit  v.  Weeden,  ante,  p.  73  (2  Arnold's  Hist.  R.  I.  536), 
retaining  only  the  Chief  Justice.  This  is  understood  to  mean  that  these  judges  at  tlie 
annual  election  by  the  legislature  were  dropped.  —  Ed. 


90  PASSAGES   FEOM   THE   FEDERALIST.  [CHAP.  I. 

other  departments,  it  may  be  answered,  that  this  cannot  be  the  natural  presumption, 
where  it  is  not  to  be  collected  from  any  particular  provisions  in  the  Constitution.  It 
is  not  otherwise  to  be  supposed,  that  the  Constitution  could  intend  to  enable  the  repre- 
sentatives of  the  people  to  substitute  their  will  to  that  of  their  constituents.  It  is 
far  more  rational  to  suppose,  that  the  courts  were  designed  to  be  an  intermediate 
body  between  the  people  and  the  legislature,  in  order,  among  other  things,  to  keep  the 
latter  within  the  limits  assigned  to  their  authority.  The  interpretation  of  the  laws  ia 
the  proper  and  peculiar  province  of  the  courts.  A  constitution  is,  in  fact,  and  must  be 
regarded  by  the  judges,  as  a  fundamental  law.  It  therefore  belongs  to  them  to  ascer- 
tain its  meaning,  as  well  as  the  meaning  of  any  particular  Act  proceeding  from  the 
legislative  body.  If  there  should  happen  to  be  an  irreconcilable  variance  between  the 
two,  that  which  has  the  snperior  obligation  and  validity  ought,  of  course,  to  be  pre- 
ferred ;  or,  in  other  words,  the  Constitution  ought  to  be  preferred  to  the  statute,  the 
intention  of  the  people  to  the  intention  of  their  agents. 

>«'or  docs  this  conclusion  by  any  means  suppose  a  superiority  of  the  judicial  to  the 
legislative  power.  It  only  supposes  that  the  power  of  the  people  is  superior  to  both  ; 
and  that  where  the  will  of  the  legislature,  declared  in  its  statutes,  stands  in  opposition 
to  that  of  the  people,  declared  in  the  Constitution,  the  judges  ought  to  be  governed  by 
the  latter  rather  than  the  former.  They  ought  to  regulate  their  decisions  by  the  fun- 
damental laws,  rather  than  by  those  which  are  not  fundamental. 

This  exercise  of  judicial  discretion,  in  determining  between  two  contradictory  laws, 
is  exemplified  in  a  familiar  instance.  It  not  uncommonly  happens,  that  there  are  two 
statutes  existing  at  one  time,  clashing  in  whole  or  in  part  with  each  other,  and  neither 
of  them  containing  any  repealing  clause  or  expression.  In  such  a  case,  it  is  the  pro- 
vince of  the  courts  to  liquidate  and  fix  their  meaning  and  operation.  So  far  as  they 
can,  by  any  fair  construction,  be  reconciled  to  each  other,  reason  and  law  conspire  to 
dictate  that  this  should  be  done ;  where  this  is  impracticable,  it  become^  matter  of 
necessity  to  give  effect  to  one,  in  exclusion  of  the  other.  The  rule  which  has  obtained 
in  the  courts  for  determining  their  relative  validity  is,  that  the  last  in  order  of  time 
shall  be  preferred  to  the  first.  But  this  is  a  mere  rule  of  construction,  not  derived 
from  any  positive  law,  but  from  the  nature  and  reason  of  the  thing.  It  is  a  rule  not 
enjoined  upon  the  courts  by  legislative  provision,  but  adopted  by  themselves,  as  con- 
sonant to  truth  and  propriety,  for  the  direction  of  their  conduct  as  interpreters  of  the 
law.  They  thought  it  reasonable,  that  between  the  interfering  acts  of  an  equal  author- 
ity, that  which  was  the  last  indication  of  its  will  should  have  the  preference. 

But  in  regard  to  the  interfering  acts  of  a  superior  and  subordinate  authority,  of  an 
original  and  derivative  power,  the  nature  and  reason  of  the  thing  indicate  the  converse 
of  that  rule  as  proper  to  be  followed.  They  teach  us  that  the  prior  act  of  a  superior 
ought  to  be  preferred  to  the  subsequent  act  of  an  inferior  and  subordinate  authority  ; 
and  that  accordingly,  whenever  a  particular  statute  contravenes  the  Constitution,  it 
will  be  the  duty  of  the  judicial  tribunals  to  adhere  to  the  latter  and  disregard  the 
former. 

It  can  be  of  no  weight  to  say  that  the  courts,  on  the  pretence  of  a  repugnancy,  may 
substitute  their  own  pleasure  to  the  constitutional  intentions  of  the  legislature. 
This  might  as  well  happen  in  the  case  of  two  contradictory  statutes ;  or  it  might  as 
well  happen  in  every  adjudication  upon  any  single  statute.  The  courts  must  declare 
the  sense  of  the  law ;  and  if  they  should  be  disposed  to  exercise  will  instead  of 
judgment,  the  consequence  would  equally  be  the  substitution  of  their  pleasure  to  that 
of  the  legislative  body.  The  observation,  if  it  prove  anytliing,  would  prove  that  there 
ought  to  be  no  judges  distinct  from  that  body. 

If,  then,  the  courts  of  justice  are  to  be  considered  as  the  bulwarks  of  a  limited  con- 
stitution against  legislative  encroachments,  this  consideration  will  afford  a  strong 
argument  for  the  permanent  tenure  of  judicial  offices,  since  nothing  will  contribute  so 
much  as  this  to  that  independent  spirit  in  the  judges  which  must  be  essential  to  the 
faithful  performance  of  so  arduous  a  duty. 

This  independence  of  the  judges  is  equally  requisite  to  guard  the  Constitution  and 
the  rights  of  individuals  from  the  effects  of  those  ill  humors,  which  the  arts  of  design- 


SECT.  II.]        PASSAGES  FROM  THE  FEDERALIST.  91 

iug  men,  or  the  influence  of  particular  conjunctures,  sometimes  disseminate  among  the 
people  tliemselves,  and  which,  though  they  speedily  give  place  to  better  information, 
and  more  deliberate  reflection,  have  a  tendency,  in  the  mean  time,  to  occasion  danger- 
ous innovations  in  the  government,  and  serious  oppressions  of  the  minor  party  in  the 
community.  Though  I  trust  the  friends  of  the  proposed  Constitution  will  never  concur 
with  its  enemies,^  in  questioning  that  fundamental  principle  of  republican  government, 
which  admits  the  right  of  the  people  to  alter  or  abolish  the  established  Constitution, 
whenever  they  find  it  inconsistent  with  their  happiness,  yet  it  is  not  to  be  inferred  from 
this  principle,  that  the  representatives  of  the  people,  whenever  a  momentary  inclination 
happens  to  lay  hold  of  a  majority  of  their  constituents,  incompatible  with  the  pro- 
visions in  the  existing  Constitution,  would,  on  that  account,  be  justifiable  in  a  violation 
of  those  provisions ;  or  that  the  courts  would  be  under  a  greater  obligation  to  connive 
at  infractions  in  this  shape,  than  when  they  had  proceeded  whoUy  from  the  cabals  of 
the  representative  body.  Until  the  people  have,  by  some  solemn  and  authoritative  Act, 
annulled  or  changed  the  established  form,  it  is  binding  upon  themselves  collectively, 
as  well  as  individually ;  and  no  presumption,  or  even  knowledge,  of  their  sentiments, 
can  warrant  their  representatives  in  a  departure  from  it,  prior  to  such  an  Act.  But 
it  is  easy  to  see,  that  it  would  recpiire  an  uncommon  portion  of  fortitude  in  the  judges 
to  do  their  duty  as  faithful  guardians  of  the  Constitution,  where  legislative  invasions 
of  it  had  been  instigated  by  the  major  voice  of  the  community. 

But  it  is  not  with  a  view  to  infractions  of  the  Constitution  only,  that  the  independ- 
ence of  the  judges  may  be  an  essential  safeguard  against  the  effects  of  occasional  ill 
humors  in  the  society.  These  sometimes  extend  no  farther  than  to  the  injury  of  the 
private  rights  of  particular  classes  of  citizens,  by  unjust  and  partial  laws.  Here  also 
the  firmness  of  the  judicial  magistracy  is  of  vast  importance  in  mitigating  the  severity 
and  confining  the  operation  of  such  laws.  It  not  only  serves  to  moderate  the  imme- 
diate mischiefs  of  those  which  may  have  been  passed,  but  it  operates  as  a  check  upon 
the  legislative  body  in  passing  them  ;  who,  perceiving  that  obstacles  to  the  success  of 
inicpiitous  intention  are  to  be  expected  from  the  scruples  of  the  courts,  are  in  a  manner 
compelled,  by  the  very  motives  of  the  injustice  they  meditate,  to  qualify  their  attempts. 
This  is  a  circumstance  calculated  to  have  more  influence  upon  the  character  of  our 
governments,  than  but  few  may  be  aware  of.  The  benefits  of  the  integrity  and  moder- 
ation of  the  judiciary  have  already  been  felt  in  more  States  than  one  ;  and  though  they 
may  have  displeased  those  whose  sinister  expectations  they  may  have  disappointed, 
they  must  have  commanded  the  esteem  and  applause  of  all  the  virtuous  and  disinter- 
ested. Considerate  men,  of  every  description,  ought  to  prize  whatever  will  tend  to 
beget  or  fortify  that  temper  in  the  courts ;  as  no  man  can  be  sure  that  he  may  not  be 
to-morrow  the  victim  of  a  spirit  of  injustice,  by  which  he  may  be  a  gainer  to-day.  And 
every  man  must  now  feel,  that  the  inevitable  tendency  of  such  a  spirit  is  to  sap  the 
foundations  of  public  and  private  confidence,  and  to  introduce  in  its  stead  universal 
distrust  and  distress. 

That  inflexible  and  uniform  adherence  to  the  rights  of  the  Constitution,  and  of 
individuals,  which  we  perceive  to  be  indispensable  in  the  courts  of  justice,  can  certainly 
not  be  expected  from  judges  who  hold  their  offices  by  a  temporary  commission.  Peri- 
odical appointments,  however  regulated,  or  by  whomsoever  made,  would,  in  some  way 
or  other,  be  fatal  to  their  necessary  independence.  If  the  power  of  making  them  was 
committed  either  to  the  Executive  or  legislature,  there  would  be  danger  of  an  im- 
proper complaisance  to  the  branch  which  possessed  it ;  if  to  both,  there  would  be  an 
unwillingness  to  hazard  the  displeasure  of  either ;  if  to  the  people,  or  to  persons  chosen 
by  them  for  the  special  purpose,  there  would  be  too  great  a  disposition  to  consult  popu- 
larity, to  justify  a  reliance  that  nothing  would  be  consulted  but  the  Constitution  and 
the  laws. 

There  is  yet  a  further  and  a  weightier  reason  for  the  permanency  of  the  judicial 
offices,  which  is  deducible  from  the  nature  of  the  qualifications  they  require.     It  has 

1  Vide  "  Protest  of  the  Minority  of  the  Convention  of  Pennsylvania,"  Martin's 
Speech,  etc.  —  Publics. 


92  PASSAGES   FROM   THE   FEDERALIST.  [CHAP.  I. 

been  frequently  remarked,  with  great  propriety,  that  a  voluminous  code  of  laws  is  one 
of  the  inconveniences  necessarily  connected  with  the  advantages  of  a  free  government. 
To  avoid  an  arbitrary  discretion  in  the  courts,  it  is  indispensable  that  they  should  be 
bound  down  by  strict  rules  and  precedents,  which  serve  to  define  and  point  out  their 
duty  in  every  particular  case  that  comes  before  them ;  and  it  will  readily  be  conceived 
from  the  variety  of  controversies  wliich  grow  out  of  the  folly  and  wickedness  of  man- 
kind, that  the  records  of  those  precedents  must  unavoidably  swell  to  a  very  considerable 
bulk,  and  must  demand  long  and  laborious  study  to  acquire  a  competent  knowledge 
of  them.  Hence  it  is,  that  there  can  be  but  few  men  in  the  society  who  will  have 
sufficient  skill  in  the  laws  to  qualify  them  for  the  stations  of  judges.  And  making  the 
proper  deductions  for  the  ordinary  depravity  of  human  nature,  the  number  must  be 
still  smaller  of  those  who  unite  the  requisite  integrity  with  the  requisite  knowledge. 
These  considerations  apprise  us,  that  the  government  can  have  no  great  option  be- 
tween fit  character ;  and  that  a  temporary  duration  in  office,  which  would  naturally 
discourage  such  characters  from  quitting  a  lucrative  line  of  practice  to  accept  a  seat 
on  the  bench,  would  have  a  tendency  to  throw  the  administration  of  justice  into  hands 
less  able,  and  less  well  qualified,  to  conduct  it  with  utility  and  dignity.  In  the  present 
circumstances  of  this  country,  and  in  those  in  which  it  is  likely  to  be  for  a  long  time  to 
come,  the  disadvantages  on  this  score  would  be  greater  than  they  may  at  first  sight 
appear ;  but  it  must  be  confessed,  that  they  are  far  inferior  to  those  which  present 
themselves  under  the  other  aspects  of  the  subject. 

Upon  the  whole,  there  can  be  no  room  to  doubt  that  the  convention  acted  wisely  in 
copying  from  the  models  of  those  constitutions  which  have  established  good  behavior 
as  the  tenure  of  tlieir  judicial  offices,  in  point  of  duration  ;  and  that  so  far  from  being 
blamable  on  this  account,  their  plan  would  have  been  inexcusably  defective,  if  it 
had  wanted  this  important  feature  of  good  government.  The  experience  of  Great 
Britain  affords  an  illustrious  comment  on  the  excellence  of  the  institution.  —  Ih.  No.  78  ^ 
(Hamilton). 

There  ought  always  to  be  a  constitutional  method  of  giving  efficacy  to  constitutional 
provisions.  What,  for  instance,  would  avail  restrictions  on  the  authority  of  the  State 
legislatures,  without  some  constitutional  mode  of  enforcing  the  observance  of  them  1 
The  States,  by  the  plan  of  the  convention,  are  proiiibited  from  doing  a  variety  of 
things,  some  of  which  are  incompatible  with  the  interests  of  the  Union,  and  others 
with  the  principles  of  good  government.  The  imposition  of  duties  on  imported  articles, 
and  the  emission  of  paper  money,  are  specimens  of  each  kind.  No  man  of  sense  will 
believe,  that  such  prohibitions  would  be  scrupulously  regarded,  without  some  effectual 
power  in  the  government  to  restrain  or  correct  the  infractions  of  them.  This  power 
must  either  be  a  direct  negative  on  the  State  laws,  or  an  authority  in  the  federal 
courts  to  overrule  such  as  might  be  in  manifest  contravention  of  the  articles  of  Union. 
There  is  no  third  course  that  I  can  imagine.  The  latter  appears  to  have  been  thought 
by  the  convention  preferable  to  the  former,  and,  I  presume,  will  be  most  agreeable  to 
the  States.  As  to  the  second  point,  it  is  impossible,  by  any  argument  or  comment,  to 
make  it  clearer  than  it  is  in  itself.  If  there  are  such  things  as  political  axioms,  the 
propriety  of  the  judicial  power  of  a  government  being  coextensive  M-ith  its  legislative, 
may  be  ranked  among  the  number.  The  mere  necessity  of  uniformity  in  the  inter- 
pretation of  the  national  laws,  decides  the  question.  —  lb.  No.  80  (Hamilton). 

That  there  ought  to  be  one  court  of  supreme  and  final  jurisdiction,  is  a  proposition 
which  is  not  likely  to  be  contested.  The  reasons  for  it  have  been  assigned  in  another 
place,  and  are  too  obvious  to  need  repetition.  The  only  question  that  seems  to  have 
been  raised  concerning  it,  is,  whether  it  ought  to  be  a  distinct  body  or  a  branch  of  the 
legislature.  The  same  contradiction  is  observable  in  regard  to  this  matter  which  has 
been  remarked  in  several  other  cases.  The  very  men  who  object  to  the  Senate  as  a 
court  of  impeachments,  on  the  ground  of  an  improper  intermixture  of  powers,  advo- 
cate, by  implication  at  least,  the  propriety  of  vesting  the  ultimate  decision  of  all 
causes,  in  the  whole  or  in  a  part  of  the  legislative  body. 

1  Compare  Federalist,  No.  44.  —  Ed. 


SECT.  IT.]  ■      PASSAGES   FROM  THE  FEDERALIST.  93 

The  arguments,  or  rather  suggestions,  upon  which  this  charge  is  founded,  are  to 
this  effect :  "  The  authority  of  the  proposed  Supreme  Court  of  the  United  States,  which 
is  to  he  a  separate  and  independent  body,  will  Ije  superior  to  that  of  the  legislature. 
Tiie  power  of  construing  the  laws  according  to  the  spirit  of  the  Constitution  will  enable 
tliat  court  to  mouhl  them  into  whatever  shape  it  may  think  proper ;  especially  as  its 
decisions  will  not  be  in  any  manner  subject  to  the  revision  or  correction  of  the  legisla- 
tive body.  This  is  as  unprecedented  as  it  is  dangerous.  In  Britain,  the  judicial 
power,  in  the  last  resort,  resides  in  tlie  House  of  Lords,  which  is  a  brancii  of  the  legis- 
lature ;  aud  this  part  of  the  British  government  has  been  imitated  in  the  State  constitu- 
tions in  general.  The  Tarliament  of  Great  Britain,  and  the  legislatures  of  the  several 
States,  can  at  any  time  rectify,  by  law,  the  exceptionable  decisiolis  of  their  respective 
courts.  But  tlie  errors  and  usurpations  of  the  Supreme  Court  of  the  United  States 
will  be  uncontrollable  and  remediless."  This,  upon  examination,  will  be  found  to  be 
made  up  altogether  of  false  reasoning  upon  misconceived  fact. 

In  the  first  place,  there  is  not  a  syllable  in  the  plau  under  consideration  which  di- 
rectly empowers  the  national  courts  to  construe  the  laws  according  to  the  spirit  of  the 
Constitution,  or  which  gives  them  any  greater  latitude  in  this  respect  thau  may  be 
claimed  by  the  courts  of  every  State.  I  admit,  however,  that  the  Constitution  ought 
to  be  tlie  standard  of  construction  for  the  laws,  and  that  wherever  there  is  an  evident 
opposition,  the  laws  ouglit  to  give  place  to  tlie  Constitution.  But  this  doctrine  is  not 
deducible  from  any  circumstance  peculiar  to  the  plan  of  the  convention,  but  from  the 
general  theory  of  a  limited  Constitution  ;  aud  as  far  as  it  is  true,  is  etiually  applicable 
to  most,  if  not  to  all  the  State  governments.  Tiiere  can  be  no  objection,  therefore,  on 
tiiis  account,  to  the  federal  judicature  which  will  not  lie  against  the  local  judicatures 
in  general,  and  which  will  not  serve  to  condemn  every  constitution  that  attempts  ta 
set  bounds  to  legislative  discretion. 

But  perhaps  the  force  of  the  objection  may  be  thought  to  consist  in  the  particular 
organization  of  tlie  Supreme  Court ;  in  its  being  composed  of  a  distinct  body  of  magis- 
trates, iu.stead  of  being  one  of  the  brauches  of  the  legislature,  as  in  the  government  of 
Great  Britain  and  that  .of  the  State.  To  insist  upon  this  point,  the  authors  of  the 
objection  must  renounce  tlie  meaning  they  have  labored  to  annex  to  the  celebrated 
maxim,  requiring  a  separation  of  the  departments  of  power.  It  shall,  nevertheless,  be 
conceded  to  thein,  agreeably  to  the  interpretation  giveu  to  that  maxim  in  the  course  of 
these  papers,  that  it  is  not  violated  by  vesting  the  ultimate  power  of  judging  in  a  part 
of  the  legislative  body.  But  though  this  be  not  an  absolute  violation  of  that  excellent 
rule,  yet  it  verges  so  nearly  upon  it,  as  on  this  account  alone  to  be  less  eligible  thau 
the  mode  preferred  by  the  convention.  From  a  body  which  had  even  a  partial  agency 
in  passing  bad  laws,  we  could  rarely  expect  a  disposition  to  tenij)er  and  moderate  them 
in  the  application.  The  same  spirit  which  had  operated  in  making  them,  would  be  too 
apt  in  interpreting  them  ;  still  less  could  it  be  expected  that  men  who  had  infringed 
the  Constitution  in  the  character  of  legislators,  would  be  disposed  to  repair  the  breach 
in  the  character  of  judges.  Nor  is  this  all.  Every  reason  which  recommends  the 
tenure  of  good  behavior  for  judicial  offices,  militates  against  placing  the  judiciary 
power,  in  the  last  resort,  in  a  body  composed  of  men  chosen  for  a  limited  period. 
There  is  an  absurdity  in  referring  the  determination  of  causes,  in  the  first  instance,  to 
judges  of  permanent  standing ;  in  the  last,  to  those  of  a  temporary  and  mutable  con- 
stitution. And  there  is  a  still  greater  absurdity  in  subjecting  the  decisions  of  men, 
selected  for  tlieir  knowledge  of  the  laws,  acquired  by  long  aud  laborious  study,  to  the 
revision  and  control  of  men  who,  for  want  of  the  same  advantage,  cannot  but  be  de- 
ficient in  that  knowledge.  The  members  of  the  legislature  will  rarely  be  chosen  with 
a  view  to  those  qualifications  which  fit  men  for  the  stations  of  judges  ;  and  as,  on  this 
account,  there  will  be  great  reason  to  appreliend  all  the  ill  consequences  of  defective 
information,  so,  on  account  of  the  natural  propensity  of  such  bodies  to  party  divisions, 
there  will  be  no  less  reason  to  fear  that  the  pestilential  breath  of  faction  may  poison 
the  fountains  of  justice.  The  habit  of  being  continually  marshalled  on  opposite  sides 
will  be  too  apt  to  stifle  the  voice  both  of  law  and  of  equity. 

These  considerations  teach  us  to  applaud  the  wisdom  of  those  States  who  have  com- 


94  vanhorne's  lessee  v.  dorrance.  [chap.  i. 

mitted  the  judicial  power,  in  the  last  resort,  not  to  a  part  of  the  legislature,  but  to 
distinct  and  independent  bodies  of  men.  Contrary  to  the  supposition  of  those  who 
have  represented  the  plan  of  the  convention,  in  this  respect,  as  novel  and  unprece- 
dented, it  is  but  a  copy  of  the  Constitutions  of  New  Hampshire,  Massachusetts,  Penn- 
sylvania, Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina,  and  Georgia  ; 
and  the  preference  which  has  been  given  to  those  models  is  highly  to  be  commended. 

It  is  not  true,  in  the  second  place,  that  the  Parliament  of  Great  Britain,  or  the 
legislatures  of  the  particular  States,  can  rectify  the  exceptionable  decisions  of  their 
respective  courts,  in  any  other  sense  than  miglit  be  done  by  a  future  legislature  of  the 
United  States.  The  theory,  neither  of  the  British,  nor  the  State  constitutions,  author- 
izes the  revisal  of  a  judicial  sentence  by  a  legislative  Act.  Nor  is  there  anything  in  the 
proposed  Constitution,  more  than  in  either  of  them,  by  which  it  is  forbidden.  In  tlie 
former,  as  well  as  in  the  latter,  the  impropriety  of  the  thing,  on  the  general  principles 
of  law  and  reason,  is  the  sole  obstacle.  A  legislature,  without  exceeding  its  province, 
cannot  reverse  a  determination  once  made  in  a  particular  case ;  though  it  may  pre- 
scribe a  new  rule  for  future  cases.  This  is  the  principle,  and  it  applies  in  all  its  con- 
sequences, exactly  in  the  same  manner  and  extent,  to  the  State  governments,  as  to  the 
national  government  now  under  consideration.  Not  the  least  difference  can  be  pointed 
out  in  any  view  of  the  subject. 

It  may  in  the  last  place  be  observed  that  the  supposed  danger  of  judiciary  encroach- 
ments on  the  legislative  authority,  which  has  been  upon  many  occasions  reiterated,  is 
in  reality  a  phantom.  Particular  misconstructions  and  contraventions  of  the  will  of 
the  legislature  may  now  and  then  happen  ;  but  they  can  never  be  so  extensive  as  to 
amount  to  an  inconvenience,  or  in  any  sensible  degree  to  affect  the  order  of  the  politi- 
cal system.  This  may  be  inferred  with  certainty,  from  the  general  nature  of  the 
judicial  power,  from  the  objects  to  which  it  relates,  from  the  manner  in  which  it  is 
exercised,  from  its  comparative  weakness,  and  from  its  total  incapacity  to  support  its 
usurpations  by  force.  And  the  inference  is  greatly  fortified  by  tlie  consideration  of 
the  important  constitutional  check  which  the  power  of  instituting  impeachments  in 
one  part  of  the  legislative  body,  and  of  determining  upon  them  in  the  other,  would 
give  to  that  body  upon  the  members  of  the  judicial  department.  This  is  alone  a  com- 
plete security.  There  never  can  be  danger  that  the  judges,  by  a  series  of  deliberate 
usurpations  on  the  authority  of  the  legislature,  would  hazard  the  united  resentment 
of  the  body  intrusted  with  it,  while  this  body  was  possessed  of  the  means  of  punishing 
their  presumption,  by  degrading  them  from  their  stations.  Wliile  this  ought  to  re- 
move all  apprehensions  on  the  subject,  it  affords,  at  the  same  time,  a  cogent  argu- 
ment for  constituting  the  Senate  a  court  for  the  trial  of  impeachments.  —  lb.  No.  81 
(Hamilton). 


VANHORNE'S  LESSEE  v.   DORRANCE. 

Circuit  Court  of  the  United  States,  Pennsylvania  District. 

1795. 

[2  Dallas,  304.] 

This  was  a  cause  of  great  expectation,  involving  several  important 
questions  of  constitutional  law,  in  relation  to  the  territorial  contro- 
versy between  the  States  of  Pennsylvania  and  Connecticut.  After  a 
trial,  which  continued  for  fifteen  days,  the  presiding  judge  delivered 
the  following  charge  to  the  jury,  comprising  a  full  review  of  all  the 
important  facts  and  principles  that  had  occurred  during  the  discussion. 

Patterson,  J.     Having  arrived  at  the  last  stage  of  this  long  and 


SECT.  II.]  VANHOKNE'S   LESSEE   V.   DORRANCE.  95 

interesting  cause,  it  now  beepmes  the  duty  of  the  court  to  sum  up  the 
evidence,  and  to  declare  the  Uivv  arising  upon  it.  A  mass  of  testi- 
mony has  been  brought  forward  in  the  course  of  the  trial,  the  far 
greater  part  of  which  is  altogether  immaterial,  and  can  be  of  no  use 
in  forming  a  decision.  The  great  points,  on  which  the  cause  turns,  are 
of  a  legal  nature ;  they  are  questions  of  law  ;  and,  therefore,  for  the 
sake  of  the  parties,  as  well  as  for  my  own  sake,  they  ought  to  be  put 
in  a  train  for  ultimate  adjudication  by  the  Supreme  Court.  In  the 
administration  of  justice  it  is  a  consolatory  idea,  that  no  opinion  of  a 
single  judge  can  be  final  and  decisive ;  but  that  the  same  may  be 
removed  before  the  highest  tribunal  for  revision,  where,  if  erroneous, 
it  will  be  rectified.     For  the  sake  of  clearness,  I  shall  consider, 

1st.  The  title  of  the  plaintiff. 

2d.  The  title  of  the  defendant.  .   .  . 

Such  is  the  title  upon  which  the  plaintiff  rests  his  cause.  It  is  clearly 
deduced  and  legally  correct;  and,  therefore,  unless  suflicieut  appears 
on  the  part  of  the  defendant,  will  entitle  the  plaintiff  to  your  verdict. 
To  repel  the  plaintiff's  right,  and  to  establish  his  own,  the  defendant 
sets  up  a  title. 

1st.  Under  Connecticut.  2d.  Under  the  Indians.  3d.  Under  Penn- 
sylvania. .  .  .  [Under  the  first  two  the  defendant  is  declared  to  have 
no  title.] 

III.    The  title  which  the  defendant  sets  up  under  Pennsylvania. 

This  is  the  keystone  of  the  defendant's  title,  as  one  of  his  counsel 
very  properly  expressed  it.  It  required  no  great  sagacity  to  perceive 
that  the  defendant's  hope  of  success  was  founded  on  a  law  of  Penn- 
sylvania, commonly  called  "the  quieting  and  confirming  Act."  /.  . 
To  aid  you,  gentlemen,  in  forming  a  verdict,  I  shall  consider: 

I.  The  constitutionality  of  the  confirming  Act ;  or,  in  other  words, 
whether  the  legislature  had  authority  to  make  that  Act? 

Legislation  is  the  exercise  of  sovereign  authority.  High  and  im- 
portant powers  are  necessarily  vested  in  the  legislative  body  ;  whose 
Acts,  under  some  forms  of  government,  are  irresistible  and  subject  to 
no  control.  In  England,  from  whence  most  of  our  legal  principles 
and  legislative  notions  are  derived,  the  authority  of  the  Parliament  is 
transcendent  and  has  no  bounds. 

"  The  power  and  jurisdiction  of  Parliament,  says  Sir  Edward  Coke, 
is  so  transcendent  and  absolute,  that  it  cannot  be  confined,  either  for 
causes  or  persons,  within  any  bounds.^  And  of  this  high  court,  he 
adds,  it  may  be  truly  said,  Si  antiqintatem  species,  est  vetustissinia ;  si 
dignitatem,  est  honoratissima ;  si  jurisdictionem,  est  capacissima.  It 
has  sovereign  and  uncontrollable  authority  in  the  making,  confirming, 
enlarging,  restraining,  abrogating,  repealing,  reviving,  and  expound- 
ing of  laws,  concerning  matters  of  all  possible  denominations,  ecclesi- 
astical or  temporal,  civil,  military,  maritime,  or  criminal :  this  being 
the  place  where  that  absolute,  despotic  power  which  must  in  all  gov- 
ernments reside  somewhere,  is  intrusted  by  the  Constitution  of  these 


96  vanhorne's  lessee  v.  dorra.nce.  [chap,  l 

kingdoms.  All  mischiefs  and  grievances,  operations  and  remedies, 
that  transcend  the  ordinary  course  of  the  laws,  are  within  the  reach 
of  this  extraordinary  tribunal.  It  can  regulate  or  new  model  the 
succession  to  the  Crown,  as  was  done  in  the  reign  of  Henry  VIII.  and 
William  III.  It  can  alter  the  established  religion  of  the  land,  as  was 
done  in  a  variety  of  instances,  in  the  reigns  of  King  Heni'y  VIII.  and 
his  three  children.  It  can  change  and  create  afresh  even  the  Consti- 
tution of  the  kingdom  and  of  Parliaments  themselves,  as  was  done  by 
the  Act  of  Union,  and  the  several  statutes  for  triennial  and  septennial 
elections.  It  can,  in  short,  do  everything  that  is  not  naturally  impos- 
sible ;  and  therefore  some  have  not  scrupled  to  call  its  power,  by  a 
figure  rather  too  bold,  the  omnipotence  of  Parliament.  True  it  is,  that 
what  the  Parliament  doth,  no  authority  upon  earth  can  undo."  —  1  Bl. 
Com.  160. 

From  this  passage  it  is  evident  that,  in  England,  the  authority  of  the 
Parliament  runs  without  limits,  and  rises  above  control.  It  is  diffi- 
cult to  say  what  the  Constitution  of  England  is  ;  because,  not  being 
reduced  to  written  certainty  and  precision,  it  lies  entirely  at  the  mercy 
of  the  Parliament :  it  bends  to  every  governmental  exigency  ;  it  varies 
and  is  blown  about  by  every  breeze  of  legislative  humor  or  political 
caprice.  Some  of  the  judges  in  England  have  had  the  boldness  to 
assert  that  an  Act  of  Parliament,  made  against  natural  equity,  is  void  ; 
but  this  opinion  contravenes  the  general  position,  that  the  validity  of 
an  Act  of  Parliament  cannot  be  drawn  into  question  by  the  judicial 
department:  it  cannot  be  disputed,  and  must  be  obeyed.  The  power 
of  Parliament  is  absolute  and  transcendent ;  it  is  omnipotent  in  the 
scale  of  political  existence.  Besides,  in  England  there  is  no  written 
constitution,  no  fundamental  law,  nothing  visible,  nothing  real,  noth- 
ing certain,  by  wliich  a  statute  can  be  tested.  lu  America  the  case  is 
widely  different :  every  State  in  the  Union  has  its  Constitution  reduced 
to  written  exactitude  and  precision./ 

What  is  a  constitution?  It  is  the  form  of  government,  delineated 
by  the  mighty  hand  of  the  people,  in  which  certain  first  principles  of 
fundamental  laws  are  established.  The  Constitution  is  certain  and 
fixed ;  it  contains  the  permanent  will  of  the  people,  and  is  the  su- 
preme law  of  the  land  ;  it  is  paramount  to  the  power  of  the  legisla- 
ture, and  can  be  revoked  or  altered  only  by  the  authority  that  made 
it.  The  life-giving  principle  and  the  death-doing  stroke  must  proceed 
from  the  same  hand.  What  are  legislatures?  Creatures  of  the  Con- 
stitution ;  they  owe  their  existence  to  the  Constitution :  they  derive 
their  powers  from  the  Constitution  :  it  is  their  commission  ;  and,  there- 
fore, all  their  acts  must  be  conformable  to  it,  or  else  they  will  be  void. 
The  Constitution  is  the  work  or  will  of  the  people  themselves,  in  their 
original,  sovereign,  and  unlimited  capacity.  Law  is  the  work  or  will 
of  the  legislature  in  tlieir  derivative  and  subordinate  capacity.  The 
one  is  the  work  of  the  creator,  and  the  other  of  the  creature.  The 
Constitution  fixes  limits  to  the  exercise  of  legislative  authority,  and 


SECT.  II.]  VAN  HORN  E'S   LESSEE   V.    DORKANCE.  97 

prescribes  the  orbit  within  which  it  must  move.  In  short,  gentlemen, 
the  Constitution  is  the  sun  of  the  political  s^'stem,  around  which  all 
legislative,  executive,  and  judicial  lx)dies  must  revolve.  AV^hatever 
may  be  the  case  in  other  countries,  yet  in  this  there  can  be  no  doubt, 
that  every  Act  of  the  Legislature,  repugnant  to  the  Constitution,  is 
absolutely  void. 

In  the  second  article  of  the  Declaration  of  Rights,  which  was  made 
part  of  the  late  Constitution  of  Pennsylvania,  it  is  declared,  "  that 
all  men  have  a  natural  and  unalienable  right  to  worship  Almighty 
God,  according  to  tlie  dictates  of  their  own  consciences  and  under- 
standing ;  and  that  no  man  ought  or  of  right  can  be  compelled,  to 
attend  any  religious  worship,  or  erect  or  support  any  place  of  worship, 
or  maintain  any  ministry,  contrary  to  or  against  his  own  free  will  and 
consent ;  nor  can  any  man  who  acknowledges  the  being  of  a  God  be 
justly  deprived  or  abridged  of  any  civil  right  as  a  citizen,  on  account 
of  his  religious  sentiments  or  peculiar  mode  of  religious  worship  ;  and 
that  no  authority  can,  or  ought  to  be,  vested  in  or  assumed  by  any 
power  whatever,  that  shall,  in  any  case,  interfere  with,  or  in  any  man- 
ner control,  the  right  of  conscience  in  the  free  exercise  of  religious 
worship."  —  Dec.  of  liirjhts^  Art.  2. 

In  the  thirty-second  section  of  the  same  Constitution,  it  is  ordained, 
"  that  all  elections,  whether  by  the  people  or  in  general  assembly, 
shall  be  by  ballot,  free  and  voluntary."  —  Const.  Penn.  §  32. 

Could  the  legislature  have  annulled  these  articles,  respecting  re- 
ligion, the  rights  of  conscience,  and  elections  by  ballot?  Surely,  no. 
As  to  these  points,  there  was  no  devolution  of  power  ;  the  authority  was 
purposely  withheld,  and  reserved  by  the  people  to  themselves.  If  the 
legislature  had  passed  an  Acl  declaring  that,  in  future,  there  should  be 
no  trial  by  jury,  would  it  have  been  obligatory?  No;  it  would  have 
been  void  for  want  of  jurisdiction,  or  constitutional  extent  of  power. 
The  right  of  trial  by  jury  is  a  fundamental  law,  made  sacred  by  the 
Constitution,  and  cannot  be  legislated  away.  The  Constitution  of  a 
State  is  stable  and  permanent,  not  to  be  worked  upon  by  the  temper 
of  the  times,  nor  to  rise  and  fall  with  the  tide  of  events  :  notwith- 
standing the  competition  of  opposing  interests,  and  the  violence  of 
contending  parties,  it  remains  firm  and  immovable,  as  a  mountain 
amidst  the  strife  of  storms,  or  a  rock  in  the  ocean  amidst  the  raging 
of  the  waves.  I  take  it  to  be  a  clear  position/ that  if  a  legislative  Act 
oppugns  a  constitutional  principle,  the  former  must  give  way,  nnc\  bp 
rejected  on  the  score  of  i-epugnance.  I  hojd  it  to  be  n  position  equally 
clear  and  sound,  that,  in  such  case,  it  will  be  the  duty  of  the  court  to 
adhere  to  the  Constitution,  and  to  declare  the  Act  null  and  voi(L_  The 
Constitution  is  the  basis  of  legislative  authority ;  it  lies  at  the  founda- 
tion of  all  law,  and  is  a  rule  and  commission  by  which  both  legislators 
and  judges  are  to  proceed.  It  is  an  important  principle,  which,  in  the 
discussion  of  questions  of  the  present  kind,  ought  never  to  be  lost 

VOL.  I.  — 7 


98  YANHOBNE's   lessee   v.    DORRANCE.  [CHA.P.  I. 

sight  of,  that  the  judiciary  in  this  country  is  not  a  subordinate,  hut 
co-ordinate,  branch  of  the  government. 

Having  made  these  preliminary  observations,  we  shall  proceed  to 
contemplate  the  quieting  and  confirming  Act,  and  to  bring  its  validity 
to  the  test  of  the  Constitution. 

In  the  course  of  argument,  the  counsel  on  both  sides  relied  upon 
certain  parts  of  the  late  Bill  of  Rights  and  Constitution  of  Pennsyl- 
vania, which  I  shall  now  read,  and  then  refer  to  them  occasionally  in 
the  sequel  of  the  charge. 

(The  judge  then  read  the  1st,  8th,  and  11th  articles  of  the  Declara- 
tion of  Rights ;  and  the  9th  and  46th  sections  of  the  Constitution  of 
Pennsylvania.  See  1  Vol.  Dall.  Edit.  Penu.  Laws,  pp.  55,  56,  60, 
in  the  Appendix.) 

/From  these  passages  it  is  evident  that  the  right  of  acquiring  and 
possessing  property,  and  having  it  protected,  is  one  of  the  natural, 
inherent,  'and  unalienable  rights  of  man.  /  Men  have  a  sense  of  prop- 
erty :  property  is  necessary  to  their  subsistence,  and  correspondent  to 
their  natural  wants  and  desires ;  its  security'  was  one  of  the  objects 
that  induced  them  to  unite  in  society.  No  man  would  become  a 
member  of  a  community  in  which  he  could  not  enjoy  the  fruits  of  his 
honest  labor  and  industry.  The  preservation  of  property,  then,  is  a 
primary  object  of  the  social  conipact^  and.  1w  flic  Inte  Constitution  of 
I^nnsylv^iTT"^,  ^^ns  made  a^fiindamental  law.  Every  person  ought  to 
contribute  his  proportion  for  public  purposes  and  public  exigencies  ; 
but  no  one  can  be  called  upon  to  surrender  or  sacrifice  his  whole 
property,  real  and  personal,  for  the  good  of  the  community,  without 
receiving  a  recompense  in  value.  This  would  be  laying  a  burden 
upon  an  individual,  which  ought  to  be  sustained  by  the  society  at 
large.  The  English  history  does  not  furnish  an  instance  of  the  kind  ; 
the  Parliament,  with  all  their  boasted  omnipotence,  never  committed 
such  an  outrage  on  private  property ;  and  if  they  had,  it  would  have 
served  only  to  display  the  dangerous  nature  of  unlimited  authority  ;  it 
would  have  been  an  exercise  of  power,  and  not  of  right.  Such  an  Act 
would  be  a  monster  in  legislation,  and  shock  all  mankind.  The  legis- 
IjrtTuip^thrrnfnrp  hnd  n^  •^"^hnnty  to  make  an  Act  divesting  one  citizen 
of.  hii  frnrhnlfl,  nn4  yrntin^^  it  in  another,  without  a  just  compensation. 
It  is  inconsistent  with  the  principles  of  reason,  justice,  and  moral  rec- 
titude ;  it  is  incompatible  with  the  comfort,  peace,  and  happiness  of 
mankind ;  it  is  contrary  to  the  principles  of  social  alliance  in  every 
free  government ;  and  lastly,  it  is  contrary  both  to  the  letter  and 
spirit  of  the  Constitution.  In  short,  it  is  what  every  one  would  think 
unreasonable  and  unjust  in  his  own  case.  The  next  step  in  the  line 
of  progression  is,  whether  the  legislature  had  authority  to  make  an 
Act,  divesting  one  citizen  of  his  freehold  and  vesting  it  in  another, 
even  with  compensation.  That  the  legislature,  on  certain  emergen- 
cies, had  authority  to  exercise  this  high  power,  has  been  urged  from 
the  nature  of  the  social  compact,  and  from  the  words  of  the  Constitu- 


SECT.  II.]  VANHORNE'S    LESSEE   V.   DORRANCE.  99 

tion,  which  stvys,  that  the  House  of  Representatives  shall  have  all  other 
powers  necessary  for  the  legislature  of  a  free  State  or  commonwealth  ; 
but  they  shall  have  no  power  to  add  to,  alter,  abolish,  or  infringe  any 
part  of  this  Constitution.  The  course  of  reasoning,  on  the  part  of  the 
defendant,  may  be  comprised  in  a  few  words.  The  despotic  power, 
as  it  is  aptly  called  by  some  writers,  of  taking  private  property,  when 
State  necessity  requires,  exists  in  every  government ;  the  existence  of 
such  power  is  necessary ;  government  could  not  subsist  without  it ; 
and  if  this  be  the  case,  it  cannot  be  lodged  anywhere  with  so  much 
safety  as  with  the  legislature.  The  presumption  is,  that  they  will  not 
call  it  into  exercise  except  in  urgent  cases,  or  cases  of  the  first  neces- 
sity. There  is  fo'rce  in  this  reasoning.  It  is,  however,  diliicult  to 
form  a  case,  in  which  the  necessity  of  a  State  can  be  of  such  a  nature 
as  to  authorize  or  excuse  the  seizing  of  landed  property  belonging  to 
one  citizen,  and  giving  it  to  another  citizen.  It  is  immaterial  to  the 
State  in  which  of  its  citizens  the  land  is  vested  ;  but  it  is  of  primary 
importance  that,  when  vested,  it  should  be  secured,  and  the  proprietor 
protected  in  the  enjoyment  of  it.  The  Constitution  encircles  and  ren- 
ders it  an  holy  thing.  We  must,  gentlemen,  bear  constantly  in  mind, 
that  the  present  is  a  case  of  landed  property,  vested  by  law  iiLone  set  of 
citizens,  attempted  to  be  divested,  for  the  purpose  of  vesting  the  same 
property  in  another  set  of  citizens..  It  cannot  be  assimilated  to  the 
case  of  personal  property  taken  or  used  in  time  of  war  or  famine,  or 
ottier  extreme  necessity  ;  it  cannot  be  assimilated  to  the  temporary 
possession  of  land  itself,  on  a  pressing  public  cmergencv.  or  the  si)ur 
of  the  occasion..  In  the  latter  case  there  is  no  change  of  property,  no 
divestment  of  right ;  the  title  remains,  and  the  proprietor,  though  out 
of  possession  for  a  while,  is  still  proprietor  and  lord  of  the  soil.  The 
possession  grew  out  of  the  occasion  and  ceases  with  it:  then  the 
right  of  necessity  is  satisfied  and  at  an  end  ;  it  docs  not  affect  the  title, 
is  temporary  in  its  nature,  and  cannot  exist  forever.  The  Constitution 
expressly  declares,  that  the  right  of  acquiring,  possessing,  and  pro- 
tecting property  is  natural,  inherent,  and  unalienable.  It  is  a  right  not 
ex  gratia  from  the  legislature,  but  ex  clebito  from  the  Constitution.  It 
is  sacred;  for,  it  is  further  declared,  that  the  legislature  shall  have  no 
power  to  add  to,  alter,  abolish,  or  infringe  any  part  of,  the  Constitution. 
/The  Constitution  is  the  origin  and  measure  of  legislative  authority ; 
it  says  to  legislators,  thus  far  3-e  shall  go  and  no  further.  Not  a  par- 
ticle of  it  should  be  shaken  ;  not  a  pebble  of  it  should  be  removed. 
Innovation  is  dangerous.  One  encroachment  leads  to  another ;  prece- 
dent gives  birth  to  precedent ;  what  has  been  done  may  be  done  again  ; 
thus  radical  principles  are  generally  broken  in  upon,  and  the  Constitution 
eventually  destroyed.  "Where  is  the  security,  where  the  inviolability 
of  property,  if  the  legislature,  by  a  private  Act,  affecting  particular 
persons  only,  can  take  land  from  one  citizen,  who  acquired  it  legally, 
and  vest  it  in  another?  The  rights  of  private  pioperty  are  regulated, 
protected,  and  governed  by  general,  known,  and  established  laws  ;  and 


)-4-JC 


100  vanhorne's  lessee  v.  dorrance.  [chap,  I. 

decided  upon  by  general,  known,  and  established  tribunals ;  laws  and 
tribunals  not  made  and  created  on  an  instant  exigency,  on  an  urgent 
emergency,  to  serve  a  present  turn,  or  the  interest  of  a  moment.  Their 
operation  and  influence  are  equal  and  universal;  they  press  alike  on 
all.  Hence  security  and  safety,  tranquillit}'  and  peace.  One  man  is 
not  afraid  of  another,  and  no  man  afraid  of  the  legislature.  It  is  infi- 
nitely wiser  and  safer  to  risk  some  possible  mischiefs,  than  to  vest  in 
the  legislature  so  unnecessary-,  dangerous,  and  enormous  a  power  as 
that  which  lias  been  exercised  on  the  present  occasion ;  a  power  that, 
according  to  the  full  extent  of  the  argument,  is  boundless  and  omnipo- 
tent :  for  the  legislature  judged  of  the  necessity  of  the  case,  and  also 
of  the  nature  and  A'alue  of  the  equivalent.  " 

Such  a  case  of  necessity,  and  judging  too  of  the  compensation,  can 
never  occur  in  an}-  nation.  Singular,  indeed,  and  untoward  must  be 
the  state  of  things,  that  would  induce  the  legislature,  supposing  they 
had  the  power,  to  divest  one  individual  of  his  landed  estate  merel}-  for 
the  purpose  of  vesting  it  in  another,  even  upon  full  indemnification  ; 
unless  that  indemnification  be  ascertained  in  the  manner  which  I  shall 
mention  hereafter. 

But  admitting  that  the  legislature  can  take  the  real  estate  of  A.  and 
give  it  to  B.  on  making  compensation,  the  principle  and  reasoning  upon 
it  go  no  further  than  to  show,  that  the  legislature  are  the  sole  and  ex- 
clusive judges  of  the  necessity  of  the  case,  in  which  this  despotic  power 
should  be  called  into  action.  It  cannot,  on  the  princii)les  of  the  social_ 
alliance,  or  of  the  Constitution,  be  extended  beyond  the  point  nf  jnrlg- 
inp;_upon  every  existing  cpgf  '^f  npcpssity.  The  legislature  declare 
and  enact,  that  such  are  the  public  exigencies,  or  necessities  of  the 
State,  as  to  authorize  them  to  take  the  land  of  A.  and  give  it  to  B. ; 
the  dictates  of  reason  and  the  eternal  principles  of  justice,  as  well  as 
the  sacred  principles  of  the  social  contract,  and  the  Constitution,  direct, 
and  they  accordingly  declare  and  ordain,  that  A.  shall  receive  compen- 
sation for  the  land.  But  here  the  legislature  must  stop ;  they  have 
run  the  full  length  of  their  authority,  and  can  go  no  further:  they 
cannot  constitutionally  determine  upon  the  amount  of  the  compensa- 
tion, or  value  of  the  land.  Public  exigencies  do  not  require,  necessity 
does  not  demand,  that  the  legislature  should,  of  themselves,  without 
the  participation  of  tlip  prnpvipfnrj  nr  intervention  of  a  jury,  assess  the 
vnlrip^nf  the  thi'ig  '^''  nsppi-tqin  tho  omount  of  the  Compensation  to  be 
paid  for  it — This  can  onngtifntJopflHy  bp  pffected  onlvJiilhrPP  wnys. 
f^Ry  the  pprtips  ;  tlynj^^  by  stipnlntion  between- thc- leprislature 
an^proprietor  of  the  land. 

(£^Bv  commisfiionprs  iTiiitnn]]y  pl^pf.pd  bv  t^"°  povti^>a-. 
(3?)  Rv  theintprvpntion  nf  n  jury, 
The  compensatory  part  of  the  Act  lies  in  the  ninth  section.  ...  In 
this  section  two  things  are  worthy  of  consideration. 

1.  The  mode  or  manner  in  which  compensation  for  the  lands  is  to  be 
ascertained. 


SECT.  II.]  VANHORNE'S   LESSEE   V.   DORRANCE.  101 

2    The  nature  of  the  compensation  itself. 

The   Pennsylvania   claimants   are   directed   to  present  their  claims 
to  the  Board  of  Property —  and  what  is  the  Board  to  do  thereupon? 

Why,  it  is,  , 

1  To  judo-e  of  the  validity  of  their  claims. 

2  To  ascertain,  by  the  aid  and  through  the  medium  of  commission- 
ers '  appointed  by  the  legislature,  the  quality  and  value  of  the  land. 

3.  To  judge  of  the  quantity  of  vacant  land  to  be  granted  as  an 

equivalent.  i       i 

This  is  not  the  constitutional  line  of  procedure.  I  have  already 
observed,  that  there  are  but  three  modes,  in  which  matters  of  this  kind 
can  be  conducted  consistently  with  the  principles  and  spirit  of  the 
Constitution,  and  social  alliance.  The  first  of  which  is  by  the  parties, 
that  is  to  sav,  bv  the  legislature  and  proprietor  of  the  land.  Ot  this 
the  British  histoo'  presents  au  illustrious  example  in  the  case  of  the 

Isle  of  Man.  . 

"The  distinct  jurisdiction  of  this  little  subordinate  royalty  being 
found  inconvenient  for  the  purposes  of  public  justice,  and  for  the  rev- 
enue (it  affording  a  commodious  asylum  for  debtors,  outlaws,  and 
smuo-<rlers)  authority  was  given  to  the  treasury,  by  statute  12  Geo.  I. 
c  2rto  purchase  the  interest  of  the  then  proprietors  for  the  use  of  the 
Crown;  which  purchase  was  at  length  completed  in  the  year  17Go, 
and  confirmed  by  statutes  5  Geo.  III.  c.  26  and  38,  whereby  the  whole 
island  and  all  its  dependencies,  so  granted,  as  aforesaid  (except  the 
landed  property  of  the  AthoU  family,  tlieir  manorial  rights  and  emol- 
uments, and  the  patronage  of  bishoprics,  and  other  ecclesiastical  bene- 
fices) are  unalienably  vested  in  the  Crown,  and  subjected  ^to  the 
reo-ulations  of  the  British  excise  and  customs."  —  1  Bl.  Com.  107. 

Shame  to  American  legislation !  That  in  England,  a  limited  mon- 
archy where  there  is  no  written  constitution,  where  the  Parliament  is 
omnipotent,  and  can  mould  the  Constitution  at  pleasure,  a  more  sacred 
recrard  should  have  been  paid  to  property,  than  in  America,  surrounded 
as°we  are  with  a  blaze  of  political  illumination  ;  where  the  legislatures 
are  limited ;  where  we  have  republican  governments,  and  written  con- 
stitutions, by  which  the  protection  and  enjoyment  of  property  are 
rendered    inviolable. 

The  case  of  the  Isle  of  Man  was  a  fair  and  honorable  stipulation  ;  it 
partook  of  the  spirit  and  essence  of  a  contract ;  it  was  free  and  mutual ; 
and  was  treating  with  the  proprietors  on  equal  terms.  But  if  the  busi- 
ness cannot  be  effected  in  this  way,  then  the  value  of  the  land,  intended 
to  be  taken,  should  be  ascertained  by  commissioners,  or  persons  mu- 
tuallv  elected  by  the  parties,  or  by  the  intervention  of  the  judiciary,  of 
wliich  a  jury  is  a  component  part.  In  the  first  case,  we  approximate 
nearly  to  a^contract ;  because  the  will  of  the  party,  whose  property  is 
to  be  affected,  is  in  some  degree  exercised  ;  he  has  a  choice  ;  his  own 
act  co-operates  with  that  of  the  legislature.  In  the  other  case,  there 
is  the  intervention  of  a  court  of  law,  or,  in  other  words,  a  jury  is  to 


102  vanhorne's  lessee  v.  lorrance.  I^chap.  I, 

pass  between  the  public  and  the  individual,  who,  after  hearing  the 
proofs  and  allegations  of  the  parties,  will,  by  their  verdict,  fix  the  value 
of  the  property,  or  the  sum  to  be  paid  for  it.  The  compensation,  if 
not  agreed  upon  by  the  parties  or  their  agents,  must  be  ascertained  bN' 
a  jurv.  The  interposition  of  a  jury  is,  in  such  case,  a  constitutional 
guard  upon  propert}-,  and  a  necessary  check  to  legislative  authorit}'. 
It  is  a  barrier  between  the  individual  and  the  legislature,  and  ought 
never  to  be  removed  ;  as  long  as  it  is  preserved,  the  rights  of  private 
property  will  be  in  no  danger  of  violation,  except  in  cases  of  absolute 
necessity,  or  great  public  utility.  By  the  confirming  .A^,  the  value  of 
the  land  taken,  and  the  value  of  the  land  to  be  \)pi^Cm  recompense, 
are  to  be  ascertained  by  the  Board  of  Pi-opertfT  And  who  are  the 
persons  that  constitute  this  Board?  Mgji-Jlppointed  by  one  of  the  par- 
ties, by  the  legislature  only.  Thg^^rson,  w^iose  ])roperty  is  to  be 
divested  and  valued,  had  no  volition,  no  choice,  no  co-opernlionlu-tlie 
appointment;  and  besides,  the  otlier_co.nstitntinnal  guard  upon  prop-, 
erty,  that  of  a  jury,  is  removed  and  done  away.  The  l')Oard  of  Prop- 
erty  thus  constituted,  are  authorized  to  decide  upon  the  value  of  the 
land  to  be  taken,  and  upon  the  value  of  the  land  to  be  given  by  way 
of  equivalent,  without  the  participation  of  the  party,  or  the  intervention 
of  a  jury. 

2.  The  nature  of  the  compensation. 

By  the  Act  the  equivalent  is  to  be  in  land.  No  just  compensation 
can  be  made  except  in  money.  Money  is  a  common  standard,  b}' 
comparison  with  which  the  value  of  anything  ma}-  be  asceitained.  It 
is  not  only  a  sign  which  represents  the  respective  values  of  commod- 
ities, but  is  an  universal  medium,  easily  portable,  liable  to  little  varia- 
tion, and  readily  exchanged  for  an}-  kind  of  propert}-.  Compensation 
is  a  recompense  in  value,  a  quid  yro  quo,  and  must  be  in  money. 
True  it  is,  that  land  or  anything  else  may  be  a  compensation,  but  then 
itmust  be  at  the  election  of  the  parly  ;  it  cannoi  be  forced  upon  him. 


His  consent  will  legalize  the  Act,  and  make  it  valld-;_n0tl«TTg"'sTioi't  of 
it  will  have  the  effect.  Ijt-is-obviouH.-iiTaTif  a  jury  pass  upon  the  sub- 
ject, or  value  of  the  property,  their  vei'dict  m^st  be  in  money . 

To  close  this  part  of  the  discourse  :  It  is  contended  that  the  legisla- 
ture must  judge  of  tlfe-necessitv  of  interposing  their  despotic  authority  : 
it  is  a  right  of  necessit}-  upon  which  no  other  power  in  government 
can  decide  :  that  no  civil  institution  is  perfect ;  and  that  cases  will 
occur,  in  which  private  pi'operty  must  yield  to  urgent  calls  of  miblic 
utility  or  general  danger.  Be  it  so.  But  then  it_must  be  n[)on^'om- 
pj_ete  indemnification  to  the  individnnl.  Agreed  :  but  who  shall  judge 
of  this?  Did  there  also  exist  a  State  necessity,  that  the  legislature,  or 
persons  solely  appointed  by  them,  must  admeasure  the  compensation. 
or  value  of  the  lands  seized  and  taken,  and  the  vali|^,ity  of  the  title 
thereto? — r>ifl  n  t.liiivl  Stntp  npr'pssity  pvist,  that  th4&|^roprictor  must 
tjjjv^_hvad  >-»y  wpy  nf  pqiilvnipnt.  for  his  land?.  And  did  a  fourth  State 
necessity  exist,  that  th^-alue  of  this  land  equivalent  must  be  adj usted 


SECT.  11.]  VANHORNE'S   LESSEE   V.   DOKKANCE.  103 

by  the  Board  of  Pro]jert,y.  withouU,1if-  ponsoiit  of  the  party,  or_tIi&-m> 
tei- ference  oTalury?  Alas  !  how  necessity  begets  necessity.  They 
"nsTupoiTeach  other  and  become  endless.  The  proprietor  stands  afar 
off,  a  solitaiy  and  unprotected  member  of  the  community,  and  is 
stripped  of  his  property,  without  his  consent,  without  a  hearing,  with- 
out notice,  the  value  of  that  property  judged  upon  without  his  partici- 
pation, or  the  intervention  of  a  jury,  and  the  equivalent  therefor  in 
lands  ascertained  in  the  same  way.  If  this  be  the  legislation  of  a 
republican  government,  in  which  the  preservation  of  property  is  made 
sacred  l)y  the  Constitution,  I  ask,  wherein  it  differs  from  the  man- 
date of  an  Asiatic  prince?  Omnipotence  in  legislation  is  despotism. 
According  to  tliis  doctrine,  we  have  nothing  that  we  can  call  our  own, 
or  are  sure  of  for  a  moment ;  we  are  all  tenants  at  will,  and  hold  our 
landed  property  at  the  mere  pleasure  of  the  legislature.  AVretched 
situation,  precarious  tenure  !  And  yet  we  boast  of  proi)erty  and  its 
security,  of  laws,  of  courts,  or  constitutions,  and  call  ourselves  free  ! 
In  short,  gentlemen,  the  confirming  Act  is  void;  it  never  had  consti- 
tutional existence  ;  it  is  a  dead  letter,  and  of  no  more  virtue  or  avail, 
than  if  it  never  had  been  made. 

II.  But,  admitting  the  confirming  Act  to  be  constitutional  and  valid, 
the  next  subject  of  inquiry  is,  what  is  its  operation,  or,  in  other  words, 
what  construction  ought  to  be  put  upon  it?  .  .  .  [It  is  declared  that 
the  Act  only  puri)orted  to  vest  the  estate  in  the  Connecticut  claimants 
on  certain  conditions,  which  have  not  been  performed.] 

III.  The  nature  and  operation  of  the  suspending  Act. 

This  Act  was  passed  the  29th  of  March,  1788,  and  is  as  follows: 

(Here  tlie  Judge  read  the  Act  at  large.) 

This  Act  was  passed  before  the  adoption  of  the  Constitution  of  the 
United  States,  and  therefore  is  not  atfected  by  it.  If  the  legislature 
had  authority  to  make  the  confirming  Act,  they  had,  also,  authority 
to  suspend  it.  Their  constitutional  power  reached  to  both,  or  to  nei- 
ther. By  the  Act  of  the  28th  of  March,  1787,  the  commissioners  were 
to  ascertain  and  confirm  the  claims  of  the  Connecticut  settlers,  upon 
the  doing  wiiereof  the  estate,  if  the  law  was  constitutional,  would  be- 
come vested  in  them.  This  has  not  been  done ;  the  claim  in  the  pres- 
ent instance  has  not  been  ascertained  and  confirmed  :  and  as  this  Act 
suspends  or  revokes  these  ascertaining  and  confirming  powers,  it  never 
can  be  done.  Of  course,  there  is  an  end  of  the  business.  The  parties 
are  placed  on  their  original  ground  ;  they  are  restored  to  their  pristine 
situation. 

IV.  After  the  opinion  delivered  on  the  preceding  questions,  it  is 
not  necessary  to  determine  upon  the  validity  of  the  repealing  law.  But 
it  being  my  intention  in  tliis  charge  to  decide  upon  all  the  material 
points  in  the  cause,  in  order  that  the  whole  may,  at  once,  be  carried 
before  the  Supreme  Judicature  for  revision,  I  shall  detain  you,  gentle- 
men, a  few  minutes  only,  while  I  just  touch  upon  the  constitutionality 


104  vanhokne's  lessee  v.  dorrance.  [chap.  I. 

of  the  repealing  Act.  This  Act  was  passed  the  1st  of  April,  1790: 
the  repealing  part  is  as  follows. 

(Here  the  Judge  read  the  1st  and  2d  sections  of  the  Act.  See 
2  Vol.  Ball.  Edit.  Penn.  Laws,  p.  786.) 

This  Act  was  made  after  the  adoption  of  the  Constitution  of  the 
United  States,  and  the  argument  is,  that  it  is  contrary  to  it. 

1.  Because  it  is  an  ex  post  facto  law. 

2.  Because  it  is  a  law  impairing  the  obligation  of  a  contract. 

1.  That  it  is  an  ex  post  facto  law.  But  what  is  the  fact?  If  making 
a  law  be  a  fact  within  the  words  of  the  Constitution,  then  no  law, 
when  once  made,  can  ever  be  repealed.  Some  of  the  Connecticut 
settlers  presented  their  claims  to  the  commissioners,  who  received  and 
entered  them.  These  are  facts.  But  are  thej'  facts  of  any  avail? 
Did  they  give  any  right  or  vest  any  estate  ?  No  —  whether  done  or 
not  done,  the}'  leave  the  parties  just  where  they  were.  They  create  no 
interest,  affect  no  title,  change  no  property ;  when  done  the}'  are  use- 
less and  of  no  efficac}'.  Other  Acts  were  necessar}'  to  be  performed, 
but  before  the  performance  of  them,  the  law  was  suspended  and  then 
repealed. 

2.  It  impairs  the  obligation  of  a  contract,  and  is  therefore  void.  If 
the  property  to  the  lands  in  question  had  been  vested  in  the  State  of 
Pennsylvania,  then  the  legislature  would  have  had  the  liberty  and  right 
of  disposing  or  granting  them  to  whom  they  pleased,  at  an}-  time,  and 
in  an}'  manner.  Over  public  property  they  have  a  disposing  and  con- 
trolling power,  over  private  property  they  have  none,  except,  perhaps, 
in  certain  cases,  and  those  under  restrictions,  and  except  also,  what 
may  arise  from  the  enactment  and  operation  of  general  laws  respect- 
ing property,  which  will  affect  themselves  as  well  as  their  constituents. 
But  if  the  confirming  Act  be  a  contract  between  the  Legislature  of 
Pennsylvania  and  the  Connecticut  settlers,  it  must  be  regulated  by 
the  rules  and  principles  which  pervade  and  govern  all  cases  of  con- 
tracts :  and  if  so,  it  is  clearly  void,  because  it  tends,  in  its  operation 
and  consequences,  to  defraud  the  Pennsylvania  claimants,  who  are 
third  persons,  of  their  just  rights ;  rights  ascertained,  protected,  and 
secured  by  the  Constitution  and  known  laws  of  the  land.  The  plain- 
tiffs title  to  the  land  in  question  is  legally  derived  from  Pennsylvania ; 
how  then,  on  the  principles  of  contract,  could  Pennsylvania  lawfully 
dispose  of  it  to  another?  As  a  contract,  it  could  convey  no  right, 
without  the  owner's  consent ;  without  that,  it  was  fraudulent  and  void. 

I  shall  close  the  discourse  with  a  brief  recapitulation  of  its  leading 
points. 

1.  The  confirming  Act  is  unconstitutional  and  void.  It  was  invalid 
from  the  beginning,  had  no  life  or  operation,  and  is  precisely  in  the 
same  state,  as  if  it  had  not  been  made.  If  so,  the  plaintiffs  title 
remains  in  full  force. 

2.  If  the  confirming  Act  is  constitutional,  the  conditions  of  it  have 
not  been  performed  ;  and;  therefore,  the  estate  continues  in  the  plaintiff. 


SECT.  II.]  COOPER  V.  TELFAIR.  105 

3.  The  confirming  Act  has  been  suspended  —  and 

4.  Repealed. 

The  result  is,  that  the  plaintiff  is,  by  law,  entitled  to  recover  thts 
premises  in  question,  and  of  course  to  your  verdict. 

Verdict  for  the  plaintiff.^ 


COOPER  V.   TELFAIR. 
Supreme  Court -of  the  United  States.     1800. 

[4  Dallas,  14  ;   1  Citrtis's  Decisions,  314.] 

This  was  a  writ  of  error  to  the  Circuit  Court  of  the  United  States 
for  the  District  of  Georgia.  /The  plaintiff  in  error  brought  an  action 
of  debt  on  a  bond  dated  in  1774,  against  the  defendant,  as  obligor.' 
The  defendant  pleaded  that  by  an  Act  of  the  Legislature  of  the  State 
of  Georgia,  passed  on  the  4th  day  of  May,  1782,  the  plaintiff  and 
other  persons  named  in  the  Act,  were  banished  from  the  State,  and 
their  property,  real  and  personal,  including  all  debts  due  to  each  of 
them  at  the  date  thereof,  was  confiscated  to  the  State,  such  persons 
being  at  the  same  time  declared  by  the  Act  guilty  of  high  treason. 
That  by  virtue  of  this  Act,  and  another  Act  passed  on  the  10th  day  of 
February,  17S7,  giving  certain  powers  to  the  auditors  of  the  State, 
this  debt  became  vested  in  the  State  of  Georgia,  and  no  cause  of  ac- 
tion hath  accrued  to  the  plaintiff.  To  this  plea  the  plaintiff  replied, 
in  substance,  that  he  had  never  been  tried,  convicted,  or  attainted  of 
treason,  and  that  the  Acts  relied  on  were  repugnant  to  the  Consti- 
tution of  Georgia,  adopted  on  the  5th  day  of  February,  1777,  and 
so  were  void.  To  this  replication  there  was  a  demurrer,  which  was 
joined,  and  the  Circuit  Court  held  the  plea  good.  The  cause  was 
argued  by  E.Tilghmcui,  for  the  plaintiff,  and  by  Ingersoll  and  Dallas 
for  the  defendant. 

1  For  the  early  cases  in  the  Federal  Courts,  see  Meigs,  19  Am.  Law  Rev.  186.  The 
case  in  the  text  is,  probably,  the  earliest  reported  Federal  case.  The  iuformai  utter- 
ances of  the  Circuit  Court  Judges,  in  letters  and  memoranda,  reported  iu  the  note  to 
Uayhurns  Case,  4  Dall.  409,  in  1792,  mention  an  unreported  decision  and  announce 
their  opinions,  that  an  Act  of  Congress  was  unconstitutional ;  just  as  Chief  Justice  Jay 
and  several  of  the  judges  of  the  Supreme  Court,  in  1790,  in  a  letter  intended  for  the 
President,  had  made  a  like  declaration  as  to  a  part  of  the  Judiciary  Act  of  1789.  See 
4  Am.  Jurist,  29.3;  2  Story,  Const,  s.  1579,  note.  But  in  tliese  there  was  no  judicial 
utterance.  In  the  case  of  Yale  Todd  (February,  1794),  preserved  in  a  note  to  U.  S.  v 
Ferreiru,  13  How.  52,  it  was  decided  that  the  theory  of  the  legislation  of  March  23, 1792, 
adopted  by  some  of  the  judges,  viz.,  that  it  gave  them  authority  to  act  as  commis- 
sioners, was  untenable.  It  is  inaccurate  to  say  that  this  case  holds  the  Act  of  1792  to 
be  unconstitutional,  as  appears  to  be  said  in  the  note  in  13  How.  52,  and  as  is  expressly 
said  in  the  Reporter's  note  in  131  U.  S.,  Appendix,  ccxxxv. 

Marbury  v.  Madison  is  the  earliest  Federal  decision  in  the  Supreme  Court.  —  Ed- 


106  COOPER   V.   TELFAIR.  [CHAP.  I. 

The  judges  (except  the  Chief  Justice,  who  had  decided  the  cause 
in  the  Circuit  Court)  delivered  their  opinions,  seriatim,  in  substance, 
as  follows : 

Washington,  J.  The  Constitution  of  Georgia  does  not  expressly 
interdict  the  passing  of  an  Act  of  attainder  and  confiscation,  by  the 
authority  of  the  legislature.  Is  such  an  Act,  then,  so  repugnant  to 
any  constitutional  regulation,  as  to  be  excepted  from  the  legislative 
jurisdiction,  by  a  necessary  implication?  Where  an  offence  is  not 
committed  within  some  county  of  the  State,  the  Constitution  makes  no 
provision  for  a  trial,  neither  as  to  the  place,  nor  as  to  the  manner.  Is 
such  an  offence  (perhaps  the  most  dangerous  treason)  to  be  considered 
as  beyond  the  reach  of  the  government,  even  to  forfeit  the  property 
of  the  offender,  within  its  territorial  boundary?  If  the  plaintiff  in 
error  had  shown  that  the  offence  with  which  he  was  charged  had  been 
committed  in  any  county  of  Georgia,  he  might  have  raised  the  ques- 
tion of  conflict  and  collision,  between  the  Constitution  and  the  law ; 
but  as  that  fact  does  not  appear,  there  is  no  ground  on  which  I  could 
be  prepared  to  say  that  the  law  is  void.  The  presumption,  indeed, 
must  always  be  in  favor  of  the  validity  of  laws,  if  the  contrary  is  not 
clearly  demonstrated. 

Chase,  J.  I  agree,  for  the  reason  which  has  been  assigned,  to 
affirm  the  judgment.  Before  the  plaintiff  in  error  could  claim  the 
benefit  of  a  trial  b3'jury,  under  the  Constitution,  it  was,  at  least,  in- 
cumbent upon  him  to  show,  that  the  offence  charged  was  committed  in 
some  count}'  of  Georgia,  in  which  case  alone  the  Constitution  provides 
for  the  trial.  But  even  if  he  had  established  that  fact,  I  should  not 
have  thought  the  law  a  violation  of  the  Constitution.  The  general 
principles  contained  in  the  Constitution  are  not  to  be  regarded  as  rules 
to  fetter  and  control,  but  as  matter  merely  declarator}'  and  director}' ; 
for,  even  in  the  Constitution  itself,  we  may  trace  repeated  departures 
from  the  theoretical  doctrine,  that  the  legislative,  executive,  and  judicial 
powers  should  be  kept  separate  and  distinct. 

There  is,  likewise,  a  material  difference  between  laws  passed  b}'  the 
individual  States  during  the  Revolution,  and  laws  passed  subsequent  to 
the  organization  of  the  Federal  Constitution.  P'ew  of  the  Revolutionary 
Acts  would  stand  the  rigorous  test  now  applied  ;  and  although  it  is 
alleged  that  all  Acts  of  the  Legislature,  in  direct  opt30sition^tQ_tliC-pro- 
hibitions  of  tlie  Constitution,  would  be  void,  yet  it  still  remains  n  gjioa- 
tinn^  whprp  H^f^  powor  vfi^ides  to  declare  it  void.  It  is,  indeed,  a  general 
opinion,  it  is  cxpresslv  admitted  by  all  this  Bar,  and  somp  nf  f.lio  jnrlapg 
have,  individually,  in  tlie  circuits,  decided  that  the  Supreme  Court  can 
declare  an  Act  of  Congress  to  be  unconstitutional,  and,  therefore,  in- 
valid :  but  there  is  no  ?idjnrlinflt,inn  of  r.ne  Supreme  Uoiirtltself  upon  the 
point.  I  concur,  however,  in  the  general  sentiment,  with  reference  to 
the  period,  when  the  existing  Constitution  came  into  operation  ;  but 
whether  the  power,  under  the  existing  Constitution,  can  be  employed 
to  invalidate  laws  previously  enacted,  is  a  very  different  question,  turn- 


SECT.  II.]  MARBURY   V.    M.\UISON.  107 

ing  upon  very  different  principles,  and  with  respect  to  wliich  I  abstain 
from  giving  an  opinion,  since,  on  other  ground,  1  am  satisfied  with  the 
correctness  of  the  judgment  of  the  Circuit  Court. 

Paterson,  J.  I  consider  it  a  sound  political  proposition,  that 
wherever  the  legislative  power  of  a  government  is  undefined  it  includes 
the  judicial  and  executive  attributes.  The  legislative  power  of  Geor- 
gia, though  it  is  in  some  respects  restricted  and  qualified;  is  not  defined 
by  the  Constitution  of  the  State.  Had,  then,  the  legislature  power  to 
punish  its  citizens,  who  had  joined  the  enemy,  and  could  not  be  pun- 
ished by  the  ordinary  course  of  law?  It  is  denied,  because  it  would  be 
an  exercise  of  judicial  authority.  But  the  power  of  confiscation  and 
banishment  does  not  belong  to  the  judicial  authority,  whose  process 
could  not  reach  the  offenders  ;  and  yet  it  is  a  power  that  grows  out  of 
the  very  nature  of  the  social  compact,  which  must  reside  somewhere, 
and  which  is  so  inherent  in  the  legislature  that  it  cannot  be  divested  or 
transferred,  without  an  express  provision-of  the  Constitution. 

The  constitutions  of  several  of  the  other  States  of  the  Union  con- 
tain the  same  general  principles  and  restrictions  ;  but  it  never  was 
imagined  that  they  applied  to  a  case  like  the  present,  and  to  authorize 
this  court  to  pronounce  any  law  void,  it  must  be  a  clear  and  unequiv- 
ocal breach  of  the  Constitution,  not  a  doubtful  and  argumentative 
application. 

CusHiNG,  J.  Although  I  am  of  opinion  that  this  court  has  the  same 
power  that  a  court  of  the  State  of  Georgia  would  possess,  to  declare 
the  law  void,  I  do  not  think  that  the  occasion  would  warrant  an  exer- 
cise of  the  power.  The  right  to  confiscate  and  banish,  in  the  case 
of  an  offending  citizen,  must  belong  to  every  government.  It  is  not 
within  the  judicial  power,  as  created  and  regulated  by  the  Consti- 
tution of  Georgia,  and  it  naturally,  as  well  as  tacitly,  belongs  to  the 
legislature. 

By  the  Court.    Let  the  judgment  be  affirmed,  with  costs. 


MARBURY  V.  MADISON. 

Supreme  Court  of  the  United  States.     1803. 

[1  Cranch,  137 ;  1  Cttrtis's  Decisions,  368.] 

At  the  last  term,  namely,  December  Term,  1801,  William  Marbnry, 
Dennis  Ramsay,  Robert  Townsend  Hooe,  and  William  Harper,  by 
their  counsel,  Charles  Lee,  Esq.,  late  Attorney-General  of  the  United 
States,  severally  moved  the  court  for  a  rule  to  James  Madison,  Secre- 
tary of  State  of  the  United  States,  to  show  cause  why  a  mandamus 
should  not  issue  commanding  him  to  cause  to  be  delivered  to  them 
respectively  their  several  commissions  as  justices  of  the  peace  in  the 


108  MARBURY  V.   MADISON.  [CHAP.  I. 

District  of  Columbia.  This  motion  was  supported  by  affidavits  of  the 
following  facts :  that  aotice  of  this  motion  had  been  given  to  Mr. 
Madison  ;  that  Mr.  Adams,  the  late  President  of  the  United  States, 
nominated  the  applicants  to  the  Senate  for  their  advice  and  consent  to 
be  appointed  justices  of  the  peace  of  the  District  of  Columbia ;  that 
the  Senate  advised  and  consented  to  the  appointments  ;  that  commis- 
sions in  due  form  were  signed  by  the  said  President  appointing  tliem 
justices,  &c.,  and  that  the  seal  of  the  United  States  was  in  due  form 
affixed  to  the  said  commissions  by  the  Secretary  of  State ;  that  the 
applicants  have  requested  Mr.  Madison  to  deliver  them  their  said 
commissions,  who  has  not  complied  with  that  request;  and  that  their 
said  commissions  are  withheld  from  them ;  that  the  applicants  have 
made  application  to  Mr.  Madison,  as  Secretary  of  State  of  the  United 
States,  at  his  office,  for  information  whether  the  commissions  were 
signed  and  sealed  as  aforesaid  ;  that  explicit  and  satisfactory  informa- 
tion has  not  been  given  in  answer  to  that  inquiry,  either  by  the  Secre- 
tary of  State  or  any  officer  in  the  Department  of  State  ;  that  application 
has  been  made  to  the  Secretary  of  the  Senate  for  a  certificate  of  the 
nomination  of  the  applicants,  and  of  the  advice  and  consent  of  the 
Senate,  who  has  declined  giving  such  a  certificate ;  whereupon  a  rule 
was  laid  to  show  cause  on  the  fourth  day  of  this  term.  This  rule 
having  been*  duly  served, 

Mr.  Lee  read  the  affidavit  of  Dennis  Eamsay,  and  the  printed  jour- 
nals of  the  Senate  of  31st  January,  1803,  respecting  the  refusal  of 
the  Senate  to  suffer  their  secretary  to  give  the  information  requested. 
He  then  called  Jacob  Wagner  and  Daniel  Brent,  who  had  been  sum- 
moned to  attend  the  court,  and  who  had,  as  it  is  understood,  declined 
giving  a  voluntary  affidavit.  They  objected  to  being  sworn,  alleging 
that  they  were  clerks  in  the  Department  of  State,  and  not  bound 
to  disclose  any  facts  relating  to  the  business  or  transactions  in  the 
office. 

The  court  ordered  the  witnesses  to  be  sworn,  and  their  answers 
taken  in  writing,  but  informed  them  that  when  the  questions  were 
asked  they  might  state  their  objections  to  answering  each  particular 
question,  if  they  had  any. 

Mr.  Lincoln,  Attorney-General,  having  been  summoned,  and  now 
called,  objected  to  answering.  He  requested  that  the  questions  might 
be  put  in  writing,  and  that  he  might  afterwards  have  time  to  determine 
whether  he  would  answer.  On  the  one  hand  he  respected  the  juris- 
diction of  this  court,  and  on  the  other  he  felt  himself  bound  to 
maintain  tlie  rights  of  the  executive.  He  was  acting  as  Secretary 
of  State  at  the  time  when  this  transaction  happened.  He  was  of 
opinion,  and  his  opinion  was  supported  by  that  of  others  whom  he 
highly  respected,  that  he  was  not  bound,  and  ought  not  to  answer,  as 
to  any  facts  which  came  officially  to  his  knowledge  while  acting  as 
Secretary  of  State. 

The  questions  being  written,  were  then  read  and  handed  to  him. 


SECT.  II.]  MARBURY  V.   MADISON.  109 

He  repeated  the  ideas  he  had  before  suggested,  and  said  his  objections 
were  of  two  kinds. 

1st.  He  did  not  think  himself  bound  to  disclose  his  official  trans- 
actions while  acting  as  Secretary  of  State  ;  and, 

2d.  He  ought  not  to  be  compelled  to  answer  anything  which  might 
tend  to  criminate  himself. 

Mr.  Lincoln  thought  it  was  going  a  great  way  to  say  that  every 
Secretary  of  State  should  at  all  times  be  liable  to  be  called  upon  to 
appear  as  a  witness  in  a  court  of  justice,  and  testify  to  facts  which 
came  to  his  knowledge  officially.  He  felt  himself  delicately  situated 
between  his  duty  to  this  court,  and  the  duty  he  conceived  he  owed  to 
an  executive  department ;  and  hoped  the  court  would  give  him  time  to 
consider  of  the  subject. 

The  court  said  that  if  Mr.  Lincoln  wished  time  to  consider  what 
answers  he  should  make,  they  would  give  him  time  ;  but  they  had  no 
doubt  he  ought  to  answer.  There  was  nothing  confidential  required 
to  be  disclosed.  If  there  had  been  he  was  not  obliged  to  answer  it ; 
and  if  he  thought  that  anything  was  comnmnicated  to  him  in  confi- 
dence he  was  not  bound  to  disclose  it ;  nor  was  he  obliged  to  state  any- 
thing which  would  criminate  himself ;  but  that  the  fact  whether  such 
commissions  had  been  in  the  office  or  not,  could  not  be  a  confi- 
dential fact ;  it  is  a  fact  which  all  the  world  have  a  right  to  know. 
If  he  thought  any  of  the  questions  improper,  he  might  state  his 
objections. 

Mr.  Lincoln  then  prayed  time  till  the  next  day  to  consider  of  his 
answers  under  this  opinion  of  the  court. 

The  court  granted  it,  and  postponed  further  consideration  of  the 
cause  till  the  next  day. 

At  the  opening  of  the  court  on  the  next  morning,  Mr.  Lincoln  said 
he  had  no  objection  to  answering  the  questions  proposed,  excepting 
the  last,  which  he  did  not  think  himself  obliged  to  answer  fully.  The 
question  was,  what  had  been  done  with  the  commissions?  He  had  no 
hesitation  in  saying  that  he  did  not  know  that  they  ever  came  to  the 
possession  of  Mr.  Madison,  nor  did  he  know  that  they  were  in  the 
office  when  Mr.  Madison  took  possession  of  it.  He  prayed  the  opinion 
of  the  court  whether  he  was  obliged  to  disclose  what  had  been  done 
with  the  commissions. 

The  court  were  of  opinion  that  he  was  not  bound  to  say  what  had 
become  of  them  ;  if  they  never  came  to  the  possession  of  Mr.  Madi- 
son it  was  immaterial  to  the  present  cause  what  had  been  done  with 
them  by  others. 

Afterwards,  on  the  24th  February,  the  following  opinion  of  the  court 
was  delivered  by  the  Chief  Justice.  At  the  last  term  on  the  affidavits 
then  read  and  filed  with  the  clerk,  a  rule  was  granted  in  this  case,  re- 
quiring the  Secretary  of  State  to  show  cause  why  a  7nandamus  should 
not  issue,  directing  him  to  deliver  to  William  Marbury  his  commission 


110  MARBURY   V.    MADISON.  [CHAP.  I. 

as  a  justice  of  the  peace  for  the  count}'  of  Washington,  in  the  District 
of  Columbia. 

No  cause  has  been  shown,  and  the  present  motion  is  for  a  manda- 
mus. The  peculiar  delicacy  of  this  case,  the  novelty  of  some  of  its 
circumstances,  and  the  real  difficulty  attending  the  points  which  occur 
in  it,  require  a  complete  exposition  of  the  principles  on  which  the 
opinion  to  be  given  by  the  court  is  founded. 

These  principles  have  been,  on  the  side  of  the  applicant,  very  ably 
argued  at  the  Bar.  In  rendering  the  opinion  of  the  court,  there  will  be 
some  departure  in  form,  though  not  in  substance,  from  the  points  stated 
in  that  argument. 

In  the  order  in  which  the  court  has  viewed  this  subject,  the  follow- 
ing questions  have  been  considered  and  decided. 

1st.  Has  the  applicant  a  right  to  the  commission  he  demands? 

2clly.  If  he  has  a  right,  and  that  right  has  been  violated,  do  the 
laws  of  his  country  afford  him  a  remedy? 

3dly.  If  they  do  afford  him  a  remedy,  is  it  a  mandamus  issuing  from 
this  court? 

The  first  object  of  inquiry  is, 

1st.  Has  the  applicant  a  right  to  the  commission  he  demands?  .   .  . 

Mr.  Marbury,  then,  since  his  commission  was  signed  by  the  Presi- 
dent and  sealed  by  the  Secretary  of  State,  was  appointed  ;  and  as  the 
law  creating  the  office,  gave  the  officer  a  right  to  hold  for  five  years, 
independent  of  the  executive,  the  appointment  was  not  revocable,  but 
vested  in  the  officer  legal  rights,  which  are  protected  by  the  laws  of  his 
country. 

To  withhold  his  commission,  therefore,  is  an  act  deemed  by  the 
court  not  warranted  by  law,  but  violative  of  a  vested  legal  right. 

This  brings  us  to  the  second  inquiry,  which  is, 

2dly.  If  he  has  a  right,  and  that  right  has  been  violated,  do  the 
laws  of  his  country  afford  him  a  remedy  ?  .   .   . 

It  is  then  the  opinion  of  the  court, 

1st.  That  by  signing  the  commission  of  Mr.  Marbury,  the  Presi- 
dent of  the  United  States  appointed  him  a  justice  of  peace  for  the 
county  of  AVashington,  in  the  District  of  Columbia  ;  and  that  the  seal 
of  the  United  States,  affixed  thereto  by  the  Secretary  of  State,  is  con- 
clusive testimony  of  the  verity  of  the  signature,  and  of  the  completion 
of  the  appointment ;  and  that  the  appointment  conferred  on  him  a 
legal  right  to  the  office  for  the  space  of  five  years. 

2dly.  That,  having  this  legal  title  to  the  office,  he  has  a  consequent 
right  to  the  commission  ;  a  refusal  to  deliver  which  is  a  plain  viola- 
tion of  that  right,  for  which  the  laws  of  his  country  afford  him  a 
remedy. 

It  remains  to  be  inquired  whether, 

3dly.  He  is  entitled  to  the  remedy  for  which  he  applies.  This  de 
pends  on, 

1st.  The  nature  of  the  writ  applied  for  ;  and, 


SECT.  II.]  MARBURY   V.   MADISON.  Ill 

2dly.  The  power  of  this  court. 

1st.  The  nature  of  the  writ.  .   .  . 

This,  then,  is  a  plain  ease  for  a  mandamus,  either  to  deliver  the 
commission,  or  a  copy  of  it  from  the  record ;  and  it  only  remains  to 
be  inquired. 

Whether  it  can  issue  from  this  court.  .  .  .  The  authority,  therefore, 
given  to  the  Supreme  Court,  by  the  Act  establishing  the  judicial 
courts  of  the  United  States,  to  issue  writs  of  mandamus  to  public 
officers,  appears  not  to  be  warranted  by  the  Constitution ;  and  it  be- 
comes necessary  to  inquire  whether  a  jurisdiction  so  conferred  can  be 
exercised. 

The  question  whether  an  Act  repugnant  to  the  Constitution  can  be- 
come the  law  of  the  land,  is  a  question  deeply  interesting  to  the  United 
States  ;  but,  happily,  not  of  an  intricacy  proportioned  to  its  interest. 
It  seems  only  necessary  to  recognize  certain  principles,  supposed  to 
have  been  long  and  well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their  future 
government,  such  principles  as,  in  their  opinion,  shall  most  conduce  to 
their  own  happiness,  is  the  basis  on  which  the  whole  American  fabric 
has  been  erected.  The  exercise  of  this  original  right  is  a  very  great 
exertion  ;  nor  can  it  nor  ought  it  to  be  frequently  repeated.  The  prin- 
ciples, therefore,  so  established,  are  deemed  fundamental.  And  as  the 
authority  from  which  they  proceed  is  supreme,  and  can  seldom  act, 
they  are  designed  to  be  permanent. 

This  original  and  supreme  will  organizes  the  government,  and  as- 
signs to  different  departments  their  respective  powers.  It  may  either 
stop  here,  or  establish  certain  limits  not  to  be  transcended  by  those 
departments. 

The  government  of  the  United  States  is  of  the  latter  description. 
The  powers  of  the  legislature  are  defined  and  limited  ;  and  that  those 
limits  may  not  be  mistaken,  or  forgotten,  the  Constitution  is  written. 
To  what  purpose  are  powers  limited,  and  to  what  purpose  is  that  limi- 
tation committed  to  writing,  if  these  limits  maj'',  at  any  time,  be  passed 
by  those  intended  to  be  restrained?  The  distinction  between  a  govern- 
ment with  limited  and  unlimited  powers  is  abolished,  if  those  limits  do 
not  confine  the  persons  on  whom  they  are  imposed,  and  if  acts  pro- 
hibited and  acts  allowed  are  of  equal  obligation.  It  is  a  proposition 
too  plain  to  be  contested,  that  the  Constitution  controls  any  legislative 
Act  repugnant  to  it ;  or,  that  the  legislature  may  alter  the  Constitution 
by  an  ordinary  Act. 

Between  these  alternatives  there  is  no  middle  ground.  The  Consti- 
tution is  either  a  superior  paramount  law,  unchangeable  by  ordinary 
means,  or  it  is  on  a  level  with  ordinary  legislative  Acts,  and,  like  other 
Acts,  is  alterable  when  the  legislature  shall  please  to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legislative  Act 
contrary  to  the  Constitution  is  not  law  ;  if  the  latter  part  be  true,  then 
written  constitutions  are  absurd  attempts,  on  the  part  of  the  people,  to 
limit  a  power  in  its  own  nature  illimitable. 


112  MARBURY   V.    MADISON.  [CHAP.  I, 

Certainly  all  those  wlio  have  framed  written  constitutions  contem- 
plate them  as  forming  the  fundamental  and  paramount  law  of  the 
nation,  and,  consequently,  the  theory  of  every  such  government  must . 
be,  that  an  Act  of  the  Legislature,  repugnant  to  the  Constitution,  is 
void. 

This  theory  is  essentially  attached  to  a  written  constitution,  and  is 
consequently  to  be  considered,  by  this  court,  as  one  of  the  fundamental 
principles  of  our  society.  It  is  not,  therefore,  to  be  lost  sight  of  in  the 
further  consideration  of  this  subject. 

If  an  Act  of  the  Legislature,  repugnant  to  the  Constitution,  is  void, 
does  it,  notwithstanding  its  invalidity,  bind  the  courts,  and  oblige 
them  to  give  it  effect?  Or,  in  other  words,  though  it  be  not  law, 
does  it  constitute  a  rule  as  operative  as  if  it  was  a  law  ?  This  would 
be  to  overthrow  in  fact  what  was  established  in  theory ;  and  would 
seem,  at  first  view,  an  absurdity  too  gross  to  be  insisted  on.  It  shall, 
however,  receive  a  more  attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  department 
to  say  what  the  law  is.  Those  who  apply  the  rule  to  particular 
cases,  must  of  necessity  expound  and  interpret  that  rule.  If  two 
laws  conflict  with  each  other,  the  courts  must  decide  on  the  operation 
of  each. 

So  if  a  law  be  in  opposition  to  the  Constitution  ;  if  both  the  law  and 
the  Constitution  apply  to  a  particular  case,  so  that  the  court  must  either 
decide  that  case  conformably  to  the  law,  disregarding  the  Constitution, 
or  conformably  to  the  Constitution,  disregarding  the  law,  the  court 
must  determine  which  of  these  conflicting  rules  governs  the  case.  This 
is  of  the  very  essence  of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  Constitution,  and  the  Consti- 
tution is  superior  to  any  ordinary  Act  of  the  Legislature,  the  Constitu- 
tion, and  not  such  ordinary  Act,  must  govern  the  case  to  which  they 
both  apply. 

Those,  then,  who  controvert  the  principle  that  the  Constitution  is 
to  be  considered,  in  court,  as  a  paramount  law,  are  reduced  to  the 
necessity  of  maintaining  that  courts  must  close  their  eyes  on  the  Con- 
stitution, and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written 
constitutions.  It  would  declare  that  an  Act  which,  according  to  the 
principles  and  theory  of  our  government,  is  entirely  void,  is  yet,  in 
practice,  completely  obligatory.  It  would  declare  that  if  the  legisla- 
ture shall  do  what  is  expressly  forbidden,  such  Act,  notwithstanding 
the  express  prohibition,  is  in  reality  effectual.  It  would  be  giving  to 
the  legislature  a  practical  and  real  omnipotence,  with  the  same  breath 
which  professes  to  restrict  their  powers  within  narrow  limits.  It  is 
prescribing  limits,  and  declaring  that  those  limits  may  be  passed  at 
pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the  greatest 
improvement  on  political  institutions,  a  written  constitution,  would  of 


SECT.  II.]  MAEBURY   V.   MADISON.  113 

itself  be  sufficient,  iu  America,  where  written  constitutions  have  been 
viewed  with  so  much  reverence,  for  rejecting  the  construction.  But 
the  peculiar  expressions  of  the  Constitution  of  the  United  States  fur- 
nish additional  arguments  in  favor  of  its  rejection. 

The  judicial  power  of  the  United  States  is  extended  to  all  cases 
arising  under  the  Constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say  that 
in  using  it  the  Constitution  should  not  be  looked  into  ?  That  a  case 
arising  under  the  Constitution  should  be  decided  without  examining 
the  instrument  under  which  it  arises  ? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases,  then,  the  Constitution  must  be  looked  into  by  the 
judges.  And  if  they  can  open  it  at  all,  what  part  of  it  ai-e  they  for- 
bidden to  read  or  to  obey  ? 

There  are  many  other  parts  of  the  Constitution  which  serve  to  illus- 
trate this  subject. 

It  is  declared  that  "  no  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State."  Suppose  a  duty  on  the  export  of  cotton,  of  tobacco, 
or  of  flour  ;  and  a  suit  instituted  to  recover  it.  Ought  judgment  to  be 
rendered  in  such  a  case?  ought  the  judges  to  close  their  eyes  on  the 
Constitution,  and  only  see  the  law? 

The  Constitution  declares  "  that  no  bill  of  attainder  or  ex  post  facto 
law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed,  and  a  person  should  be 
prosecuted  under  it,  must  the  court  condemn  to  death  those  victims 
whom  the  Constitution  endeavors  to  preserve  ? 

"  No  person,"  says  the  Constitution,  "  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court." 

Here  the  language  of  the  Constitution  is  addressed  especially  to  the 
courts.  It  prescribes,  directly  for  them,  a  rule  of  evidence  not  to  be 
departed  from.  If  the  legislature  should  change  that  rule,  and  declare 
one  witness,  or  a  confession  out  of  court,  sufficient  for  conviction,  must 
the  constitutional  principle  yield  to  the  legislative  Act? 

From  these,  and  many  other  selections  which  might  be  made,  it 
is  apparent  that  the  framers  of  the  Constitution  contemplated  that 
instrument  as  a  rule  for  the  government  of  courts,  as  well  as  of  the 
legislature. 

Why  otherwise  does  it  direct  the  judges  to  take  an  oath  to  support 
it?  This  oath  certainly  applies  in  an  especial  manner  to  their  conduct 
in  their  official  character.  How  immoral  to  impose  it  on  them,  if  they 
were  to  be  used  as  the  instruments,  and  the  knowing  instruments,  for 
violating  what  they  swear  to  support ! 

y  The  oath  of  office,  too,  imposed  by  the  legislature,  is  completely 
demonstrative  of  the  legislative  opinion  on  this  subject.  It  is  in 
these  words:   "I  do  solemnly  swear  that  I  will  administer  justice 


114  FLETCHER   V.    PECK.  [CHAP.  L 

without  respect  to  persons,  and  do  equal  right  to  the  poor  and  to  the 
rich  ;  and  that  I  will  faithfully  and  impartially  discharge  all  the  duties 
incumbent  on  me  as  ,  according  to  the  best  of  my  abilities  and 

understanding,  agreeably  to  the  Constitution  and  laws  of  the  United 
States." 

Why  does  a  judge  swear  to  discharge  his  duties  agreeably  to  the 
Constitution  of  the  United  States,  if  that  Constitution  forms  no  rule 
for  his  government  —  if  it  is  closed  upon  him,  and  cannot  be  inspected 
by  him  ? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn  mock- 
ery.    To  prescribe,  or  to  take  this  oath,  becomes  equally  a  crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  declaring 
what  shall  be  the  supreme  law  of  the  laud,  the  Constitution  itself  is 
first  mentioned  ;  and  not  the  laws  of  the  United  States  generally,  but 
those  only  which  shall  be  made  in  pursuance  of  the  Constitution,  have 
that  rank. 

Thus,  the  particular  phraseology  of  the  Constitution  of  the  United 
States  confirms  and  strengthens  the  principle,  supposed  to  be  essen- 
tial to  all  written  constitutions,  that  a  law  repugnant  to  the  Consti- 
tution is  void  ;  and  that  courts,  as  well  as  other  departments,  are 
bound  by  that  instrument.  The  rule  must  he  discharged. 


FLETCHER  v.   PECK. 
Supreme  Court  of  the  United  States.     1810. 

[6  Crunch,  87 ;  2  Curtis's  Decisions,  328.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Massachusetts,  in  an  action  of  covenant  brought  by  Fletcher  against 
Peck.   .   .  . 

The  plaintiff  sued  out  his  writ  of  error,  and  the  case  was  twice  ar-* 
gued,  first  by  Martin,  for  the  plaintiff  in  error,  and  by  J.  Q.  Adams, 
and  B.  G.  Harper,  for  the  defendant,  at  February  Term,  1809,  and 
again  at  this  term  by  Martin,  for  the  plaintiff,  and  by  Harper  and 
/St07"t/,  for  the  defendant.  .   .  . 

March  16,  1810.  Marshall,  C.  J.,  delivered  the  opinion  of  the  court 
as  follows  : 

The  pleadings'  being  now  amended,  this  cause  comes  on  again  to  bo 
heard  on  sundry  demurrers,  and  on  a  special  verdict. 

This  suit  was  instituted  on  several  covenants  contained  in  a  deed 
made  by  John  Peck,  the  defendant  in  error,  conveying  to  Robert 
Fletcher,  the  plaintiff  in  error,  certain  lands  which  were  part  of  a  large 
purchase  made  by  James  Gunn  and  others,  in  the  year  1795,  from  the 


SECT.  II.]  FLETCHER  V.   PECK.  115 

State  of  Georgia,  the  contract  for  which  was  made  iu  the  form  of  a  bill 
passed  b}-  the  legislature  of  that  State. 

The  first  count  in  the  declaration  set  forth  a  breach  in  the  second 
covenant  contained  in  the  deed.  The  covenant  is,  "  that  the  Legisla- 
ture of  the  State  of  Georgia,  at  the  time  of  passing  the  Act  of  Sale 
aforesaid,  had  good  right  to  sell  and  dispose  of  the  same  in  manner 
pointed  out  by  the  said  Act."  The  breach  assigned  is,  that  the  legis- 
lature had  no  power  to  sell. 

The  plea  in  bar  sets  forth  the  Constitution  of  the  State  of  Georgia, 
and  avers  that  the  lands  sold  by  the  defendant  to  the  plaintiff,  were 
within  that  State.  It  then  sets  forth  the  granting  Act,  and  avers  the 
power  of  the  legislature  to  sell  and  dispose  of  the  premises  as  pointed 
out  by  the  Act. 

To  this  plea  the  plaintiff  below  demurred,  and  the  defendant  joined 
in  demurrer. 

That  the  Legislature  of  Georgia,  unless  restrained  b}'  its  own  Consti- 
tution, possesses  the  power  of  disposing  of  the  unappropriated  lands 
within  its  own  limits,  in  such  manner  as  its  own  judgment  shall  dictate, 
is  a  proposition  not  to  be  controverted.  The  only  question,  then,  pre- 
sented by  this  demurrer,  for  the  consideration  of  the  court,  is  this,  did 
the  then  Constitution  of  the  State  of  Georgia  prohibit  the  legislature  to 
dispose  of  the  lands,  which  were  the  subject  of  this  contract,  in  the 
manner  stipulated  by  the  contract? 

The  question,  whether  a  law  be  void  for  its  repugnancy  to  the  Con- 
stitution, is,  at  all  times,  a  question  of  much  delicacy,  which  ought  sel- 
dom, if  ever,  to  be  decided  in  the  affirmative,  in  a  doubtful  case.  The 
court,  when  impelled  by  duty  to  render  such  a  judgment,  would  be  un- 
worthy of  its  station,  could  it  be  unmindful  of  the  solemn  obligations 
which  that  station  imposes.  But  it  is  not  on  slight  implication  and 
vague  conjecture  that  the  legislature  is  to  be  pronounced  to  have  tran- 
scended its  powers,  and  its  Acts  to  be  considered  as  void.  The  oppo- 
sition between  the  Constitution  and  the  law  should  be  such  that  the 
judge  feels  a  clear  and  strong  conviction  of  their  incompatibility  with 
each  other. 

In  this  case  the  court  can  perceive  no  such  opposition.  In  the  Con- 
stjt,iitinn  of  Gf^«^rf^'^i  adopted  in  the  year  1789,  the  court  can  perceive 
no  restriction  on  the  legislative  power,  wliieli  inhil^its  the  passage  of  the 
Act  of  1  795^  They  cannot  say  that,  in  passing  that  Act,  the  legislature 
has  transcended  its  powers,  and  violated  the  Constitution. 

In  overruling  the  demurrer,  therefore,  to  the  first  plea,  the  Circuit 
Court  committed  no  error. 

The  third  covenant  is,  that  all  the  title  which  the  State  of  Georgia 
ever  had  in  the  premises  had  been  legally  convejed  to  John  Peck,  the 
grantor. 

The  second  count  assigns,  in  substance,  as  a  breach  of  this  covenant, 
that  the  original  grantees  from  the  State  of  Georgia  promised  and 
assured  divers  members  of  the  legislature,  then  sitting  in  general  as- 


116  FLETCHER   V.   PECK.  [CHAP.  I. 

scmbly,  that  if  the  said  inembers  would  assent  to,  and  vote  for,  the 
passing  of  the  Act,  and  if  the  said  bill  should  pass,  such  members  should 
have  a  sliare  of,  and  be  interested  in,  all  the  lands  purchased  from  the 
said  State  by  virtue  of  such  law.  And  that  divers  of  the  said  members, 
to  whom  the  said  promises  were  made,  were  unduly  influenced  thereby, 
and,  under  such  influence,  did  vote  for  the  passing  of  the  said  bill ;  by 
reason  whereof  the  said  law  was  a  nullity,  &c.,  and  so  the  title  of  the 
State  of  Georgia  did  not  pass  to  the  said  Peck,  &c. 

The  plea  to  this  count,  after  protesting  that  the  promises  it  alleges 
were  not  made,  avers,  that  until  after  the  purchase  made  from  the  orig- 
inal grantees  by  James  Greenleaf,  under  whom  the  said  Peck  claims, 
neither  the  said  James  Greenleaf,  nor  the  said  Peck,  nor  any  of  the 
mesne  vendors  between  the  said  Greenleaf  and  Peck,  had  any  notice  or 
knowledge  that  an}'  such  promises  or  assurances  were  made  b}'  the  said 
original  grantees,  or  either  of  them,  to  any  of  the  members  of  the  Legis- 
lature of  the  State  of  Georgia. 

To  this  plea  the  plaintiff"  demurred  generally,  and  the  defendant  joined 
in  the  demurrer. 

That  corruption  should  find  its  way  into  the  governments  of  our  infant 
republics,  and  contaminate  the  ver}'  source  of  legislation,  or  that  impure 
motives  should  contribute  to  the  passage  of  a  law,  or  the  formation  of 
a  legislative  contract,  are  circumstances  most  deeply  to  be  deplored. 
How  far  a  court  of  justice  would,  in  any  case,  be  competent,  on  pro- 
ceedings instituted  by  the  State  itself,  to  vacate  a  contract  thus  formed, 
and  to  annul  rights  acquired  under  that  contract,  b}'  third  persons 
having  no  notice  of  the  improper  means  b\'  which  it  was  obtained,  is  a 
question  which  the  court  would  approach  with  much  circumspection. 
It  may  well  be  doubted  how  far  the  validity  of  a  law  depends  upon  the 
motives  of  its  framers,  and  how  far  the  particular  inducements,  oper- 
ating on  members  of  tlie  supreme  sovereign  power  of  a  State,  to  the 
formation  of  a  contract  b^"  that  power,  are  examinable  in  a  court  of 
justice.  If  the  principle  be  conceded,  that  an  Act  of  the  supreme  sov- 
ereign power  might  be  declared  null  b}'  a  court,  in  consequence  of  the 
means  which  procured  it,  still  would  there  be  much  difficult}^  in  saying 
to  what  extent  those  means  must  be  applied  to  produce  this  effect. 
Must  it  be  direct  corruption,  or  would  interest  or  undue  influence  of 
any  kind  be  suflficient?  Must  the  vitiating  cause  operate  on  a  majorit}', 
or  on  what  number  of  the  members?  Would  the  Act  be  null,  whatever 
might  be  the  wish  of  the  nation,  or  would  its  obligation  or  nullit}'  depend 
upon  the  public  sentiment? 

If  the  majority  of  the  legislature  be  corrupted,  it  ma}'  well  be  doubted 
whether  it  be  within  the  province  of  the  judiciar}'  to  control  their  con- 
duct, and,  if  less  than  a  majorit}'  act  from  impure  motives,  the  prin- 
ciple by  which  judicial  interference  would  be  regulated  is  not  clearly 
discerned. 

Whatever  difficulties  this  subject  might  present,  when  viewed  under 
aspects  of  which  it  may  be  susceptible,  this  court  can  perceive  none  in 
the  particular  pleadings  now  under  consideration. 


SECT.  II.]  FLETCHER   V.    PECK.  117 

This  is  not  a  bill  brought  b}'  the  State  of  Georgia  to  annul  the  con- 
tract, nor  does  it  appear  to  the  court,  by  this  count,  that  the  State  of 
Georgia  is  dissatisfied  with  the  sale  that  has  been  made.  The  case,  as 
made  out  in  the  pleadings,  is  simpl}-  this.  One  individual  who  holds 
lands  in  the  State  of  Georgia,  under  a  deed  covenanting  that  the  title 
of  Georgia  was  in  the  grantor,  brings  an  action  of  covenant  upon  this 
deed,  and  assigns,  as  a  breach,  that  some  of  the  members  of  the  legisla- 
ture were  induced  to  vote  in  favor  of  the  law  which  constituted  the  con- 
tract, bj-  being  promised  an  interest  in  it,  and  that  therefore  the  Act  is  a 
mere  nuUit}'. 

This  solemn  question  cannot  be  brought  thus  collaterally  and  inci- 
dentally before  the  court.  It  would  be  indecent  in  the  extreme,  upon 
a  private  contract  between  two  individuals,  to  enter  into  an  inquir}'  re- 
specting the  corruption  of  the  sovereign  power  of  a  State.  Jf  the  title 
be  plainly  deduced  from  a  legislative  Act,  which  the  legislature  mi^ht 
-constitutionally  pass,  if  the  Act  be  clothed  with  all  the  requisite  forms 
of  a  law,  a  court,  sitting  as  a  court  of  law,  cannot  sustain  a  suit  brought 
by  one  individual  against  another  founded  on  the  allegation  that  the  Act 
is  a  nullit}',  in  consequence  of  tlie  impure  motives  which  influencea  cer- ' 
tarn  members  of  the  legislature  whi(;h  passed  the  lavy. 

The  Circuit  Court,  therefore,  did  right  in  overruling  this  demurrer. 

The  fourth  covenant  in  the  deed  is,  that  the  title  to  the  premises  has 
been  in  no  way  constitutionally  or  legall}'  impaired  by  virtue  of  an}-  sub- 
sequent Act  of  any  subsequent  legislature  of  the  State  of  Georgia. 

The  third  count  recites  the  undue  means  practised  on  certain  mem- 
bers of  the  legislature,  as  stated  in  the  second  count,  and  then  alleges 
that,  in  consequence  of  these  practices  and  of  other  causes,  a  subse- 
quent legislature  passed  an  Act  annulling  and  rescinding  the  law  under 
which  the  convej'ance  to  the  original  grantees  was  made,  declaring  that 
conveyance  void,  and  asserting  the  title  of  the  State  to  the  lands  it  con- 
tained. The  count  proceeds  to  recite  at  large  this  rescinding  Act,  and 
concludes  with  averring  that,  by  reason  of  this  Act,  the  title  of  the  said 
Peck  in  the  premises  was  constitutionally  and  legally  impaired,  and 
rendered  null  and  void. 

After  protesting  as  before  that  no  such  promises  were  made  as  stated 
in  this  count,  the  defendant  again  pleads  that  himself  and  the  first  pur- 
chaser under  the  original  grantees,  and  all  intermediate  holders  of  the 
propert}',  were  purchasers  without  notice. 

To  this  plea  there  is  a  demurrer  and  joinder. 

The  importance  and  the  difficult}'  of  the  questions  presented  by  these 
pleadings,  are  deeply  felt  by  the  court. 

The  lands  in  controversy  vested  absolutely  in  James  Gunn  and  oth- 
ers, the  original  grantees,  by  the  conveyance  of  the  Governor,  made  in 
pursuance  of  an  Act  of  Assembly  to  which  the  legislature  was  fully  com- 
petent. Being  thus  in  full  possession  of  the  legal  estate,  they,  for  a 
valuable  consideration,  conveyed  portions  of  the  land  to  those  who 
were  willing  to  purchase.     If  the  original  transaction  was  infected  with 


118  FLETCHER   V.   PECK.  [CHAP.  I. 

fraud,  tliese  purchasers  did  not  participate  in  it.  and  had  no  notice  of 
it.  They  were  innocent.  Yet  the  LegisLature  of  Georgia  has  involved 
them  in  the  fate  of  the  first  parties  to  the  transaction,  and,  if  the  Act  be 
vaUd,  has  anniiiilated  their  rights  also. 

The  Legislature  of  Georgia  was  a  part}'  to  this  transaction  ;  and  for 
a  part}'  to  pronounce  its  own  deed  invalid,  whatever  cause  ma}'  be  as- 
signed for  its  invalidity,  must  be  considered  as  a  mere  act  of  power 
which  must  find  its  vindication  in  a  train  of  reasoning  not  often  heard 
in  courts  of  justice. 

But  the  real  party,  it  is  said,  are  tlie  people,  and  when  their  agents 
are  unfaithful,  the  acts  of  those  agents  cease  to  be  obligatory. 

It  is,  however,  to  be  recollected  that  the  people  can  act  only  by  these 
agents,  and  that,  while  within  the  powers  conferred  on  them,  their  acts 
must  be  considered  as  the  acts  of  the  people.  If  the  agents  be  corrupt, 
others  may  be  chosen,  and  if  their  contracts  be  examinable,  the  com- 
mon sentiment,  as  well  as  common  usage  of  mankind,  points  out  a 
mode  by  which  this  examination  may  be  made,  and  their  validity 
determined. 

If  the  Legislature  of  Georgia  was  not  bound  to  submit  its  pretensions 
to  those  tribunals  which  are  established  for  the  security  of  property, 
and  to  decide  on  human  rights,  if  it  might  claim  to  itself  the  power  of 
judging  in  its  own  case,  yet  there  are  certain  great  principles  of  justice, 
whose  authority  is  universally  acknowledged,  that  ought  not  to  be  en- 
tirely disregarded. 

If  the  legislature  be  its  own  judge  in  its  own  case,  it  would  seem  equi- 
table that  its  decisions  should  be  regulated  by  those  rules  which  would 
have  regulated  the  decision  of  a  judicial  tribunal.  The  question  was, 
in  its  nature,  a  question  of  title,  and  the  tribunal  which  decided  it  was 
either  acting  in  the  character  of  a  court  of  justice,  and  performing  a 
duty  usually  assigned  to  a  court,  or  it  was  exerting  a  mere  act  of  power 
in  which  it  was  controlled  only  by  its  own  will. 

If  a  suit  be  brought  to  set  aside  a  conveyance  obtained  by  fraud,  and 
the  fraud  be  clearly  proved,  the  conve}-ance  will  be  set  aside,  as  between 
the  parties  ;  but  the  rights  of  third  persons,  who  are  purchasers  without 
notice,  for  a  valuable  consideration,  cannot  be  disregarded.  Titles, 
which,  according  to  every  legal  test,  are  perfect,  are  acquired  with  that 
confidence  which  is  inspired  by  the  opinion  that  the  purchaser  is  safe. 
If  there  be  any  concealed  defect,  arising  from  the  conduct  of  those  who 
had  held  the  property  long  before  he  acquired  it,  of  which  he  had  no 
notice,  that  concealed  defect  cannot  be  set  up  against  him.  He  has 
paid  his  money  for  a  title  good  at  law  ;  he  is  innocent,  whatever  may 
be  the  guilt  of  others,  and  equity  will  not  subject  him  to  the  penalties 
attached  to  that  guilt.  All  titles  would  be  insecure,  and  the  intercourse 
between  man  and  man  would  be  very  seriously  obstructed,  if  this  prin- 
ple  be  overturned. 

A  Court  of  Chancery,  therefore,  had  a  bill  been  brought  to  set  aside 
the  conveyance  made  to  James  Gunn  and  others,  as  being  obtained  by 


SECT.  II.] 


FLETCHER   V.   PECK.  119 


improper  practices  with  the  legislature,  whatever  might  have  been  its 
decision  as  respected  the  original  grantees,  would  have  been  bound, 
by  its  own  rules,  and  by  the  clearest  principles  of  equity,  to  leave 
unmolested  those  who  were  purchasers,  without  notice,  for  a  valuable 
consideration. 

If  tlie  legislature  felt  itself  absolved  from  those  rules  of  property 
which  are  common  to  all  the  citizens  of  the  United  States,  and  from 
those  principles  of  equity  which  are  acknowledged  in  all  our  courts,  its 
Act  is  to  be  supported  by  its  power  alone,  and  the  same  power  may 
divest  any  other  individual  of  his  lands,  if  it  shall  be  the  will  of  the 
legislature  so  to  exert  it. 

It  is  not  intended  to  speak  with  disrespect  of  the  Legislature  of  Georgia, 
or  of  its  Acts.  Far  from  it.  The  question  is  a  general  question,  and  is 
treated  as  one.  For  although  such  powerful  objections  to  a  legislative 
grant,  as  arc  alleged  against  this,  may  not  again  exist,  yet  the  principle, 
on  which  alone  this  rescinding  Act  is  to  be  supported,  may  be  applied 
to  every  case  to  which  it  shall  be  the  will  of  any  legislature  to  apply  it. 
The  principle  is  this  :  that  a  legislature  may,  by  its  own  Act,  divest  the 
vested  estate  of  any  man  whatever,  for  reasons  which  shall,  by  itself, 
be  deemed  sufficient.  ,  ^ 

In  this  case  the  legislature  may  have  had  ample  proof  that  the  origi- 
nal grant  was  obtained  by  practices  which  can  never  be  too  much  repro- 
bate'd,  and  which  would  have  justified  its  abrogation  so  far  as  respected 
those  to  whom  crime  was  imputable.  But  the  grant,  when  issued,  con- 
veyed an  estate  in  fee-simple  to  the  grantee,  clothed  with  all  the  solem- 
nities which  law  can  bestow.  This  estate  was  transferable  ;  and  those 
who  purchased  parts  of  it  were  not  stained  by  that  guilt  which  infected 
the  original  transaction.  Tlieir  case  is  not  distinguishable  from  the 
ordinary  case  of  purchasers  of  a  legal  estate  without  knowledge  of  any 
secret  fraud  which  might  have  led  to  the  emanation  of  the  original  grant. 
According  to  the  well-known  course  of  equity,  their  rights  could  not  be 
affected  by  such  fraud.  Their  situation  was  the  same,  their  title  was 
the  same,  with  that  of  every  other  member  of  the  community  who  holds 
land  by  regular  conveyances  from  the  original  patentee. 

Is  the  power  of  the  legislature  competent  to  the  annihilation  of  such 
title,  and  to  a  resumption  of  the  property  thus  held? 

The  principle  asserted  is,  that  one  leg;islature  is  _cmmietPrit  to  repeal 
any  Act  which  a  former  legislature  was  competent  to  pass  ;  and  that  one 
Wislntnre  cannot  abridge  the  nowf-rs  of  a  succeedino-  leojslatnrc. 

The  correctness  of  this  principle,  so  fai-jis^xespecTs  general  legisla- 
tion, can  never  be  controverted.  BBfcrtan_a£t,b.p  done  under  a  law^ 
succeeding  lecrislature  cannot  undo-it-  The  past  cannot  be  recalled  by 
the  most  absolute  power.  Conveyances  have  been  made,  those  convey- 
ances have  vested  legal  estates,  and,  if  those  estates  may  be  seised  by 
the  sovereign  authority,  still,  that  they  originally  vested  is  a  f-xct,  and 
cannot  cease  to  be  a  fact. 

When,  then,  a  law  is  in  its  nature  a  contract,  when  absolute  rights 


120  FLETCHER   V.   PECK.  [CHAP.  I. 

have  vested  under  that  contract,  a  repeal  of  the  law  cannot  divest  those 
rights  ;  and  the  act  of  annulling  them,  if  legitimate,  is  rendered  so  by  a 
DOwer  applicable  to  the  case  of  everj'  individual  in  the  community. 
f  It  may  well  be  doubted  whether  the  nature  of  society  and  of  govern- 
ment does  not  prescribe  some  limits  to  the  legislative  power ;  and  if 
any  be  prescribed,  where  are  they  to  be  found,  if  the  property  of 
an  individual,  fairly  and  honestly  acquired,  may  be  seised  without 
compensation. 

To  the  legislature  all  legislative  power  is  granted ;  but  the  question, 
whether  the  act  of  transferring  tlie  property  of  an  individual  to  the  pub- 
lic, be  in  the  nature  of  the  legislative  power,  is  well  worthj'  of  serious 
reflection. 

It  is  the  peculiar  province  of  the  legislature  to  prescribe  general  rules 
for  the  government  of  societ}' ;  the  application  of  those  rules  to  indi- 
viduals in  society  would  seem  to  be  the  dut}'  of  other  departments. 
How  far  the  power  of  giving  the  law  ma}-  involve  every  other  power,  in 
cases  where  the  Constitution  is  silent,  never  has  been,  and  perhaps  never 
can  be,  definitely  stated. 

The  validity  of  this  rescinding  Act,  then,  might  well  be  doubted,  were 
Georgia  a  single  sovereign  power.  But  Georgia  cannot  be  viewed  as  a 
single,  unconnected,  sovereign  power,  on  whose  legislature  no  other  re- 
strictions are  imposed  than  may  be  found  in  its  own  Constitution.  She 
is  a  part  of  a  large  empire ;  she  is  a  member  of  the  American  Union  ; 
and  that  union  has  a  constitution  the  supremac}'  of  which  all  acknowl- 
edge, and  which  imposes  limits  to  the  legislatures  of  the  several  States, 
which  none  claim  a  right  to  pass.  The  Constitution  of  the  United 
States  declares  that  no  State  shall  pass  any  bill  of  attainder,  ex  2>ost 
facto  law,  or  law  impairing  the  obligation  of  contracts. 

Does  the  case  now  under  consideration  come  within  this  prohibitory 
section  of  the  Constitution  ? 

In  considering  this  ver^-  interesting  question,  we  immediatel}'  ask 
ourselves  what  is  a  contract?     Is  a  grant  a  contract? 

A  contract  is  a  compact  between  two  or  more  parties,  and  is  either 
executory  or  executed.  An  executory  contract  is  one  in  which  a  part}' 
binds  himself  to  do,  or  not  to  do,  a  particular  thing ;  such  was  the  law 
under  which  the  conveyance  was  made  by  the  Governor.  A  contract 
executed  is  one  in  which  the  object  of  contract  is  performed  ;  and  this, 
says  Blackstone,  differs  in  nothing  from  a  grant.  The  contract  between 
Georgia  and  the  purchasers  was  executed  by  the  grant.  A  contract 
executed,  as  well  as  one  which  is  executory,  contains  ol)ligations  bind- 
ing on  the  parties.  A  grant,  in  its  own  nature,  amounts  to  an  extin- 
guishment of  the  right  of  the  grantor,  and  implies  a  contract  not  to 
reassert  that  right.  A  party  is,  therefore,  always  estopped  by  his  own 
grant. 

Since,  then,  in  fact,  a  grant  is  a  contract  executed,  the  obligation  of 
which  still  continues,  and  since  the  Constitution  uses  the  general  term 
contract,  without  distinguishing  between  those  which  are  executory  and 


SECT.  II.]  FLETCHER  V.   PECK.  121 

those  which  are  executed,  it  must  be  construed  to  comprehend  the  lat- 
ter as  well  as  the  former.  A  law  annulling  conveyances  between  indi- 
viduals, and  declaring  that  the  grantors  should  stand  seised  of  their 
former  estates,  notwithstanding  those  grants,  would  be  as  repugnant  to 
tlie  Constitution  as  a  law  discliarging  the  vendors  of  property  from  the 
o])ligation  of  executing  their  contracts  l)y  conveyances.  It  would  be 
strange  if  a  contract  to  conve}'  was  secured  b}'  the  Constitution,  while 
an  absolute  conveyance  remained  unprotected. 

If,  under  a  fair  construction  of  the  Constitution,  grants  are  compre- 
hended under  the  term  contracts,  is  a  grant  from  the  State  excluded 
from  the  operation  of  the  provision  ?  Is  the  clause  to  be  considered  as 
inhibiting  tlie  State  from  impairing  the  obligation  of  contracts  between 
two  individuals,  but  as  excluding  from  that  inhibition  contracts  made 
with  itself? 

The  words  themselves  contain  no  such  distinction.  The}'  are  general, 
and  are  applicable  to  contracts  of  every  description.  If  contracts  made 
with  the  State  are  to  be  exempted  from  their  operation,  the  exception 
must  arise  from  the  character  of  the  contracting  part}-,  not  from  the 
words  which  are  eniplojed. 

Whatever  respect  might  have  been  felt  for  the  State  sovereignties,  it 
is  not  to  be  disguised  that  the  fraraers  of  the  Constitution  viewed,  with 
some  apprehension,  the  violent  acts  which  might  grow  out  of  the  feelings 
of  the  moment ;  and  that  the  people  of  the  United  States,  in  adopting 
that  instrument,  have  manifested  a  determination  to  shield  themselves 
and  their  property  from  the  effects  of  those  sudden  and  strong  passions 
to  which  men  are  exposed.  The  restrictions  on  the  legislative  power  of 
the  States  are  obviously  founded  in  this  sentiment ;  and  the  Constitu- 
tion of  the  United  States  contains  what  may  be  deemed  a  bill  of  rights 
for  the  people  of  each  State. 

No  State  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts. 

A  bill  of  attainder  may  affect  the  life  of  an  individual,  or  may  confis- 
cate his  property,  or  may  do  both. 

In  this  form  the  power  of  the  legislature  over  the  lives  and  fortunes 
of  individuals  is  expressly  restrained.  What  motive,  then,  for  implying, 
in  words  which  import  a  general  prohibition  to  impair  the  obligation  of 
contracts,  an  exception  in  favor  of  the  right  to  impair  the  obligation  of 
those  contracts  into  which  the  State  ma}-  enter? 

The  State  legislatures  can  pass  no  ex  2)ost  facto  law.  An  ex  post  facto 
law  is  one  which  renders  an  act  punishable  in  a  manner  in  which  it  was 
not  punishable  when  it  was  committed.  Such  a  law  may  inflict  penal- 
ties on  the  person,  or  may  inflict  pecuniary  penalties  which  swell  the 
public  treasury.  The  legislature  is  then  prohibited  from  passing  a  law 
by  which  a  man's  estate,  or  any  part  of  it,  shall  be  seised  for  a  crime 
which  was  not  declared,  by  some  previous  law,  to  render  him  liable  to 
that  punishment.  Why,  then,  should  violence  be  done  to  the  natural 
meaning  of  words  for  the  purpose  of  leaving  to  the  legislature  the  power 


122  FLETCHER   V.   PECK,  [CHAP.  L 

of  seising,  for  public  use,  the  estate  of  an  individual  in  the  form  of  a 
law  annulling  the  title  b}'  which  he  holds  that  estate?  The  court  can 
perceive  no  sufficient  grounds  for  making  that  distinction.  This  re- 
scinding Act  would  have  the  effect  of  an  ex  post  facto  law.  It  forfeits 
the  estate  of  Fletcher  for  a  crime  not  committed  by  himself,  but  by 
those  from  wliom  he  purchased.  This  cannot  be  effected  in  the  form 
of  an  ex  i^ost  facto  law,  or  bill  of  attainder;  wh}-,  then,  is  it  allowable 
in  the  form  of  a  law  annulling  the  original  grant? 

The  argument  in  favor  of  presuming  an  intention  to  except  a  case, 
not  excepted  b}-  the  words  of  the  Constitution,  is  susceptible  of  some 
illustration  from  a  principle  originally  engrafted  in  that  instrument, 
tliough  no  longer  a  part  of  it.  The  Constitution,  as  passed,  gave  the 
courts  of  the  United  States  jurisdiction  in  suits  brought  against  indi- 
vidual States.  A  State,  then,  which  violated  its  own  contract,  was 
suable  in  the  courts  of  the  United  States  for  that  violation.  Would  it 
have  been  a  defence  in  such  a  suit  to  say  that  the  State  had  passed  a 
law  absolving  itself  from  the  contract?  It  is  scarcely  to  be  conceived 
that  such  a  defence  could  be  set  up.  And  yet,  if  a  State  is  neither  re- 
strained by  the  general  principles  of  our  political  institutions,  nor  by 
the  words  of  the  Constitution,  from  impairing  the  obligation  of  its  own 
contracts,  such  a  defence  would  be  a  valid  one.  This  feature  is  no 
longer  found  in  the  Constitution  ;  but  it  aids  in  the  construction  of  those 
clauses  with  which  it  was  originally  associated. 

It  is,  then,  the  unanimous  opinion  of  the  court,  that,  in  this  case, 
the  estate  having  passed  into  the  hands  of  a  purchaser  for  a  valuable 
consideration,  without  notice,  the  State  of  Georgia  was  restrained, 
either  bv  general  principles  which  are  common  to  our  free  institutjon s^ 
or  b}'  the  particular  provisions  of  the  Constitution  of  the  UiTJted  StateSj_ 
from  passing  a  law  whereby  the  estate  of  the  plaiiitiff  in  the  premises  so 
purchased  could  be  constitutionally  and  legally  impaired  and  reiidered 
null  and  void. 

In  overruling  the  demurrer  to  the  third  plea,  therefore,  there  is  no 
error.  .  .   . 

The  question,  whether  the  vacant  lands  within  the  United  States 
became  a  joint  property,  or  belonged  to  the  separate  States,  was  a  mo- 
mentous question,  which,  at  one  time,  threatened  to  shake  the  Ameri- 
can confederac}'  to  its  foundation.  This  important  and  dangerous 
contest  has  been  compromised,  and  the  compromise  is  not  now  to  be 
disturbed. 

It  is  the  opinion  of  the  court,  that  the  particular  land  stated  in  the 
declaration  appears,  from  this  special  verdict,  to  lie  within  the  State  of 
Georgia,  and  that  the  State  of  Georgia  had  power  to  grant  it. 

Some  difficulty  was  produced  by  the  language  of  the  covenant,  and 
of  the  pleadings.  It  was  doubted  whether  a  State  can  be  seised  in  fee 
of  lands  subject  to  the  Indian  title,  and  whether  a  decision  that  they 
were  seised  in  fee  might  not  be  construed  to  amount  to  a  decision  that 
thoir  grantee  might  maintain  an  ejectment  for  them,  notwithstanding 
that  title. 


SECT.  II.]  MAETIN   V.   HUNTER'S   LESSEE.  123 

The  mtijority  of  the  court  is  of  opinion  that  the  nature  of  the  Indian 
title,  which  is  certain!}'  to  be  respected  b}-  all  courts,  until  it  be  legiti- 
matel}'  extinguished,  is  not  such  as  to  be  absolutel}-  repugnant  to  seisin 
in  fee  on  the  part  of  the  State. 

Judgment  affirmed,  with  costs. 

[The  opinion  of  Johnson,  J.,  is  omitted.] 


MARTIN,  Heir  at  Law  and  Devisee  of  Fairfax,  v.  HUNTER'S 

LESSEE. 

Supreme  Court  of  the  United  States.     1816. 

[1    Wheaton,  304  ;  3  Curtis's  Decisions,  562.] 

This  case  is  fully  stated  in  the  opinion  of  the  court. 

Jones.,  for  the  plaintiff  in  error. 

Tucker  and  Dexter,  for  the  defendant. 

Story,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  from  the  Court  of  Appeals  of  Virginia,  founded 
upon  the  refusal  of  that  court  to  obe}'  the  mandate  of  this  court,  re- 
quiring the  judgment  rendered  in  this  very  cause,  at  February  Term, 
1813,  to  be  carried  into  due  execution.  The  following  is  the  judgment 
of  the  Court  of  Appeals  rendered  on  the  mandate  :  "  The  court  is  unani-. 
mously  of  opinion,  that  the  appellate  power  of  the  Supreme  Court  of 
the  United  States  does  not  extend  to  this  court,  under  a  sound  con- 
struction of  the  Constitution  of  the  United  States  ;  that  so  much  of  the 
25th  section  of  the  Act  of  Congress  to  establish  the  Judicial  Courts  of 
the  United  States,  as  extends  the  appellate  jurisdiction  of  the  Supreme 
Court  to  this  court,  is  not  in  pursuance  of  the  Constitution  of  the  United 
States  ;  that  the  writ  of  error  in  this  cause  was  improvidently  allowed 
under  the  authority  of  that  Act ;  that  the  proceedings  thereon  in  the 
Supreme  Court  were  coram  non  juclice,  in  relation  to  this  court,  and 
that  obedience  to  its  mandate  be  declined  by  the  court."  .  .  . 

Before  proceeding  to  the  principal  questions,  it  may  not  be  unfit  to 
dispose  of  some  preliminary  considerations  which  have  grown  out  of  the 
arguments  at  the  Bar. 

The  Constitution  of  the  United  States  was  ordained  and  established, 
not  by  the  States  in  their  sovereign  capacities,  but  emphatically,  as  the 
preamble  of  the  Constitution  declares,  by  "the  people  of  the  United 
States."  There  can  be  no  doubt  that  it  was  competent  to  the  people 
to  invest  the  general  government  with  all  the  powers  which  they  might 
deem  proper  and  necessary  ;  to  extend  or  restrain  these  powers  accord- 
ing to  their  own  good  pleasure,  and  to  give  them  a  paramount  and 
supreme  authority.  As  little  doubt  can  there  be,  that  the  people  had  a 
right  to  prohibit  to  the  States  the  exercise  of  any  powers  which  were, 


124  MARTIN   V.   HUNTEE's   LESSEE.  [CHAP.  I. 

in  their  judgment,  iueorapatible  with  the  objects  of  the  general  compact ; 
to  make  the  powers  of  the  State  governments,  in  given  cases,  subor- 
dinate to  those  of  the  nation,  or  to  reserve  to  themselves  those  sov- 
ereign authorities  which  they  might  not  choose  to  delegate  to  either. 
The  Constitution  was  not,  therefore,  necessarily  carved  out  of  existing 
State  sovereignties,  nor  a  surrender  of  powers  already  existing  in  State 
institutions,  for  the  powers  of  the  States  depend  upon  their  own  consti- 
tutions ;  and  the  people  of  everj'  State  had  the  right  to  modify  and 
restrain  them,  according  to  their  own  views  of  polic}"  or  principle.  On 
the  other  hand,  it  is  perfectly-  clear  that  the  sovereign  powers  vested  in 
the  State  governments,  by  their  respective  constitutions,  reriiained  un- 
altered and  unimpaired,  except  so  far  as  the}'  were  granted  to  the 
government  of  the  United  States. 

These  deductions  do  not  rest  upon  general  reasoning,  plain  and  obvi- 
ous as  they  seem  to  be.  The}'  have  been  positively  recognized  by  one 
of  the  articles  in  amendment  of  the  Constitution,  which  declares  that 
"  the  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respec- 
tively, or  to  the  people." 

The  government,  then,  of  the  United  States,  can  claim  no  powers 
which  are  not  granted  to  it  by  the  Constitution,  and  the  powers  actually 
granted  must  be  such  as  are  expressly  given,  or  given  by  necessary  im- 
plication. On  the  other  hand,  this  instrument,  like  every  other  grant, 
is  to  have  a  reasonable  construction,  according  to  the  import  of  its 
terms  ;  and  where  a  power  is  expressly  given  in  general  terms,  it  is  not 
to  be  restrained  to  particular  cases,  unless  that  construction  grows  out 
of  the  context  expressly,  or  by  necessary  implication.  The  words  are 
to  be  taken  in  their  natural  and  obvious  sense,  and  not  in  a  sense 
unreasonably  restricted  or  enlarged. 

The  Constitution,  unavoidably,  deals  in  general  language.  It  did  not 
suit  the  purposes  of  the  people,  in  framing  this  great  charter  of  our 
liberties,  to  provide  for  minute  specifications  of  its  powers,  or  to  declare 
the  means  by  which  those  powers  should  be  carried  into  execution.  It 
was  foreseen  that  this  would  be  a  perilous  and  difficult,  if  not  an  imprac- 
ticable, task.  The  instrument  was  not  intended  to  provide  merely 
for  the  exigencies  of  a  few  years,  but  was  to  endure  through  a  long 
lapse  of  ages,  the  events  of  which  were  locked  up  in  the  inscrutable 
purposes  of  Providence.  It  could  not  be  foreseen  what  new  changes  and 
modifications  of  power  might  be  indispensable  to  effectuate  the  general 
objects  of  the  charter;  and  restrictions  and  specifications,  which  at  the 
present  might  seem  salutary,  might,  in  the  end,  prove  the  overthrow  of 
the  system  itself.  Hence  its  powers  are  expressed  in  general  terms, 
leaving  to  the  legislature,  from  time  to  time,  to  adopt  its  own  means  to 
effectuate  legitimate  objects,  and  to  mould  and  model  the  exercise  of  its 
powers,  as  its  own  wisdom  and  the  public  interests  should  require. 

With  these  principles  in  view,  principles  in  respect  to  which  no  dif- 
ference of  opinion  ought  to  be  indulged,  let  us  now  proceed  to  the  inter- 


SECT.  II.]  MARTIN   V.   HUNTER'S  LESSEE.  125 

pretation  of  the  Constitution,  so  far  as  regards  tlie  great  points  in 
controversy. 

The  third  article  of  the  Constitution  is  that  which  must  principally 
attract  our  attention.  .   .  . 

This  leads  us  to  the  consideration  of  the  great  question  as  to  the 
nature  and  extent  of  the  appellate  jurisdiction  of  the  United  States. 
We  have  already  seen  that  appellate  jurisdiction  is  given  by  the  Consti- 
tution to  the  Supreme  Court  in  all  cases  where  it  has  not  original  juris- 
diction, subject,  however,  to  such  exceptions  and  regulations  as  Con- 
gress may  prescribe.  It  is,  therefore,  capable  of  embracing  every  case 
enumerated  in  the  Constitution,  which  is  not  exclusively  to  be  decided 
by  way  of  original  jurisdiction.  But  the  exercise  of  appellate  jurisdic- 
tion is  far  from  being  limited  by  the  terms  of  the  Constitution  to  the 
Supreme  Court.  There  can  be  no  doubt  that  Congress  may  create  a 
succession  of  inferior  tribunals,  in  each  of  which  it  may  vest  appellate 
as  well  as  original  jurisdiction.  The  judicial  power  is  delegated  by  the 
Constitution  in  the  most  general  terms,  and  may,  therefore,  be  exercised 
by  Congress  under  every  variety  of  form,  of  appellate  or  original 
jurisdiction.  And  as  there  is  nothing  in  the  Constitution  which  restrains 
or  limits  this  power,  it  must,  therefore,  in  all  other  cases,  subsist  in  the 
utmost  latitule  of  which,  in  its  own  nature,  it  is  susceptible. 

As,  then,  by  the  terms  of  the  Constitution,  the  appellate  jurisdiction 
is  not  limited  as  to  the  Supreme  Court,  and  as  to  this  court  it  may  be 
exercised  in  all  other  cases  than  those  of  which  it  has  original  cogni- 
zance, what  is  there  to  restrain  its  exercise  over  State  tribunals  in  the 
enumerated  cases?  The  appellate  power  is  not  limited  by  the  terms  of 
the  third  article  to  any  particular  courts.  The  words  are,  "the  judi- 
cial power  (which  includes  appellate  power)  shall  extend  to  all  cases," 
(fee,  and  "in  all  other  cases  before  mentioned  the  Supreme  Court 
shall  have  appellate  jurisdiction."  It  is  the  case,  then,  and  not  the 
court,  that  gives  the  jurisdiction.  If  the  judicial  power  extends  to  the 
case,  it  will  be  in  vain  to  search  in  the  letter  of  the  Constitution  for  any 
qualification  as  to  the  tribunal  where  it  depends.  It  is  incumbent,  then, 
upon  those  who  assert  such  a  qualification  to  show  its  existence  by 
necessary  implication.  If  the  text  be  clear  and  distinct,  no  restriction 
upon  its  plain  and  obvious  import  ought  to  be  admitted,  unless  the 
inference  be  irresistible. 

If  the  Constitution  meant  to  limit  the  appellate  jurisdiction  to  cases 
pending  in  the  courts  of  the  United  States,  it  would  necessarily  follow 
that  the  jurisdiction  of  these  courts  would,  in  all  the  cases  enumerated 
in  the  Constitution,  be  exclusive  of  State  tribunals.  How  otherwise 
could  the  jurisdiction  extend  to  all  cases  arising  under  the  Constitution, 
laws,  and  treaties  of  the  United  States,  or  to  all  cases  of  admiralty  and 
maritime  jurisdiction?  If  some  of  these  cases  might  be  entertained  by 
State  tribunals,  and  no  appellate  jurisdiction  as  to  tliem  should  exist, 
then  the  appellate  power  would  not  extend  to  all,  but  to  some,  cases. 
If  State  tribunals  might  exercise  concurrent  jurisdiction   over  all  or 


126  MAKTIN   V.   hunter's   LESSEE,  [CIIAP.  I. 

some  of  the  other  classes  of  cases  in  the  Constitution  without  control, 
then  the  appellate  jurisdiction  of  the  United  States,  might,  as  to  such 
cases,  have  no  real  existence,  contrar}'  to  the  manifest  intent  of  the 
Constitution.  Under  such  circumstances,  to  give  effect  to  the  judicial 
power,  it  must  be  construed  to  be  exclusive ;  and  this  not  only  when 
the  casus  foederis  should  arise  directl} ,  but  when  it  should  arise,  inci- 
dentalh',  in  cases  pending  in  State  courts.  This  construction  would 
abridge  the  jurisdiction  of  such  court  far  more  than  has  been  ever  con- 
templated in  any  Act  of  Congress. 

On  the  other  hand,  if,  as  has  been  contended,  a  discretion  be  vested 
in  Congress  to  establish,  or  not  to  establish,  inferior  courts  at  their  own 
pleasure,  and  Congress  should  not  establish  such  courts,  the  appellate 
jurisdiction  of  the  Supreme  Court  would  have  nothing  to  act  upon, 
unless  it  could  act  upon  cases  pending  in  the  State  courts.  Under 
such  circumstances,  it  must  be  held  that  the  appellate  power  would  ex- 
tend to  State  courts ;  for  the  Constitution  is  peremptory  that  it  shall 
extend  to  certain  enumerated  cases,  which  cases  could  exist  in  no  other 
courts.  An}'  other  construction,  upon  this  supposition,  would  involve 
this  strange  contradiction,  that  a  discretionar}-  power  vested  in  Con- 
gress, and  which  they  might  rightfully  omit  to  exercise,  would  defeat 
the  absolute  injunctions  of  the  Constitution  in  relation  to  the  whole 
appellate  power. 

But  it  is  plain  that  the  framers  of  the  Constitution  did  contemplate 
that  cases  within  the  judicial  cognizance  of  the  United  States  not  only 
might  but  would  arise  in  the  State  courts,  in  the  exercise  of  their  ordi- 
nar}-  jurisdiction.  With  this  view  the  sixth  article  declares,  that  "  this 
Constitution,  and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made, 
under  the  authority  of  the  United  States,  shall  be  the  supreme  law  of 
the  land,  and  the  judges  in  ever}-  State  shall  be  bound  thereb}-,  an}-- 
thing  in  the  Constitution,  or  laws  of  an}'  State  to  the  contrary  notwith- 
standing." It  is  obvious  that  this  obligation  is  imperative  upon  the 
State  judges  in  their  official,  and  not  merely  in  their  private,  capacities. 
From  the  very  nature  of  their  judicial  duties  they  would  be  called  upon 
to  pronounce  the  law  applicable  to  the  case  in  judgment.  They  were 
not  to  decide  merely  according  to  the  laws  or  Constitution  of  the  State, 
but  according  to  the  Constitution,  laws,  and  treaties  of  the  United 
States,   "  the  supreme  law  of  the  land." 

A  moment's  consideration  will  show  us  the  necessity  and  propriety, 
of  this  provision  in  cases  where  the  jurisdiction  of  the  State  courts  is 
unquestionable.  Suppose  a  contract  for  the  payment  of  money  is  made 
between  citizens  of  the  same  State,  and  performance  thereof  is  sought 
in  the  courts  of  that  State ;  no  person  can  doubt  that  the  jurisdiction 
completely  and  exclusively  attaches,  in  the  first  instance,  to  such  courts. 
Suppose,  at  the  trial,  the  defendant  sets  up  in  his  defence  a  tender  under 
a  State  law,  making  paper  money  a  good  tender,  or  a  State  law,  im- 
pairing the  obligation  of  such  contract,  which  law,  if  binding,  would 


SECT.  II.]  MAllTIN   V.    HUNTEU'S   LESSEE.  127 

defeat  the  suit.  The  Constitution  of  the  United  States  has  declared 
that  no  State  shall  make  anything  but  gold  or  silver  coin  a  tender  in 
payment  of  debts,  or  pass  a  law  impairing  tlie  obligation  of  contracts. 
If  Congress  shall  not  have  passed  a  law  providing  for  the  removal  of 
such  a  suit  to  the  courts  of  the  United  States,  must  not  the  State  court 
proceed  to  hear  and  determine  it?  Can  a  mere  plea  in  defence  be  of 
itself  a  bar  to  furtlier  proceedings,  so  as  to  prohibit  an  inquiry  into  its 
truth  or  legal  propriety,  when  no  other  tribunal  exists  to  whom  judicial 
cognizance  of  such  cases  is  confided?  Suppose  an  indictment  for  a 
crime  in  a  State  court,  and  the  defendant  should  allege  in  his  defence 
that  the  crime  was  created  by  an  ex  2>ost  facto  Act  of  the  State,  must 
not  the  State  court,  in  the  exercise  of  a  jurisdiction  which  has  already 
rightfully  attached,  have  a  right  to  pronounce  on  the  validity  and  sufli- 
cieney  of  the  defence?  It  would  be  extremely  difficult,  upon  any  legal 
principles,  to  give  a  negative  answer  to  these  inquiries.  Innumerable 
instances  of  the  same  sort  might  be  stated  in  illustration  of  the  position  ; 
and  unless  the  State  courts  could  sustain  jurisdiction  in  such  cases,  this 
clause  of  the  sixth  article  would  be  without  meaning  or  effect,  and  pub- 
lic mischiefs,  of  a  most  enormous  magnitude,  would  inevitably  ensue. 

It  must,  therefore,  be  conceded  that  the  Constitution  not  only  con- 
temi)lated,  but  meant  to  provide  for  cases  within  the  scope  of  the  judi- 
cial power  of  the  United  States,  which  might  yet  depend  before  State 
tribunals.  It  was  foreseen  that  in  the  exercise  of  their  ordinary  jurisdic- 
tion, State  courts  would  incidentally  take  cognizance  of  cases  arising 
under  the  Constitution,  the  laws,  and  treaties  of  the  United  States.  Yet 
to  all  these  cases  the  judicial  power,  b^'  the  very  terms  of  the  Consti- 
tution, is  to  extend.  It  cannot  extend  by  original  jurisdiction  if  that 
was-  already  rightfully  and  exclusively  attached  in  the  State  courts, 
which  (as  has  been  already  shown)  may  occur  ;  it  must  therefore  extend 
b}'  appellate  jurisdiction,  or  not  at  all.  It  would  seem  to  follow  that 
the  aiipellate  power  of  the  United  States  must,  in  such  cases,  extend  to 
State  tribunals  ;  and  if  in  such  cases,  there  is  no  reason  why  it  should 
not  equally  attach  upon  all  others  within  the  purview  of  the  Consti- 
tution. 

It  has  been  argued  that  such  an  appellate  jurisdiction  over  State 
courts  is  inconsistent  with  the  genius  of  our  governments,  and  the 
spirit  of  the  Constitution.  That  the  latter  was  never  designed  to  act 
upon  State  sovereignties,  but  only  upon  the  people,  and  that,  if  the 
power  exists,  it  will  materially  impair  the  sovereignty  of  the  States,  and 
the  independence  of  their  courts.  We  cannot  yield  to  the  force  of  this 
reasoning ;  it  assumes  principles  which  we  cannot  admit,  and  draws 
conclusions  to  which  we  do  not  yield  our  assent. 

It  is  a  mistake  that  the  Constitution  was  not  designed  to  operate  upon 
States,  in  their  corporate  capacities.  It  is  crowded  with  provisions 
which  restrain  or  annul  the  sovereignty  of  the  States  in  some  of  the 
highest  branches  of  their  prerogatives.  The  tenth  section  of  the  first 
article  contains  a  long  list  of  disabilities  and  prohibitions  imposed  upon 


128  MARTIN   V.   hunter's   LESSEE.  [cHAP.  I. 

the  States.  Sure!}-,  when  such  essential  portions  of  State  sovereignty 
are  taken  away,  or  prohibited  to  be  exercised,  it  cannot  be  correctly 
asserted  that  the  Constitution  does  not  act  upon  the  States.  The  lan- 
guage of  the  Constitution  is  also  imperative  upon  the  States,  as  to  the 
performance  of  many  duties.  It  is  imperative  upon  the  State  legisla- 
tures to  make  laws  prescribing  the  time,  places,  and  manner  of  holding 
elections  for  Senators  and  representatives,  and  for  electors  of  President 
and  Vice-President.  And  in  these,  as  well  as  some  other  cases,  Con- 
gress have  a  right  to  revise,  amend,  or  supersede  the  laws  which  may 
be  passed  by  State  legislatures.  When,  therefore,  the  States  are  stripped 
of  some  of  the  highest  attributes  of  sovereignt}-,  and  the  same  are  given 
to  the  United  States  ;  when  the  legislatures  of  the  States  are,  in  some 
respects,  under  the  control  of  Congress,  and  in  ever}'  case  are,  under 
the  Constitution,  bound  bj-  the  paramount  authority  of  the  United 
States ;  it  is  certainly  difficult  to  support  the  argument  that  the  appel- 
late power  over  the  decisions  of  State  courts  is  eontrar}-  to  the  genius 
of  our  institutions.  The  courts  of  the  United  States  can,  without  ques- 
tion,  revise  the  proceedings  of  the  executive  and  legislative  authorities 
of  the  States,  and  if  they  are  found  to  be  contrary  to  the  Constitution, 
may  declare  them  to  be  of  no  legal  validity.  Surely,  the  exercise  of  the 
same  right  over  judicial  tribunals  is  not  a  higher  or  more  dangerous  act 
of  sovereign  power. 

Nor  can  such  a  right  be  deemed  to  impair  the  independence  of  State 
judges.  It  is  assuming  the  very  ground  in  controvers}'  to  assert 
that  they  possess  an  absolute  independence  of  the  United  States. 
In  respect  to  the  powers  granted  to  the  United  States,  they  are 
not  independent ;  the}'  are  express^  bound  to  obedience  by  the  let- 
ter of  the  Constitution  ;  and  if  the}'  should  unintentionally  transcend 
their  authority,  or  misconstrue  the  Constitution,  there  is  no  more  reason 
for  giving  their  judgments  an  absolute  and  irresistible  force,  than  for 
giving  it  to  the  acts  of  the  other  co-ordinate  departments  of  State 
sovereignty. 

The  argument  urged  from  the  possibility  of  the  abuse  of  the  revising 
power,  is  equally  unsatisfactory.  It  is  always  a  doubtful  course,  to 
argue  against  the  use  or  existence  of  a  power,  from  the  possibility 
of  its  abuse.  It  is  still  more  difficult,  by  such  an  argument,  to 
engraft  upon  a  general  power,  a  restriction  which  is  not  to  be  found 
in  the  terms  in  which  it  is  given.  From  the  very  nature  of  things,  the 
absolute  right  of  decision,  in  the  last  resort,  must  rest  somewhere  — 
wherever  it  may  be  vested  it  is  susceptible  of  abuse.  In  all  questions 
of  jurisdiction  the  inferior,  or  appellate  court  must  pronounce  the  final 
judgment ;  and  common-sense,  as  well  as  legal  reasoning,  has  conferred 
it  upon  the  latter. 

It  has  been  further  argued  against  the  existence  of  this  appellate 
power,  that  it  would  form  a  novelty  in  our  judicial  institutions.  This 
is  certainly  a  mistake.  In  the  articles  of  confederation,  an  instrument 
framed  with  infinitely  more  deference  to  State  rights  and  State  jeal- 


SECT.  II.]  MARTIN   V.    HUNTER'S   LESSEE.  129 

ousies,  a  power  was  given  to  Congress,  to  establish  "  courts  for  revising 
and  determining,  finally,  appeals  in  all  cases  of  captures."  It  is  remark- 
able, that  no  power  was  given  to  entertain  original  jurisdiction  in  such 
cases ;  and,  consequenth-,  the  appellate  power  (although  not  so  ex- 
pressed in  terms)  was  altogether  to  be  exercised  in  revising  the  deci- 
sions of  State  tribunals.  This  was,  undoubtedly,  so  far  a  surrender  of 
State  sovereignty ;  but  it  never  was  supposed  to  be  a  power  fraught 
with  public  danger,  or  destructive  of  the  independence  of  State  judges. 
On  the  contrary,  it  was  supposed  to  be  a  power  indispensable  to  the 
public  safety,  inasmuch  as  our  national  rights  might  otherwise  be  cora- 
promitted,  and  our  national  peace  be  endangered.  Under  the  present 
Constitution  the  prize  jurisdiction  is  confined  to  the  courts  of  the 
United  States ;  and  a  power  to  revise  the  decisions  of  State  courts, 
if  they  should  assert  jurisdiction  over  prize  causes,  cannot  be  less  im- 
portant, or  less  useful,  than  it  was  under  the  confederation. 

In  this  connection,  we  are  led  again  to  the  construction  of  the  words 
of  the  Constitution,  "  the  judicial  power  shall  extend,"  »&c.  If,  as  has 
been  contended  at  the  Bar,  the  term  "  extend  "  have  a  relative  signifi- 
cation, and  mean  to  widen  an  existing  power,  it  will  then  follow,  that, 
as  the  confederation  gave  an  appellate  power  over  State  tribunals,  the 
Constitution  enlarged  or  widened  that  appellate  power  to  all  the  other 
cases  in  which  jurisdiction  is  given  to  the  courts  of  the  United  States. 
It  is  not  presumed  that  the  learned  counsel  would  choose  to  adopt  such 
a  conclusion. 

It  is  further  argued,  that  no  great  public  mischief  can  result  from  a 
construction  which  shall  limit  the  appellate  power  of  the  United  States 
to  cases  in  their  own  courts  :  first,  because  State  judges  are  bound  by 
an  oath  to  support  the  Constitution  of  the  United  States,  and  must  be 
presumed  to  be  men  of  learning  and  integrit}- ;  and,  secondly,  because 
Congress  must  have  an  unquestionable  right  to  remove  all  cases  within 
the  scope  of  the  judicial  power,  from  the  State  courts  to  the  courts  of 
the  United  States,  at  any  time  before  final  judgment,  though  not  after 
final  judgment.  As  to  the  first  reason  —  admitting  that  the  judges  of  the 
State  courts  are,  and  alwa3'S  will  be,  of  as  much  learning,  integrity,  and 
wisdom,  as  those  of  the  courts  of  the  United  States  (which  we  very 
cheerfully  admit),  it  does  not  aid  the  argument.  It  is  manifest  that  the 
Constitution  has  proceeded  upon  a  theory  of  its  own,  and  given  or  with- 
held powers  according  to  the  judgment  of  the  American  people,  by 
whom  it  was  adopted.  We  can  onl}-  construe  its  powers,  and  cannot 
inquire  into  the  polic}'  or  principles  which  induced  the  grant  of  them. 
The  Constitution  has  presumed  (whether  rightl}-  or  wronglj*  we  do  not 
inquire)  that  State  attachments,  State  prejudices,  State  jealousies,  and 
State  interests,  might  sometimes  obstruct,  or  control,  or  be  supposed  to 
obstruct  or  control,  the  regular  administration  of  justice.  Hence,  in 
controversies  between  States ;  between  citizens  of  diflferent  States ; 
between  citizens  claiming  grants  under  different  States ;  between  a 
State  and  its'  citizens,  or  foreigners,  and  between  citizens  and  foreigners^ 

VOL.  I.  —  9 


130  MAliTIN   V.    hunter's   LESSEE.  [CHAP.  I. 

it  enables  the  parties,  unfler  the  authority  of  Congress,  to  have 
the  controversies  heard,  tried,  and  determined  before  the  national 
tribunals.  No  otlier  reason  than  that  which  has  been  stated  can  be 
assigned,  why  some,  at  least,  of  those  cases  should  not  have  been  left 
to  the  cognizance  of  the  State  courts.  In  respect  to  the  other  enumer- 
ated cases  —  the  cases  arising  under  the  Constitution,  laws,  and  trea- 
ties of  the  United  States,  cases  affecting  ambassadors  and  other  public 
ministers,  and  cases  of  admiralty'  and  maritime  jurisdiction  —  reasons 
of  a  higher  and  more  extensive  nature,  touching  the  safet}',  peace,  and 
sovereignty'  of  the  nation,  might  well  justify  a  grant  of  exclusive 
jurisdiction. 

This  is  not  all.  A  motive  of  another  kind,  perfectlj*  compatible  with 
the  most  sincere  respect  for  State  tribunals,  might  induce  the  grant  of 
appellate  power  over  their  decisions.  That  motive  is  the  importance, 
and  even  necessit}'  of  uniformity  of  decisions  throv>ghout  the  whole 
United  States,  upon  all  subjects  within  the  purview  of  the  Constitution. 
Judges  of  equal  learning  and  integrity,  in  different  States,  might  differ- 
ently interpret  a  statute,  or  a  treat}'  of  the  United  States,  or  even  the 
Constitution  itself.  If  there  were  no  revising  authority  to  control  these 
jarring  and  discordant  judgments,  and  harmonize  them  into  uniformit}', 
the  laws,  the  treaties,  and  the  Constitution  of  the  United  States  would 
be  different  in  ditferent  States,  and  might  perhaps  never  have  precisely 
the  same  construction,  obligation,  or  efficac}',  in  any  two  States.  The 
public  mischiefs  that  would  attend  such  a  state  of  things  would  be  truly 
deplorable ;  and  it  cannot  be  believed  that  they  could  have  escaped  the 
enlightened  convention  which  formed  the  Constitution.  What,  indeed, 
might  then  have  been  onh'  j)rophec3'  has  now  become  fact ;  and  the 
appellate  jurisdiction  must  continue  to  be  the  only  adequate  remedy  for 
such  evils. 

There  is  an  additional  consideration,  which  is  entitled  to  great  weight. 
The  Constitution  of  the  United  States  was  designed  for  the  common 
and  equal  benefit  of  all  the  people  of  the  United  States.  The  judicial 
power  was  granted  for  the  same  benign  and  salutary  purposes.  It  was  not 
to  be  exercised  exclusively  for  the  benefit  of  parties  who  might  be  plaintiffs, 
and  would  elect  the  national  forum,  but  also  for  the  protection  of  de- 
fendants who  might  be  entitled  to  tr}'  their  rights,  or  assert  their  privi- 
leges, before  the  same  forum.  Yet,  if  the  construction  contended  for 
be  correct,  it  will  follow,  that  as  the  plaintiff  ma}'  always  elect  the  State 
court,  the  defendant  ma}'  be  deprived  of  all  the  security'  which  the  Con- 
stitution intended  in  aid  of  his  rights.  Such  a  state  of  things  can,  in 
no  respect,  be  considered  as  giving  equal  rights.  To  obviate  this  diffi- 
culty, we  are  referred  to  the  power  which  it  is  admitted  Congress 
possess  to  remove  suits  from  State  courts  to  the  national  courts ;  and 
this  forms  the  second  ground  upon  which  the  argument  we  are  consider- 
ing has  been  attempted  to  be  sustained. 

This  power  of  removal  is  not  to  be  found  in  express  terms  in  an}' 
pait  of  the  Constitution  ;  if  it  be  given,  it  is  only  given  by  implication, 


SECT.  11.]  MARTIN   V.   HUNTER'S   LESSEE  131 

as  a  power  necessary  and  proper  to  carry  into  effect  some  express 
power.  The  power  of  removal  is  certainly  not,  in  strictness  of  lan- 
guage ;  it  presupposes  an  exercise  of  original  jurisdiction  to  have 
attached  elsewhere.  The  existence  of  this  power  of  removal  is  fa- 
miliar in  courts  acting  according  to  the  course  of  the  common  law  in 
criminal  as  well  as  civil  cases,  and  it  is  exercised  before  as  well  as  after 
judgment.  But  this  is  always  deemed  in  both  cases  an  exercise  of 
appellate,  and  not  of  original  jurisdiction.  If,  then,  the  right  of  removal 
be  included  in  the  appellate  jurisdiction,  it  is  only  because  it  is  one 
mode  of  exercising  that  power,  and  as  Congress  is  not  limited  by  the 
Constitution  to  any  particular  mode,  or  time  of  exercising  it,  it  may 
authorize  a  removal  either  before  or  after  judgment.  The  time,  the 
process,  and  the  manner,  must  be  subject  to  its  absolute  legislative  con- 
trol. A  writ  of  error  is,  indeed,  but  a  process  which  removes  the 
record  of  one  court  to  the  possession  of  another  court,  and  enables  the 
latter  to  inspect  the  proceedings,  and  give  such  judgment  as  its  own 
opinion  of  the  law  and  justice  of  the  case  may  warrant.  There  is  noth- 
ing in  the  nature  of  the  process  which  forbids  it  from  being  applied,  by 
the  legislature,  to  interlocutory  as  well  as  final  judgments.  And  if  the 
right  of  removal  from  State  courts  exists  before  judgment,  because  it  is 
included  in  the  appellate  power,  it  must,  for  the  same  reason,  exist  after 
judgment.  And  if  the  appellate  power  by  the  Constitution  does  not 
include  cases  pending  in  State  courts,  the  right  of  removal,  which 
is  but  a  mode  of  exercising  that  power,  cannot  be  applied  to  them. 
Precisely  the  same  objections,  therefore,  exist  as  to  the  right  of  re- 
moval before  judgment,  as  after,  and  both  must  stand  or  fall  together. 
Nor,  indeed,  would  the  force  of  the  arguments  on  either  side  materially 
vary,  if  the  right  of  removal  were  an  exercise  of  original  jurisdiction. 
It  would  equally  trench  upon  the  jurisdiction  and  independence  of  State 
tribunals. 

The  remed}',  too,  of  removal  of  suits  would  be  ntterly  inadequate  to 
the  purposes  of  the  Constitution,  if  it  could  act  only  on  the  parties,  and 
not  upon  the  State  courts.  In  respect  to  criminal  prosecutions,  the 
difficult}'  seems  admitted  to  be  insurmountable  ;  and,  in  respect  to  civil 
suits,  there  would,  in  man}^  cases,  be  rights  without  corresponding 
remedies.  If  State  courts  should  deny  the  constitutionality  of  the 
authority  to  remove  suits  from  their  cognizance,  in  what  manner  could 
they  be  compelled  to  relinquish  the  jurisdiction?  In  respect  to  criminal 
cases,  there  would  at  once  be  an  end  of  all  control,  and  the  State  deci- 
sions would  be  paramount  to  the  Constitution ;  and  though  in  civil 
suits  the  courts  of  the  United  States  might  act  npon  the  parties,  yet  the 
State  courts  might  act  in  the  same  wa}' ;  and  this  conflict  of  jurisdictions 
would  not  only  jeopardize  private  rights,  but  bring  into  imminent  peril 
the  public  interests. 

On  the  whole,  the  court  are  of  opinion,  that  the  appellate  power  of 
the  United  States  does  extend  to  cases  pending  in  the  State  courts ; 
and  that  the  25th  section  of  the  Judiciary  Act,  which  authorizes  the 


132  MARTIN   V.   hunter's   LESSEE.  [CHAP.  I. 

exercise  of  this  jurisdiction  in  the  specified  cases,  b}'  a  writ  of  error,  is 
supported  b}'  the  letter  and  spirit  of  the  Constitution.  We  find  no 
clause  in  that  instrument  which  limits  this  power ;  and  we  dare  not  in- 
terpose a  limitation  where  the  people  have  not  been  disposed  to  create 
one. 

Strong  as  this  conclusion  stands  upon  the  general  language  of  the 
Constitution,  it  may  still  derive  support  from  other  sources.  It  is  an 
historical  fact,  that  this  exposition  of  the  Constitution,  extending  its 
appellate  power  to  State  courts,  was,  previous  to  its  adoption,  uni- 
formly and  publicly  avowed  by  its  friends,  and  admitted  by  its  enemies, 
as  the  basis  of  their  respective  reasonings,  both  in  and  out  of  the  State 
conventions.  It  is  an  historical  fact,  that  at  the  time  when  the  Judi- 
ciary' Act  was  submitted  to  the  deliberations  of  the  first  Congress,  com- 
posed, as  it  was,  not  onl}'  of  men  of  great  learning  and  abilit}',  but  of 
men  who  had  acted  a  principal  part  in  framing,  supporting,  or  opposing 
that  Constitution,  the  same  exposition  was  explicitly'  declared  and  ad- 
mitted b}'  the  friends  and  b}'  the  opponents  of  that  S3'stem.  It  is  an 
historical  fact,  that  the  Supreme  Court  of  the  United  States  have,  from 
time  to  time,  sustained  this  appellate  jurisdiction  in  a  great  variety  of 
cases,  brought  from  the  tribunals  of  many  of  the  most  important  States 
in  the  Union,  and  that  no  State  tribunal  has  ever  breathed  a  judicial 
doubt  on  the  subject,  or  declined  to  obe}'  the  mandate  of  the  Supreme 
Court,  until  the  present  occasion.  This  weight  of  contemporaneous 
exposition  by  all  parties,  this  acquiescence  of  enlightened  State  courts, 
and  these  judicial  decisions  of  the  Supreme  Court  through  so  long  a 
period,  do,  as  we  think,  place  the  doctrine  upon  a  foundation  of  author- 
ity which  cannot  be  shaken,  without  delivering  over  the  subject  to  per- 
petual and  irremediable  doubts.  .  .  . 

It  is  the  opinion  of  the  whole  court,  that  the  judgment  of  the  Court  of 
Appeals  of  Virginia,  rendered  on  the  mandate  in  this  cause,  be  reversed, 
and  the  judgment  of  the  District  Court,  held  at  Winchester,  be,  and 
the  same  is  hereby  aflBrmed.  [The  concurring  opinion  of  Johnson,  J., 
is  omitted.]  ^ 

1  The  same  point  was  enforced  in  1821,  on  a  writ  of  error  to  a  Virginia  court  in  a 
criminal  case.  Cohens  v.  Va.  6  "Wheat.  264  (1821).  It  was  also  elaborately  consid- 
ered and  decided  in  Ahleman  v.  Booth,  21  How.  506  (1858).  —  Ed. 


N 


SECT.  II.]  EAKIN   V.   RAUB. 


133 


EAKIN   V,   RAUB. 
Supreme  Court  of  Pennsylvania.     1825. 

[\2S.^  R.  330.] 

Writ  of  error  to  the  Court  of  Common  Pleas  of  Northampton 
County,  in  an  action  of  ejectment  brought  by  James  Eakin  and  James 
and  Ann  Simpson,  against  Daniel  Raub,  Edmund  Porter,  Samuel  Sit- 
greaves,  Hugh  Ross,  John  Lippens,  and  John  Ross,  to  recover  a  moiety 

of  certain  lots  in  the  borough  of  Easton [The  question  was  on 

the  operation  of  two  statutes  of  limitation.  The  judgment  below  was 
reversed  by  the  majority  of  the  court  (Tilghman,  C.  J.  and  Duncan,  J.) 
on  the  ground  that,  "  The  Act  of  the  1 1th  of  March,  1815,  is  not  to 
be  construed  so  as  to  form  an  immediate  bar,  by  retrospection,  to  the 
claims  of  persons  beyond  sea,  who  had  been  out  of  possession  twenty- 
one  years  prior  to  the  passing  of  the  Act ;  but  such  persons  were 
allowed  fifteen  years  from  the  11th  of  March,  1815,  for  bringing  their 
actions  according  to  the  provisions  of  the  3d  section  of  the  Act  of 
Limitations  of  the  26th  of  March,  1785."  Mr.  JasTiCE  Gibson,  in  a 
dissenting  opinion,  adopted  a  different  construction  of  the  statute.] 

Barnes,  for  the  plaintiffs  in  error.  Scott  and  Binney,  for  the  defend- 
ants in  error.  . 

Gibson,  J.  ...  But  it  is  said,  that  without  it,  the  latter  Act 
would  be 'unconstitutional;  and,  instead  of  controverting  this,  I  will 
avail  myself  of  it  to  express  an  opinion  which  I  have  deliberately 
formed,  on  the  abstract  right  of  the  judiciary  to  declare  an  unconstitu- 
tional Act  of  the  Legislature  void. 

It  seems  to  me  there  is  a  plain  difference,  hitherto  unnoticed,  between 
Acts  that  are  repugnant  to  the  Constitution  of  the  particular  State,  and 
Acts  that  are  repugnant  to  the  Constitution  of  the  United  States  ;  my 
opinion  being,  that  the  judiciary  is  bound  to  execute  the  former,  but 
not  the  latter.  I  shall  hereafter  attempt  to  explain  this  difference,  by 
pointing  out  the  particular  provisions  in  the  Constitution  of  the  United 
States  on  which  it  depends.  I  am  aware,  that  a  right  to  declare  all 
unconstitutional  Acts  void,  without  distinction  as  to  either  Constitu- 
tion, is  generally  held  as  a  professional  dogma  ;  but,  I  apprehend,  rather 
as  a  maUer  of  faith  than  of  reason.  I  admit  that  I  once  embraced  the 
same  doctrine,  but  without  examination,  and  I  shall  therefore  state  the 
arguments  that  impelled  me  to  abandon  it,  with  great  respect  for  those 
b/whom  it  is  still  maintained.  But  I  may  premise,  that  it  is  not  a 
little  remarkable,  that  although  the  right  in  question  has  all  along  been 
claimed  by  the  judiciary,  no  judge  has  ventured  to  discuss  it,  except 
Chief  Justice  Marshall  (in  Marhury  v.  Madlmn,  1  Cranch,  1/6),  and 
if  the  argument  of  a  jurist  so  distinguished  for  the  strength  of  his 
ratiocinative  powers  be  found  inconclusive,  it  may  fairly  be  set  down 
to  the  weakness  of  the  position  which  he  attempts  to  defend.     Si  Per- 


134  EAKIN  V.   RAUB.  [CHAP.  I. 

gama  dextra  defend'i  potuit^  etiam  hac  de/ensa  fuisset.  In  saying 
this,  I  do  nol  overlook  the  opinion  of  Judge  Patterson,  in  Vanhorne  v. 
Dorvance,  2  Dall.  307,  which  abounds  with  beautiful  figures  in  illus- 
tration of  his  doctrine ;  but,  without  intending  disrespect,  I  submit 
that  metaphorical  illustration  is  one  thing  and  argument  another.  Now, 
in  questions  of  this  sort,  precedents  ought  to  go  for  absoluteh'  nothing. 
The  Constitution  is  a  collection  of  fundamental  laws,  not  to  be  departed 
from  in  practice  nor  altered  b^'  judicial  decision,  and  in  the  construction 
of  it,  nothing  would  be  so  alarming  as  the  doctrine  of  communis  erroi\ 
which  offers  a  ready  justification  for  ever}'  usurpation  that  has  not  been 
resisted  in  limine.  Instead,  therefore,  of  resting  on  the  fact,  that  the 
right  in  question  has  universally  been  assumed  b}-  the  American  courts, 
the  judge  who  asserts  it  ought  to  be  prepared  to  maintain  it  on  the 
principles  of  the  Constitution. 

I  begin,  then,  by  observing  that  in  this  countr}',  the  powers  of  the 
judiciary  are  divisible  into  those  that  are  political  and  those  that  are 
purely  civil.  Every  power  by  which  one  organ  of  the  government  is 
enabled  to  control  another,  or  to  exert  an  influence  over  its  Acts,  is  a 
political  power.  The  political  powers  of  the  judiciar}'  are  extraordinary 
and  adventitious  ;  such,  for  instance,  as  are  derived  from  certain  pecu- 
liar provisions  in  the  Constitution  of  the  United  States,  of  which  here- 
after :  and  the}'  are  derived,  b}'  direct  grant,  from  the  common  fountain 
of  all  political  power.  On  the  other  hand,  its  civil  are  its  ordinary' 
and  appropriate  powers  ;  being  part  of  its  essence,  and  existing  inde- 
pendently of  any  supposed  grant  in  the  Constitution-  But  where  the 
government  exists  b}'  virtue  of  a  written  constitution,  the  judiciar}'  does 
not  necessarily  derive,  from  that  circumstance,  an}'  other  than  its  ordi- 
nary and  appropriate  powers.  Our  judiciary  is  constructed  on  the 
principles  of  the  common  law,  which  enters  so  essentially  into  the  com- 
position of  our  social  institutions  as  to  be  inseparable  from  them,  and 
to  be,  in  fact,  the  basis  of  the  whole  scheme  of  our  civil  and  political 
liberty.  In  adopting  any  organ  or  instrument  of  the  common  law,  we 
take  it  with  just  such  powers  and  capacities  as  were  incident  to  it  at 
the  common  law,  except  where  these  are  expressly,  or  by  necessary 
implication,  abridged  or  enlarged  in  the  Act  of  adoption  ;  and,  that 
such  Act  is  a  written  instrument,  cannot  vary  its  consequences  or  con- 
struction. In  the  absence  of  special  provision  to  the  contrary,  sheriffs, 
justices  of  the  peace,  and  other  officers  whose  offices  are  established  in 
the  Constitution,  exercise  no  other  powers  here,  than  what  similar 
officers  do  in  England  ;  and  trial  by  jury  would  have  been  according  to 
the  course  of  the  common  law,  without  any  declaration  to  that  effect  in 
the  Constitution.  Now,  what  are  the  powers  of  the  judiciary  at  the 
common  law?  They  are  those  that  necessarily  arise  out  of  its  imme- 
diate business ;  and  they  are  therefore  commensurate  only  with  the 
judicial  execution  of  the  municipal  law,  or,  in  other  words,  with  tlie 
administration  of  distributive  justice,  without  extending  to  anything 
of  a  political  cast  whatever.     Dr.  Paley,  as  able  a  man  as  ever  wrote 


SECT.  II.]  EAKIN   V.    RAUB.  135 

on  those  subjects  on  which  he  professed  to  treat,  seems  to  have  con- 
sidered the  judiciary  as  a  part  of  the  executive,  and  judging  from  its 
essence,  subordinate  to  tlie  legislature,  which  he  viewed  as  the  deposi- 
tory of  the  whole  sovereignty  of  the  State.  With  us,  although  the 
legislature  be  the  depository  of  only  so  much  of  the  sovereignt}-  as  the 
people  have  thought  fit  to  impai't,  it  is  nevertheless  sovereign  within 
'jhe  limit  of  its  powers,  and  may  relativel}'  claim  the  same  pre-eminence 
"(lere  that  it  ma}'  claim  elsewhere.  It  will  be  conceded,  then,  that  the 
ordinary  and  essential  powers  of  the  judiciary  do  not  extend  to  the 
annulling  of  an  Act  of  the  Legislature.  Nor  can  the  inference  to  be 
drawn  from  this,  be  evaded  b}'  saying  that  in  England  the  Constitution, 
resting  in  principles  consecrated  by  time,  and  not  in  an  actual  written 
compact,  and  being  subject  to  alteration  by  the  ver}'  Act  of  the  Legisla- 
ture, there  is  consequently  no  separate  and  distinct  criterion  by  which 
the  question  of  constitutionalit}'  may  be  determined;  for  it  does  not 
follow,  that  because  we  have  such  a  criterion,  the  application  of  it  be- 
longs to  the  judiciary.  I  take  it,  therefore,  that  the  power  in  question 
does  not  necessarily  arise  from  the  judiciary  being  established  b}-  a 
written  constitution,  but  that  this  organ  can  claim,  on  account  of  that 
circumstance,  no  powers  that  do  not  belong  to  it  at  the  common  law ; 
and  that,  whatever  may  have  been  the  cause  of  the  limitation  of  its  juris- 
diction originall}-,  it  can  exercise  no  power  of  supervision  over  the 
legislature,  without  producing  a  direct  authority  for  it  in  the  Constitu- 
tion, eitlier  in  terms  or  b}-  irresistible  implication  from  the  nature  of 
the  government :  without  which  the  power  must  be  considered  as  re- 
served, along  with  the  other  ungranted  portions  of  the  sovereignty  for 
the  immediate  use  of  the  people. 

The  Constitution  of  Pennsylvania  contains  no  express  grant  of  polit- 
ical powers  to  the  judiciarj'.  But,  to  establish  a  grant  by  implication, 
the  Constitution  is  said  to  be  a  law  of  superior  obligation  ;  and,  con- 
sequentl}',  that  if  it  were  to  come  into  collision  with  an  Act  of  the 
Legislature,  the  latter  would  have  to  give  wa}'.  This  is  conceded.  But 
it  is  a  fallacy,  to  suppose  that  they  can  come  into  collision,  before  the 
judiciary.  What  is  a  constitution?  It  is  an  Act  of  extraordinary 
legislation,  b}'  which  the  people  establish  the  structure  and  mechanism 
of  their  government ;  and  in  which  they  prescribe  fundamental  rules 
to  regulate  the  motion  of  the  several  parts.  What  is  a  statute  ?  It  is 
an  Act  of  ordinary  legislation,  b}'  the  appropriate  organ  of  the  govern- 
ment ;  the  provisions  of  which  are  to  be  executed  by  the  executive 
or  judiciary-,  or  by  officers  subordinate  to  them.  The  Constitution, 
then,  contains  no  practical  rules  for  the  administration  of  distributive 
justice,  with  which  alone  the  judiciary  has  to  do  ;  these  being  furnished 
in  acts  of  ordinary  legislation,  bv  that  organ  of  the  government,  which, 
in  this  respect,  is  exclusive!}'  the  representative  of  the  people ;  and  it 
is  generally  true,  that  the  provisions  of  a  constitution  are  to  be  carried 
into  effect  immediately  by  the  legislature,  and  only  mediately,  if  at  ail- 
by  the  judiciary.     In  what  respect  is  the  Constitution  of  Pennsylvania 


136  EAKIN   V.   EAUB.  j^CHAP.  I. 

inconsistent  with  this  principle  ?  Only,  perhaps,  in  one  particular  pro- 
vision, to  regulate  the  style  of  process,  and  establish  an  appropriate 
form  of  conclusion  in  criminal  prosecutions:  in  this  alone  the  Consti- 
tution furnishes  a  rule  for  the  judiciarj-,  and  this  the  legislature  cannot 
alter,  because  it  cannot  alter  the  Constitution.  In  all  other  cases,  if 
tliG  Act  of  Assembly  supposed  to  be  unconstitutional,  were  laid  out  of 
the  question,  there  would  remain  no  rule  to  determine  the  point  in  con- 
troversy in  the  cause,  but  the  statute  or  common  law,  as  it  existed 
before  the  Act  of  Assembly  was  passed  ;  and  the  Constitution  and  Act 
of  Assembly  therefore  do  not  furnish  conflicting  rules  applicable  to  the 
point  before  the  court ;  nor  is  it  at  all  necessary,  that  the  one  or  the 
other  of  them  should  give  way. 

The  Constitution  and  tlie  right  of  the  legislature  to  pass  the  Act,  may 
be  in  collision.  But  is  that  a  legitimate  subject  for  judicial  determina- 
tion? If  it  be,  the  judiciary-  must  be  a  peculiar  organ,  to  revise  the 
proceedings  of  the  legislature,  and  to  correct  its  mistakes  ;  and  in  what 
part  of  the  Constitution  are  we  to  look  for  this  proud  pre-eminence? 
Viewing  the  matter  in  tlie  opposite  direction,  what  would  be  thought  of 
an  Act  of  Assembly  in  which  it  should  be  declared  that  the  Supreme 
Court  had,  in  a  particular  case,  put  a  wrong  construction  on  the  Con- 
stitution of  the  United  States,  and  that  the  judgment  should  therefore 
be  reversed?  It  would  doubtless  be  thought  a  usurpation  of  judicial 
power.  But  it  is  by  no  means  clear,  that  to  declare  a  law  void  which 
has  been  enacted  according  to  the  forms  prescribed  in  the  Constitution, 
is  not  a  usurpation  of  legislative  power.  It  is  an  act  of  sovereignty  ; 
and  sovereignty  and  legislative  power  are  said  by  Sir  William  Black- 
stone  to  be  convertible  terms.  It  is  the  business  of  the  judiciary  to 
interpret  the  laws,  not  scan  the  authorit}-  of  the  lawgiver;  and  without 
the  latter,  it  cannot  take  cognizance  of  a  collision  between  a  law  and 
the  Constitution.  So  that  to  affirm  that  the  judiciary  has  a  right  to 
judge  of  the  existence  of  such  collision,  is  to  take  for  granted  the  ver}^ 
thing  to  be  proved.  And,  that  a  verj'  cogent  argument  may  be  made 
in  this  way,  I  am  not  disposed  to  deny  ;  for  no  conclusions  are  so  strong 
as  those  that  are  drawn  from  the  petitio  principii. 

But  it  has  been  said  to  be  emphaticall}'  the  business  of  the  judiciary, 
to  ascertain  and  pronounce  what  the  law  is ;  and  that  this  necessarily 
involves  a  consideration  of  the  Constitution.  It  does  so  :  but  how  far? 
If  the  judiciary  will  inquire  into  anything  beside  the  form  of  enact- 
ment, where  shall  it  stop?  There  must  be  some  point  of  limitation  to 
such  an  inquiry  ;  for  no  one  will  pretend,  that  a  judge  would  be  justifi- 
able in  calling  for  the  election  returns,  or  scrutinizing  the  qualifications 
of  those  who  composed  the  legislature. 

It  is  next  supposed,  that  as  the  members  of  the  legislature  have  no 
inherent  right  of  legislation,  but  derive  their  authorit}'  from  the  people, 
no  law  can  be  valid  where  authority'  to  pass  it,  is  either  simply-  not 
given  or  positively  withheld  :  thus  treating  the  members  as  the  agents 
of  the  people,  and  the  Constitution  as  a  letter  of  attornc}'  containing 


SECT.  II.]  EAKIX   V.   RAUB.  137 

their  authorit}*  and  bounding  their  sphere  of  action,  and  the  conse- 
quence deduced  being,  that  acts  not  warranted  b}-  the  Constitution  are 
not  the  acts  of  the  people,  but  of  those  that  do  thein;  and  that  the}' 
are  therefore  ipso  facto  void.  The  conchiding  inference  is,  in  military 
phrase,  the  ke}'  of  the  position,  and  if  it  be  tenable,  it  will  decide  the 
controversy ;  for  a  law  ipso  facto  void,  is  absolutely  a  non  entity. 
l>ut  it  is  putting  the  argument  on  bold  ground  to  say,  tliat  a  high  pub- 
lic functionary  shall  challenge  no  more  respect  than  is  due  to  a  private 
individual ;  and  that  its  acts,  although  presenting  themselves  under 
sanctions  derived  from  a  strict  observance  of  the  form  of  enactment 
prescribed  in  the  Constitution,  are  to  be  rejected  as  ijyso  facto  void  for 
excess  of  authority.  The  Constitution  is  not  to  be  expounded  like  a 
deed,  but  hy  principles  of  interpretation  much  more  liberal ;  as  was 
declared  by  this  court,  in  The  Farmers  and  Mechanic^  Bank  v.  Smith, 
3  Serg.  &  Rawle,  63.  But,  in  the  case  of  a  public  functionarj',  even 
according  to  common-law  maxims,  omnia  presumi  debent  rite  et 
solemniter  esse  acta.  The  benefit  of  this  maxim  cannot  be  refused  to 
the  legislature  by  those  who  advocate  the  other  side,  inasmuch  as  it  is 
the  foundation  of  their  own  hypothesis ;  for  all  respect  is  demanded 
for  the  acts  of  the  judiciary.  For  instance  :  let  it  be  supposed  that  the 
power  to  declare  a  law  unconstitutional  has  been  exercised.  What  is 
to  be  done?  The  legislature  must  acquiesce,  although  it  may  think  the 
construction  of  the  judiciar}-  wrong.  But  wh}'  must  it  acquiesce?  Only 
because  it  is  bound  to  pay  that  respect  to  everj'  other  organ  of  the  gov- 
ernment, which  it  has  a  right  to  exact  from  each  of  them  in  turn.  This 
is  the  argument.  But  it  will  not  be  pretended,  that  the  legislature  has 
not  at  least  an  equal  right  with  the  judiciary  to  put  a  construction  on 
the  Constitution  ;  nor  that  either  of  them  is  infallible  ;  nor  that  either 
ought  to  be  required  to  surrender  its  judgment  to  the  other.  Suppose, 
then,  they  differ  in  opinion  as  to  the  constitutionality  of  a  particular 
law ;  if  the  organ  whose  business  it  first  is  to  decide  on  the  subject,  is 
not  to  have  its  judgment  treated  with  respect,  what  shall  prevent  it 
from  securing  the  preponderance  of  its  opinion  by  the  strong  arm  of 
power?  It  is  in  vain  to  say,  the  legislature  would  be  the  aggressor  in 
this ;  and  that  no  argument  in  favor  of  its  authority  can  be  drawn  from 
an  abuse  of  its  power.  Granting  this,  yet  it  is  fair  to  infer,  that  the 
framers  of  the  Constitution  never  intended  to  force  the  judges  either  to 
become  martyrs  or  to  flinch  from  their  duty  ;  or  to  interpose  a  check 
that  would  produce  no  other  eflfect  than  an  intestine  war.  Such  things 
have  occurred  in  other  States,  and  would  necessarily  occur  in  this, 
under  circumstances  of  strong  excitement  in  the  popular  branch.  The 
judges  would  be  legislated  out  of  office,  if  the  majority  requisite  to  a 
direct  removal  by  impeachment,  or  the  legislative  address,  could  not  be 
had ;  and  this  check,  instead  of  producing  the  salutary  effect  expected 
from  it,  would  rend  the  government  in  pieces.  But,  suppose  that  a 
struggle  would  not  produce  consequences  so  disastrous,  still  tlic  sound- 
ness of  any  construction  which  would  briiur  one  oraan  of  the  govern- 


138  EAKIN   V.   RAUB.  [CHAP.  I. 

ment  into  collision  with  another,  is  to  be  more  than  suspected ;  for 
where  collision  occurs,  it  is  evident  the  machine  is  workiug  in  a  way 
the  framers  of  it  did  not  intend.  But  what  I  want  more  immediately 
to  press  on  the  attention,  is  the  necessit}'  of  yielding  to  the  acts  of  the 
legislature  the  same  respect  that  is  claimed  for  the  acts  of  the  judiciar}-. 
Repugnance  to  the  Constitution  is  not  alwaj's  self-evident ;  for  ques- 
tions involving  the  consideration  of  its  existence,  require  for  their 
solution  the  most  vigorous  exertion  of  the  higher  faculties  of  the  mind, 
and  conflicts  will  be  inevitable,  if  any  branch  is  to  appl}-  the  Constitu- 
tion after  its  own  fashion  to  the  acts  of  all  the  others.  I  take  it,  then, 
the  legislature  is  entitled  to  all  the  deference  that  is  due  to  the  judi- 
ciar}' ;  that  its  acts  are  in  no  case  to  be  treated  as  ipso  facto  void, 
except  where  they  would  produce  a  revolution  in  the  government ;  and 
that,  to  avoid  them,  requires  the  act  of  some  tribunal  competent  under 
the  Constitution  (if  an}'  such  there  be),  to  pass  on  their  validity.  All 
that  remains,  therefore,  is  to  inquire  whether  the  judiciary  or  the  people 
are  that  tribunal. 

Now,  as  the  judiciary-  is  not  expressly  constituted  for  that  purpose,  it 
must  derive  whatever  authority  of  the  sort  it  maj'  possess,  from  the 
reasonableness  and  fitness  of  the  thing.  But,  in  theor}',  all  the  organs 
of  the  government  are  of  equal  capacity  ;  or,  if  not  equal,  each  must  be 
supposed  to  have  superior  capacity  only  for  those  things  which  pecu- 
liarly belong  to  it ;  and,  as  legislation  peculiarly-  involves  the  consid- 
eration of  those  limitations  which  are  put  on  the  law-making  power,  and 
the  interpretation  of  the  laws  when  made,  involves  onl}-  the  construc- 
tion of  the  laws  themselves,  it  follows  that  the  construction  of  the 
Constitution  in  this  particular  belongs  to  the  legislature,  which  ought 
tlierefore  to  be  taken  to  have  superior  capacity  to  judge  of  the  consti- 
tutionalit}-  of  its  own  acts.  But  suppose  all  to  be  of  equal  capacity  in 
every  respect,  why  should  one  exercise  a  controlling  power  over  the 
rest?  That  the  judiciary  is  of  superior  rank,  has  never  been  pretended, 
although  it  has  been  said  to  be  co-ordinate.  It  is  not  easy,  however, 
to  comprehend  how  the  power  which  gives  law  to  all  the  rest,  can  be  of 
no  more  than  equal  rank  with  one  which  receives  it,  and  is  answerable  to 
the  former  for  the  observance  of  its  statutes.  Legislation  is  essentially 
an  act  of  sovereign  power  ;  but  the  execution  of  the  laws  by  instruments 
that  are  governed  by  prescribed  rules  and  exercise  no  power  of  volition, 
is  essentiall}-  otherwise.  The  very  definition  of  law,  which  is  said  to 
be  "a  rule  of  civil  conduct  prescribed  by  the  supreme  power  in  the 
State,"  shows  the  intrinsic  superiority  of  the  legislature.  It  may  be 
said,  the  power  of  the  legislature,  also,  is  limited  by  prescribed  rules. 
It  is  so.  But  it  is,  nevertheless,  the  power  of  the  people,  and  sovereign 
as  far  as  it  extends.  It  cannot  be  said,  that  the  judiciar}-  is  co-ordinate 
merely  because  it  is  established  b}-  the  Constitution.  If  that  were  suf- 
ficient, sheriffs,  registers  of  wills,  and  recorders  of  deeds,  would  be  so 
too.  Within  the  pale  of  their  authority,  the  acts  of  these  officers  will 
have  the  power  of  the  people  for  their  support ;  but  no  one  will  pretend, 


SECT.  II.]  EAKIN   V.    RAUB.  139 

they  are  of  equal  dignity  with  the  acts  of  the  legislature.  Inequality 
of  rank  arises  not  from  the  manner  in  which  the  organ  has  been  con- 
stituted, but  from  its  essence  and  the  nature  of  its  functions  ;  and  the 
legislative  organ  is  superior  to  every  other,  inasmuch  as  the  power  to 
will  and  to  command,  is  essentially  superior  to  the  power  to  act  and  to 
obey.  It  does  not  follow,  then,  that  every  organ  created  by  special 
provision  in  the  Constitution,  is  of  equal  rank.  Both  the  executive, 
strictly  as  such,  and  the  judiciary  are  subordinate  ;  and  an  act  of  supe- 
rior power  exercised  by  an  inferior  ought,  one  would  think,  to  rest  on 
something  more  solid  than  implication. 

It  may  be  alleged,  that  no  such  power  is  claimed,  and  that  the  judi- 
ciary does  no  positive  act,  but  merely  refuses  to  be  instrumental  in 
giving  effect  to  an  unconstitutional  law.  This  is  nothing  more  than  a 
repetition  in  a  different  form  of  the  argument, — that  an  unconstitu- 
tional law  is  12^80  facto  void  ;  for  a  refusal  to  act  under  the  law,  must 
be  founded  on  a  right  in  each  branch  to  judge  of  the  acts  of  all  the 
others,  before  it  is  bound  to  exercise  its  functions  to  give  those  acts 
effect.  No  such  right  is  recognized  in  the  different  branches  of  the 
national  government,  except  the  judiciary  (and  that,  too,  on  account 
of  the  peculiar  provisions  of  the  Constitution),  for  it  is  now  univer- 
sally held,  whatever  doubts  may  have  once  existed,  that  Congress  is 
bound  to  provide  for  carrying  a  treaty  into  effect,  although  it  may  dis- 
approve of  the  exercise  of  the  treat}'- making  power  in  the  particular 
instance.  A  government  constructed  on  any  other  principle,  would 
be  in  perpetual  danger  of  standing  still ;  for  the  right  to  decide  on  the 
constitutionality  of  the  laws,  would  not  be  peculiar  to  the  judiciar}-,  but 
would  equally  reside  in  the  person  of  ever}-  officer  whose  agenc}'  might 
be  necessary  to  carr}-  them  into  execution. 

Ever}'  one  knows  how  seldom  men  think  exactly  alike  on  ordinary 
subjects  ;  and  a  government  constructed  on  the  principle  of  assent  by 
all  its  parts,  would  be  inadequate  to  the  most  simple  operations.  The 
notion  of  a  complication  of  counter  checks  has  been  carried  to  an  extent 
in  theory,  of  which  the  framers  of  the  Constitution  never  dreamt. 
When  the  entire  sovereignty  was  separated  into  its  elementary  parts, 
and  distributed  to  the  appropriate  branches,  all  things  incident  to  the 
exercise  of  its  powers  were  committed  to  each  branch  exclusively. 
The  negative  which  each  part  of  the  legislature  may  exercise,  in  regard 
to  the  acts  of  the  other,  was  thought  sufficient  to  prevent  material  in- 
fractions of  the  restraints  which  were  put  on  the  power  of  the  whole  ; 
for,  had  it  been  intended  to  interpose  the  judiciary  as  an  additional  bar- 
rier, the  matter  would  surely  not  have  been  left  in  doubt.  The  judges 
would  not  have  been  left  to  stand  on  the  insecure  and  ever  shifting 
ground  of  public  opinion  as  to  constructive  powers  :  they  would  have 
been  placed  on  the  impregnable  ground  of  an  express  grant.  They 
would  not  have  been  compelled  to  resort  to  the  debates  in  the  con- 
vention, or  the  opinion  that  was  generally  entertained  at  the  time.  A 
constitution,  or  a  statute,  is  supposed  to  contain   the  whole  will  of 


140  EAKIN   V.   RAUB.  [CHAP.  L 

the  body  from  which  it  emanated  ;  and  I  would  just  as  soon  resort 
to  the  debates  in  the  legislature  for  the  construction  of  an  Act  of 
Assembly,  as  to  the  debates  in  the  convention  for  the  construction  of 
the  Constitution. 

The  power  is  said  to  be  restricted  to  cases  that  are  free  from  doubt 
or  difficult}'.  But  the  abstract  existence  of  a  power  cannot  depend  on 
the  clearness  or  obscurit}-  of  the  case  in  which  it  is  to  be  exercised  ; 
for  that  is  a  consideration  that  cannot  present  itself,  before  the  ques- 
tion of  the  existence  of  the  power  shall  have  been  determined;  and, 
if  its  existence  be  conceded,  no  considerations  of  policy  arising  from 
the  obscurity  of  the  particular  case,  ought  to  influence  the  exercise  of 
it.  The  judge  would  have  no  discretion ;  but  the  part}'  submitting 
the  question  of  constitutionality  would  have  an  interest  in  the  decision 
of  it,  which  could  not  be  postponed  to  motives  of  deference  for  the 
opinion  of  the  legislature.  His  rights  would  depend  not  on  the  great- 
ness of  the  supposed  discrepancy  with  the  Constitution,  but  on  the 
existence  of  any  discrepanc}'  at  all ;  and  the  judge  would  therefore  be 
bound  to  decide  this  question,  like  every  other  in  respect  to  which  he 
may  be  unable  to  arrive  at  a  perfectly  satisfactory  conclusion.  But 
he  would  evade  the  question  instead  of  deciding  it,  were  he  to  refuse 
to  decide  in  accordance  with  the  inclination  of  his  mind.  To  say,  there- 
fore, that  the  power  is  to  be  exercised  but  in  perfectly  clear  cases, 
is  to  betray  a  doubt  of  the  propriety  of  exercising  it  at  all.  Were 
the  same  caution  used  in  judging  of  the  existence  of  the  power  that 
is  inculcated  as  to  the  exercise  of  it,  the  profession  would  perhaps 
arrive  at  a  different  conclusion.  The  grant  of  a  power  so  extraordi- 
nary ought  to  appear  so  plain,  that  he  who  should  run  might  read. 
Now,  put  the  Constitution  into  the  hands  of  any  man  of  plain  sense, 
whose  mind  is  free  from  an  impression  on  the  subject,  and  it  will  be 
impossible  to  persuade  him,  that  the  exercise  of  such  a  power  was  ever 
contemplated  by  the  convention. 

But  the  judges  are  sworn  to  support  the  Constitution,  and  are  they 
not  bound  by  it  as  the  law  of  the  land?  In  some  respects  they  are. 
In  the  very  few  cases  in  which  the  judiciary,  and  not  the  legislature, 
is  the  immediate  organ  to  execute  its  provisions,  they  are  bound  by  it 
in  preference  to  any  Act  of  Assembly  to  the  contrary.  In  such  cases, 
the  Constitution  is  a  rule  to  the  courts.  But  what  I  have  in  view  in 
this  inquiry,  is  the  supposed  right  of  the  judiciary  to  interfere,  in  cases 
where  the  Constitution  is  to  be  carried  into  effect  through  the  instru- 
mentality of  the  legislature,  and  where  that  organ  must  necessarily 
first  decide  on  the  constitutionality  of  its  own  act.  The  oath  to  sup- 
port the  Constitution  is  not  peculiar  to  the  judges,  but  is  taken  indis- 
criminately by  every  officer  of  the  government,  and  is  designed  rather 
as  a  test  of  the  political  principles  of  the  man,  than  to  bind  the  officer 
in  the  discharge  of  his  duty  :  otherwise  it  were  difficult  to  determine 
what  operation  it  is  to  have  in  the  case  of  a  recorder  of  deeds,  for  in- 
stance, who,  in  the  execution  of  his  office,  has  nothing  to  do  with  the 


SECT,  ir.]  EAKIN   V.   RAUB.  141 

Constitution.  But  granting  it  to  relate  to  the  official  conduct  of  the 
judge,  as  well  as  every  other  officer,  and  not  to  his  political  principles, 
still  it  must  be  understood  in  reference  to  sui)porting  the  Constitution, 
onl3'  as  far  as  that  may  be  involved  in  his  official  duty  ;  and,  conse- 
quently, if  his  official  duty  docs  not  comprehend  an  inquiry  into  the 
authority  of  the  legislature,  neither  does  his  oath.  It  is  worthy  of 
remark  here,  that  the  foundation  of  ever3'  argument  in  favor  of  the 
right  of  the  judiciary,  is  found  at  last  to  be  an  assumption  of  the  whole 
ground  in  dispute.  Granting  that  the  object  of  the  oath  is  to  secure  a 
support  of  the  Constitution  in  the  discharge  of  official  duty,  its  terms 
may  be  satisfied  by  restraining  it  to  official  duty  in  the  exercise  of  the 
ordinary  judicial  powers.  Thus,  the  Constitution  may  furnish  a  rule  of 
construction,  where  a  particular  interpretation  of  a  law  would  conflict 
with  some  constitutional  principle ;  and  such  interpretation,  where  it 
may,  is  always  to  be  avoided.  But  the  oath  was  more  probably  de- 
signed to  secure  the  powers  of  each  of  the  different  branches  from  being 
usurped  by  any  of  the  rest :  for  instance,  to  prevent  the  House  of 
Representatives  from  erecting  itself  into  a  court  of  judicature,  or  the 
Supreme  Court  from  attempting  to  control  the  legislature  ;  and,  in  this 
view,  the  oath  furnislies  an  argument  equally  plausible  against  the  right 
of  the  judiciary.  But  if  it  require  a  support  of  the  Constitution  in  anj-- 
thing  beside  official  dut}-,  it  is  in  fact  an  oath  of  allegiance  to  a  partic- 
ular form  of  government ;  and,  considered  as  such,  it  is  not  easy  to  see 
why  it  should  not  be  taken  by  the  citizens  at  large,  as  well  as  by  the 
officers  of  the  government.  It  has  never  been  thought  that  an  officer 
is  under  greater  restraint  as  to  measures  which  have  for  their  avowed 
end  a  total  change  of  the  Constitution,  than  a  citizen  who  has  taken  no 
oath  at  all.  Tlie  official  oath,  then,  relates  only  to  the  official  conduct 
of  the  officer,  and  does  not  prove  that  he  ought  to  stray  from  the 
path  of  his  ordinary  business  to  search  for  violations  of  duty  in 
the  business  of  others ;  nor  does  it,  as  supposed,  define  the  powers  of 
the  officer. 

But  do  not  the  judges  do  a  positive  act  in  violation  of  the  Constitu- 
tion, when  they  give  effect  to  an  unconstitutional  law?  Not  if  the  law 
has  been  passed  according  to  the  forms  established  in  the  Constitution. 
The  fallacy  of  the  question  is,  in  supposing  that  the  judiciary  adopts  the 
Acts  of  the  Legislature  as  its  own  ;  whereas  the  enactment  of  a  law  and 
the  interpretation  of  it  are  not  concurrent  acts,  and  as  the  judiciary  is 
not  required  to  concur  in  the  enactment,  neither  is  it  in  the  breach  of 
the  Constitution  which  may  be  the  consequence  of  the  enactment.  The 
fault  is  imputable  to  the  legislature,  and  on  it  the  responsibility  exclu- 
sively rests.  In  this  respect,  the  judges  are  in  the  predicament  of 
jurors  who  are  bound  to  serve  in  capital  cases,  although  unable,  under 
any  circumstances,  to  reconcile  it  to  their  duty  to  deprive  a  human 
being  of  life.  To  one  of  these,  who  applied  to  be  discharged  from  the 
panel,  I  once  heard  it  remarked,  by  an  eminent  and  humane  judge, 
"  You  do  not  deprive  a  prisoner  of  life  by  finding  him  guilty  of  a  cap- 


142  EAKIN  V.    RAUB.  [CHAP.  I. 

ital  crime :  ^'oii  but  pronounce  his  case  to  be  within  the  law,  and  it  is 
therefore  those  who  declare  the  law,  and  not  you,  who  deprive  him 
of  life." 

That  everything  addressed  to  the  legislatui'C  b}-  wa}'  of  positive  com- 
mand, is  pureU'  director}',  will  hard!}'  be  disputed  :  it  is  only  to  enforce 
prohibitions  that  the  interposition  of  judicial  authority  is  thought  to  be 
warrantable.  But  I  can  see  no  room  for  a  distinction  between  the 
injunctions  that  are  positive  and  those  that  are  negative :  the  same 
authority  must  enforce  both. 

But  it  has  been  said,  that  this  construction  would  deprive  the  citizen 
of  the  advantages  which  are  peculiar  to  a  written  constitution,  by  at 
once  declaring  the  power  of  the  legislature,  in  practice,  to  be  illimitable. 
I  ask,  what  are  those  advantages?  The  principles  of  a  written  consti- 
tution are  more  fixed  and  certain,  and  more  apparent  to  the  apprehen- 
sion of  the  people,  than  principles  which  depend  on  tradition  and  the 
vague  comprehension  of  the  individuals  who  compose  the  nation,  and 
who  cannot  all  be  expected  to  receive  the  same  impressions  or  enter- 
tain the  same  notions  on  an}'  given  subject.  But  there  is  no  magic  or 
inherent  power  in  parchment  and  ink,  to  command  respect  and  protect 
principles  from  violation.  In  the  business  of  government,  a  recurrence 
to  first  principles  answers  the  end  of  an  observation  at  sea  with  a  view 
to  correct  the  dead  reckoning ;  and,  for  this  purpose,  a  written  consti- 
tution is  an  instrument  of  inestimable  value.  It  is  of  inestimable  value, 
also,  in  rendering  its  principles  familiar  to  the  mass  of  the  people ;  for, 
after  all,  there  is  no  effectual  guard  against  legislative  usurpation  but 
public  opinion,  the  force  of  which,  in  this  country,  is  inconceivably  great. 
Happily  this  is  proved,  by  experience,  to  be  a  sufficient  guard  against 
palpable  infractions.  The  Constitution  of  this  State  has  withstood 
the  shocks  of  strong  party  excitement  for  thirty  years,  during  which  no 
Act  of  the  Legislature  has  been  declared  unconstitutional,  although  the 
judiciary  has  constantly  asserted  a  right  to  do  so  in  clear  cases.  But 
it  would  be  absurd  to  say,  that  this  remarkable  observance  of  the 
Constitution  has  been  produced,  not  by  the  responsibility  of  the  legis- 
lature to  the  people,  but  by  an  apprehension  of  control  by  the  judiciary. 
Once  let  public  opinion  be  so  corrupt  as  to  sanction  every  misconstruc- 
tion of  the  Constitution  and  abuse  of  power  which  the  temptation  of 
the  moment  may  dictate,  and  the  party  which  may  happen  to  be  pre- 
dominant, will  laugh  at  the  puny  efforts  of  a  dependent  power  to  arrest 
it  in  its  course. 

For  these  reasons,  I  am  of  opinion  that  it  rests  with  the  people,  in 
whom  full  and  absolute  sovereign  power  resides,  to  correct  abuses  in 
legislation,  by  instructing  their  representatives  to  repeal  the  obnoxious 
Act.  What  is  wanting  to  plenary  power  in  the  government,  is  resei'ved 
by  the  people  for  their  own  immediate  use ;  and  to  redress  an  infringe- 
ment of  their  rights  in  this  respect,  would  seem  to  be  an  accessory  of 
the  power  thus  reserved.  It  might,  perhaps,  have  been  better  to  vest 
the  power  in  the  judiciary ;  as  it  might  be  expected  that  its  habits  of 


SECT.  II.]  EAKIN   V.   RAUB.  143 

deliberation,  and  the  aid  derived  from  the  arguments  of  counsel,  would 
more  frequentlj'  lead  to  accurate  conclusions.  On  the  other  hand,  the 
judiciar}'  is  not  infallible  ;  and  an  error  by  it  would  admit  of  no  remedy 
but  a  more  distinct  expression  of  the  public  will,  through  the  extraor- 
dinary medium  of  a  convention ;  whereas,  an  error  by  the  legislature 
admits  of  a  remedy  by  an  exertion  of  the  same  will,  in  the  ordinary 
exercise  of  the  right  of  suffrage, — a  mode  better  calculated  to  attain 
the  end,  without  popular  excitement.  It  may  be  said,  the  people  would 
probably  not  notice  an  error  of  their  representatives.  But  they  would 
as  probably  do  so,  as  notice  an  error  of  the  judiciary  ;  and,  beside,  it  is 
a  postulate  in  the  theory  of  our  government,  and  the  very  basis  of  the 
superstructure,  that  the  people  are  wise,  virtuous,  and  competent  to 
manage  their  own  affairs :  and  if  they  are  not  so,  in  fact,  still  every 
question  of  this  sort  must  be  determined  according  to  the  principles  of 
the  Constitution,  as  it  came  from  the  hands  of  its  framers,  and  the  ex- 
istence of  a  defect  which  was  not  foreseen,  would  not  justify  those  who 
administer  the  government,  in  applying  a  corrective  in  practice,  which 
can  be  provided  onl3-  l)y  a  convention.  Long  and  uninterrupted  usage 
is  entitled  to  respect ;  and,  although  it  cannot  change  an  admitted 
principle  of  the  Constitution,  it  will  go  far  to  settle  a  question  of 
doubtful  right.  But,  althougli  this  power  has  all  along  been  claimed 
by  the  State  judiciary,  it  has  never  been  exercised.  Austin  v.  The 
U?iiversiti/  of  Pennsylcania^  1  Yeates,  260,  is  the  only  case  even 
apparently  to  the  contrary ;  but  there  the  Act  of  Assembly  had  been 
previously  repealed.  In  Vanhorne  v.  Dorrance,  decided  b}'  the  Circuit 
Court  of  the  United  States  under  similar  circumstances,  the  right  is 
peremptorily  asserted  and  examples  of  monstrous  violations  of  the 
Constitution  are  put  in  a  strong  light  by  way  of  example ;  such  as  tak- 
ing away  the  trial  by  jury,  the  elective  franchise,  or  subverting  religious 
libert}-.  But  any  of  these  would  be  such  a  usurpation  of  the  political 
rights  of  the  citizens,  as  would  work  a  change  in  the  very  structure  of 
the  government ;  or,  to  speak  more  properly,  it  would  itself  be  a  revo- 
lution, which,  to  counteract,  would  justify  even  insurrection ;  conse- 
quently, a  judge  might  lawfulh^  emplo}'  every  instrument  of  official 
resistance  within  his  reach.  By  this  I  mean,  that  while  the  citizen 
should  resist  with  pike  and  gun,  the  judge  might  co-operate  with 
habeas  corpus  and  mandamus.  It  would  be  his  dut}',  as  a  citizen,  to 
throw  himself  into  the  breach,  and,  if  it  should  be  necessary-,  perish 
there  ;  but  this  is  far  from  proving  the  judiciar}'  to  be  a  peculiar  organ 
under  the  Constitution,  to  prevent  legislative  encroachment  on  the 
powers  reserved  by  the  people ;  and  this  is  all  that  I  contend  it  is  not. 
Indeed,  its  absolute  inadequacy  to  the  object,  is  conclusive  that  it 
never  was  intended  as  such  by  the  framers  of  the  Constitution,  who 
must  have  had  in  view  the  probable  operation  of  the  government  in 
practice. 

But  in  regard  to  an  Act  of  Assembh',  which  is  found  to  be  in  collision 
with  the  Constitution,  laws,  or  treaties  of  the  United  States,  I  take  the 


144  EAKIN   V.    RAUB.  [CHAP.  I. 

duty  of  the  judiciary  to  be  exactly  the  reverse.  B3'  becoming  parties 
to  the  Federal  Constitution,  the  States  have  agreed  to  several  limita- 
tions of  their  individual  sovereignty,  to  enforce  which,  it  was  thought 
to  be  absolutely  necessar}-  to  prevent  them  from  giving  effect  to  laws 
in  violation  of  those  limitations,  through  tlie  instrumentality  of  their 
own  judges.  Accordinglv,  it  is  declared  in  the  sixth  article  and 
secorid  section  of  the  Federal  Constitution,  that  "This  Constitution, 
and  the  laws  of  the  United  States  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be  made  under  the 
authority  of  the  United  States,  shall  be  the  supreme  law  of  the  land  ; 
and  the  judges  in  ever}'  State  shall  be  bound  thereby :  anything 
in  the  laws  or  Constitution  of  any  State  to  the  contrary  notwith- 
standing." 

This  is  an  express  grant  of  a  political  power,  and  it  is  conclusive  to 
show  that  no  law  of  inferior  obligation,  as  every  State  law  must  neces- 
sarily be,  can  be  executed  at  the  expense  of  the  Constitution,  laws,  or 
treaties  of  the  United  States.  It  ma}'  be  said,  these  are  to  furnish  a 
rule  onl}'  when  there  is  no  State  provision  on  the  subject.  But,  in  that 
view,  the}-  could  with  no  propriety  be  called  supreme  ;  for  supremacy  is 
a  relative  term,  and  cannot  be  predicated  of  a  thing  which  exists  sepa- 
rately and  alone :  and  this  law,  which  is  called  supreme,  would  change 
its  character  and  become  subordinate  as  soon  as  it  should  be  found  in 
conflict  with  a  State  law.  But  the  judges  are  to  be  bound  by  tlie  Fed- 
eral Constitution  and  laws,  notwithstanding  anytliing  in  the  Constitu- 
tion or  laws  of  the  particular  State  to  the  contrary.  If,  tlien,  a  State 
were  to  declare  the  laws  of  the  United  States  not  to  be  obligatory  on 
her  judges,  such  an  Act  would  unquestionably  be  void;  for  it  will  not 
be  pretended,  that  any  member  of  the  Union  can  dispense  with  the 
obligation  of  the  Federal  Constitution :  and,  if  it  cannot  be  done 
directly,  and  by  a  general  declaratory  law,  neither  can  it  indirectly,  and 
by  by-laws  dispensing  with  it  in  particular  cases.  This,  therefore,  is 
an  express  grant  of  the  power,  and  would  be  sufficient  for  the  purposes 
of  the  argument ;  but  it  is  not  all. 

By  the  third  article  and  second  section,  appellate  jurisdiction  of  all 
cases  arising  under  the  Constitution  and  laws  of  the  United  States,  is 
reserved  to  the  Federal  judiciary,  under  such  regulations  as  Congress 
may  prescribe  ;  and,  in  execution  of  this  provision,  Congress  has  pre- 
scribed regulations  for  removing  into  the  Supreme  Court  of  the  United 
States  all  causes  decided  by  the  highest  court  of  judicature  of  any  State, 
which  involve  the  construction  of  the  Constitution,  or  of  any  law  or  treaty 
of  the  United  States.  This  is  another  guard  against  infraction  of  the 
limitations  imposed  on  State  sovereignty,  and  one  which  is  extremely 
efficient  in  practice ;  for  reversals  of  decisions  in  favor  of  the  constitu- 
tionality of  Acts  of  Assembly  have  been  frequent  on  writs  of  error  to 
the  Supreme  Court  of  the  United  States. 

Now,  a  reversal  implies  that  it  was  not  only  the  right,  but  the  duty 
of  the  inferior  court  to  decide  otherwise ;  for  where  there  is  but  one 


SECT.  IL]  EAKIN   V.   EAUB.  145 

way  of  deciding,  there  can  be  no  error.  But  what  be  leficial  result 
would  there  be  produced  l)y  the  decision  of  a  State  court  in  favor  of  a 
State  law  palpably  unconstitutional?  The  injured  party  would  have 
the  judgment  reversed  by  the  court  in  the  last  resort,  and  the  cause 
would  come  back  with  a  mandate  to  decide  differently,  which  the  State 
court  dare  not  disobey  :  so  that  nothing  would  eventually  be  gained  by 
the  })arty  claiming  under  the  law  of  the  State,  but,  on  the  contrary,  he 
would  be  burdened  with  additional  costs.  I  grant,  however,  that  the 
State  judiciary  ought  not  to  exercise  the  ix)wer  except  in  cases  free 
from  all  doubt,  because,  as  a  wnt  of  error  to  the  Supreme  Court  of  the 
United  States  lies  to  correct  an  error  only  in  favor  of  the  constitution- 
ality of  the  State  law,  an  error  in  deciding  against  it  would  be  irremedi- 
able. Anticipating  those  who  think  they  perceive  in  this,  exactly  what 
I  have  censured  in  those  who  assume  the  existence  of  the  same  power 
in  respect  to  laws  that  are  repugnant  to  the  Constitution  of  the  State, 
but  restrict  the  exercise  of  it  to  clear  cases,  I  briefly  remark  that  the 
instances  are  not  parallel ;  an  error  in  deciding  against  the  validity  of 
the  law  being  irreparable  in  the  one,  and  not  so  in  the  other. 
'  Unless,  then,  the  respective  States  are  not  bound  by  the  engagement, 
which  they  have  contracted  by  becoming  parties  to  the  Constitution  of 
the  United  States,  they  are  precluded  from  denying  either  the  right  pr 
the  duty  of  their  judges,  to  declare  their  laws  void  when  they  are  repug- 
nant to  that  Constitution. 

The  preceding  inquiry  may  perhaps  appear  foreign  to  the  point  im- 
mediately before  the  court;  but,  as  the  Act  of  1815  may  be  thought 
repugnant  to  the  Constitution  of  the  State,  an  examination  of  the  ix)wers 
of  the  judiciar}'  became  not  only  proper  but  necessary. 

Then,  laying  the  Constitution  of  the  State  out  of  the  case,  what  re- 
striction on  State  sovereignty  is  violated  by  at  once  repealing  any  of 
the  saving  clauses  in  the  Statute  of  Limitations?  Those  restrictions  are 
contained  in  the  first  article  and  tenth  section  of  the  Constitution  of  the 
United  States ;  and,  as  there  is  no  pretence  that  a  contract  has  been 
impaired,  none  of  them  can,  even  by  the  most  strained  construction,  be 
supposed  to  be  violated,  except  that  which  relates  to  ex  post  facto  laws. 
But  that  was  held,  in  Calder  v.  Bull,  3  Dall.  386,  to  be  applicable 
only  to  penal  laws.  The  law  in  question  not  only  relates  to  civil  rights, 
but  is  not  even  retrospective.  ...  I  am  therefore  of  opinion  that  the 
judgment  be  affirmed.^ 

1  When  this  opiuiou  was  cited,  in  argument,  in  1845,  Chief  Justice  Gibson  remarked 
to  counsel :  "  I  have  changed  that  opinion,  for  two  reasons.  The  late  convention  [for 
framing  the  Pennsylvania  Constitution  of  1838],  by  their  silence,  sanctioned  the  preten- 
sions of  the  courts  to  deal  freely  with  the  Acts  of  the  Legislature  ;  and  from  experience 
of  the  necessity  of  the  case."    Norrls  v.  Clymer,  2  Penn.  St.  281.  —  Ed. 

VOL.  I.  —  10 


146  NOTE.  [chap.  I. 


NOTE.i 

The  quotation  from  Bluntschli's  Public  Law,  previously  given,'^  is  authority  for  the 
prupositiou  that,  in  1863,  in  Germany,  no  judicial  court  could  declare  a  law  of  its 
State  to  be  void  because  conflicting  with  the  written  constitution  of  the  State.  That 
proposition  was  in  1883,  and  is  since,  equally  true  of  the  judiciaries  of  the  several 
States  of  the  German  P^mpire.  Between  those  two  dates,  however,  two  most  inter- 
esting cases  have  been  decided,  in  the  first  of  which  the  truth  of  the  proposition  was 
denied  with  great  ability  by  the  Hauseatic  Court  of  Upper  Appeal  at  Lubeck.  In 
the  second  case,  the  doctrine  of  the  first  was  overruled  by  the  Imperial  Tribunal  or 
Supreme  Court  of  the  German  Empire.  Thus,  with  the  exception  of  a  temporary 
recognition  within  the  limited  territories  of  the  Hanseatic  republics,  the  proposition  in 
question  has  always  been  law  in  the  different  States  of  Germany  possessing  written 
constitutions,  that  is  to  say,  in  nearly  every  German  State. 

The  first  case  was  decided  in  1875.  It  is  that  of  Garbade  v.  The  State  of  Bremen, 
and  is  reported  in  Seuffert's  Archives  for  the  Decisions  of  the  Highest  Courts  of  the 
German  States,  vol.  32,  no.  101.  The  following  is  a  translation  of  the  decision  of 
the  Hanseatic  Court  of  Upper  Appeal,  there  given  in  the  original : 

"  Positive  directions  like  that  of  Article  106  of  the  Prussian  constitutional  charter 
sometimes  prohibit  an  official  testing  of  the  legal  validity  of  ordinances  [of  the  sov- 
ereign] which  have  been  authenticated  in  due  form.  When  such  directions  do  not 
exist,  the  judge  has,  according  to  general  legal  principles,  both  the  authority  and  the 
duty  of  refusing  to  apply  an  ordinance  of  the  sovereign  (Laudeshei-r),  which,  while  its 
provisions  are  those  of  a  law,  has  not  been  enacted  according  to  the  forms  prescribed 
for  making  laws  by  the  Constitution  of  the  land.  For  this  purpose,  the  judge  must, 
of  course,  first  of  all  examine  whether,  when  the  law  in  question  was  published  it  was 
then  explicitly  stated  that  the  constitutionally  prescribed  forms  were  observed.  (See 
case  in  Kierulff's  Collection,  vol.  5,  p.  331.)  The  proper  decision  in  such  a  case,  how- 
ever, depends  only  npon  the  question  as  to  what  evidence  is  sufficient  to  put  the  judge 
in  a  position  of  ascertaining  with  certainty  that  the  constitutional  forms  for  making 
laws  were  complied  with.  The  decision  itself,  therefore,  takes  for  granted  that  the 
judge  must  have  no  doubt  as  to  the  observance  of  the  constitutionally  prescribed  forms 
in  making  the  law  in  question,  and  when  the  decision  has  shown  a  condition  of  things, 
which  prevents  any  such  doubt,  it  goes  no  farther. 

"  It  is  thus  true  that,  in  cases  of  laws  which  are  not  organic  ones  altering  the 
Constitution,  the  judge  must  be  sure  that  the  law,  which  he  is  to  apply,  has  been  made 
according  to  constitutional  forms.  Such  being  so,  it  must  be  equally  true  that  the 
same  requirement  must  be  met  in  the  case  of  organic  laws  altering  the  Constitution, 
for,  either  a  part  or  the  whole  of  their  provisions  may  enlarge  or  diminish  existing 
rights  as  hitherto  constituted.  For  the  judge  is  as  much  bound  by  the  organic  con- 
stitutional law  of  the  land  as  by  any  other  law.  If  therefore  the  observance  of  cer- 
tain forms  is  constitutionally  prescribed  for  changing  a  constitutional  charter,  it  can 
only  be  altered  or  abolished  by  observing  those  forms.  An  ordinary  law  exists  until 
it  is  abolished  by  way  of  legislation  according  to  the  forms  prescribed  for  the  enacting 
of  laws.  So  too,  a  constitution  exists  until  it  is  abolished  by  way  of  organic  legisla- 
tion according  to  the  forms  prescribed  for  changing  the  Constitution.  These  points 
do  not  include  a  further  and  a  different  question  as  to  what  are  the  conditions  under 
which  the  judge  must  feel  convinced  that  the  requisite  forms  for  altering  the  Constitu- 

1  The  first  part  of  this  note  is  taken  from  Coxe's  Jud.  Power  and  Unconst.  Legis. 
9.5-102.  I  am  indebted  to  William  M.  Meigs,  Esq.,  the  editor  of  this  valuable  work 
of  the  late  Brinton  Coxe,  of  Philadelphia,  for  obtaining  permission  from  the  owners 
of  the  copyright,  and  from  the  publishers  (Messrs.  Kay  and  Bro.),  to  quote  these 
pages.  —  Ed. 

2  Bluntschli,  Gen.  Pub.  Law  (ed.  1863),  i.  550,  551. 


SECT.  II.]  NOTE.  147 

tiou  have  been  observed.     An  answer  to  this  question  is  not,  however,  necessary  in  the 
case  before  us. 

"  That  case  is  as  follows  : 

"A  coustitution  has  been  made  in  Bremen,  the  19th  article  of  which  reads: 

" '  Property  and  other  private  rights  are  inviolable.  Cession,  surrender,  or  limita- 
tion of  the  same  for  the  general  good  can  only  be  required  in  the  cases  and  forms 
prescribed  by  law  and  upon  proper  indemnification.' 

"  A  law  has  been  enacted  in  Bremen  which  is  an  ordinance  relating  to  rural  com- 
munities dated  28  December,  1870.  It  conflicts  with  the  said  Constitution  and  is  not 
an  organic  constitutional  law.     Its  1 5th  section  reads  thus : 

" '  All  hitherto  existing  exemptions  from  communal  taxes,  so  far  as  not  based  on 
Federal  laws  or  State  treaties,  are  abolished  without  indemnification.' 

"The  last-named  law  has  been  enacted  according  to  the  forms  prescribed  for  ordi- 
nary legislation  and  therefore  ought  to  be  binding  upon  the  judge.  Nevertheless,  if 
the  forms  prescribed  for  ordinary  legislation  are  not  sufficient  for  legislation  alteri'no- 
the  Constitution,  such  an  Act  of  ordinary  legislation  leaves  the  Constitution  intact! 
The  latter  continues  to  exist  and,  as  long  as  it  does  so,  the  judge  must  hold  it  to  be  an 
existing  law.  Hereby  arises  a  conflict  of  legal  provisions.  On  account  of  the  ine- 
quality of  the  conflicting  laws,  this  conflict  cannot  be  settled  upon  the  principle  of 
lex  posterior  derotjat  legi  priori.  It  can  only  be  settled  by  an  application  of  the  doc- 
trine that  ordinary  laws  conflicting  with  organic  constitutional  laws  cannot  be  enacted. 

"  The  judge  is  to  be  considered  competent  to  make  this  decision,  even  without  any 
authority  having  been  explicitly  given  him  by  any  special  law ;  because  he  is  obliged 
to  apply  the  laws  and  because  the  application  of  two  existing  laws,  conflicting  with 
each  other,  is  an  impossibility.  The  recognition  of  the  legal  principle,  that  the  judge 
is  not  to  apply  a  law  conflicting  with  the  Constitution,  includes  therefore  no  assertion 
of  a  superiority  of  the  judge  over  the  lawgiver.  So  doing  is  merely  an  acknowledg- 
ment of  his  authority,  in  an  actual  case  of  conflict,  to  apply  that  law,  which  general 
legal  principles  require  to  be  applied.  In  cases  of  conflict  between  laws  of  the  Em- 
pire and  laws  of  the  laud,  there  exists  a  written  legal  provision  for  the  settlement 
thereof.  In  the  case  of  a  conflict  between  laws,  which  are  of  different  import  but 
emanate  from  the  legislative  power  of  the  same  State,  there  enters  the  legal  principle 
that  ordinary  laws  must  not  conflict  with  the  pro/isions  of  the  organic  constitutional 
law.  It  may,  perhaps,  be  objected  that,  when  the  legislative  authorities  have  under 
forms  of  ordinary  legislation,  enacted  a  law,  which  the  judge  deems  to  be  in  contra- 
diction to  tiie  provisions  of  the  Constitution,  those  authorities  have  themselves  pre- 
viously considered  the  (luestion  whether  such  a  contradiction  exists.  Granting  this, 
however,  tlie  resulting  obligation  of  the  judge,  in  such  a  case,  does  not  extend  beyond 
weighing  carefully  the  reasons  on  both  sides  of  the  question  in  a  way  like  that  which 
he  must  follow  in  another  and  similar  case.  This  other  case  is  that  in  which  he  is 
compelled  to  declare,  in  opposition  to  the  legislative  authorities  of  a  particular  State, 
that  a  law  made  by  them  contradicts  tlie  laws  of  the  Empire. 

"Now  the  constitutional  charter  of  Bremen,  dated  February  21,  1854,  in  its  Ar- 
ticle 67,  establishes  certain  formalities,  by  observing  which,  alterations  of  the  Con- 
stitution can  alone  be  made.  The  observance  of  these  formalities  in  enacting  the  law 
of  December  28,  1870,  would  have  been  considered  sufficient  for  the  adoption  of  any 
law  altering  the  Constitution.  According  to  the  documents  before  us,  it  can,  how- 
ever, by  no  means  be  admitted  that  this  was  done ;  there  being  no  indication  that  in 
the  case  of  the  law  of  December  28,  1870,  anything  other  than  an  Act  of  ordinary 
legislation  was  in  question.  This  being  so,  the  result  arrived  at  in  the  reasons  given 
for  the  previous  part  of  tliis  judgment,  including  likewise  the  consequences  deduced 
therefrom,  directly  follow  as  a  matter  of  course." 

In  concluding  this  account  of  the  judgment  of  the  Hanseatic  Court  of  Upper 
Appeal,  it  ought  to  be  added  that  it  seems  probable  that  that  tribunal  was  greatly 
influenced  by  the  whole  of  Von  Mohl's  treatise  on  "Unconstitutional  Laws"  and 
especially  by  its  pages  79  and  80.  See  his  Monor/raphie  ueher  die  rechtliche  Bedeutumj 
verfassungswidriger  Gesetze  in  his  work  entitled,  Staatsrecht,  Voelkerrecht  und  Politik 


148  NOTE.  LCHAl'.  I. 

(Tuebuigen,  18C0),  vol.  1,  pp.  C6-95.  Von  Mohl  was  uii.luubtedly  influenced  t.y 
Ameriwui  ideas  and  writings,  as  pages  69  and  71  of  tlio  al)ove  work  prove.  He 
expressly  mentions  tlie  aiitiiors  of  the  Federalist,  Story  and  Kent.  He  does  not  name 
jMarsluiU,  but  must  have  been  influenced  by  hia  views.  Elsewhere  he  expresses  great 
admiration  for  tlie  Chief  Justice. 

The  case  of  Garhtule  v.  The  State  of  Bremen  was  expressly  overruled,  some  eight 
years  later,  by  tlie  Imperial  Tribunal.  Tiiis  was  done  in  the  case  of  A',  v.  The  Jji/Le 
Board  of  Miedervieland,  which  was  also  a  Bremen  case.  It  is  reported  in  the  De- 
cisions of  the  liekhsgericht  in  Civil  Causes,  vol.  9,  p.  233.  From  the  original  rejtort 
the  following  is  partially  abstracted  and  ))artially  translated. 

The  suit  was  originally  brouglit  in  the  Land  Court  of  Bremen  by  K.  and  other 
interested  parties  against  the  Dyke  Board  of  Niedervieland  in  the  State  of  Bremen. 
Thence  an  apjjcal  was  taken  to  the  Superior  Land  Court  of  Hamburg  in  second 
instance,  liecourse  in  tliird  and  final  instance  was  then  had  to  tlie  liekhs<jerirht  or 
Supreme  Court  of  the  German  Empire.  The  original  jjlaiutiff.s,  who  were  finally 
defendants,  claimed  that  their  well-ac(iuired  rights,  as  commoners  of  a  swine  p)asturc, 
had  been  violated  by  the  Dyke  Board  proceeding  under  section  29  of  tlie  dyke  ordi- 
nance of  Bremen,  a  State  of  the  German  Empire.  That  ordinance  was  an  Act  of 
ordinary  legislation  and  its  section  29  was  alleged  to  be  in  conflict  with  tlie  i)r(>visions 
of  the  written  Constitution  of  Bremen,  which  prohibited  legislation  impairing  well- 
acquired  rights  of  property. 

On  behalf  of  K.  and  the  other  commoners  it  was  contended,  inter  alia,  that  the  said 
section  of  the  dyke  ordinance  was  an  invalid  law  because  it  conflicted  with  the  Consti- 
tution as  aforesaid.  All  tiie  questions  raised  in  the  case  were  decided  in  favor  of  the 
Dyke  Board.  The  constitutional  questions  are,  however,  the  only  ones  requiring 
mention  here.  The  following  extracts  are  translated  from  the  portion  of  the  decision, 
which  relates  to  the  constitutional  branch  of  the  case.  This  final  judgment  in  third 
instance  was  given  on  February  17,  1883.  In  it  the  Court  of  Second  Instance  is 
alluded  to  as  the  Court  of  Appeal: 

"  The  princii)le  is  maintained  by  the  Court  of  Appeal  that,  when  two  intcrjireta- 
tions  of  a  law  ajqiear  possible  to  a  judge,  one  conflicting  anil  the  other  not  conflicting 
with  the  Constitution,  the  former  is  simply  to  be  rejected  :  and  this  is  laid  down  uni- 
versallv  and  witliout  limitation  (as  is  indicated  by  the  court's  use  of  the  words  srhon 
deshalb).     So  laid  down,  this  principle  cannot  be  recognized  as  correct. 

"  When  both  the  form  of  a  law  and  the  procedure  of  its  enactment  are  not  those 
prescribed  for  an  alteration  of  the  [written]  Constitution,  it  may  liappen  that  a  par- 
ticular interpretation  thereof  may  according  to  the  judge's  view  be  in  conflict  with  a 
principle  of  the  Con.stitution.  Properly,  this  circumstance  must  be  considered  only 
one  of  the  reasons  determining  tlie  interpretation  of  tiie  law.  It  can  only  be  a  de- 
cisive one  when,  exclusive  of  it,  the  grounds  for  one  or  other  of  the  two  contradicting 
interpretations  are  equally  balanced.  The  Court  of  Appeal  contented  itself  with 
mentioning  that  the  interpretation  given  in  first  instance  by  tlie  Laud  Court  to  sec- 
tion 29  of  the  dyke  ordinance  was  not  one  of  actual  necessity,  although  its  view  of  the 
constitutional  repugnancy  of  the  section  was  based  upon  that  interpretation.  The 
Court  of  Appeal,  therefore,  attributed  too  great  weight  and  significance  to  the  inter- 
pretation made  by  the  Land  Court,  while  not  holding  the  same  merely  in  itself  to  be 
fully  satisfactory.  In  so  doing,  the  Court  of  Appeal  overlooked  weighty  considera- 
tions, proper  in  seeking  to  ascertain  the  legi.slative  will.  Among  these  was,  espe- 
cially, that  of  the  question  as  to  what  was  the  purpose  of  the  law,  and  what  value 
according  thereto  one  interpretation  had  when  compared  with  the  other.  The  omis- 
sion to  consider  that  question  further  involved  the  loss  of  an  available  means  of 
assistance  which  would  otherwise  have  been  obtainable. 

"...  There  remains  to  be  considered  only  the  question  left  undecided  by  the 
Appellate  Court,  namely,  whether  section  29  of  the  dyke  ordinance  shall  be  denied 
the  force  of  binding  law,  because  it  is  only  an  Act  of  ordinary  legislation,  while  the 
Constitution  is  a  law  of  a  higher  order.     In  a  similar  case,  such  denial  was  made  by 


SECT.  II.]  NOTE.  •  149 

the  formerly  existing  Court  of  Upper  Appeal  at  Luheck.  (See  Seuffert's  Archives, 
vol.  32,  no.  101.^)  'J'his  view,  however,  cannot  be  acceded  to.  On  the  contrary,  the 
correct  view  on  this  head  is  that  which  was  taken  by  the  same  court  in  another  case 
only  a  few  years  before.  (!See  Kierulff's  Collection,  vol.  7,  p.  234.)  This  correct  view 
is  as  follows :  tlie  constitutional  provision  that  well-acquired  rights  must  not  be  in- 
jured, is  to  be  understood  only  as  a  rule  for  the  legisLative  power  itself  to  interpret, 
and  does  not  signify  that  a  command  giveu  by  the  legislative  power  should  be  left 
disregarded  by  the  judge  because  it  injures  well-acquired  rights.  This  is  said  without 
affecting  the  question  whether  the  State  may  or  may  not  be  bound  to  grant  damages ; 
a  matter  not  here  brought  into  consideration.  There  is,  therefore,  no  occasion  to 
investigaJ:e  whether  well  acquired  rights  have  been  violated  or  not.  The  question  is 
not  whether  a  particular  principle  of  the  Constitutiou  has  been  altered  or  not ;  but 
whether  the  law  could  have  been  enacted  without  an  alteration  of  the  Constitution 
itself,  and  therefore  without  applying  the  forms  prescribed  for  such  alteration.  This 
l;ist  question,  however,  is  one  wliich  cannot  be  examined  by  the  judiciary."  .  .  . 

The  case  above  mentioned  iu  Kierulff's  Collection,  vol.  7,  p.  234,  is,  that  of  Krieger 
V.  The  Stale  of  Bremen,  decided  by  the  Ilauseatic  Court  of  Upper  Appeal  on  June  15, 
1872.  On  the  page  cited,  the  court  declares  it  to  be  law  that  the  constitutional  prin- 
ciple, which  prohibits  the  injury  of  well-acquired  rights  by  legislation,  is  to  be  under- 
stood only  as  a  rule  for  the  legislative  power  itself :  that  it  does  not  signify  that  a 
command,  which  is  given  by  the  legislative  power,  is  to  be  disregarded  by  the  judi- 
ciary because  it  injures  well-acquired  rights.  This  is  said  with  a  saving  as  to  whetlier 
the  State  may  or  may  not  be  bound  to  grant  remuneration  for  the  injury.  —  Coxe,  Jud. 
Power  and  Unconst.  Ley  is.  95-102. 

So  far  as  the  grounds  for  this  remarkable  power  are  found  in  the  mere  fact  of  a  con- 
stitution being  in  writing,  or  in  judges  being  sworn  to  support  it,  they  are  quite  inade- 
quate. Neither  tlie  written  form  nor  the  oath  of  the  judges  necessarily  involves  the 
right  of  reversing,  displacing,  or  disregarding  any  action  of  the  legislature  or  the  execu- 
tive which  those  departments  are  constitutionally  authorized  to  take,  or  the  determi- 
nation of  those  departments  that  they  are  so  authorized.  It  is  enough,  in  confirmation 
of  tiiis,  to  refer  to  the  fact  that  other  countries,  as  France,  Germany,  and  Switzerland, 
have  written  constitutions,  and  that  such  a  power  is  not  recognized  there.  "The  re- 
strictions," says  Dicey,  in  his  admirable  Law  of  the  Constitution,  "  placed  on  the  action 
of  the  legislature  under  the  French  Constitution  are  not  in  reality  laws,  since  they  are 
not  rules  which  iu  the  last  resort  will  be  enforced  by  the  courts.  Their  true  character 
is  that  of  ma.xims  of  political  morality,  which  derive  whatever  strength  they  possess 
from  being  formally  inscribed  in  the  Constitution,  and  from  the  resulting  support  of 
puljlic  opinion."- 

How  came  we  then  to  adopt  this  remarkable  practice  ?  Mainly  as  a  natural  result 
of  our  political  experience  before  the  War  of  Independence,  —  as  being  colonists,  gov- 
erned under  written  charters  of  government  proceeding  from  the  English  Crown. 
The  terms  and  limitations  of  these  charters,  so  many  written  constitutions,  were  en- 
forced by  various  means,  —  by  forfeiture  of  the  charters,  by  Act  of  Parliament,  by  the 
direct  annulling  of  legislation  by  the  Crown,  by  judicial  proceedings  and  an  ultimate 
appeal  to  the  Privy  Council.  Our  practice  was  a  natural  result  of  this ;  but  it  was  by 
no  means  a  necessary  one.     All  this  colonial  restraint  was  only  the  usual  and  normal 

1  The  case  of  Garhade  v.  The  State  of  Bremen,  previously  given. 

2  ch.  ii.  p.  127,  3d  ed.  President  Rogers,  in  the  Preface  to  a  valuable  collection  of 
papers  on  the  "  Constitutional  History  of  the  United  States,  as  seen  in  the  Develop- 
ment of  American  Law,"  11,  remarks  that  "there  is  not  in  Europe  to  this  day  a  court 
with  authority  to  pass  on  the  constitutionality  of  national  laws.  But  in  Germany  and 
Switzerland,  while  the  Federal  courts  cannot  annul  a  Federal  law,  they  may,  in  either 
country,  declare  a  cantonal  or  State  law  invalid  when  it  conflicts  with  the  Federal 
law."  Compare  Dicey,  ubi  supra,  and  Bryce,  Am.  Com.,  i.  430,  note  (1st  ed.),  as  to 
possible  qualificatious  of  this  statement. 


150  NOTE.  [chap.  L 

exercise  of  power.  An  external  authority  liad  imposed  the  terms  of  the  rharters,  the 
authority  of  a  ])animount  government,  fully  organized  and  eiiiiipped  for  every  exigency 
of  disobedience,  with  a  king  and  legislature  and  courts  of  its  own.  The  superior  right 
and  autliority  of  this  goverument  were  fundameutal  here,  and  fully  recognized ;  and 
it  was  only  a  usual,  orderly,  necessary  procedure  when  our  own  courts  enforced  the 
same  riglits  that  were  enforced  here  l)y  the  Appellate  Court  in  England.  These  cliar- 
ters  were  in  the  strict  sense  written  law:  as  their  restraints  upon  the  colonial  legisla- 
tures were  euforceii  hy  the  English  court  of  last  resort,  so  might  they  be  enforced 
through  the  colonial  courts,  hy  disregarding  as  null  what  went  counter  to  tliem.^ 

The  Revolution  came,  and  what  liajjpened  then  ?  Simply  this :  we  cut  the  cord  tliat 
tied  us  to  Great  Britain,  and  there  was  no  longer  an  external  sovereign.  Our  concep- 
tion now  was  that  "  the  people  "  took  his  place ;  that  is  to  say,  our  own  home  population 
in  the  several  States  were  now  their  own  sovereign.  So  far  as  existing  institutions 
were  left  untouched,  they  were  construed  by  translating  the  name  and  style  of  the 
English  sovereign  into  that  of  our  new  ruler,  —  ourselves,  the  I'eojde.  After  this  the 
charters,  and  still  more  obviously  the  new  constitutions,  were  not  so  many  orders  from 
without,  backed  by  an  organized  outsiile  government,  which  simply  performed  an  onii- 
nary  function  in  enforcing  them  ;  they  were  precepts  from  the  people  themselves 
who  were  to  be  governed,  addressed  to  each  of  their  own  number,  and  esjjccially  to 
those  who  were  charged  with  the  duty  of  conducting  tlie  government.  No  higher 
power  existed  to  support  these  orders  by  compulsion  of  the  ordinary  sort.  Tlie  sover- 
eign himself,  having  written  the.se  expressions  of  his  will,  had  retire<l  into  the  clouds ; 
in  any  regular  course  of  events  he  had  no  organ  to  enforce  his  will,  except  those  to 
whom  his  orders  were  .addressed  in  these  documents.  How  then  shouM  his  written 
constitution  be  enforced  if  these  agencies  did  not  obey  him,  if  they  failed,  or  worked 
amiss  ? 

Here  was  really  a  different  problem  from  that  which  had  been  presented  under  the 
old  state  of  things.  And  yet  it  happened  that  no  new  provisions  were  made  to  meet 
it.  The  old  methods  and  the  old  conceptions  were  followed.  In  Connecticut,  in  1776, 
by  a  mere  legislative  Act,  the  charter  of  1662  was  declared  to  continue  "  the  civil  Con- 
stitution of  the  State,  under  the  sole  authority  of  the  people  thereof,  independent  of 
any  king  or  prince  whatsoever;"  and  then  two  or  three  familiar  fundamental  rules  of 
liberty  and  good  government  were  added  as  a  part  of  it.  Under  this  the  people  of 
Connecticut  lived  till  1818.  In  Uhode  Island  the  charter,  unaltered,  served  their  turn 
until  1842 ;  and,  as  is  well  known,  it  was  upon  this  that  one  of  the  early  cases  of  judi- 
cial action  arose  for  enforcing  constitutional  provisions  under  the  new  order  of  things, 
as  against  a  legislative  Act;  namely,  the  case  of  Trevett  v.  Weeden,  in  the  Rhode 
Island  Supreme  Court  in  1786.^ 

But  it  is  instructive  to  see  tliat  this  new  application  of  judicial  power  was  not  uni- 
versally assented  to.  It  was  denied  b}'  several  members  of  the  Federal  Convention,  and 
was  referred  to  as  unsettled  by  various  judges  in  the  last  two  decades  of  the  last  cen- 
tury. The  surprise  of  the  Rhode  Island  Legislature  at  the  action  of  the  court  in  Trevett 
V.  Weeden  seems  to  indicate  an  impression  in  their  minds  that  the  change  from  colonial 
dependence  to  independence  had  made  tlie  legislature  the  substitute  for  Parliament, 
with  a  like  omnipotence.^  In  Vermont  it  seems  to  have  been  the  established  doctrine 
of  the  period  that  the  judiciary  could  uot  disregard  a  legislative  Act ;  and  the  same 
view  was  held  in  Connecticut,  as  expressed  in  1795  by  Swift,  afterwards  Chief  Justice 
of  that  State.  In  the  preface  to  1  D.  Chipman's  (Vermont)  Reports,  22  et  se'j.,  tlie 
learned  reporter,  writing  (in  1824)  of  the  period  of  the  Vermont  Constitution  of  1777, 
snvs  that  "  No  idea  was  entertained  that  the  judiciary  had  any  power  to  inquire  into 
the  constitutionality  of  Acts  of  the  Legislature,  or  to  pronounce  them  void  for  any 

1  For  the  famous  cases  of  Lechmere  v.  Winthrop  (1727-28),  Phillips  v.  Savnr/e  (1 734), 
and  Clark  v.  Tousey  (1745),  see  the  Talcott  Papers,  Conn.  Hist.  Soc.  Coll.  iv.  94,  note. 

2  Varnum's  Report  (Providence,  1787) ;  s.  c.  2  Chandler's  Crim.  Trials,  269. 

'  And  so  of  the  excitement  aroused  by  the  alleged  setting  aside  of  a  legislative  Act 
in  New  York  in  1784,  in  the  case  of  Rutgers  v.Waddington, 


SECT.  II.]  NOTE. 

cause,  or  even  to  q«e.stion  their  valMity."  And  at  pa^e  25,  speaking  of  the  year  1785, 
he  adds :  "  Long  after  the  i>eriod  to  which  we  have  alluded  the  doctr.ue  hat  the  Con- 
stitution is  the!«pren.e  law  of  the  land,  and  that  the  judinary  ^-e  au  honty  to  se 
aside  Acts  repugnant  thereto,  was  considered  anti-republican.       lu  1814,   for  the 

firs  time"  I  believe^  we  find  this  court  announcing  an  Act  of  the  State  Legislature  to 
he  '  vo"'at  agai"«t  the  Constitution  of  the  State  and  the  United  States,  and  even  the 
Hw8  of  nature  "  It  mav  be  remarked  here  that  the  doctrme  of  declaring  legislative 
Acts  void  a  being  contrary  to  the  Constitution,  w=is  probably  helped  into  existence  by 
a  tieorv  which  found  some  favor  among  our  ancestors  at  the  time  of  the  Revo  ution, 
^hat  courts  might  disregard  such  Acts  if  they  were  contrary  to  '^e  undamenta^^^^^^^^^ 
ims  of  moraliU',  or,  as  it  was  phrased,  to  the  laws  of  nature  Such  a  doctrine  was 
m^TLve  been  asserted  bv  English  writers,  and  even  by  judges  at  times,  but 
was  never  act  d  on  "hal  bee,  Vepea^ted  here,  a.  matter  of  speculation  by  our  earlier 
ud^efand  oclXnallv  bv  later  ones ;  but  in  no  case  within  my  knowledge  has  it  ever 
Teen  enforced  \".ere  it'wa:s  the  single  and  necessary  ground  of  the  decision,  nor  can  it 
he,  unless  as  a  revolutionary  measure-  ,,.  ,    i    •      i -ori  3  tii^   -.ntbor 

in  Swift's  Svstem  of  the  Laws  of  Connecticut,  published  in  1.95,^  the  author 
-xriues  stronc^h-and  elaboratelv  against  the  power  of  the  judiciary  to  disregard  a  legis- 
atlle  enactment,  while  mentioning  that  the  contrary  fr:^^-^^^^^ 
nrevalent  "  "  It  will  be  agreed,"  he  says,  "  it  is  as  probable  that  tlie  judiciary  will 
S  h^r  laws  unconstitutional  which  are  not  so,  as  it  is  *»^-t.  ^'-,  ^"f '  """o rl^rere 
their  constitutional  authority."  But  he  makes  the  very  noticeable  admission  that  here 
n  V  be  ca.es  so  monstrous,-..  ,.,  an  Act  authorizing  conviction  for  -m  -^^^^^^^^^ 
evidence  or  securing  to  the  legislature  their  own  seats  for  life,-  so  manifestly  un 
i^titu^lonal  that  ft  would  secern  wrong  to  require  the  judges  to  -gard  i  in  he. 
decisions."  As  late  as  1807  and  1808,  judges  were  impeached  by  the  Legislature  of 
Ohio  for  hohling  Acts  of  that  body  to  be  void.*  , ,.  ,     ,        j     jj  j  f^ 

Whe"  at  last  this  power  of  the  judiciary  was  everywhere  established,  and  added  to 
the  other  bulwarks  of  our  written  con.stitutions,  how  was  the  power  to  be  conceived  of? 
S^c^a    a   u.icialone.  .  .  .  Therefore,  since  the  power  now  in  question  was  a  pure  y 
•  d    S^one    n  the  first  place,  there  were  many  cases  where  it  had  no  operation^    In 
he  c^se  o   purelv  political  acts  and  of  the  exercise  of  mere  discretion,  it  mattered  not 
at  othe    depanments  were  violating  the  Constitution,  the  judiciary  could  not  mter- 
ere    on  the  contrarv,  thev  must  accept  and  enforce  their  Acts     Judge  Cooley  has 
lately-  said  ■  ^  "  The  comm<.n  impression  undoubtedly  is  that  in  the  case  of  any  legis- 
lation where  the  bounds  of  constitutional  authority  are  disregarded    .  .  .  the  judiciary 
is  perfectly  competent  to  afford  the  adequate  remedy;  that  the  Act  indeed  must  be 
vofd,  and  (hat  any  citizen,  as  well  as  the  judiciary  itself,  may  treat  it  as  void,  and  refuse 
obedience.     This,  however,  is  far  from  being  the  fact." 

Again,  where  the  power  of  the  judiciary  did  have  place,  its  whole  scope  was  this, 
namelv,  to  determine,  for  the  mere  purpose  of  deciding  a  litigated  question  properly 
submitted  to  the  court,  whether  a  particular  disputed  exercise  of  power  ^vas  fort.dden 
by  the  Constitution.  In  doing  this  the  court  was  so  to  discharge  its  office  as  not  to 
deprive  another  department  of  any  of  its  proper  power,  or  to  limit  it  in  the  proper 

i  Dupuy  V.  Wickw!re,  1  D.  Chipman,  237.  , 

2  This  subject  is  well  considered  in  a  learned  note  to  Paxton's  Case  (1 ,  61 ),  Quincy  s 
Ren  51  5-^0  relating  to  Writs  of  Assistance.  The  American  cases  sometimes  referred 
to  ^;  de'chling  that  a  legislative  Act  was  void,  as  being  contrary  to  the  A-^t  Principles 
of  morals  or  of  government,  -e.  g.,  in  Quincy,  529,  citing  Bou:man  v.  ^^(l^lfon  I 
Bay  252  and  in  1  Bryce,  Am.  Com.  4Sl,  n.,  Ut  ed.,  c^Ung  Gardner  y.  i\eicburc,h,  2 
Johns.  Ch.  Rep.  162,  — wiU  be  found,  on  a  careful  examination,  to  reqmre  no  such 
explanation. 

8  Vol.  i.  50  et  sen.  ,  rsi.-  f  .,«    -so  /ia 

♦  Cooley,  Const   Lim.,  6th  ed..  193,  n. ;  1  Chase's  Statutes  of  Ohio  pre  ace,  38-40 
For  the  last  reference  I  am  indebted  to  my  colleague,  Professor  Wambaugh. 
6  Journal  of  the  Michigan  Pol.  Sc.  Association,  i.  47. 


152  NOTE.  [CIIAP.  I. 

ran"-e  of  its  disorption  Xot  merely,  then,  do  these  qne«tion8,  when  presenting  them- 
selves in  the  lourts  for  juiliciiil  action,  call  for  a  i)eculiarly  large  method  iji  the  treat- 
ment of  thein,  hut  es])ecially  they  re(|nire  an  allovvame  tu  l>e  made  by  the  judgen  for 
the  vast  and  not  definable  range  of  legislative  power  and  elioice,  for  tliat  wide  margin 
of  considerations  w  hich  address  themselves  only  to  the  practical  judgment  of  a  legisla- 
tive body.  Within  that  margin,  as  among  all  these  legislative  consideratioua,  the  con- 
stitutional law-makers  mnst  be  allowed  a  free  foot.  In  so  far  as  legislative  choice, 
ranging  here  unfettered,  may  select  one  form  of  action  or  another,  the  judges  must 
not  interfere,  since  their  question  is  a  naked  judicial  one. 

Moreover,  such  is  the  nature  of  this  particular  judicial  question  that  the  preliminary 
determination  by  the  legislature  is  a  fact  of  very  great  importance,  since  tlie  constitu- 
tions expressly  intrust  to  the  legislature  this  determination  ;  they  cannot  act  without 
niakiu"-  it.  Furthermore,  the  constitntions  not  merely  intrust  to  the  legislatures  a  pre- 
liminary determination  of  the  question,  but  they  contem])late  that  this  determiuatiou 
may  be  the  final  one;  for  they  secure  no  revision  of  it.  It  is  only  as  litigation  may 
spring  up,  and  as  tlie  course  of  it  may  hajipen  to  raise  the  point  of  constitutionnlity, 
that  any  question  for  the  courts  can  regularly  emerge.  It  may  be,  then,  that  the  niero 
legislative  decision  will  accomplish  results  throughout  the  country  of  the  i)rofounde8t 
importance  before  any  judicial  question  can  arise  or  be  decided,  —  as  in  the  case  of  the 
first  and  second  charters  of  the  United  States  Bank,  and  of  the  legal  tender  laws  of 
thirty  years  ago  and  later.  The  constitutionality  of  a  bank  charter  divided  the  caliinet 
of  Washington,  as  it  divided  political  parties  for  more  than  a  generation.  Yet  when 
the  first  charter  was  given,  in  1791,  to  la.<t  for  twenty  years,  it  ran  through  its  whole 
life  uncliallenged  in  the  courts,  and  was  renewed  in  1816,  Only  after  three  years  from 
that  did  the  question  of  its  constitutionality  come  to  decision  in  the  Supreme  Court  of 
the  United  States.  It  is  peculiarly  important  to  observe  that  such  a  result  is  not  an 
exceptional  or  unforeseen  one;  it  is  a  result  anticipated  and  clearly  foreseen.  Now,  it 
is  the  legislature  to  whom  this  power  is  given,  —  this  power,  not  merely  of  enacting 
laws,  but  of  putting  an  interpretation  on  the  Constitution  which  shall  deeply  affect  the 
whole  country,  enter  into,  vitally  cliange,  even  revolutionize  the  most  serious  affairs, 
except  as  some  individual  may  find  it  for  his  private  interest  to  carry  the  matter  into 
court.  So  of  the  legal  tender  legislation  of  1863  and  later.  More  important  action, 
more  intimately  and  more  seriously  touching  the  interests  of  every  member  of  our  jiopu- 
lation,  it  Avould  be  hard  to  think  of.  The  constitutionality  of  it,  although  now  up- 
held, was  at  first  denied  by  the  Supreme  Court  of  the  United  States.  The  local  courts 
were  divided  on  it,  and  professional  opinion  has  always  been  divided.  Yet  it  was  the 
legislature  that  determined  this  question,  not  merely  primarily,  but  once  for  all,  except 
as  some  individual,  among  the  innumerable  chances  of  his  private  affairs,  found  it  for 
his  interest  to  raise  a  judicial  question  about  it. 

It  is  plain  that  where  a  power  so  momentous  as  this  primary  authority  to  interpret 
is  given,  the  actual  determinations  of  the  body  to  whom  it  is  intrusted  are  entitled  to 
a  corresponding  respect;  and  this  not  on  mere  grounds  of  courtesy  or  conventional 
respect,  but  on  very  solid  and  significant  grounds  of  policy  and  law.  The  judiciary 
may  well  reflect  that  if  they  had  been  regarded  by  the  people  as  the  chief  protection 
against  legislative  violation  of  the  Constitution,  they  would  not  have  been  allowed 
merely  this  incidental  and  postponed  control.  They  would  have  been  let  in,  as  it  was 
sometimes  endeavored  in  the  conventions  to  let  them  in,  to  a  revision  of  the  laws  be- 
fore they  began  to  operate.^    As  the  opportunity  of  the  judges  to  check  and  correct 

^  The  Constitution  of  Colombia,  of  1886,  art.  84,  provides  that  the  judges  of  the 
Supreme  Court  may  take  part  in  the  legislative  debates  over  "  bills  relating  to  civil 
matters  and  judicial  procedure."  And  in  the  case  of  legislative  bills  which  are  objected 
to  by  "the  government"  as  unconstitutional,  if  the  legislature  insist  on  the  bill,  as 
against  a  veto  by  the  government,  it  shall  be  submitted  to  the  Supreme  Court,  which 
is  to  decide  upon  this  question  finally.  Arts.  90  and  150.  See  a  translation  of  this 
Constitution  by  Professor  Moses,  of  the  University  of  California,  in  the  supplement 
,  to  the  Auuals  of  the  American  Academy  of  Political  and  Social  Science,  for  January, 


SECT.  II.]  NOTE.  153 

nncoiistitiitional  Acts  is  so  limited,  it  may  help  us  to  iinderstand  why  the  extent  of  tlieir 
control,  wheu  they  do  have  the  opportunity,  should  also  be  narrow. 

It  was,  then,  all  along  true,  and  it  was  foreseen,  that  much  which  is  harmful  and 
unconstitutional  may  take  effect  without  any  capacity  in  the  courts  to  prevent  it,  since 
their  whole  power  is  a  judicial  one.  Their  interference  was  but  one  of  many  safe- 
guards, and  its  scope  was  narrow. 

The  rigor  of  this  limitation  upon  judicial  actioti  is  sometimes  freely  recognized,  yet 
in  a  perverted  way  which  really  operates  to  extend  the  judicial  function  beyond  its  just 
bounds.  The  court's  duty,  we  are  told,  is  the  mere  and  simjile  office  of  construing  two 
writings  and  comparing  one  with  auotlier,  as  two  contracts  or  two  statutes  are  con- 
strued and  compared  wheu  they  are  said  to  conflict;  of  declaring  the  true  meaning  of 
each,  and,  if  they  are  opposed  to  each  other,  of  carrying  into  effect  the  Constitution  as 
being  of  superior  obligation,  —  an  ordinary  and  humble  judicial  duty,  as  the  courts 
sometimes  describe  it.  This  way  of  putting  it  easily  results  in  the  wrong  kind  of  dis- 
regard of  legislative  considerations  ;  not  merely  in  refusing  to  let  them  directly  operate 
as  grounds  of  judgment,  but  in  refusing  to  consider  them  at  all.  Instead  of  taking 
them  into  account  and  allowing  for  them  as  furnishing  possible  grounds  of  legislative 
action,  there  takes  place  a  ])C(lantic  and  academic  treatment  of  the  texts  of  the  Consti- 
tution and  the  laws.  And  so  we  miss  that  combination  of  a  lawyer's  rigor  with  a 
statesman's  breadth  of  view  which  should  be  found  in  dealing  with  this  class  of  ques- 

1893.  We  are  much  too  apt  to  think  of  the  judicial  power  of  disregarding  the  acts 
of  the  other  departments  as  our  only  protection  against  oppression  and  ruin.  But 
it  is  remarkable  how  small'  a  part  this  played  in  any  of  the  del)ates.  The  chief 
protections  were  a  wide  suffrage,  short  terms  of  office,  a  double  legislative  cham- 
ber, and  the  so-called  executive  veto.  There  was,  in  general,  the  greatest  unwill- 
ingness to  give  the  judiciary  any  share  in  the  law-making  power.  In  New  York, 
however,  the  Constitution  of  1777  provided  a  Council  of  Revision,  of  which  sev- 
eral of  the  judges  were  members,  to  whom  all  legislative  Acts  should  be  jmbmitted 
before  they  took  effect.  That  existed  for  more  than  forty  years,  giving  way  in  the 
Constitution  of  1821  to  the  common  expedient  of  merely  requiring  tlie  approval  of  the 
executive,  or  in  the  alternative,  if  he  refused  it,  tlie  repassing  of  the  Act,  perhaps  by 
an  increa.sed  vote,  by  botli  branches  of  the  legislature.  In  Pennsylvania  (Const,  of 
1776,  §  47)  and  Vermont  (Const,  of  1777,  §  44)  a  Council  of  Censors  was  provided  for, 
to  be  ciioscn  every  seven  years,  who  were  to  investigate  the  conduct  of  affairs,  and  point 
out,  among  other  things,  all  violations  of  the  Constitution  by  any  of  tlie  departments. 
In  Pennsylvania  tliis  arrangement  lasted  only  from  1776  to  1790;  in  Vermont  from 
1777  to  1870.  In  framing  the  Constitution  of  the  United  States,  several  of  these  expe- 
dients, and  others,  were  urged,  and  at  times  adopted  ;  e.  g.,  tiiat  of  New  York.  It  was 
proposed  at  various  times  that  the  general  government  should  have  a  negative  on  all 
the  legislation  of  tiie  States ;  that  the  governors  of  the  States  should  be  appointed  by 
the  United  States,  and  should  have  a  negative  on  State  legislation  ;  that  a  I'rivv  Coun- 
cil to  the  President  should  1)6  appointed,  composed  in  part  of  the  judges ;  and  that  the 
President  and  the  two  Houses  of  Congress  might  ol)tain  opinions  from  the  Supreme 
Court.  But  at  last  tlie  convention,  rejecting  all  these,  settled  down  upon  the  common 
expedients  of  two  legislative  Houses,  to  be  a  check  upon  each  other,  and  of  an  executive 
revision  and  veto,  qualified  by  the  legislative  power  of  reconsideration  and  enactment 
by  a  majority  of  two-thirds;  —  upon  these  expedients,  and  upon  the  declaration  that 
the  Constitution,  and  constitutional  laws  and  treaties,  shall  be  the  supreme  law  of  the 
land,  and  shall  bind  tlie  judges  of  the  several  States.  This  provision,  as  the  phrasing 
of  it  indicates,  was  in.^crtcd  with  an  eye  to  secure  the  authority  of  the  general  govern- 
ment as  against  the  States,  i.  e.,  as  an  essential  feature  of  any  efficient  Federal  system, 
and  not  with  direct  reference  to  the  other  departments  of  the  government  of  the  United 
States  itself.  The  first  form  of  it  was  that  "  legislative  Acts  of  the  United  States,  and 
treaties,  are  the  supreme  law  of  the  respective  States,  and  bind  the  judges  there  aa 
against  their  own  laws." 


154  BYRNE   V.   STEWART.  [CH.U'.  L 

tions  in  constitutional  law.     Of  this  petty  method  we  have  many  specimen^;  they  are 
found  only  too  easily  to-day  in  tlie  volumes  of  our  current  rejiorts. 

In  order,  however,  to  avoid  falling  into  tliese  narrow  and  literal  methods,  in  order 
to  prevent  the  courts  from  forgetting,  as  Marsiiall  said,  that  "  it  is  a  constilutirni  we 
are  expounding,"  these  literal  precepts  about  tlie  nature  of  the  judicial  tasli  liave  heea 
accompanied  by  a  rule  of  administration  which  has  tended,  in  competent  hands,  to  give 
matters  a  very  different  complexion.  —  Thayer's  Origin  and  iScope  of  the  Anteriran 
Doctrine  of  Constitutional  Law,  4-12.  —  Ec 


ADM'RS   OF   BYRNE  v.   AUM'RS   OF   STEWART. 
Court  of  Equity  of  South  Carolina.     1812. 

[3  Des.  466.] 

.  .  .  Mr.  Pringle^  Mr.  Ford,  and  3fr.  Simons  argued  against  the 
rule.     Mr.  Smith,  in  support  of  the  rule. 

Chancellor  Waties,  after  taking  time  to  deliberate,  delivered  the 
following  judgment : 

A  rule  was  taken  out  in  this  case  against  C.  Lining,  Esq.,  to  show 
cause  why  another  solicitor  should  not  be  substituted  in  his  place  for 
the  defendants,  on  account  of  his  being  the  ordinar}'  for  Charleston 
district,  and  disqualified  as  such  from  practising  as  a  solicitor  by  an 
Act  passed  in  December,  1811. 

The  defendant  showed  for  cause  that  the  Act  of  the  Legislature 
which  restrains  him  as  aforesaid,  is  void,  because  it  is  an  ex  post  facto 
law  ;  and  that  it  is  also  void  because  it  deprives  him  of  a  right  of  free- 
hold, without  the  judgment  of  his  peers,  or  an}-  law  authorized  by  the 
Constitution. 

It  has  been  correctly  said  in  the  argument  that  the  question  for  the 
court  in  this  case  is  not  whether  the  Act  complained  of  is  a  just 
and  proper  one,  but  whether  the  legislature  had  a  right  to  make  it? 
The  power  and  the  duty  of  the  court  to  declare  an  act  void,  which 
violates  any  right  of  the  citizen  secured  to  him  by  the  Constitution, 
have  been  admitted  on  both  sides,  and  I  feel  so  strong  a  sense  of  this 
dut}',  that  if  the  violation  complained  of  was  manifest,  I  should  not 
only  declare  the  Act  void,  but  in  doing  sol  should  think  that  I  rendered 
a  more  important  service  to  my  countr}'  than  I  could  b}-  discharging 
the  ordinar}^  duties  of  a  judge  for  many  years. 

It  is  the  peculiar  and  characteristic  excellence  of  the  free  govern- 
ments of  America,  that  the  legislative  power  is  not  supreme  ;  but  that 
it  is  limited  and  controlled  by  written  constitutions,  to  which  the  judges, 
who  are  sworn  to  defend  them,  are  authorized  to  give  a  transcendent 
operation  over  all  laws  that  ma}'  be  made  in  derogation  of  them. 

This  judicial  check  affords  a  security  here  for  civil  liberty,  which 
belongs  to  no  other  governments  in  the  world  ;  and  if  the  judges  will 
everywhere  faithfully  exercise  it,  the  liberties  of  the  American  nation 


SECT.  II.]  BYRNE   V.    STEWART.  155 

maj-  be  rendered  perpetual.  But  while  I  assert  this  power  in  the  court, 
and  insist  on  the  great  vahie  of  it  to  the  conimunit}',  I  am  not  insen- 
sible of  the  high  deference  which  is  due  to  the  legislative  authorit}-.  It 
is  supreme  in  all  cases  in  which  it  is  not  restrained  b}'  the  Constitution  ; 
and  as  it  is  the  dut}'  of  the  legislators  as  well  as  of  the  judges  to  con- 
sult this  and  conform  their  acts  to  it,  so  it  ought  to  be  presumed  that 
all  their  acts  are  conformable  to  it,  unless  the  contrarj'  is  manifest. 
This  confidence  in  the  wisdom  and  integrity  of  the  legislature,  is  neces- 
sary to  ensure  a  due  obedience  to  its  authoritj' ;  for  if  this  is  frequently 
questioned,  it  must  tend  to  diminish  that  reverence  for  the  laws  which 
is  essential  to  the  public  safet}'  and  happiness.  I  am  not,  therefore, 
disposed  to  examine  with  scrupulous  exactness  the  validitj-  of  a  law. 
It  would  be  unwise  to  do  so  on  another  account.  The  interference  of 
the  judicial  power  with  legislative  acts,  if  frequent  or  on  dubious 
grounds,  might  occasion  so  great  a  jealousy  of  this  power,  and  so 
general  a  prejudice  against  it,  as  to  lead  to  measures,  which  might 
end  in  the  total  overthrow  of  the  independence  of  the  judiciar}',  and 
with  it  this  best  preservative  of  the  Constitution.  The  validity  of  a  law 
ought  not  then  to  be  questioned,  unless  it  is  so  obviousl}'  repugnant  to 
the  Constitution,  that  when  pointed  out  by  the  judges,  all  men  of  sense 
and  reflection  in  the  community  maj-  perceive  the  rcpugnanc}'.  By 
such  a  cautious  exercise  of  this  judicial  check,  no  jealousy  of  it  will 
be  excited,  the  public  confidence  in  it  may  be  promoted,  and  its  salutary 
effects  be  justly  and  fully  appreciated.  .  .  .  [The  court  negatived  both 
grounds  of  defence.  Mule  absolute.']  ^ 

1  In  1811,'  Cliief  Justice  Tilghman,  of  Pennsylvania,  while  asserting  the  power  of  the 
court  to  liokl  laws  unconstitutional,  but  declining  to  exercise  it  in  a  particular  case,  stated 
the  rule  of  administration  as  follows:  "For  weighty  reasons,  it  has  been  assumed  as  a 
principle  in  constitutional  construction  by  the  Supreme  Court  of  the  United  States,  by  this 
court,  and  every  other  court  of  reputation  in  the  United  States,  that  an  Act  of  the  Legisla- 
ture is  not  to  be  declared  void  unless  the  violation  of  the  Constitution  is  so  manifest  as 
to  leave  no  room  for  reasonable  doul)t."  '  In  Ogden  v.  Saunders,  12  Wheat.  213  (1827), 
Mr.  Justice  Wasliington,  after  remarking  that  the  question  was  a  doubtful  one,  said : 
"  If  I  could  re.st  my  opinion  in  favor  of  the  constitutionality  of  the  law  ...  on  no  otlier 
ground  than  this  doul)t,  so  felt  and  acknowledged,  tliat  alone  would,  in  my  estimation, 
be  a  satisfactory  vindication  of  it.  It  is  but  a  decent  respect  due  to  the  .  .  .  legislative 
body  by  which  any  law  is  passed,  to  presume  in  favor  of  its  validity,  until  its  violation 
of  the  Constitution  is  proved  beyond  all  reasonable  doubt.  This  "has  always  been  the 
language  of  this  court  when  tliat  subject  has  called  for  its  decision ;  and  I  know  it  ex- 
presses the  honest  sentiments  of  each  and  every  member  of  this  bench."  In  the  Sink- 
ing Fund  Cases,  99  U.  S.  700  (1878),  Chief  Justice  Waite,  for  the  court,  said:  "This 
declaration  [that  an  Act  of  Congress  is  unconstitutional]  should  never  be  made  except 
in  a  clear  case.  Every  possible  presumption  is  in  favor  of  the  validity  of  a  statute,  and 
this  continues  until  the  contrary  is  shown  beyond  a  rational  doubt.  One  branch  of  the 
government  cannot  encroach  on  the  domain  of  another  without  danger.  The  safety  of 
our  institutions  depends  in  no  small  degree  on  a  strict  observance  of  this  salutary  rule." 
In  Wellington  et  al.,  Petitioners,  16  Pick.  87  (1834),  Chief  Justice  Shaw,  for  the  court, 
remarked  that  it  was  proper  "  to  repeat  what  has  been  so  often  suggested  by  courts  of 
justice,  that  when  called  upon  to  pronounce  the  invalidity  of  an  Act  of  legislation  [they 

^  Commonwealth  v.  Smith,  4  Bin.  117. 


156  BYRNE  V.   STEWART.  [CHAP.  I. 

will]  never  declare  a  statute  void  unless  the  nullity  and  invalidity  of  the  Act  are  placed, 
in  tlic'ir  judgment,  beyond  reasonable  doubt." 

On  this  subject  see  Cooley,  Const.  Lim.,  6th  ed.  216,  and  Thayer's  Origin  and  Scope 
of  the  American  Doct.  of  Const.  Law,  12-30.  In  the  last-named  iiamphlet,  the  follow- 
ing passage  is  found  at  page  27  :  — 

"  Finallv,  let  me  briefly  mention  one  or  two  discriminations  which  are  often  over- 
looked, and  wliich  are  important  in  order  to  a  clear  understanding  of  tlie  matter. 
Judges  sometimes  have  occasion  to  express  an  opinion  upon  the  constitutionality  of 
a  statute,  when  tlie  rule  which  we  have  beefi  considering  has  no  application,  or  a  <lif- 
fereut  application  from  the  common  one.  There  are  at  least  three  situations  which 
should  be  distinguished:  (1)  where  judges  pass  upon  the  validity  of  the  acts  of  a 
co-ordinate  department;  (2)  where  they  act  as  advisers  of  the  other  departments; 
(3)  where,  as  representing  a  government  of  paramount  authority,  they  deal  with  acts 
of  a  department  wliich  is  not  co-ordinate. 

"  (1)  'I'he  case  of  a  court  passing  upon  the  validity  of  the  act  of  a  co-ordinate  de- 
partment is  the  normal  situation,  to  which  the  previous  observations  mainly  apply.  I 
need  say  no  more  about  that. 

"  (2)  As  regards  the  second  ca.se,  the  giving  of  advisory  opinions,  this,  in  reality,  i3 
not  the  exercise  of  the  judicial  function  at  all,  and  the  opinions  thus  given  have  not  the 
quality  of  judicial  authority.'  A  single  exceptional  and  unsupported  opinion  upon 
this  subject,  in  the  State  of  Maine,  made  at  a  time  of  great  political  excitement,^  and 
a  doctrine  in  the  State  of  Colorado,  founded  upon  considerations  peculiar  tn  the  Con- 
stitution of  that  State,^  do  not  call  for  any  qualification  of  the  general  remark,  that 
such  opinions,  given  by  our  judges,  —  like  that  well-known  class  of  opinions  given  by 
the  judges  in  England  when  advising  the  House  of  Lords,  which  suggested  our  own 
practice,  —  are  merely  advisory,  and  in  no  sense  autlioritative  judgments.*  Under  our 
constitutions  such  opinions  are  not  generally  given.  In  the  six  or  seven  States  where 
the  constitutions  provide  for  them,  it  is  the  practice  to  report  these  opinions  among  the 
regular  decisions,  much  as  the  responses  of  the  judges  in  Queen  Caroline's  Case,  and 
in  MacNar/hten's  Case,  in  England,  are  reported,  and  sometimes  cited,  as  if  they  held 
equal  rank  with  true  adjudications.  As  regards  such  opinions,  the  scruples,  cautions, 
and  warnings  of  which  I  have  been  speaking,  and  the  rule  about  a  reasonable  doubt, 
which  we  have  seen  emphasized  by  the  courts  as  regards  judicial  decisions  upon  the 
constitutionality  of  legislative  Acts,  have  no  application.  What  is  asked  for  is  the 
judge's  own  opinion. 

"  (3)  Under  the  third  head  come  the  questions  arising  out  of  the  existence  of  our 
double  system,  with  two  written  constitutions,  and  two  governments,  one  of  which, 
within  its  sphere,  is  of  higher  authority  than  the  other.     The  relation  to  the  States 


1  CommomceaJth  v.  Green,  12  Allen,  163  ;  Ta;/lor  v.  Place,  4  R.  I.  362.  See  Thayer's 
Memorandum  on  Advisory  Opinions  (Boston,  1885),  Jameson,  Const.  Conv.,  4th  ed., 
Appendix,  note  e,  667,  and  a  valuable  article  by  H.  A.  Dubuque,  in  24  Am.  Law  Rev. 
369,  on  "  The  Duty  of  Judges  as  Constitutional  Advisers." 

^  Opinion  of  Justices.  70  Me.  .583  (1880).  Contra,  Kent,  J.,  in  58  Me.  573  (1870)  : 
"It  is  true,  unquestionably,  that  the  opinions  given  under  a  requisition  like  this  have 
no  judicial  force,  and  cannot  bind  or  control  the  action  of  any  officer  of  any  department. 
They  have  never  been  regarded  as  binding  on  the  body  asking  for  them."  And  so 
Tapiev,  J.,  Ih.  615:  "Never  regarding  the  opinions  thus  formed  as  conclusive,  but 
open  to  review  upon  every  proper  occasion  ;  "  and  Libby,  J.,  in  72  Me.  562-563  (1881 ) : 
"Inasmuch  as  anv  opinion  now  given  can  have  no  effect  if  the  matter  should  be  judi- 
ciallv  brought  before  the  court  by  the  proper  proce.ss,  and  lest,  in  declining  to  answer, 
I  may  omit  the  performance  of  a  constitutional  duty,  I  Avill  very  briefly  express  my 
opinion  upon  the  question  submitted."  Walton,  J.,  concurred ;  the  other  judges  said 
nothing  on  this  point. 

3  In  re  Senate  Bill,  12  Colo.  466,  —  an  opinion  which  seems  to  me,  in  some  respects, 
ill  considered. 

^  Macqueen's  Pract.  Ho.  of  Lords,  49,  50. 


SECT.  II.]      THORPE   V.   RUTLAND   AND   BURLINGTON   RAILROAD.  157 

In  Thorpe  v.  Rutland  &  Burli7i(jton  E.  JR.  Co.,  27  Vt.  140  (1854), 
there  was  an  action  on  the  case  to  recover  damages  for  sheep  of  the 
plaintitf  killed  by  one  of  the  defendants'  locomotives,  upon  their  raih'oad 
track,  where  said  sheep  had  escaped  in  consequence  of  there  being  no 
cattle-guard  at  a  farm-crossing,  across  the  defendants'  railroad  on  the 
plaintiff's  land  in  Charlotte.  The  onl}-  question  reserved  at  the  trial  in 
the  County  Court  was,  whether  the  defendants  were  bound  by  the  provi- 
sion in  the  general  railroad  Act  of  1849,  requiring  railroad  companies  to 
construct  and  maintain  cattle-guards  ;  there  being  no  such  obligation 
imposed  upon  the  defendants  by  their  charter,  which  was  granted  in 
1843.  In  holding  that  they  were  so  bound,  the  court  (Redfield,  C.  J.) 
said  :  "  The  present  case  involves  the  question  of  the  right  of  the  legis- 
lature to  require  existing  railways  to  respond  in  damages  for  all  cattle 
killed  or  injured  by  their  trains  until  they  erect  suitable  cattle-guards 

of  the  paramount  governmeut  as  a  whole,  and  its  duty  in  all  questions  involving  the 
powers  of  the  general  government  to  maintain  that  power  as  against  the  States  in  its 
fulness,  seem  to  fix  also  the  duty  of  each  of  its  departments ;  namely,  that  of  main- 
taining this  paramount  authority  in  its  true  and  just  proportions,  to  be  determined  by 
itself.  If  a  State  legislature  passes  a  law  which  is  impeached  in  the  due  course  of  liti- 
gation before  the  national  courts,  as  being  in  conflict  with  the  supreme  law  of  the  land, 
those  courts  may  have  to  ask  themselves  a  question  different  from  that  which  would 
be  ap]jlical)le  if  tlie  enactments  were  those  of  a  co-ordinate  department.  When  the 
question  relates  to  what  is  admitted  not  to  belong  to  the  national  power,  then  whoever 
construes  a  State  constitution,  wliether  the  State  or  national  judiciary,  must  allow  to 
that  legislature  the  full  range  of  rational  construction.  But  when  tlie  (juestion  is 
whether  State  action  be  or  l)e  not  conformalile  to  the  paramount  constitution,  the  su- 
pi-eme  law  of  the  laud,  we  have  a  different  matter  in  hand.  Fundamentally,  it  involves 
the  allotment  of  power  between  the  two  governments,  —  where  tiie  line  is  to  be  drawn. 
True,  the  judiciary  is  still  debating  whether  a  legislature  has  transgressed  its  limit; 
but  tlie  departments  are  not  co-ordinate,  and  the  limit  is  at  a  different  point.  The 
judiciary  now  speaks  as  representing  a  paramount  constitution  and  government,  whose 
duty  it  is,  in  all  its  departments,  to  allow  to  that  constitution  notliing  less  than  its  just 
and  true  interpretation  to  be  fixed  by  itself ;  and  having  fixed  this,  to  guard  it  against 
any  inroads  from  without. 

"  I  have  l)een  speaking  of  the  national  judiciary.  As  to  how  the  State  judiciary 
should  treat  a  ijuestion  of  the  conformity  of  an  Act  of  their  own  Legislature  to  the 
paramount  constitution,  it  has  been  plausilily  said  that  they  should  be  governed  by  the 
same  rule  that  the  Federal  courts  would  apply.  Since  an  appeal  lies  to  tiie  Federal 
courts,  these  two  tribunals,  it  has  been  said,  should  proceed  on  tlie  same  rule,  as  being 
parts  of  one  system.  But  under  the  Judiciary  Act  an  appeal  does  not  lie  from  every 
decision;  it  only  lies  when  the  State  law  is  sustained  below.  It  would  perhaps  be 
sound  on  general  principles,  even  if  an  appeal  were  allowed  in  all  cases,  here  also  to 
adhere  to  the  general  rule  that  judges  should  follow  any  permissible  view  which  the 
coordinate  legislature  has  adopted.  At  any  rate,  under  existing  legislation  it  seems 
proper  in  the  State  court  to  do  this,  for  the  practical  reason  tliat  this  is  necessary  in 
order  to  preserve  the  right  of  appeal."  '  —  Ed. 

1  Gibson,  J.,  in  Eakin  v.  Raub,  12  S.  &  R.  357.  Compare  lb.  3.52.  The  same 
result  is  reached  by  the  court,  on  general  principles,  in  The  Tonna/je  Tax  Cases,  62  Pa. 
St.  286  :  "  A  case  of  simple  doubt  should  be  resolved  favorably  to  the  State  law,  leaving 
the  correction  of  the  error,  if  it  be  one,  to  the  Federal  judiciary.  The  presumption  in 
favor  of  a  co-ordinate  branch  of  the  State  government,  the  relation  of  her  courts  to  the 
State,  and,  above  all,  the  necessity  of  preserving  a  financial  system  so  vital  to  her  wel- 
fare, demand  this  at  our  hands."  —  Agnew,  J.,  for  the  court. 


158  THOUPE   V.    KUTLAND   AND   BUKLINGTON    KAILUOAD.      [CHAP.  L 

at  farm-crossings.  No  question  coukl  be  nuule  where  such  a  requisition 
was  containecl  in  the  charter  of  the  corporation,  or  in  the  general  law3 
of  the  State  at  the  date  of  the  charter.  But  where  neither  is  the  case, 
it  is  claimed  that  it  is  incompetent  for  the  legislature  to  impose  such  an 
obligation  by  statute,  subsequent  to  the  date  of  the  charter.  It  has 
never  been  questioned,  so  far  as  I  know,  that  the  American  legislatures 
linvt^  th<'  cM^^.o  nnlimif.P^l  pnw<>r  in  vfonnl  t.o  legislation  which  resides  in 
the  British  Parliament,  except  where  they  are  restrained  by  written  con- 
stitutions. That  must  be  conceded,  I  think,  to  be  a  fundamental  prin- 
ciple in  the  political  organizations  of  the  American  States.  "We  cannot 
well  comprehend  how,  upon  principle,  it  should  be  otherwise.  The 
people  must  of  course  possess  all  legislative  power  originally.  They 
have  committed  this  in  the  most  general  and  unlimited  manner  to  the 
several  Slate  legislatures,  saving  onl}'  such  restrictions  as  are  imposed 
by  the  Constitution  of  the  United  States,  or  of  the  particular  State  in 
question.  I  am  not  aware  that  the  Constitution  of  this  State  contains 
any  restriction  upon  the  legislature  in  regard  to  corporations,  unless  it_ 
be  that  where  '-  anv  person's  proppity  is  t.-iken  foythe  use  of  the  public, 
the  owner  ought  to  receive  an  equivalent  in  money  ; '  or  that  there  is 
any  such  restriction  in  the  T'nitod  Stnt.ps  Constitution,  except  that  l)ro-_ 
hibiting  the  jjtates  from  '■  passing  any  law  impairing  the  obligation  of 
contracts.'  It  is  a  conceded  point,  npon  nil  Imnd'^,  that  the  Parlia ment 
ofGreat  Britain  is  competent  to  makp  Mny  l.-iw  binding  upon  fniparii- 
tions,  however  much  it  may  increase  their  burdens  or  restrict  their 
powers^  whether  general  or  rtv^^uW,  ^v"'}  \'^  t'*"  r"p»ffl  ^f  th<^''' ^•^"^'•*^»'-s_ 
This  extent  of  power  is  recognized  in  the  case  of  Dartmouth  College  v. 
Woodward^  4  Wheaton,  518,  and  the  leading  authorities  are  there  re- 
ferred to.  Any  requisite  amount  of  authority,  giving  this  unlimited 
power  over  corporations  to  the  British  Parliament,  ma}'  readily  be 
found.  And  if,  as  we  have  shown,  the  several  State  legislatures  have 
the  same  extent  of  legislative  power,  with  the  limitations  namedx  the 
inviolability  of  these  artificial  bodies  rests  upon  the  same  basis  in  the 
American  States  with  that  of  natural  persons,  and  there  are,  no  doubt, 
many  of  the  rights,  powers,  and  functions  of  natural  persons  which  do 
not  come  within  legislative  control.  Such,  for  instance,  as  are  purely 
and  exclusivel}-  of  private  concern,  and  in  which  the  body  politic,  as 
such,  have  no  special  interest."  ^ 

1  "The  legislative  power  of  a  State  extends  to  evervthing  within  the  sphere  of  ^uch 
power,  except  as  it  is  restricted  by  the  Federal  Constitution  or  that  of  the  State."  — 
SwATNK,  J.  (for  the  court),  in  Toa-nship  v.  2\ilcott,  19  Wall.  p.  576  (1873).  "The 
State  does  not  act  by  its  people  in  their  collective  capacity,  but  through  such  political 
agencies  as  are  duly  constituted  and  established.  The  legislative  power  is  the  supreme 
authority  except  as  limited  by  the  Constitution  of  the  State,  and  the  sovereignty  of 
the  people  is  exercised  through  their  representatives  in  the  legislature,  unless  by 
the  fundamental  law  power  is  elsewhere  reposed."  —  Filler,  C.  J.  (for  the  court),  in 
McPherson  v.  Blacker,  146  U.  S.  p.  25.  "  Irrespef^tive  of  the  operation  of  the  Federal 
Constitution  and  restrictions  asserted  to  be  inherent  in  the  nature  of  American  institu- 
tions, the  general  rule  is  that  there  are  no  limitations  upon  the  legislative  power  of  the 
legislature  of  a  State,  except  those  imposed  by  its  written  Constitution." — Fuller,  C.  J. 
(for  the  court),  in  Giozza  v.  Tiernan,  148  U.  S.  p.  661.  —  Ed. 


SECT.  II.]  TAYLOR   V.   PLACE.  159 


TAYLOR  V.  PLACE. 
Supreme  Court  of  Rhode  Island.     1856. 

[4  R.  I.  324.]  1 

James  TilUnghast  and  Bradley^  for  the  plaintiffs ;    Currey,  for  the 
defendants. 

Ames,  C.  J.  .  .  .  In  some  cases,  it  is  difficult  to  draw  and  apply  the 
precise  line  separating  the  different  powers  of  government  which,  under 
our  political  systems,  Federal  and  State,  are,  without  exception,  care- 
fully distributed  between  the  legislative,  the  executive,  and  the  judicial 
departments.  To  some  extent,  and  in  some  sense,  each  of  the  powers 
appropriated  to  different  departments  in  the  above  distribution  must 
be  exercised  by  every  other  department  of  the  government,  in  order  to 
the  proper  performance  of  its  duty.  As  illustrated  by  Mr.  Justice 
McLean,  in  giving  the  judgment  of  the  Supreme  Court  of  the  United 
States,  in  the  case  of  Watkivis  v.  Ilolman  et «/.,  16  Pet.  60,  61.  "  The 
executive,  in  acting  upon  claims  for  services  rendered,  may  be  said  to 
exercise,  if  not  in  form,  in  substance,  judicial  power.  And  so  a  court, 
in  the  use  of  a  discretion  essential  to  its  existence,  by  the  adoption  of 
rules  or  otherwise,  may  be  said  to  legislate.  A  legislature,  too,  in  pro- 
viding for  the  payment  of  a  claim,  exercises  a  power  in  its  nature 
judicial ;  but  this  is  coupled  with  the  paramount  and  remedial  power." 
In  an  earl}'  case,  which  we  shall  have  occasion  hereafter  to  use  for 
another  purpose,  the  question  came  before  the  courts  of  the  United 
States,  under  the  clause  of  the  Constitution  of  the  United  States  dis- 
tributing the  different  powers  of  the  Federal  government  amongst  its 
different  departments,  whether  a  power  lodged,  by  an  Act  of  Congress, 
in  the  Circuit  Courts  of  the  United  States,  to  inquire  into  and  to  take 
evidence  of  the  claims  of  invaliil  pensioners,  and  to  transmit  the  result 
of  their  inquiries  to  the  Secretary  of  War,  for  his  action  and  that  of 
Congress  thereon,  was  judicial  power,  and  so  the  exercise  of  it  impera- 
tive upon  the  Circuit  judges.  The  unanimous  opinion  of  the  Circuit 
Court  for  the  district  of  New  York,  then  consisting  of  Jay,  Chief  Justice, 
Cushing,  Justice,  and  Duane,  District  Judge  ;  of  the  Circuit  Court  for 
the  district  of  Pennsylvania,  then  consisting  of  Wilson  and  Blair,  Jus- 
tices, and  of  Peters,  District  Judge ;  and  of  the  Circuit  Court  for  the 
district  of  North  Carolina,  then  consisting  of  Iredell,  Justice,  and  of 
Sitgreaves,  District  Justice,  —  was,  that  the  power  thus  vested  was  not 
judicial,  and  that  consequently-  they  were  not  bound  to  exercise  it.^  The 
reasons  given  by  them  were,  in  substance,  that  the  Act  of  Congress  did 
not  contemplate  this  power  as  judicial,  inasmuch  as  it  subjected  the 
decisions  of  the  courts,  in  the  matter  to  which  it  related,  to  the  consid- 
eration and  suspension  of  the  Secretary  of  War,  and  again  to  the  revision 

1  The  statement  of  facts  and  a  part  of  the  case  are  omitted. 

2  These  were  not  judicial  utterances.     See  ante,  p.  105,  n.  —  Ed. 


160  TAYLOR   V.    I'LACE.  [CHAP.  L 

of  Congress  ;  whereas,  by  the  Constitution,  neitlier  the  Secretary  of  War, 
nor  any  other  executive  olllcer,  nor  even  the  legishiture,  were  author- 
ized to  sit,  as  a  court  of  errors,  on  the  judicial  aets  or  opinions  of  the 
courts  of  the  United  States.     The  judges  composing  the  Circuit  Court 
of  New  York,  however,   consented,   on    account   of  the   benevolence 
which  had  dictated  the  passage  of  the  pension  Act  in  question,  i)erson- 
ally  to  execute   the  duties   imposed  upon   them   in    the    character   of 
commissioners  appointed  by  otiicial  instead  of  personal  descriptions ; 
deeming  themselves  at  liberty,  as  individuals,  to  accept  or  decline  the 
office  thus  tendered  to  them.     See  the  opinions  in  the  note  illustrating 
Ilayhurn's  Case,  2  Dallas,  410,  411,  412,  and  in  1  Curtis's  Decis.  Sup. 
Ct.  U.  S.  9,  10,  and  11.     In  Watkins  v.  IMmaix  et  ah,  before  quoted, 
the  question  arose  before  the  Supreme  Court  of  the  United  States, 
under  the  Constitution  of  Alabama,  containing  a  like  distribution  of 
powers  with  our  own,  whether  an  Act  of  the  Legislature  of  that  State, 
authorizing  an  administratrix  residing  in  another  State,  to  sell  and  con- 
vey, by  certain  attorneys  named  in  the  Act,  the  real  estate  of  her  in- 
testate husband  in  Alabama,  for  the  payment  of  his  debts,  her  attorneys 
giving  bond  with  sureties  for  the  faithful  payment  of  the  proceeds  of 
sale  to  the  administratrix,  "  to  be  appropriated  to  the  payment  of  the 
debts  of  the  deceased,"  was  a  judicial  Act,  and  so  within  the  inhibition 
of  the  Constitution  of  Alabama.     The  court  held  the  Act  to  be  valid, 
as  the  exercise,  not  of  judicial,  but  of  legislative  power;  the  Act  pro- 
viding a  special  remedy,  merely,  for  a  case  which,  on  account  of  its  cir- 
cumstances, though  within  the  spirit,  was  not  within  the  letter  of  the 
General  Statute  of  Alabama,  which  directed  the  mode  in  which  the  real 
estate  of  a  deceased  debtor  should  be  sold  and  applied  to  the  payment 
of  his  debts.     Again,  in  the  late  case  of  United  States  v.  Ferreira,  13 
Howard,  40,  48,  the  same  court  held  that  an  Act  of  Congress,  empow- 
ering the  district  judge  of  Florida,  under  the  treaty  with  Spain  of  1819, 
commonly  called  the  Florida  treaty,  to  examine  and  adjudge  claims  for 
injuries  made  by  the  Spanish  inhabitants  of  Florida,  provided  for  by  a 
clause  in  that  treaty,  and  to  report  his  decisions,  if  favorable  to  the 
claimants,  with  the  evidence,  to  the  Secretary  of  the  Treasury,  for  his 
discretionary  action  thereon,  did  not  confer  upon  the  District  Court  of 
Florida  judicial  power,  in  the  sense  of  the  Constitution  of  the  United 
States,  in  that  matter ;  and  hence,  that  no  appeal  from  the  award  of 
the  judge,  thus  acting  merely  as  a  commissioner,  could  be  brought  to 
the  Supreme  Court  of  the  United  States.     The  court  followed  precisely 
the  line  of  reasoning  which  must  have  been  adopted  by  the  judges  in 
Hayhurn's   Case,  in  1792,  as  illustrated  by  the  opinions  given  in  the 
note  to  that  case,  which  the  court  recite  at  large.     In   the  opinion  of 
the  court,  delivered  by  the  present  venerable  Chief  Justice,  he  says : 
"  The  powers  conferred  by  these  Acts  of  Congress  upon  the  judge,  as 
well  as  the  secretary,  are,  it  is  true,  judicial  in  their  nature  ;  for  judg- 
ment and  discretion  must  be  exercised  by  both  of  them.     But  it  is 
nothing  more  than  the  power  ordinaril}'  given  by  law  to  a  commissioner 


SECT.  II.]  TAYLOR  V.   PLACE.  161 

appointed  to  adjust  claims  to  lands  or  money,  under  a  treat}-;  or 
special  powers  to  inquire  into  or  decide  any  other  particular  class  of 
controversies  in  which  the  public  or  individuals  may  be  concerned.  A 
power  of  this  description  may  constitutionally  be  conferred  on  a  secretary 
as  well  as  a  commissioner,  but  is  not  judicial  in  either  case,  in  the  sense 
in  which  judicial  power  is  granted  by  the  Constitution,  to  the  courts  of 
the  United  States ;  "  and  see  American  Ins  Co.  v.  Carter,  1  Peters, 
511  ;  Benner  v.  Porter,  9  Howard,  235  ;  United  States  v.  Ritchie,  17 
Howard,  533,  534.  Upon  the  same  principle,  the  decisions  of  the  vari- 
ous State  auditors  of  this  and  other  States,  or  even  of  the  Court  of 
Claims,  recently  established  at  Washington,  though  this  latter  sits  as 
a  court,  takes  and  receives  evidence,  and  hears  counsel  as  a  court,  sub- 
ject, as  they  all  are,  to  the  revision  and  control  of  their  respective  legis- 
latures or  of  Congress,  are  not  judicial  decisions,  in  the  sense  of  the 
Constitution  of  the  States,  or  of  the  United  States.  They  may,  and 
the  latter  does,  task  high  judicial  capacity,  learning,  and  experience, 
and  is  called  a  court ;  but  after  all,  these  officers,  and  the  members  of 
this  tribunal,  sit  as  auditors  only,  and  not  as  judges,  in  any  constitu- 
tional sense.  "  That  the  auditing  of  the  accounts  of  a  receiver  of  pub- 
lic moneys,"  says  Mr.  Justice  Curtis,  in  recently  delivering  the  opinion 
of  the  Supreme  Court  in  Murray's  lessee  et  al.  v.  Hohoken  Land  and 
Improvement  Company,  18  Howard,  280,  "may  be,  in  an  enlarged 
sense,  a  judicial  act,  must  be  admitted.  So  are  those  administrative 
duties,  the  performance  of  which  involves  an  inquiry  itito  the_  existence 
of  facts,  and  the  application  to  them  of  rules  of  law.  In  this  sense,  the 
act  of  the  President  in  calling  out  the  militia,  under  the  Act  of  1795,  or 
of  a  commissioner,  who  makes  a  certificate  for  the  extradition  of  a  crim- 
inal, under  a  treaty,  is  judicial.  But  it  is  not  sufficient  to  bring  such 
matters  under  the  judicial  power,  that  they  involve  the  exercise  of 
judgment  upon  law  and  fact."  One  of  the  points  decided  in  this  case 
was,  that  the  auditing  of  an  account,  and  ascertaining  a  balance,  by 
the  first  Auditor  of  the  Treasury  of  the  United  States,  and  the  issue  of  a 
distress  warrant  by  the  Solicitor  of  the  Treasury,  under  an  Act  of  Con- 
gress, by  virtue  of  and  under  which  the  lands  of  a  defaulting  collector 
of  the  customs  were  seized  and  held  to  satisfy  the  balance  ascertained 
by  the  auditor  to  be  due  to  the  treasury,  were  not  acts  of  judicial  power, 
in  the  sense  of  the  Constitution  ;  that  they  might,  therefore,  under  the 
law,  be  constitutionally,  and  with  effect,  done  by  those  officers,  although 
neither  of  them  constituted  a  court,  nor  were  so  connected  with  a  court 
as  to  perform  any,  even  of  the  ministerial  duties,  which  arise  out  of 
judicial  proceedings.  Murray's  lessee  et  al.  v.  Hohoken  Land  and 
Im,provement  Company,  18  Howard,  275. 

On  the  other  hand,  it  may  safely  be  said,  that  to  hear  and  decide 
adversary  suits  at  law  and  in  equity,  with  the  power  of  rendering  judg- 
ments and  entering  up  decrees  according  to  the  decision,  to  be  executed 
by  the  process  and  power  of  the  tribunal  deciding,  or  of  another  tribunal 
acting  under  its  orders  and  according  to  its  direction,  is  the  exercise  of 
VOL.  I.  — 11 


162  TAYLOR  V.    PLACE.  [CHAP.  L 

jmlw-ml^-iQuf^r,  in  t.hp  constitutional  scnse ;  and  that  it  is  so,  whether 
the  decisiouJ-ie  (inalror  subjeot  to  reversal  on^erroiLjQr-^ppsaL  It  is 
precisely  thus,  that  the  great  exemplar  of  constitutional  law,  the  Consti- 
tution of  the  United  States,  defines  this  power;  for,  after  vesting,  hy 
the  first  section  of  its  third  article,  "  the  judicial  power  of  the  Unitetl 
States,"  in  ''  one  supreme  court,  and  in  such  inferior  courts  as  Con- 
gress ma}',  from  time  to  time,  order  and  establish  ;  "  and  after,  in  the 
same  section,  fixing  the  tenure  and  mode  of  compensating  the  judges  of 
the  courts  of  the  United  States  ;  it  i)roceeds,  in  the  second  section  of  the 
same  article,  to  define  this  power,  by  stating  the  cases  and  controver- 
^sies  in  law  and  equity,  and  of  admiralty  and  maritime  jurisdiction,  to 
which, -from  the  nature  of  the  questions  involved  in  them,  or  of  the  prin- 
ciples of  decision  to  be  applied  to  them,  or  from  the  character  or  citi- 
zenship of  the  parties  to  them,  or  to  be  affected  by  them,  this  power, 
whether  original  or  appellate,  shall  extend.  In  Osborn  v.  The  J^cuik 
of  the  United  States,  9  Wheaton,  319,  Chief  Justice  INIarshall,  in  deliv- 
ering the  opinion  of  the  court,  after  saying  that  the  second  article  of  the 
Constitution  vests  the  whole  executive  power  in  the  President,  and  that 
the  third  article,  among  other  things,  declares,  "  that  the  judicial  power 
shall  extend  to  all  cases  in  law  and  equit}',  arising  under  this  Constitu- 
tion, the  laws  of  the  United  States,  and  treaties  made,  or  which  shall 
be  made  under  their  authority,"  thus  speaks  of  the  effect  and  extent  of 
the  latter:  "  Tiiis  clause  enables  the  judicial  department  to  receive  ju- 
risdiction to  the  full  extent  of  the  Constitution,  laws,  and  treaties  of 
the  United  States,  when  any  question  respecting  Ihem  shall  assume 
such  a  form  that  thejudicial  power  is  capable  of  acting  ui)on  it.  That_ 
power  is  capable  of  acting  only  when  the  subjectjs^uJjmiUcdt'^  ''<^  ^^y  " 
party  who  asserts  his  rights  in  the  form  prescribed  by  law.  It  then 
becomes_a_iias£i-;  and  the  Constitution  declares  that  the  judicial  power 
shall  extend  to  all  cases  arising  under  the  Constitution,  laws,  and 
treaties  of  the  United  States."  The  judicial  power  is  exeniised  in  tlie, 
decision  of  cases ;  the  legislative,  in  making  general  regulations,  by 
the  enactment  of  laws.  The  latter  acts  from  considerations  of  public 
policy  ;  the  formePis  guidedjjy  the  pleadings_and_evidence  in  the  case. 
Per  Mr.  Justice  McLean.  State  of  Pen7isylvania  v.  Wheeling  <&  Bel- 
mont Bridge  Co.^  18  Howard,  440.  Indeed,  laws  and  cumts  h^x^ 
their  origin  in  the  necessity  of  rules  and  m^ans  to  pnfnrpp  fhpm,  tn  b^ , 
aoplied  to  cases  nnrl  pnntrm-prgipa  ^^if.l^i^l  their  jurisdiction ;  and  our 
whole  idea  of  judicial  power  is.  the  power  of  the  latter  to_apply  the 
former  to  the  decision  of  those  cases  and  controversies.  .  .  . 


SECT.  II.]  THE   STATE   V.   WHEELER.  163 


THE   STATE   v.   WHEELER. 
Supreme  Court  of  Errors  of  Connecticut.     1856. 

[25  Conn.  290.] 

This  was  a  complaint  preferred  b}-  a  grand  juror  of  the  town  of  New 
Haven,  to  a  justice  of  tiie  peace,  against  Stephen  "Wheeler,  for  keeping 
spirituous  li(iuors  with  intent  to  sell  the  same  in  violation  of  the  statute 
of  1854,  entitled  "  An  Act  for  the  Suppression  of  Intemperance." 

A  trial  was  had  before  the  justice,  and  the  defendant  fouad  guilt}'. 
From  this  decision  he  appealed  to  the  Superior  Court,  and  the  cause 
was  tried  at  the  term  of  said  court  holden  at  New  Haven,  in  September, 
1855. 

Upon  the  trial  the  defendant's  counsel  requested  the  court  to  instruct 
the  jury  that  the  statute  upon  which  the  information  was  founded  was 
unconstitutional  and  void.  The  court  did  not  comply  with  this  request, 
but  did  instruct  them  that  the  section  of  the  Act  upon  which  the  infor- 
mation was  founded,  prohibiting  tlie  keeping  of  spirituous  liquors  with 
intent  to  sell  the  same  contrar}'  to  the  provisions  of  said  Act,  was  con- 
stitutional and  valid.  The  court  did  not  express  any  opinion  upon 
other  sections  of  the  Act.  The  jury  having  returned  a  verdict  against 
the  defendant,  he  filed  a  motion  for  a  new  trial,  which  motion  was 
reserved  for  the  advice  of  this  court. 

Flagg^  in  support  of  the  motion. 

Foster  (State  Attorney)  and  Candee^  against  the  motion. 

Storrs,  J.  The  information  in  this  case  is  founded  on  the  ninth 
section  of  the  Act  for  the  suppression  of  intemperance.  (Rev.  Stat, 
821.)  That  section  provides  that  no  person  under  the  penalties  therein 
prescribed,  shall  own  or  keep  an}'  spirituous  or  intoxicating  liquor,  or 
any  mixed  liquor  of  which  a  part  is  spirituous  or  intoxicating,  with  in- 
tent to  sell  the  same  in  violation  of  that  Act.  The  only  question  before 
us  is,  whether  that  provision  is  constitutional.  .  .  . 

Such  being  the  extent  of  the  general  legislative  power  of  a  State,  we 
come  to  the  inquiry,  whether  the  legislature  of  this  State,  in  enacting 
the  provisions  which  we  are  now  considering,  have  violated  any  of  the 
provisions  of  our  State  Constitution.  This  point  is  briefly  disposed  of 
by  the  remark,  that  we  find  nothing  whatever  in  that  instrument,  which 
either  expressly  or  impliedly  restricts,  or  even  touches  upon,  the  exer- 
cise of  the  power  of  the  legislature,  in  relation  to  the  subject  we  are 
examining.  .  .  . 

/  The  defendant  insists  that  we  should  pronounce  the  law  now  in  ques- 
tion to  be  void,  on  the  ground  that  it  is  opposed  to  natural  right,  and 
the  fundamental  principles  of  civil  liberty.  We  are  by  no  means  pxfe. 
pared  to  accede  to  the  doctrine  involved  in  this  claim,  that,  under  a 
written  constitution  like  ours,  in  which  the  three  great  departibstits  of 
government,  the  executive,  legislative,  and  judicial,  are  confided  to  ow- 


164  THE   STATE   V.    WHEELER.  [CHAP.  L 

tTTKlbodies  of  magistracy,  the  powers  of  each  of  which  are  expressly 
confined  tolls  t>wii4)roper  department,  and  in  which  tlie  powers  of  each 
are  unlimited  in  its  ~appix»4iriate  sphere,  except  so  far  as  they  are 
abridged  by  the  Constitution  itselfv-iLis  competent  for  the  judicial  de- 
partmen^Jo_deiy-ive  tlie_iegLalaturc  of  ^o^ers  which  they  are  not 
restnbted  from  exercising  by  that  instrument.  It  would  seem  to  l)e 
sufficient  to  prevent  us  from  thus  interposing,  that  the  power  exercised 
by  the  legislature  is  properly  legislative  in  its  character,  which  is  un- 
questionably the  case  with  respect  to  the  law  we  have  been  considering, 
and  that  the  Constitution  contains  no  restriction  upon  its  exercise  in 
regard  to  the  subject  of  it.  There  is,  however,  no  occasion  to  pursue 
this  topic.  The  law  in  question  is,  in  our  opinion,  obnoxious  to  no 
objection  which  could  be  derived  from  the  establishment  of  the  doctrine 
advanced  by  the  defendant.  It  is  not  different  in  its  character,  although 
it  may  be  more  stringent  in  some  of  its  provisions,  from  those  numerous 
laws  which  have  been  passed  in  almost  all  civilized  communities,  and 
in  ours  from  the  earliest  settlement  of  our  State,  regulating  the  traffic 
in  spirituous  liquors,  and  which  are  based  on  the  power  possessed  by 
every  sovereign  State,  to  pvnvido  hy  l^w,  as  it  shflll  deem  fit,  for  tlie 
health,  morals,  poacef  and  geneni  wplfnre  of  the  State  :  and  which, 
whatever  may  have  been  thought  of  their  expediency,  have  been  inva- 
riably sustained  as  being  within  the  competency  of  the  legislature  to 
enact.  .  .  . 

In  this  opinion,  the  other  judges,  Waite  and  Hinman,  concurred. 

A  new  trial  not  granted. 


It  is  a  principle  in  the  English  law,  that  an  Act  of  Parliament, 
delivered  in  clear  and  intelligible  terms(,  cannot  be  questioned,  or  its 
authority  controlled,  in  any  court  of  justice.  "  It  is,"  says  Sir  William 
Blackstone,  ''the  exercise  of  the  highfcst  authority  that  the  kingdom 
acknowledges  upon  earth."  When  it  is  said  in  the  books,  that  a  stat- 
ute contrary  to  natural  equity  and  reason,  or  repugnant,  or  impossible 
to  be  performed,  is  void,  the  cases  atf'e  understood  to  mean  that  the 
courts  are  to  give  the  statute  a  reasonable  construction.  They  will  not 
readily  presume,  out  of  respect  and  diJty  to  the  lawgiver,  that  any  very 
unjust  or  absurd  consequence  was  witiiin  the  contemplation  of  the  law. 
But  if  it  should  happen  to  be  too  palpable  in  its  direction  to  admit  of 
but  one  construction,  there  is  no  donbt  in  the  English  law  as  to  the 
binding  efficacy  of  the  statute.  The  will  of  the  leaislatnve  ia  the 
Kupreme  law  of  the  lf\n^i   ^"d   dprn-'y^ds  pprfp^t  nbedionce.   .   .    . 

The  principle  in  the  English  government,  that  the  Parliament  is 
omnipotent,  does  not  prevail  in  the  United  States ;  though,  if  there  be 
no  constitutional  objection  to  a  statute,  it  is  with  us  as  absolute  and 
uncontrollable  as  laws  flowing  from  the  sovereign  power,  under  any 
other  form  of  government.  But  in  this,  and  all  other  countries  where 
there  is  a  written  constitution,  designating  the  powers  and  duties  of  the 


SECT.  II.]  PEOPLE   V.   DRAPER.  165 

legislative,  as  well  as  of  the  other  departments  of  the  government,  an 
Act  of  the  Legislature  may  be  void  as  being  against  the  Constitution. 
The  law  with  us  must  conform,  in  the  first  place,  to  the  Constitution  of 
the  United  States,  and  then  to  the  subordinate  Constitution  of  its  par- 
ticular State,  andVf  it  infringes  the  provisions  of  either,  it  is  so  far  void. 
The  courts  of  jus\ice  have  a  right,  and  are  in  duty  bound,  to  bring 
every  law  to  the  tes^  of  the  Constitution,  and  to  regard  the  Constitution, 
first  of  the  United  Sktes,  and  then  of  their  own  State,  as  the  paramount 
or  supreme  law,  to  wmch  every  inferior  or  derivative  power  and  regu- 
lation must  conform.  Vlhe  Constitution  is  the  act  of  the  people,  speak- 
ing in  their  original  character,  and  defining  the  permanent  conditions  of 
the  social  alliance ;  and  there  can  be  no  doubt  on  the  point  with  us, 
that  every  act  of  the  legislative  power,  contrary  to  the  true  intent  and 
meaning  ofHie  C'onstit"utron,1s "absolutely  null  aud_yoi(L— ■  1  Kent's 
Com.  (12th  ed.),  *U7} 


PEOPLE  V.   SIMEON  DRAPER. 
New  York  Court  of  Appeals.     1857. 

[15  i^.  y.  532.] 

Charles  O'Conor  and  J.  W.  Edmonds^  for  the  appellants. 
W.  M.  Ecarts  and  F.  B.  Cutting,  for  the  respondents. 
By  the  Court  (Denio,  C.  J.).  This  is  an  appeal  from  a  judgment  of 
the  Supreme  Court,  sitting  in  the  first  district.  The  complaint  is  in 
substance  an  information  in  the  nature  of  a  quo  vfarranto.  Its  general 
object  is  to  obtain  a  judgment  upon  the  right  of  the  defendants  to  exe- 
cute the  offices  of  "commissioners  of  police,"  to  which  they  have 
been  appointed  pursuant  to  a  statute  passed  at  the  last  session  of  the 
legislature.  The  relator,  Fernando  Wood,  claims  that  he,  as  mayor 
(together  with  the  recorder  and  cit}'  judge  of  the  cit}'  of  New  York), 
is  by  law  chargeable  with  and  entitled  to  perform  the  duties  of  commis- 
'  sioners  of  police  ;  and  he  alleges  that  the  defendants  have  intruded 
into  and  usurped  these  offices.  The  special  purpose  of  the  action  is  to 
obtain  a  judicial  determination  as  to  the  constitutional  validity  of  the 
statute  referred  to.  The  defendants  have  put  in  an  answer,  in  which 
the}'  set  np  their  appointment  under  the  Act,  and  the  plaintiffs  have 
demurred.  The  Supreme  Court,  holding  the  Act  constitutional,  has 
overruled  the  demurrer  and  given  judgment  for  the  defendants  ;  and  the 
plaintiffs  thereupon  prosecute  this  appeal.  .  .  . 

1  This  passage  has  stood  in  substantially  the  same  form  in  all  the  editions  of  Kent's 
Commentaries.  The  })Ook  was  published  in  1826.  A  single  significant  change  was 
made  in  tlie  second  e  lition,  in  1832,  by  introducing  that  part  of  tlie  first  sentence  in 
the  second  paragraph  above  quoted  which  begins  with  the  words  "  thou^jh  if  there  be/' 
&c,  — Ed. 


166  PEOPLE  V.  drapi:r.  [chap.  I. 

Before  proceeding  to  the  other  ground  of  objection,  it  will  be  useful 
to  state  certain  principles  which,  though  not  controverted,  have  some- 
times been  overlooked  in  this  argument.  In  the  first  place,  the  people. 
in  framing  the  Constitution,  committed  to  the  lc{j.i.slature  thc_\vhole 
1jTj,y-T>inUiii(r  pnwt'r  of  t.hc  State,  wliicli  they  did  not  expressly-  or  im- 
plicclj^'  witliliold.  Plenary  power  in  the  legislature  for  ail  purposes  of 
civil  government  is  the  rule.  A  prohibition  to  exercise  a  particular 
power  is  an  exception.  In  inquiring,  therefore,  whether  a  given  stat- 
ute is  constitutional,  it  is  for  those  who  question  its  validity  to  show 
that  it  is  forbidden.  I  do  not  mean  that  the  power  must  be  expressl}' 
inhibited,  for  there  are  but  few  positive  restraints  u[jon  the  legislative 
power  contained  in  the  instrument.  The  first  article  lays  down  the 
ancient  limitations  which  have  always  been  considered  essential  in  a 
constitutional  government,  whether  monarchical  or  popular  ;  and  there 
are  scattered  through  the  instrument  a  few  other  provisions  in  restraint 
of  legislative  authority.  But  Hie  nfTM-m.ativp  prescriptions,  and  the 
general  arranoremppts  of  tlip  ronstitution,  are  far  more  fruitful  of  re- 
straints upon  the  legislature.  Kvery  positirp  direction  contains  iUL 
implication  against  anything'-  contrary  to  it.  or  which  would  frustrate  OL. 
disa|)point  the  ijurpose  of  that  provision.  The  frame  of  the  govern- 
ment;  the  grant  of  legislative  power  itself;  the  organization  of  the 
executive  authoritj' ;  the  erection  of  the  principal  courts  of  justice, 
create  implied  limitations  upon  the  law-making  authority  as  strong  as 
though  a  negative  was  expressed  in  each  instance  ;  but  independently 
of  these  restraints,  express  or  implied,  ever}'  subject  within  the  sco[)e 
of  civil  government  is  liable  to  be  dealt  with  b}-  the  legislature.  As 
it  ma}-  act  upon  the  State  at  large,  by  laws  affecting  at  once  the  whole 
country,  and  all  the  people,  so  it  may  in  its  discretion,  and  indepen- 
dently of  any  prohibition,  expresslj-  made  or  necessaril}'  implied,  make 
special  laws  relating  to  any  separate  district  or  section  of  the  State.  As 
a  political  societ}',  the  State  has  an  interest  in  the  repression  of  dis- 
order, and  the  maintenance  of  peace  and  security  in  every  locality  within 
its  limits  ;  and  if  from  exceptional  causes,  the  public  good  requires  that 
legislation,  either  permanent  or  temporary,  be  directed  toward  any 
particular  locality,  whether  consisting  of  one  count}-  or  of  several  coun- 
ties, it  is  w-itliin  the  discretion  of  the  legislature  to  appl}-  such  legisla-- 
tion,  as  in  its  judgment,  the  exigency  of  the  case  ma}-  require  ;  and  it 
is  the  sole  judge  of  the  existence  of  such  causes.  The  representatives 
of  the  whole  people,  convened  in  the  two  branches  of  the  legislature, 
are,  subject  to  the  exceptions  which  have  been  mentioned,  the  organs 
of  the  public  will  in  every  district  or  locality  of  the  State.  It  follows 
that  it  belongs  to  the  legislature  to  arrange  and  distribute  the  adminis- 
trative functions,  committing  such  portions  as  it  may  deem  suitable  to 
local  jurisdictions,  and  retaining  other  portions  to  be  exercised  by 
officers  appointed  by  the  central  power,  and  changing  the  arrangement 
from  time  to  time,  as  convenience,  the  efficiency  of  administration  and 
the  public  good  may  seem  to  require.     If  a  particular  Act  of  Legislation 


SECT.  II.]  PEOPLE   V.    DRAPER.  167 

does  not  conflict  with  any  of  the  limitations  or  restraints  which  have 
been  referred  to,  it  is  not  in  the  power  of  the  courts  to  arrest  its  execu- 
tion, however  unwise  its  provisions  may  be,  or  whatever  the  motives 
may  have  been  which  led  to  its  enactment.  There  is  room  for  much 
bad  legislation  and  misgovernment  within  the  pale  of  the  Constitution,; 
bn^.  whonover  this  happens,  the  remedy  which  the  Constitution  pro- 
vitloa^  by  Mift  opportunity  for  frequent  renewals  of  the  legislative  bodies, 
is  far  more  efficacious  tlian  any  which  can  be  afforded  by  the  iudiciary. 
The  courts  cannot  impute  to  the  legislature  any  other  than  public  mo- 
tivcs  for  their  acts.  If  a  given  Act  of  Legislation  is  not  forbidden  by 
express  words,  or  by  necessary  implication,  the  judges  cannot  listen  to 
a  suggestion  that  the  professed  motives  for  passing  it  are  not  the  real 
ones.  If  the  Act  can  be  upheld  upon  any  views  of  necessity  or  public 
expediency,  which  the  legislature  may  have  entertained,  the  law  cannot 
be  challenged  in  the  courts.  It  may  be  proper  to  make  one  other  re- 
niarli  of  a  general  character.  It  has  been  said  that  a  tendency  may  be 
discovered  in  the  Constitution,  toward  local  administration,  and  in 
favor  of  decentralizing,  as  it  is  not  inaptly  called,  the  powers  of  gov- 
ernment ;  and  that  a  policy  in  that  direction,  more  marked  than  in  any 
of  our  former  systems,  is  plainly  to  be  traced  in  several  constitutional 
provisions.  This  I  believe  to  be  true.  So  far  as  the  convention  has 
proceeded  in  that  direction,  it  is  for  the  courts  to  follow  ;  and  it  may 
be  that,  in  the  construction  of  doubtful  provisions,  regard  should  be  had 
to  this  political  tendency.  But  we  cannot,  in  furtherance  of  such  a 
supposed  policy,  however  plainly  it  may  be  perceived,  create  exceptions 
or  restraints  on  the  legislature,  which  are  not  fairly  contained  in  the 
Constitution  as  it  is  written.  It  may  be  the  duty  of  the  legislature  to 
follow  out  or  advance  such  a  line  of  policy,  but  the  business  of  the 
courts  is  with  the  text  of  the  fundamental  law  as  they  find  it.  They 
have  no  political  maxims  and  no  line  of  policy  to  further  or  to  advance. 
Their  duty  is  the  humble  one  of  construing  the  Constitution  by  the 
language  it  contains.  .  .  . 

We  are  of  the  opinion  that  the  judgment  of  the  Supreme  Court 
should  be  affirmed,  and  it  is  accordingly  affirmed. 

Shankland,  J.  The  Act  of  the  Legislature,  entitled  "An  Act  to 
establish  a  Metropolitan  Police  District  and  to  provide  for  the  Govern- 
ment thereof,"  is,  by  these  proceedings,  alleged  to  be  unconstitutional. 
That  Act,  having  received  the  sanction  of  the  legislature  and  of  the 
executive  department  of  the  government,  is  clothed  with  all  the  forms  of 
law.  Nevertheless,  if  its  provisions  are,  directly,  or  by  necessary  im- 
plication, repugnant  to  the  Constitution,  it  is  the  province  and  duty  of 
the  courts  so  to  declare  it.  But  if  the  law  should  be  found  to  be  within 
the  competency  of  the  legislature,  however  much  we  may  doubt  the 
policy  or  wisdom  of  the  enactment,  it  is  our  duty  to  uphold  it  and  vin- 
dicate the  legislative  power.  It  is  needless  to  say  the  judicial  records 
of  this  court  show  that  we  have  never  shrunk  from  the  performance  of 
this  dut}'  on  just  occasions. 


1G8  BEIITIIOLF   V.    O'REILLY.  [CHAP.  L 

The  Constitution  vests  all  legislative  power  in  the  Senate  and  Assem- 
bly, with  certain  restrictions  and  limitations  imposed  on  that  body  by 
the  Constitution  itself.  Independent  of  those  limitations,  tlie  legisla- 
tive power  is  omnipotent  within  its  proper  sphere.  The  legislature,  in 
this  respect,  is  the  direct  representative  of  the  people,  and  the  delegate 
antl  depositary  of  their  power.  Hence,  tlie  limitations  of  the  Consti- 
tution are  not  so  inncli  liinitiifioii-.^  pf  the  le!j;islature  as  of  the  power  of 
thi-  itpopli-  tl"'"'sclves^  self-imposed  Ijv  the  constitutional  coiupact. 
^Vllen  the  couit  declares  a  law  uriconslitutional,  it  in  effect  declares 
that  the  sovereign  power  of  the  people  has  so  far  been  abdicated  by 
themselves.  This  consideration  has  led  the  courts,  in  all  governments 
which  are  based  on  the  theory  that  all  power  resides  in  the  people,  to 
give  a  strict  construction  to  compacts  which  deprive  the  people  of 
this  sovereign  power.  It  will  not  be  presumed  that  the}'  intended  to 
abdicate  their  power,  unless  they  have  so  declared  in  express  terras  or 
b}'  necessary  implication.  These  principles  are  fundamental,  conserva- 
tive, and  cannot  be  disregarded  without  infringement  upon  the  reserved 
rights  and  power  of  the  people.  Hence,  the  courts  have  frequently  and 
uniformly  declared  that  they  will  not  adjudicate  a  law  unconsti t u tJQnal 
when  it  is  to  be  made  so  by  interonces  or  pn'mimptin|]s  only,  or  vvlien 
the  question  rests  in  doubt.  Any  other  rule  of  construction  would 
bring  the  legislative  and  judicial  branches  of  government  into  collision, 
to  the  ruin  of  one  or  both. 

The  wisdom  of  the  conservative  maxims  of  the  courts  is  ftnther  ex- 
hibited by  the  consideration  that  the  legislatures  are  chosen  at  frequentl}' 
occurring  elections  and  for  short  terras.  Hence,  if  they  err  in  express- 
ing the  wants  of  the  people,  or  exceed  their  powers,  the  error  or  excess 
may  be  quietly  and  quickly  corrected  by  the  people  themselves,  through 
subseqnentl}-  elected  re[)resentatives.  But  if  this  court  wanders  from 
its  judicial  orbit,  and  in  its  progress  collides  with  a  co-ordinate  power, 
when  moving  in  its  legitimate  sphere,  who  shall  restore  the  system  to 
harmony  and  regulate  its  dynamical  forces?  Such  collision  must  termi- 
nate either  in  judicial  revolution  or  new  constitutional  compacts.  .  .  . 

All  the  judges,  except  Bkown  and  Comstock,  concurring. 

Jiiclgment  affirmed} 

1  In  BerthoJ/v.  O'ReiUy,  74  N.  Y.  509  (1878),  Andrews,  J.  (for  the  court),  said  : 
"The  question  whether  the  Act  under  consideration  is  a  valid  exercise  of  lef!jish\tive 
power  is  to  be  determined  solely  by  reference  to  constitutional  restraints  and  prohibi- 
tions. The  legislative  power  has  no  other  limitation.  If  an  Act  can  stand  when 
h^oncrht  to  tlio  tPst  of  thf>  Constitution  the  question  of  its  validity  is  at  an  en7l  and 
Tipith^r  thf  p.veoutive  or  judicial  department  of  the  government  can  refuse  to  recog^nize 
nr  t^f^fni-pp  it.  The  theory  that  laws  may  be  declared  void  when  deemed  to  be  opposed 
to  natural  justice  and  equity,  although  they  do  not  violate  any  constitutional  provision, 
has  some  support  in  the  dicta  of  learned  judges,  but  has  not  been  approved,  so  far  as 
we  know,  by  any  authoritative  adjudication^  and  is  repudiated  by  numerous  authori- 
ties. Indeed,  under  the  broad  and  liberal  interpretation  now  given  t"  c<;)nstitutional 
guaranties,  therp  cin  he  no  violation  of  fundamental  riglit.<  by  If o-i>;]pf:inn  \r>nVti  will 
not  fall  within  the  express  or  implied  prohibition  and  restraints  of  the  CoListitutinn, 


SECT.  II.]  LOAN   ASSOCIATION  V.   TOPEKA.  169 

.and  it  is  unnecessary  to  seek  for  principles  outside  of  the  Constitution,  under  which 
such  legislation  may  be  condemned.  .  .  . 

"  Admitting,  as  we  do,  the  soundness  of  this  view,  and  fully  approving  it,  we  come 
back  to  the  proposition  that  no  law  can  be  pronounced  invalid,  for  the  reason  simply 
that  it  violates  our  notions  of  justice,  is  oppressive  and  unfair  in  its  operation,  or  be- 
cause, in  the  opinion  of  some  or  all  of  the  citizens  of  the  State,  it  is  not  justified  by 
public  necessity,  or  designed  to  promote  the  public  welfare.  We  repeat,  if  it  violates 
no  constitutit)nal  provision,  it  is  valid  and  must  be  obeyed.  The  remedy  for  unjust  or 
unwise  legislation,  not  obnoxious  to  constitutional  objections,  is  to  be  found  in  a 
chauoe  by  the  people  of  their  representatives,  according  to  the  methods  provided  by 
the  Constitution."  '  The  same  principle  is  affirmed  in  People  v.  Gillson,  109  N.  Y.  398. 

"  The  rule  of  law  upon  this  subject  appears  to  be,  that,  except  where  the  Constitu- 
tion has  imposed  limits  upon  the  legislative  power,  it  must  be  considered  as  practically 
absolute,  whether  it  operate  according  to  natural  justice  or  not  in  any  particular  case. 
The  courts  are  not  the  guardians  of  the  rights  of  the  people  of  the  State,  except  as 
those  rights  are  secured  by  some  constitutional  provision  which  comes  within  the 
judicial  cognizance.  The  protection  against  unwise  or  oppressive  legislation,  within 
constitutional  bounds,  is  by  an  appeal  to  the  justice  and  patriotism  of  the,  representa- 
tives of  the  people.  If  this  fail,  tlie  people  in  their  sovereign  capacity  can  correct  the 
,evil ;  but  courts  cannot  assume  their  rights.  The  judiciary  can  only  arrest  the  execu- 
tion of  a  st.-itnte  when  it  conflicts  with  the  Constitution.  It  cannot  run  a  race  of  opin- 
ions  upon  points  of  right,  reason,  and  expediency  with  the  law-makiiig_£ower.  Any 
legislative  Act  wiiich  does  not  encroach  upon  the  powers  apportioned  to  the  other 
departments  of  the  government,  being  prima  facie  valid,  must  be  enforced,  unless 
restrictions  upon  the  legislative  autliority  can  be  pointed  out  in  the  Constitution,  and 
the  case  shown  to  come  within  them.  .  .  . 

"  The  accepted  theory  upon  this  sul)ject  appears  to  be  this  :  In  every  sovereign  State 
there  resides  an  absolute  and  uncontrolled  power  of  legislation.  In  Great  Britain  this 
complete  power  rests  in  tiie  Parliament ;  in  the  American  States  it  resides  in  the  people 
themselves  as  an  organized  body  politic.  But  the  people,  by  creating  the  Constitution 
of  tlie  United  States,  have  delegated  tliis  power  as  to  certain  subjects,  and  under  certain 
restrictions,  to  the  Congress  of  the  Union  ;  and  that  portion  they  cannot  resume,  ex- 
cept as  it  may  be  done  through  amendment  of  the  national  Constitution.  For  the 
e.xercise  of  the  legislative  power,  subject  to  this  limitation,  they  create,  by  their  State 
Constitution,  a  legislative  department  upon  which  they  confer  it;  and  granting  it  in 
general  terms,  they  must  be  understood  to  grant  the  whole  legislative  power  which 
they  possessed,  except  so  far  as  at  the  same  time  they  saw  fit  to  impose  restrictions. 
While,  therefore,  the  Parliament  of  Britain  possesses  completely  the  absolute  and  un- 
controlled power  of  legislation,  the  legislative  bodies  of  tiie  American  States  possess 
the  same  power,  except,  first,  as  it  may  have  been  limited  by  the  Constitution  of  the 
United  States ;  and,  second,  as  it  may  have  been  limited  by  the  Constitution  of  the 
State.  A  legislative  Act,  cannot,  therefore,  be  declared  void,  unless  its  conflict  with 
one  of  these  two  instruments  can  be  pointed  out."  Cooky,  Const.  Lim.  (6th  ed.) 
200. 

In  Loan  Association  v.  Topeka,  20  Wall.  65.5,  662  (1874)  Miller,  J.  (for  the  court), 
on  error  to  the  United  States  Circuit  Court  for  the  District  of  Kansas,  in  holding  a 
State  statute  invalid  as  imposing  taxation  for  a  merely  private  purpose,  said  :  "  We 
have  referred  to  this  history  of  the  contest  over  aid  to  railroads  by  taxation,  to  show 
that  the  strongest  advocates  for  the  validity  of  these  laws  never  placed  it  on  the  ground 
of  the  unlimited  power  in  the  State  legislature  to  tax  the  people,  but  conceded  that 
where  the  purpose  for  which  the  tax  was  to  be  issued  could  no  longer  Ijejustlydaimed 
to  have  tliis  public  character,  but  was  purely  in  aid  of  private  or"personal  objects,  the 
law  authorizing  it  was  beyond  the  legislative  power,  and  was  an  unauthorized  invasion 
of.  private  right_  Okott  v.  Supervisors,  16  Wallace,  689 ;  People  v.  Salem,  20  Mich. 
4 52  ;  Jenkins  V.  Andover,  10.3  Mass.  94;  Dillon  on  Municipal  Corporations,  §  587;  2 
Redfield's  Laws  of  Railways,  398,  rule  2.  It  must  be  conceded  tliat  there  are  such 
rights  in  every  free  government  beyond  the  control  of  the  State.     A  government 


170  CHICAGO,   ETC.    IIAILWAY    CO.    V.    WELLMAX.  [CIIAP.  L 

whioli  recognized  no  such  rights,  which  hehl  the  lives,  tlie  liberty,  anil  the  property  of 
its  citizens  subject  at  all  times  to  tlie  absolute  disposition  and  unlimited  control  of  even 
the  most  democratic  depository  of  jwwer,  is  after  all  but  a  despotism.  It  is  true  it  is 
a  despotism  of  the  mauy,  of  tiie  majority,  if  you  ciioose  to  call  it  so,  but  it  is  uoue  the 
less  a  despotism.  It  may  well  be  doubted  if  a  man  is  to  hold  all  tliat  he  is  accustomed 
to  call  liis  own,  all  in  which  he  has  placed  liis  happiness,  and  the  security  of  which  is 
essential  to  that  happiness,  under  tlie  unlimited  dominion  of  others,  whether  it  is  not 
wiser  that  tliis  power  should  be  exercised  by  one  man  than  by  many.  The  theory  of 
our  governments,  State  and  National,  is  opposed  to  the  deposit  of  uulimited  power 
anywhere.  Tiie  executive,  the  legislative,  and  tlie  judicial  brandies  of  these  govern- 
ments, are  all  of  limited  and  defined  powers.  There  are  limitations  on  such  poAvar  which 
grow  out  ')f  tlip  t-s^pnt.inl  nature  of  all  free  governments.  Implied  reservations  of_in; 
dividuajrights,  without  which  the  social  compact  could  nbt__exist^a^"d  wliich  nrg 
resitectcd  liv  all  governments  entitled  to_Jihe  name.^Xn  court,  for  instance,  would 
hesitate  to  declare  void  a  statute  which  enacted  that  A.  and  B.  who  were  husband  and 
wife  to  each  other  should  be  so  no  louger,  but  tiiat  A.  sliould  tiiereafter  be  tlie  hus- 
band of  C,  and  B.  the  wife  of  D.  Or  wiiich  should  enact  that  the  homestead  now 
owned  by  A.  should  no  longer  be  his,  but  sliould  henceforth  be  the  property  of  B. 
Whitinr/  v.  Fond  du  Lnc,  25  Wis.  188  ;  Cooley  on  Constitutional  Limitations,  129, 175, 
487  ;  Dillon  on  Municipal  Corporations,  §  587." 

In  Muim  V.  Illinois,  94  U.  S.  113,  124  (1876),  Waite,  C.  J.  (for  the  court)  said: 
"When  the  peojile  of  the  United  Colonies  .separated  from  Great  Britain,  they  changed 
the  form,  but  not  the  substance,  of  their  government.  They  retained  for  the  purposes 
of  government  all  the  powers  of  the  British  Parliament,  and  through  their  State  con- 
stitutions, or  other  forms  of  social  compact,  undertook  to  give  practical  effect  to  such 
as  they  deemed  necessary  for  the  common  good  and  the  security  of  life  and  property. 
All  the  powers  whicli  they  retained  they  committed  to  their  respective  States,  unless 
in  express  terms  or  by  im])lication  reserved  to  themselves.  Subsequently,  when  it  was 
found  necessary  to  establish  a  national  government  for  national  purposes,  a  part  of  the 
powers  of  the  States  and  of  the  people  of  the  States  wa.s  granted  to  tlie  United  States 
and  tlie  people  of  the  United  States.  This  grant  operated  as  a  further  limitation  upon 
the  powers  of  the  States,  so  that  now  the  governments  of  the  States  pos.sess  all  the 
powers  of  the  Parliament  of  England,  except  such  as  have  been  delegated  to  the 
United  States  or  reserved  by  the  people.  The  reservations  by  the  people  are  shown 
in  the  prohibitions  of  the  constitutions." 

In  Chic.  4-  Grand  Tr.  lij/.  Co.  v.  Wellman,  143  U.  S.  339  (1891),  on  error  to  the 
Supreme  Court  of  Michigan,  a  question  involving  the  validity,  under  the  Constitution 
of  the  United  States,  of  a  State  law  regulating  the  charges  of  a  railroad  corporation, 
had  been  raised  on  an  agreed  statement  of  facts,  supplemented  by  the  evidence  of  two 
witnesses.  In  sustaining  the  decision  of  the  State  court,  which  had  refused  to  hold 
the  law  unconstitutional,  the  Supreme  Court  of  the  United  States  (Brewer,  J.)  said  : 
"  The  Supreme  Court  of  Michigau  in  passing  upon  the  present  case,  felt  con.strained  to 
make  this  observation  :  '  It  being  evident  from  the  record  that  this  was  a  friendly  suit 
between  the  plaintiff  and  the  defendant  to  test  the  constitutionality  of  this  legislation, 
the  Attorney-General,  when  it  was  brought  into  this  court  upon  writ  of  error,  very 
properly  interposed  and  secured  counsel  to  represent  the  public  interest.  In  the  stipu- 
lation of  facts  or  in  the  taking  of  testimony  in  the  court  below,  neither  the  Attorney- 
General  nor  any  other  person  interested  for  or  employed  in  behalf  of  the  people  of  the 
State  took  any  part.  What  difference  there  might  have  been  in  the  record  had  the 
people  been  represented  in  the  court  below,  however,  under  our  view  of  the  case,  is  not 
of  material  inquiry.' 

"  Counsel  for  plaintiff  in  error,  referring  to  this,  does  not  question  or  deny,  but 
says :  '  The  Attorney-General  speaks  of  the  case  as  evidently  a  friendly  case,  and 
Justice  Morse,  in  his  opinion,  also  so  speaks  of  it.  This  may  be  conceded ;  but  what 
of  it  ?  There  is  no  ground  for  the  claim  that  any  fraud  or  trickery  has  been  practised 
in  presenting  the  testimony.' 

"  We  think  there  is  much  in  the  sugge.'stion.  The  theory  upon  which,  apparently, 
this  suit  was  brought  is  that  parties  have  an  appeal  from  the  legislature  to  the  courts ; 


SECT.  II.J  NOTE.  171 

NOTE. 
I.  Admixistrative  Rules  in  Constitutional  Law. 


"  The  following  general  propositions,"  it  is  remarked  by  Cooley  (Principles  of  Con- 
stitutional Law,  2d  ed.  152),i  "will  be  found  to  state  the  obligations  of  duty  and  of 
forbearance  for  such  cases  whidi  are  generally  recognized. 

"Qj  The  duty  to  pass  upon  a  nuestiou  of  coiistitutioual  law  may  devolve  upon  a  court 
of  any  grade,  anTrT)!  either  ihe  i-  ederal  or  the  State  jurisdictioji.  Wherever  the  Ques- 
tion can  arise  in  court  of  the  conformity  of  a  statute  to  di«^oustitutiou,  the  court  to 
wliom  the  question  is  addressed  must  iu  some  manu&r  dispose  of  it,  and  the  power  of 
tlie  court  to  apply  the  law  to  the  case  necessaPTl\-  embraces  the  power  to  determine 
wliat  law  controls.  In  the  ab.sence  of  authoritative  precedents,  there  can  be  no  other 
test  of  this  than  the  judgment  of  the^urt.  'The  validity  of  a  Federal  statute  mav 
therefore  be  a  necessary  question  fi^cousideration  iu  a  State  court,  and  that  of  a  St;ite 
statute  in  a  Federal  court.'  ^jefertheless,  when  the  court  to  whom  thp  question  is 
^ldres:ied  is  not  the  court  of  last  resort  m  respect  thereto,  it  may  well  be  expected_to_ 
proceed  with  more  tlian  ordinary  caution  and  liesitation.  and  to  abstain  altogether  from. 
H^eciaring  a  statute  invalid  unless  in  the  clearest  cases,  especially  if,  without  serious 
detrimeiit  to  justice,  tlie  decision  can  be  delayed  until  the  Superior  Court  can  have 
OjjDortuuitv  to  pass  upon  it.  There  may  be  cases  where,  by  inadvertence  or  accicient7 
a  bill  which  has  gone  through  all  the  forms  required  for  valid  legislation  is.  neverthe- 
less, clearly  and  without  question  invalid  ;  but  except  in  such  cases  the  spectacle  of  an 


aud  that  the  latter  are  given  an  immediate  and  general  supervision  of  the  constitu- 
tionality of  the  Acts  of  tlie  former.  Such  is  not  true.  Whenever,  in  pursuance  of  an 
honest  aud  actual  antagonistic  assertion  of  rights  by  one  individual  against  another, 
there  is  presented  a  question  involving  the  validity  of  any  Act  of  any  Legislature, 
State  or  Federal,  and  the  decision  necessarily  rests  on  the  competency  of  the  legisla- 
ture to  so  enact,  the  court  must,  in  the  exercise  of  its  solemn  duties,  determine  whether 
the  Act  be  constitutional  or  not ;  but  such  an  exercise  of  power  is  the  ultimate  and 
supreme  function  of  courts.  It  is  letritimate  oulv  in  the  htst  resort,  and  ns  a  neressity^ 
iu  the  determination  of  real,  earnest,  and  vital  controversy  between  individuals.  Jt_ 
never  was  the  tliought  that,  by  means  of  a  friendly  suit,  a  partv  beaten  in  t"ITeTeg[sla- 
tiire  could  transter  to  tlie  courts  an  inquiry  as  to  the  constitutionality  of  the  legisla" 
tive  Act.  ' 

"  These  observations  are  pertinent  here.  On  the  very  day  the  Act  went  into  force 
the  application  for  a  ticket  is  made,  a  suit  commenced,  and  within  two  months  a  judg- 
ment obtained  in  the  trial  court ;  a  judgment  rendered  not  upon  the  presentation  of 
all  the  facts  from  the  lips  of  witnesses,  and  a  full  inquiry  into  them,  but  upon  an  agreed 
statement  which  precludes  inquiry  into  many  things  wliich  necessarily  largely  enter 
into  the  determination  of  the  matter  iu  controversy.  A  single  suggestion  in  this 
direction  :  It  is  agreed  that  the  defendant's  operating  expenses  for  ISSS  were  S2,404,- 
516.54.  Of  what  do  these  operatiug  expen.ses  consist  ?  Are  they  made  up  partially 
of  extravagant  salaries  ;  fifty  to  one  hundred  thousand  dollars  to  the  president,  and 
in  like  proportion  to  subordinate  oflicers  ?  Surely,  before  the  courts  are  called  upon 
to  adjudge  an  Act  of  the  Letrislature  fixing  the  maximum  passenger  rates  for  railroad 
companies  to  be  unconstitutional,  on  the  ground  that  its  enforcement  would  prevent 
the  stockholders  from  receiving  any  dividends  on  their  investments,  or  the  bondholders 
any  interest  on  their  loans,_they  should  be  fully  advised  as  to  what  is  done  with  the 
receipts  aud  earnings  of  the  company ;  for  if  so  advised,  it  might  clearly  appear  that 
a  prudent  and  honest  management  would,  within  the  rates  prescribed,  secure  to  the 
bondholders  their  interest,  and  to  the  stockholders  reasonable  dividends." —  Ed. 

1  Quoted  by  permission  of  the  author,  and  of  the  publishers,  Jlessrs.  Little,  Brown, 
and  Co.,  of  Boston.  —  Ed. 


172  NOTE.  [chap,  l 

inferior  magistrate,  having  merely  police  or  other  limited  jurisdiction,  assuming  to 
pass  judgment  upon  the  legislation  of  his  State  or  country,  and  declare  it  invalid,  can 
only  be  ludicrous. ' 

'(^  The  judicial  sense  of  propriety  and  of  the  importance  of  the  occasion  will  genet- 
allv  incline  the  court  to  refuse  a  consideration  of  a  constitutional  ({uestion  without  ^|ift 
presence  of  a  full  bench  of  jn(l|";fs.  With  many  courts  this  is  a  rule  to  wliich  few 
exceptions  are  admitted,  and  those  only  which  seem  to  be  imperative. 

'(^  Neitiier,  as  a  rule,  will  a  court  expre.ss  an  opinion  adversejto^he  validity  of  a 
statute,  unle.ss  it  lieeoines  absolutely  necessary  to  the  determin.'ttioii  of  a  cause  before 
It.  Therefore,  in  any  case  where  a  constitutional  question  is  raised,  if  the  record  pre- 
sents some  other  and  clear  ground  upon  which  the  court  may  rest  its  judgment,  and 
thereby  render  the  constitutional  question  immaterial  to  the  case,  the  court  will  adopt 
that  course,  and  the  question  of  constitutional  power  will  be  left  for  consideration 
until  a  case  arises  which  cannot  be  disposed  of  without  considering  it,  and  when,  con- 
sequently, a  decision  upon  such  question  will  be  unavoidable.  This  course  has  not 
always  been  followed ;  but  it  has  seldom  occurred  that  a  constitutional  question  has 
been  considered  settled,  or  been  allowed  to  remain  without  further  dispute  and  ques- 
tion where  the  opinion  given  upon  it  was  rendered  in  a  case  not  necessarily  requiring 
it.  Want  of  jurisdiction  of  the  particular  case  is  always  reason  why  the  court  should 
abstain  from  expressing  opinions  on  other  questions  which  parties  may  attempt  to 
raise. 

"(Th  The  court  wiH  not  listen  to  an  objection  made  to  the  constitutionality  of  an  Act 
bv  one  whose  rights  are  not  affected  by  it,  and  who  consequently  can  have  no  interest 
in  defeating  it.  Jr  or  example,  one  who  has  received  compensation  for  property  appro- 
priated bystatut^-to-tupuidicuse  will  not  be  suffered  afterwards  to  dispute  the  consti- 
tutional validity  of  the  staniTp^'-*F4»£..';r..itiirft  is  a.ssnmprl  tn  hg  v^Yu]  nntil  some  one_ 
complains  of  it  whose  rights  it  invades.  The  power  of  the  court  can  be  invoked  only 
when  it  is  found  necessary  to  secure  and  protect  a  party  before  it  against  an  unwar- 
ranted exercise  of  legislative  power  to  his  prejudice. 

'^^  Xor  can  a  court  declare  a  statute  unconstitutional  and  void  when  the  objection 
to  it  is  merely  that  it  is  unjust  and~oppressive.  and  violates  rights  and  privileg^es  of 
the  citizen,  unless  it  can  be  shown  that  such  injustice  is  prohibited,  or  such  rights  and 
privileges  guaranteed,  by  the  Constitution^  The  propriety  or  justice  or  policy  of  legis- 
latiou,  within  the  limits  of  the  Constitution,  is  exclusively  for  the  legislative  depart- 
ment to  determine;  and  the  moment  a  court  ventures  to  substitute  its  own  judgment 
for  that  of  the  legislature,  it  passes  beyond  its  legitimate  authority,  and  enters  a  field 
•where  it  would  be  impossible  to  set  limits  to  its  interference,  except  as  should  be  pre- 
scribed Ln  its  own  discretion.  The  protection  against  unwise  or  oppressive  legisla- 
tion, within  constitutional  boimds,  is  by  an  appeal  to  the  justice  and  patriotism  of  the 
representatives  of  tlie  people.  If  this  fail,  the  people  in  their  sovereign  capacity  can 
correct  the  evil,  but  courts  cannot  assume  their  rights.  The  judiciary  can  only  arrest 
the  execution  of  a  statute  when  it  conflicts  with  the  Constitution.  It  cannot  run  a 
race  of  opinions  upon  points  of  right,  reason,  and  expediency,  with  the  law-making 
power.  The  question  of  the  validity  of  a  statute  must  always  be  one  of  legislative 
competency  to  enact  it ;  not  one  of  policy,  propriety,  or  strict  justice. 

"t^  Nor  can  a  statute  be  declared  unconstitutional  merefy  because  in  the  opinion  of 
the  court  it  violates  one  or  more  ot  t&e  tundamental  principles  ol  republicati  Hbferty, 

1  Some  courts  have  intimated  that  only  the  superior  courts  should  assume  to  deny 
ralidity  to  a  statute.  Ortman  v.  Greenman,  4  Mich.  291.  Compare  Mayberri/  v. 
Kelly,  1  Kans.  116.  [It  is  a  rule  of  practice  in  some  States,  that  a  single  judge  shall 
never  hold  a  statute  invalid.  In  Rhode  Island  (Pub.  St.  R.  I.,  1882,  c.  220),  it  is  pro- 
vided that  in  cases  before  a  magistrate  or  court  other  than  the  Supreme  Court,  on  an 
objection  to  the  constitutionality  of  a  legislative  Act,  tlie  court  or  magistrate  shall  hold 
the  Act  valid,  and  if  judgment  goes  against  the  party  raising  this  objection,  the  case 
snail  be  certified  to  the  Supreme  Court  for  its  decision.  An  instance  of  this  pro* 
cedure  is  found  in  Com.  r.  Amery,  12  R.  I.  64.  —  Ed.] 


SECT.  II.]  NOTK  173 

piiless  it  shall^ be  found  that  those  principles  are  placed  beyond  legislative  encroach- 
ment by  the  provisions  of  the  Constitution  itself.  The  principles  of  republican  guv- 
eruraent  are  not  a  set  ot  inflexible  rules,  vital  and  active  in  the  Constitution  even 
when  unexpressed  ;  but  they  are  subject  to  variation  and  modification  from  mutives  of 
policy  and  public  necessity,  and  it  is  only  in  those  particulars  in  which  experience  has 
demonstrated  that  any  departure  from  the  settled  course  must  work  injustice  and  con- 
fusion, that  it  is  customary  to  incorporate  them  in  the  Constitution  in  such  a  way  as 
to  make  them  definite  rules  of  actiun  and  decision.  The  foUowiug  are  illustrations. 
The  principle  that  taxation  and  representation  go  together  is  important  and  valuable, 
and  should  never  be  lost  sight  of  in  legislation ;  but,  as  commonly  understood,  it  can 
never  be  applied  universally  without  admitting  every  person  to  the  elective  franchise ; 
for  taxes  iu  some  form  fall  upon  all,  —  the  rich  and  the  poor,  the  infant  and  the  adult, 
the  male  and  the  female,  and  Federal  taxes  reach  the  unrepresented  Territories  as 
well  as  the  represented  States.  So  the  principle  that  local  affairs  shall  be  managed  in 
local  districts,  and  that  these  shall  choose  their  own  local  ofiicers,  constitutes  one  of 
the  chief  excellencies  of  our  system  of  government ;  but  in  applying  it  the  difficulty 
is  at  once  encountered  of  determining  what  are  local  concerns  and  what  general ;  and 
it  may  perhaps  be  found  in  a  given  case  that  the  concerns  that  are  set  apart  as  local, 
if  neglected  or  imperfectly  performed,  subject  the  whole  State  to  embarrassment,  so 
that  State  intervention  becomes  necessary.  And  it  is  obvious  that,  wherever  a  recog- 
nized principle  of  free  government  requires  legislation  for  its  practical  application  and 
enforcement,  the  body  that  passes  laws  for  the  purpose  must  determine,  in  its  dis- 
cretion, what  are  the  "needs  of  legislation  and  what  its  proper  limits.  The  courts  can- 
not take  such  principles  as  abstract  rules  of  law,  and  give  them  practical  force. 

'(7?,  When  a  question  of  Federal  constitutioual_la\\-  is  involved,  the  purpose  of  the. 
Constitution,  and  the\)bject  to  be  accomplisheJl)y  any  particular  grant  of  ^ower,  are 
often  most  important  guides  in  reaching  the  real  intent ;  and  the  debates  in  the  Constj- 
tutional  Convention,  the  discussions  in  the  Federalist  and  in  the  coa>:entions  of  the 
States,  are  often  referred  to  as  throwing  important  light  on  clauses  in  the  Constitu- 
tiOH  Which  se^rVi  blind  or  of  ambiguous  import.  We  may  discover  from  these  what 
the  general  drift  of  opinion  was  as  to  the  division  line  between  Federal  and  State 
power  on  many  subjects,  and  we  can  sometimes  jtvJge  from  that  whether  a  particular 
authority  lie.^  on  one  side  of  the  line  or  on  the  otherSy^  But  we  shall  be  misled  if  we 
attempt  in  this  manner  to  judge  of  State  legislative  power  when  the  limitations^f  the 
Jb'ederal  Constitution  are  not  in  question.  We  cannot  test  the  validity  of  any  State 
"statut(i  by  Jl  J^feneral  spirit  which  is  suppo&e4  to  pervade  the  State  Constitution,  but 
is  not  expressed  in  words.  Presumptively,  "when  the  people  of  the  State,  by  their 
Constitution,  call  into  existence  a  legislative  dfepartment,  and  endow  it  with  the 
function  of  making  laws,  they  confer  upon  it  the  iull  and  complete  legislative 
power, — as  full  and  complete  as  the  people,  in  the  exercise  of  sovereignty,  could 
themselves  have  wielded  it,  —  subject  only  to  such  restri^ctions  as  were  by  the 
same  instrument  imposed.  'The  law-making  power  of  th>  ^State  recognizes  no 
restraints,  and  is  bound  by  none  except  such  as  are  imposedxby  the  Constitu- 
tion. That  instrument  has  been  aptly  termed  a  legislative  Act  by  th«  people  them- 
selves, in  their  sovereign  capacity,  and  is  therefore  the  paramount  lawN^Its  object 
is,  not  to  grant  legislative  power,  but  confine  and  restrain  it.  Without  the  consti- 
tutional limitations,  the  power  to  make  laws  would  be  absolute.  These  limitations  are 
created  ana  imposea  py  express  words,  or  arise  by  necessary  implication.  The  leading 
iea:ure  ot  tne  constitution  is  the  separation  and  distributioa^ot-tire~powers  of  the  gov- 
ernment. It  takes  care  to  separate  the  executiserl^irisrative,  and  judicial  powers,  and 
to  define  their  limits.  The  exexuitive-can'Hono  legislative  act,  nor  the  legislature  any 
executive  act^^an^jietthcr'can  exercise  judicial  authority.'  Presumptively,  therefore, 
i^  an  ■■Uui-trf'fRp'egislative  department  is  not  an  encroachment  upon  executive  or  judi- 
cial power,  it  is  valid.  To  show  its  invalidity,  it  is  necessary  to  point  out  some  partic- 
nlarin  which,  either  in  form  or  substance,  it  is  inconsistent  with  the  Constitution. 
The  inconsistency  may  consist,  either,  (1 )  in  the  failure  to  observe  some  constitutional 
form  which  is  made  essential  to  a  valid  enactment,  such  as  the  taking  of  the  final  vote 
thereon  by  yeas  and  nays  when  the  Constitution  requires  it ;  or  (2)  in  the  disregard  of 


174  NOTE.  [chap,  l 

an  express  prohibition,  as  where  it  consists  in  a  special  charter  of  incorporation  wlicn 
the  Constitution  furhids  incorporation  except  under  general  laws;  or  ("J)  in  the  dis- 
regard of  some  fundamental  right  declared  in  the  hill  of  rights,  as  would  he  a  statute 
compelling  support  of  sectarian  worsliip  or  schools  when  the  Constitution  pnjclaims 
religious  liberty.  And  in  all  the:-e  cases  it  is  not  the  spirit  of  the  Constitution  that 
must  be  the  test  of  validity,  but  the  written  requirements,  prohibitions,  and  guar- 
anties of  the  Constitution  itself. 

'(^A  statute  may  sometimes  be  valid  in  part  and  invalid  in  other  particulars.'  This 
often  happens  under  State  constitutions  that  require  an  Act  to  contain  but  one  object 
which  shall  be  expressed  in  the  title.  If  in  such  a  case  the  Act  embraces  two  objects 
while  the  title  expresses  but  one,  the  Act  will  be  unconstitutional  and  void  as  to  the 
cue  not  so  expressed.  So  in  the  absence  of  such  a  requirement  the  Act  might  be  void 
as  to  one  object  because  the  legislation  attempted  was  expressly  forbidden  by  the  Consti- 
tution, while  in  other  particulars  it  was  plainly  within  the  legi.><lative  competency. 
The  general  rule  therefore  is,  that  the  fact  that  part  of  a  statute  is  uucoustitutional 
does  not  justify  the  remainder  being  declared  invalid  also,  unless  all  the  provisions  . 
are  connected  in  suhiect-matter,  depending  on  each  other,  operating  together  foy  tbfl 
same  purpose,  or  otherwise  so  connected  together  in  meaning  that  it  cannot^  he  pre- 
siim^H  tViP  1pp;-jplgture  would  have  passed  the  Act  otherwise  than  as  a  wjiole.  It  is  im- 
material how  closely  the  valid  and  invalid  provisions  are  associated  in  the  Act ;  they 
may  even  be  contained  in  the  same  section,  and  yet  be  perfectly  distinct  and  separable, 
so  that  the  one  may  stand  though  the  other  fall.  If,  when  the  unconstitutional  por- 
tion is  stricken  out,  that  which  remains  is  complete  in  itself,  and  capable  of  heing  exe- 
cuted in  accordance  w-ith  the  ajjparent  legislative  intent,  wholly  independent  of  that 
which  was  rejected,  it  must  be  sustained.  But  if  the  intent  of  the  Act  is  to  accom- 
plish a  single  purpose  only,  and  some  provisions  are  void,  the  whole  must  fail  unless 
sufficient  remains  to  effect  the  object  without  the  invalid  portion.  And  if  tliey  nre  so 
mutually  connected  with  and  dependent  on  each  other  as  conditions,  considerations,  or 
compensations,  as  to  warrant  the  belief  that  the  legislature  intended  them  as  a  whole, 
and  that,  if  all  could  not  be  carried  into  effect,  the  legislature  would  not  pass  the  resi- 
due independently,  then,  if  some  parts  are  unconstitutional,  all  the  provisions  that  are 
thus  dependent,  conditional,  or  connected  must  fall  with  them. 

'<§)  A^  dnnht  of  the  constitutional  validity  of  a  statute  is  never  .sufficient  to  warrant 
ijgjieiftg-sct  itaide.  '  It  is  not  on  slight  implication  and  vague  conjecture  fFat  the 
legislature  is  to  He  pronounced  to  have  transcended  fts  powers,  and  its  acts  to  be  con- 
sidered as  void.  /The  opposition  between  the  Constitution  and  the  law  should  be  such 
t-JTat  the  judgn  fpfln  n  f1"nr  nn-l  "ifrnng  conviction  of  their  incompatibility  wMth  each 
other.'  'It  is  but  a  decent  respect  due  to  the  wisdom,  the  integrity,  and  the  patriot- 
ism  of  the  legislative  body  by  which  any  law  is  passed,  to  presume  in  favor  of  its 
validity,  until  its  violation  of  the  Constitution  is  proved  beyond  all  reasonable  doubt.' 
To  be  in  doubt,  therefore,  is  to  be  resolved,  and  the  resolution  must  support  the  law. 

"  This  course  is  the  opposite  to  that  which  is  requireji  of  thejfigislature  in  consider- 
in^lip  j[iipatir»n  nf  passing  q  prnpngpf]  l^w.  Legislators  have  their  authority  meas- 
ured  by  the  Constitution  ;  they  are  chogetfu)  do  what  it  permits,  and  nothing  more, 
and  they  take  solemn  oath  to  obey^nfa  support  it.  When  they  disregard  its  provisions, 
they  usurp  authority,  a^ia«€^their  trust,  and  violate  the  promise  they  have  confirmed 

by  an  oath.  TnjaffTgn  Anh  vvhpn  thpy  nrp  in  dnnht  ivbpthpr  it  dopa  not^inlatP  the 
Constitution,  is  to  treat  as  of  no  force  the  most  imperative  obligations  any  person  can 
.A  business  agent  who  would  deal  in  that  manner  with  his  principal's  busi- 
treated  as  untrustworthy  ;  a  witness  in  court  who  would  treat  his  oath 
md  affirm  things  concerning  which  he  was  in  doubt,  would  be  held  a 
[ndeed,  it  is  because  the  legislature  has  applisd  the  judgment  of  its  mem- 

its  authority  to  pass  the  proposed  law,  and  has  only  passedTT 

after  being  satisfied  of  the  authority,  that  the  judiciary  waive  their  own  doubts,  ari3 
give  it  their  support.^  ^ 

[1  Perhaps  more  exactly,  because  it  is  the  duty  of  the  legislature  to  do  this,  and 


SECT.  II.]  NOTE.  175 

"^O)  The  valiility  of  legislation  can  never  be  made  to  depend  on  the  motives  which 
have  secured  it8""adoptioii,  whether  these  be  jHililic  j)r^ personal,  honest  or  corrupt. 
There  is  ample  reason  for  this  in  the  fact  that  the  people  have  set  no  authority  over 
the  legislators  witii  jurisdiction  to  inquire  into  their  conduct,  and  to  judge  what  have 
been  their  purposes  in  the  pretended  disciiarge  of  the  legislative  trust.  This  is  a  juris- 
diction which  they  have  reserved  to  tliemselves  exclusively,  and  they  have  appointed 
frequent  elections  as  the  occasions  and  the  means  for  bringing  these  agents  to  account. 
A  further  reason  is,  that  to  make  legislation  depend  upon  motives  would  render  all 
statute  law  uncertain,  and  the  rule  which  should  allow  it  could  not  logically  stop  short 
of  permitting  a  similar  inquiry  into  the  motives  of  those  who  passed  judgment.  There- 
fore the  courts  do  not  permit  a  question  of  improper  legislative  motives  to  be  raised, 
but  they  will  in  every  instance  assume  that  the  motives  were  public  and  befitting  the 
station.  They  will  also  assume  that  the  legislature  had  before  it  any  evidence  neces- 
sary to  enable  it  to  take  tiie  action  it  did  take. 

"(CD  When  a  legislative  enactment  proves  to  be  invalid,  it  is  for  all  legal  purposes 
as  if  it  had  never  been.  It  can  support  no  contract,  it  can  create  no  right,  it  can  give 
protection  to  no  one  who  has  acted  under  it,  it  can  make  no  one  an  offender  who  has 
refused  obedience  to  it.  And  this  is  true  of  any  particular  provision  of  a  statute 
which  proves  invalid,  while  the  remainder  is  sustained.  It  is  true  that  one  who 
assumes  to  disobey  a  statute  as  invalid  docs  so  at  the  risk  of  being  punished  for  his 
disobedience  if  the  law  is  sustained ;  but  this  is  a  risk  which  every  one  takes  when  he 
acts  in  any  matter  in  respect  to  whicli  tlie  law  is  in  doubt."         /TT^N 

II.  Advisory  Opinions. 

The  giving  of  such  opinions  by  judges  is  not  an  exercise  of  the  judicial  function. 
The  relation  of  the  English  judges  to  the  king,  in  former  days,  and  their  ancient  place 
as  assistants  to  the  House  of  Lords,  led  to  a  practice,  on  the  part  of  that  House,  as  well 
as  the  king,  of  calling  on  them  for  advisory  or  "  consultative  "  opinions.  This  may  be 
traced  very  far  back  in  our  records,  e.  /j.,  in  1387  (2  Stat.  Realm,  102-104),  King  Rich- 
ard II.  puts  to  his  judges  a  long  string  of  questions. 

In  this  country  the  constitutions  of  seven  States  have  provided  for  obtaining 
opinions  from  the  judges  of  the  highest  court  upon  applicatinn  liy  the  executive  or  the 
legislature,  viz.,  of  Massachusett57  New  Hampshire.  Maine.  Rhode  Island^  Florida- 
Colorado,  and  South  Dakota.  In  one  other  State,  Missouri,  a  similar  clause  was  intro- 
duced in  the  Constitution  of  1865,  just  after  the  war;  but  it  continued  only  ten  years, 
and  was  left  out  of  the  Constitution  of  1875.  It  dates  in  Massachusetts  from  1780,  — 
Part  II.,  c.  iii.  s.  2  ;  in  New  Hampshire  from  1784,  —  Part  II.,  title.  Judiciary  Power; 
in  Maine  (formerly  a  part  of  Massachusetts)  from  1820,  —  Art.  VI.,  s.  3 ;  in  Rhode 
Island,  from  1842,  —  Art.  X.,  s.  3  ;  in  Florida,  from  1868,  —  Art.  V.,  s.  16,  amended  in 
1875,  —  Amendment  XI. ;  in  Colorado,  from  1886,  —  Amendment  to  Art.  VI.,  s.  3  ;  in 
South  Dakota,  from  1889,  —  Art.  V.,  s.  13.  In  the  first  three  States,  the  judges  are  to  give 
their  opinions  "  upon  important  questions  of  law  and  upon  solemn  occasions."  In  Rhode 
Island,  "  upon  any  question  of  law,  whenever  requested,"  &c.  In  Florida,  at  any  time, 
upon  the  Governor's  request  "  as  to  the  interpretation  of  any  portion  of  this  Constitu- 
tion, or  upon  any  point  of  law;  "  this  was  amended  by  limiting  the  last  alternative  to 
"  any  question  affecting  his  e.xecutive  powers  and  duties."  In  Colorado,  the  provision 
reads :  "  The  Supreme  Court  shall  give  its  opinion  upon  important  questions  upon 
solemn  occasions,  when  required  by  the  Governor,  the  Senate,  or  the  House  of  Repre- 

because  a  failure  on  the  part  of  the  legislature  to  do  its  duty  will  not  justify  the 
judiciary  in  trying  to  mend  matters  by  a  breach  of  its  own  duty. 

Cooley,  in  another  place  (Const.  Lim.,  6th  ed.,  68),  says :  "  Cases  must  sometimes 
occur  when  a  court  should  refrain  from  declaring  a  statute  unconstitutional  because 
not  clearly  satisfied  that  it  is  so,  though,  if  the  judges  were  to  act  as  legislators  upon 
the  question  of  its  enactment,  they  ought,  with  the  same*  views,  to  withhold  their  as- 
sent, from  grave  doubts  upon  that  subject."  —  Ed.] 


176  NOTE.  [chap.  I. 

sentatives :  and  all  such  opinions  shall  be  published  in  connection  with  the  reported 
decisions  of  the  court."  This  has  been  held  {In  the  Matter  of  Senate  Bill  No.  65, 
12  Colo.  466,  in  1889)  to  be  limited  to  questions  of  law  and  such  as  are  questions  jtub- 
licijurin,  and  to  call  uot  merely,  as  elsewhere  generally  held,  for  the  opinions  of  the 
justices,  but  for  authoritative  judgmeuts  of  the  court.  The  resort  to  this  power  in 
Colorado  was  prompt  and  troublesome.  See  a  group  of  opinions  in  9  Col.  620-642. 
In  South  Dakota,  the  Governor  may  "  require  the  opinions  of  the  judges  of  the  Supreme 
Court  upon  important  questions  of  law  involved  in  the  exercise  of  his  executive 
powers,  and  upon  solemn  occasions."  In  Missouri,  the  provision  only  varied  from  that 
in  Massachusetts,  by  the  insertion  of  a  word,  —  "  upon  important  questions  of  consti- 
tutional law,"  &c. 

In  the  Federal  Convention  of  1787,  it  was  proposed  that  "  each  branch  of  the  legis- 
lature, as  well  as  the  supreme  executive,  shall  have  authority  to  require  the  opinions  of 
the  Supreme  Judicial  Court  upon  important  questions  of  law,  and  upon  solemn  occa- 
sions." 5  Ell.  Deb.  445.  But  nothing  came  of  it.  It  is,  however,  interesting  to  see 
that  the  first  President,  who  had  also  presided  over  the  Convention,  asked  for  an 
opinion  from  the  justices.  "  Washington,  in  1793,  sought  to  take  the  opinion  of  the 
judges  of  the  Supreme  Court  of  the  United  States  as  to  various  questions  arising  under 
our  treaties  with  France.  They  declined  to  respond.  The  President  and  Cabinet 
came  to  the  conclusion  to  ask  this  opinion  from  the  judges  on  July  12,  1793.  Those 
who  were  at  hand  appear  to  have  suggested  delay  until  they  could  communicate 
with  their  absent  associates.  A  letter  of  July  23,  from  the  President  to  Chief  Justice 
Jay  and  his  brethren,  is  preserved,  in  which  he  assents  to  this  delay,  but  expresses  the 
pleasure  that  he  shall  have  in  receiving  the  opinion  at  a  convenient  time.  (Sparks's 
Washington,  x.  359.)  The  date  was  but  a  little  later,  —  not  far  from  Aug.  1,  as  it 
would  seem,  —  of  which  Marshall  speaks  when  he  says  (Life  of  Washington,  v.  441, 
Philadelphia,  1807):  'About  this  time  it  is  probable  that  the  difficulties  felt  by  the 
judges  of  the  Supreme  Court  in  expressing  their  sentiments  on  the  points  referred  to 
them  were  communicated  to  the  Executive.  Considering  themselves  merely  as  con- 
stituting a  legal  tribunal  for  the  decision  of  controversies  brought  before  them  in  legal 
form,  these  gentlemen  deemed  it  improper  to  enter  the  field  of  politics  by  declaring 
their  opinion  on  questions  not  growing  out  of  the  case  before  them.'  It  was,  perlia])s, 
fortunate  for  the  judges  and  their  successors  that  the  questions  then  proposed  came  in 
so  formidable  a  shape  as  they  did.  There  were  twenty- nine  of  them,  and  they  fill 
three  large  octavo  pages  in  the  Appendix  to  the  tenth  volume  of  Sparks's  Washington. 
Had  they  been  brief  and  easily  answered  the  court  might,  not  improbably,  have 
slipped  into  the  adoption  of  a  precedent  that  would  have  engrafted  the  English  usage 
upon  our  national  system.  As  it  is,  we  may  now  read  in  2  Story,  Const,  sec.  1571, 
that  while  the  President  may  require  the  written  opinion  of  his  Cabinet,  '  he  does  not 
possess  a  like  authority  in  regard  to  the  judicial  department.'"  —  Thayer's  Mem.  on 
Advisory  Opinions,  13. 

It  may  be  added  that  the  Constitution  of  the  Hawaiian  Islands  of  1887,  Art.  70 
(5  Haw.  Rep.  716),  gives  "the  King,  His  Cabinet,  and  the  Legislature  .  .  .  authority 
to  require  the  opinions  of  the  justices  of  the  Supreme  Court  upon  important  ques- 
tions of  law,  and  upon  solemn  occasions."  This  provision  is  said  to  run  back  through 
the  Constitution  of  1864  (art.  70)  to  that  of  1852  (art.  88),  where  it  seems  to  have  been 
first  introduced,  in  a  slightly  different  form.  A  number  of  such  opinions  are  preserved 
in  the  Hawaiian  Reports,  beginning  with  one  entitled  The  Segregation  of  Lepers,  5 
Haw.  Rep.  162  (May.  1884).  — Ed. 


SECT.  II.]  GREEN   V.   THE   COMMONWEALTH.  177 


GREEN   V.   THE   COMMONWEALTH. 

Supreme  Judicial  Court  of  Massachusetts.     1866. 

[12  Allen,  155.] 

Heed,  Attorney-General,  for  the  Commonwealth. 

H.  W.  Paine,  and  K.  St.  J.  Green,  for  the  petitioner. 

BiGELOw,  C.  J.  The  petitioner  in  this  case  stands  convicted  upon 
his  own  confession  in  open  court  of  the  crime  of  murder  in  the  first 
degree,  and  is  now  awaiting  the  execution  of  sentence  of  death  awarded 
against  him  on  such  conviction  at  a  term  of  this  court  for  the  count}'  of 
Middlesex,  held  at  the  city  of  Lowell,  on  the  third  Monday  of  April, 
1864.  Under  the  provisions  of  Gen.  St.  c.  146,  §  13,  he  made  appli- 
cation by  petition  to  a  "justice  of  this  court  on  the  21st  day  of  March 
last,  for  a  writ  of  error  on  said  judgment."  His  petition  is  accom- 
panied by  an  assignment  of  certain  errors,  which  he  alleges  to  exist  in 
the  record.  With  the  assent  of  counsel,  who  appear  in  his  behalf,  and 
in  conformity  to  the  precedent  established  in  Webster  v.  The  Common- 
wealth, 5  Cush.  386,  the  hearing  of  this  petition  was  adjourned  into  the 
full  court.  The  grounds  upon  which  the  alleged  errors  are  supposed  to 
rest  have  been  presented  to  our  consideration  with  great  fulness  and 
ability  by  learned  counsel,  and  the  case  now  stands  for  our  final  adjudi- 
cation on  the  causes  of  error  assigned  in  support  of  the  petition.  It  is 
hardly  necessary  for  us  to  say  that  we  have  considered  the  questions 
thus  brought  before  us  with  the  most  anxious  solicitude,  and  that  we 
have  examined  and  deliberated  upon  them  under  a  deep  sense  of  the 
responsibility  which  rests  upon  us,  in  view  of  the  solemn  and  momen- 
tous consequences  to  the  petitioner  involved  in  our  decision. 

But  it  is  not  for  this  reason  onl}'  that  we  have  been  earnest  in  our 
desire  to  weigh  with  the  utmost  candor  and  impartiality  the  causes  of 
error  assigned  b}'  him.  Some  of  the  points  now  relied  on  as  aflbrding 
sufficient  ground  for  a  reversal  of  the  judgment  against  him  have  been 
heretofore  called  to  our  attention.  By  an  order  of  the  Governor  and 
Council  passed  on  the  31st  day  of  October,  1864,  in  pursuance  of  the 
provision  of  the  Constitution,  c.  3,  §  2,  the  inquiry  was  propounded  to 
us  "  whether  it  was  competent  for  this  court,  especially  when  held  by  a 
single  justice,  to  enter  up  a  final  judgment  against  a  prisoner,  and 
award  the  sentence  of  death,  upon  his  own  plea  of  guilty  of  murder  in 
the  first  degree ;  or  whether,  on  the  contrary,  it  is  not  necessary'  to 
record  the  plea  as  a  general  plea  of  guilty,  and  either  enter  judgment  as 
of  murder  in  the  second  degree,  or  else  submit  the  question  of  the 
degree  of  murder  to  be  found  by  a  jury."  To  this  inquiry',  in  compli- 
ance with  the  dut}"  imposed  by  the  Constitution,  an  answer,  signed  by 
all  the  justices  of  this  court,  covering,  as  we  then  supposed,  the  entire 
subject-matter  concerning  which  information  was  sought,  was  returned 
to  the  Governor  and  Council,  which  stated  in  substance  that  the  convic* 
VOL.  I.— 12 


178  OPINION    OF   THE   JUSTICES.  [CHAP.  I. 

tion  was  not  irreguhir  or  informal  on  the  grounds  which  were  under- 
stood to  be  suggested  by  the  inquiry  ;  and  that  the  judgment  and 
sentence  were  duly  entered  up  and  recorded.  9  Allen,  585.  The 
opinion  thus  given,  like  all  others  of  a  similar  character,  was  formed 
without  the  aid  of  counsel  learned  in  the  law,  or  any  statement  of  the 
reasons  on  which  the  regularity  or  validity  of  the  proceedings  had  l)een 
called  in  question.  Although  it  is  well  understood  and  has  often 
been  declared  by  this  court  that  an  opinion  formed  and  expressed  under 
ci^pli  pircnmgtnnpps  r.innot  be  considered  in  any  sense  as  conclusive  or 
bincling  on  the  riuhts  of  parties,  J)ut  is  regarded  as  being  open  to  recon- 
o|j^^i^^itK^r^_anr]  rPviQion,  vot  jt,  necoss^rilv -^jresTTpposcsJliat^the  subject 
to  which  it  relates  has  been  judicially  examined  and  considered,  andjih 
opinion  formed  thereonT  We  have  tiierefore  telt  it  to  be  our  duty  most 
sedulously  to  guard  against  any  influence  which  might  flow  from  our 
previous  consideration  of  some  of  tlie  causes  of  error  now  assigned  as 
the  ground  for  a  reversal  of  the  judgment.   .  .  . 

The  result  is,  that  the  prayer  of  tlie  petitioner  is  denied. 

The  prisoner  was  accordingly  hung. 


OPINION   OF   THE  JUSTICES. 

The  Justices  of  the  Supreme  Judicial  Court  of  Massachu- 
setts.    1878. 

[126  Mass.  557. J 

.  .  .  The  Justices  of  the  Supreme  Judicial  Court,  having  now  fully 
considered  the  questions  upon  which  their  opinions  have  been  required 
by  the  Honorable  Senate  and  the  Honorable  House  of  Representatives 
respectively,  and  the  precedents  communicated  to  them  by  the  joint 
order  of  the  two  Houses,  and  other  precedents  and  authorities  on  the 
subject,  respectfully  submit  the  following  opinion  : 

The  Constitution  of  the  Commonwealth  provides  as  follows :  "  All 
money  bills  shall  originate  in  the  House  of  Representatives ;  but  the 
Senate  may  propose  or  concur  with  amendments,  as  on  other  bills." 
Chap.  1,  sect.  3,  art.  7. 

The  questions  proposed  by  the  two  Houses,  although  differing  in 
form,  appear  to  us  to  present  substantially'  one  and  the  same  question  ; 
namely,  whether  a  bill  which  ajjpropriates  money  from  the  treasury  of 
the  Commonwealth,  and  does  not  provide  for  levying  such  money  upon 
the  people,  by  tax  or  otherwise,  is  a  money  bill,  which  must,  by 
this  provision  of  the  Constitution,  originate  in  the  House  of  Rep- 
resentatives. 

Upon  first  taking  up  this  question,  some  of  us  had  doubts  whether  it 
was  one  upon  which  we  could  properly  express  an  opinion.  Althougli 
a  consideration  of  the  precedents  dispelled  those  doubts,  it  has  seemed 


SECT.  II.J  OPINION   OF   THE  JUSTICES.  179 

to  US  proper,  in  order  to  show  that,  in  undertaking  to  define  the  con- 
stitutional authority  of  a  branch  of  the  legislature,  we  have  been  cau- 
tious not  to  exceed  our  own,  that  we  should  state  the  reasons  on  which 
it  lias  appeared  to  us  to  be  our  duty  to  answer  the  question  to  the  best 
of  our  information  and  abilities. 

The  question  is  indeed,  in  one  aspect,  a  question  of  parliamentaiy 
privilege  and  of  parliamentary  procedure  ;  but  it  is  also  a  question  of 
the  construction  of  the  Constitution  of  the  Commonwealth,  which  is  on 
this  subject  the  supreme  law. 

The  Constitution  declares  that  "  each  branch  of  the  legislature,  as 
well  as  the  Governor  and  Council,  shall  have  authority  to  require  the 
opinions  of  the  .Justices  of  the  Supreme  Judicial  Court  upon  important 
questions  of  law  and  upon  solemn  occasions."  Chap.  3,  art.  2.  This 
article,  as  reported  in  the  Convention  that  framed  the  Constitution, 
limited  the  authority  to  the  Governor  and  Council  and  the  Senate,  and 
was  extended  by  the  Convention  so  as  to  include  the  House  of  Repre- 
sentatives ;  Journal  of  Convention  of  1779-80  (ed.  1832),  211,  242; 
and,  as  may  be  inferred  from  the  form  in  which  it  was  originally  pre- 
sented, evidently  had  in  view  the  usage  of  the  English  Constitution,  by 
which  the  king,  as  well  as  the  House  of  Lords,  whether  acting  in 
their  judicial  or  in  their  legislative  capacity,  had  the  right  to  demand 
the  opinions  of  the  twelve  judges  of  England. 

The  practice  of  the  Stuart  kings,  in  taking  extrajudicial  opinions  of 
the  judges  upon  questions  about  to  come  before  them  judicially,  was 
an  unconstitutional  abuse  of  the  royal  authority  in  this  respect.  Staf- 
ford's Case,  Year-Book,  1  H.  VH.Vol.  26,  pi.  1  ;  Lord  Coke,  in  Feach- 
am's  Case,  2  Howell's  State  Trials,  871  ;  3  Inst.  29  ;  Foster's  Crown 
Law,  200;  Co.  Lit.  110,  Hargrave's  note.  But,  since  the  Revolution 
of  1688,  so  sturdy  an  assertor  of  the  independence  of  the  judges  as 
Lord  Holt  joined  with  the  other  judges  of  the  time  in  opinions  to  King 
\Villiam  III.  upon  the  extent  of  the  power  of  pardon  ;  Fe7iivick's  Case, 
Fortescue,  385  ;  and  to  Queen  Anne  upon  the  question  whether  a  writ 
of  error  should  be  granted  as  of  right ;  Patfs  Case  ;  14  East,  92,  note  ; 
14  Howell's  State  Trials,  861,  note.  And,  as  late  as  1760,  Lord  Mans- 
field, Chief  Justice  Willes,  and  other  judges,  gave  an  opinion  to  King 
George  II.  upon  the  jurisdiction  of  a  court-martial  to  try  an  officer, 
after  his  dismissal  from  the  army,  for  a  military  offence  committed 
while  in  actual  service.  Lord  George  SacJcville's  Case,  2  Eden,  371. 
So,  under  the  Constitution  of  the  Commonwealth,  opinions  have  been 
given  by  the  justices  of  the  Supreme  Judicial  Court  to  the  Governor 
and  Council  upon  questions  of  the  exercise  of  the  power  of  pardon,  13 
Gray,  618,  the  issue  of  death-warrants,  11  Cush.  604,  the  validity  of 
the  proceedings  of  a  court-martial,  3  Cush.  586,  and  the  authority 
of  the  Governor,  as  commander-in-chief,  over  the  militia.  1  Allen, 
197,  note. 

We  are  not  aware  of  any  instance  since  1760  in  which  the  Crown 
has  exercised  the  power  of  asking  the  opinion  of  the  judges.     But  the 


180  OPINION   OF  THE  JUSTICES.  [ciIAP.  I. 

right  of  the  House  of  Lords  to  put  abstract  qucstious  of  law  to  the 
judges,  the  auswer  to  which  might  be  necessary  to  the  House  in 
its  legislative  capacity,  has  been  often  acted  on  in  modern  times. 
jrJVayhten's  Case  (1843),  10  CI.  &  Fin.  200,  212-214.  .  .  . 

In  this  Commonwealth,  the  privileges  of  the  two  Houses  do  not,  as 
in  England,  rest  merely  upon  legislative  resolves  and  usages  ;  but  they 
are  defined  by  the  written  Constitution.  Bia-nham^s  Casey  14  Gray, 
226,  238;  Whitco^nVs  Case,  120  Mass.  118,  122.  The  same  Consti- 
tution which  defines  these  privileges  declares  that  each  branch  of  the 
legislature,  as  well  as  the  Governor  and  Council,  shall  have  authority  to 
require  the  opinions  of  the  justices  of  the  Supreme  Judicial  Court  upon 
important  questions  of  law  and  upon  solemn  occasions.  The  opinions 
of  the  justices  can  be  required  only  "  upon  important  questions  of  law," 
not  upon  questions  of  fact ;  Opinion  of  Justices ^  120  Mass.  GOO  ;  "  and 
upon  solemn  occasions,"  that  is  to  say,  when  such  questions  of  law  are 
necessary  to  be  determined  by  the  body  making  the  inquiry,  in  the 
exercise  of  the  legislative  or  executive  power  intrusted  to  it  by  the  Con- 
stitution and  laws  of  the  Commonwealth.  Ansicer  of  Justices,  122 
Mass.  600.  No  other  limit  of  the  authority  to  require  the  opinions  of 
the  justices  is  expressed  in  the  Constitution.  In  giving  such  opinions, 
the  justice's  ^1^  pot  act  as  a  court,  but  as_the_constitutional  advisers 
of  the  other  departments  of  the  government,  and  it  has  neyei- Jigen 
considered  essential  that  the  questions  proposed  should  be  such  as 
might  come  before  them  in  their  judicial  capaciiy.^  .  .  . 

The  interesting  character  of  the  precedents  to  which  we  have  re- 
ferred, and  the  want  of  any  published  collection  in  which  they  may  be 
readily  found,  may,  we  trust,  excuse  the  fulness  with  w^hich  we  have 
stated  the  considerations  which  have  satisfied  us  that  theor^^rs  of  the_ 
Senate  and_pf  thft  House  of  Representatives  present  aftSimpo^ant 
question  of  lawij^rising  upon  a  solemn  occasion,  and  upon  whicfHthe, 
two  Houses  are  empowered  by  the  Constitution  to  require  our  opinion. 
Any  embarrassment  that  we  might  have  felt  in  giving  an  opinion  to 
one  House  upon  a  question  affecting  the  constitutional  powers  of  both 
has  been  removed  by  the  facts  that  each  House  has  proposed  a  similar 

1  It  has  l)een  sometimes  asked,  whether  the  opinions  of  the  judges  ought  not  to 
govern  the  decision  of  the  House.  They  have  never  had  that  effect  even  wlien  unani- 
mous ;  and  it  is  not  easy  to  see  how  they  could  so  operate  when  conflicting  and  op- 
posed. The  House  pa,vs  yreat  regard  to  the  opinions  of  the  judges,  jspecially  when 
concurrent:  but  the  Hnnse  cannot  transfer  to  others  the  constitutional  responsibility 
which  attaches  to  the  adjudication  of  causes  in  the  court  of  last  resort.  —  Macqueen, 
Appellate  Jiirisd.  of  the  House  of  Lords,  49-50. 

This  is  the  first  time,  since  the  adoption  of  the  Constitution,  that  this  question  has 
been  brought  yuc/;cm%  to  the  attention  of  the  court.  The  advice  or  opinion  p-iven 
by  the  judges  of  this  court,  when  requested,  to  the  Governor,  or  to  either  llousaof  the 
General  Assembly,  under  the  3d  section  of  the  10th  article  of  the  Constitution,\is  not 
a  {Jpcision  of  this  court ;  and  given,  as  it  must  be,  without  the  aid  which  the  court 
derives,  in  adversary  cases,  from  able  and  experienced  counsel,  though  it  mav  anordT^ 
much  light,  from  the  reasoniiip-s  or  research  displayed  in  it.  can  have  no  weight  as  a 
precedeni.  —  Ames,  C  J.  (for  the  court),  in  Tai/lor  v.  Place,  4  R.  I.  362  (1856).  —  Ed. 


SECT.  II.]  APPLICATION   OF  THE   SENATE.  181 

question  and  that  the  two  Houses  have  joined  in  an  order  transmitting 
to  us  all  the  precedents  that  either  House  deemed  of  sufficient  impor- 
tance to  be  considered.  .    .  . 

The  result  is,  that,  having  regard  to  the  history  of  the  subject,  to  the 
settled  meaning  of  the  words  "  mone}'  bills  "  at  the  time  of  the  adop- 
tion of  the  Constitution  of  the  Commonwealth,  and  to  the  contempora- 
neous construction  of  that  Constitution  by  the  justices  of  the  Supreme 
Judicial  Court  and  by  both  Houses  of  the  Legislature,  affirmed  by  a 
continuous  and  uniform  practice  of  eight3--five  years,  we  are  of  opinion 
that  the  exclusive  constitutional  privilege  of  the  House  of  Representa- 
tives to  originate  money  bills  is  limited  to  bills  that  transfer  mone^^  or 
property  from  the  people  to  the  State,  and  does  not  include  bills 
that  appropriate  money  from  the  treasury  of  the  Commonwealth  to 
particular  uses  of  the  government,  or  bestow  it  upon  individuals  or 
corporations.  ./.  . 

'  Horace  Gray,  Marcus  Morton, 

James  D.  Colt,  William  C.  Endicott^ 

Seth  Ames,  Otis  P.  Lord, 

Augustus  L.  Soule. 
Boston,  December  31,  1878. 


In  THE  Matter  of  THE  APPLICATION  OF  THE  SENATE. 
Supreme  Court  of  Minnesota.     1865. 

[10  Minn.  78.] 

At  a  session  of  the  Legislature  of  this  State  in  1865,  the  following 
resolution  was  adopted  by  the  Senate,  to  wit : 

Iteeolved,  That  the  Supreme  Court  be  and  they  are  hereby  respect- 
fully requested  to  furnish  the  Senate  their  opinion  upon  the  following 
questions.  .  .   . 

"Whereupon  the  court,  in  answer  to  such  resolution,  returned  to  the 
Senate  the  following  opinion. 

Br  the  Court  (McMillan,  J.).  A  copy  of  the  resolution  of  the 
Senate  requesting  the  Supreme  Court  to  furnish  the  Senate  with  their 
opinion  upon  certain  questions  stated  in  the  resolution  was  communi- 
cated to  the  court  3'esterda3\ 

"We  have  had  the  matter  under  advisement,  and  given  it  that  con- 
sideration which  a  communication  from  so  high  a  source  is  entitled  to 
receive. 

The  resolution,  we  presume,  was  passed  in  view  of  sec.  15,  ch.  4, 
Comp.  Stat.,  which  provides  that  "either  House  may,  by  resolution, 
request  the  opinion  of  the  Supreme  Court,  or  an}'  one  or  more  of  the 
judges  thereof,  upon  a  given  subject,  and  it  shall  be  the  duty  of  such 
court  or  judges  when  so  requested,  respectively,  to  give  such  opinion  in 
writing." 


182  APPLICATION    OF   THE   SENATK.  [CHAP.  I. 

"We  are  aware  of  but  two  instances  under  our  State  organization,  in 
wliich  similar  resolutions  have  been  passed,  and  in  both  cases  replies 
were  made  declining  to  express  any  opinion  upon  the  points  submitted. 
Journal  of  the  Senate,  1858,  718;  'lb.  1863,  75. 

We  might  be  justified  in  resting  on  these  precedents.  But  we  perceive 
that  in  neither  case  was  the  resolution  considered  by  all  the  members 
of  the  court ;  nor  does  either  of  the  opinions  given  by  the  judges  cover 
the  whole  ground  of  the  power  of  the  legislature  and  the  court  under 
resolutions  of  this  kind.  We,  therefore,  deem  it  proper  out  of  respect 
to  the  Senate,  and  in  view  of  the  important  principles  involved,  to  state 
briefl}'  the  reasons  for  the  conclusions  at  which  we  have  arrived. 

By  the  Constitution  the  power  of  the  State  government  is  divided  into 
three  distinct  departments,  legislative,  executive,  and  judicial.  The 
powers  and  duties  of  each  department  are  distinctly  defined.  The  de- 
partments are  independent  of  each  other  to  the  extent,  at  least,  that 
neither  can  exercise  an}'  of  the  powers  of  the  others,  not  expressly  pro- 
vided for.     Constitution,  art.  3,  sec.  1. 

This  not  only  prevents  an  assumption  by  either  department  of  power 
not  properly  belonging  to  it,  but  also  prohibits  the  imposition,  by  one, 
of  any  duty  upon  either  of  the  others  not  within  the  scope  of  its  juris- 
diction ;  and  "  it  is  the  duty  of  each  to  abstain  from  and  to  oppose  en- 
croachments on  either."  Any  departure  from  these  important  principles 
must  be  attended  with  evil. 

This  question  is  well  considered  in  a  note  to  Hayburn's  Case,  2  Dal). 
409  et  seq.,  in  which  the  Circuit  Court  for  the  District  of  New  York,^ 
Jay,  Chief  Justice,  says:  "That  neither  the  legislative  nor  the  execu- 
tive branches  can  constitutionally  assign  to  the  judicial,  any  duties  but 
such  as  are  properly  judicial  and  to  be  performed  in  a  judicial  manner." 

The  duty  sought  to  be  imposed  b}-  the  section  of  the  Act  referred  to, 
is  clearly  neither  a  judicial  act  nor  is  it  to  be  performed  in  a  judicial 
manner.  It  constitutes  the  Supreme  Court  the  advisers  of  the  legisla- 
ture, nothing  more.  This  does  not  come  within  the  provisions  ofJlifi_ 
Constitution,  and,  as  the  Constitution  now  stands,  -would  be,  in  our 
opinion,  not  only  inconsistent  with  judicial  duties,  but~a  dangerous  jye- 
cedent.  The  impropriety  of  an  unauthorized  expression  of  opinion  by 
a  judge  or  court,  especially  one  of  last  resort,  upon  a  matter  which  may 
subsequently  come  before  the  court  for  adjudication,  will  immediately 
suggest  itself.  If  the  statute  under  consideration  is  in  conflict  with  the 
Constitution  it  imposes  no  duty,  and  any  opinion  expressed  in  pursu- 
ance of  action  under  it  is  extra-judicial,  and  no  official  responsibility 
attaches  to  the  judge  or  court  voluntarily  giving  it.  The  evils  which 
might  result  to  the  people  from  such  a  source  will  suggest  themselves 
on  a  moment's  reflection. 

In  all  the  instances  to  which  we  have  had  an  opportunitj*  of  referring, 
where  courts  have  responded  to  resolutions  of  this  character  in  other 

1  See  ante,  p.  105,  n.  —  Ed. 


SECT.  II.]  APPLICATION   OF   THE   SENATE.  183 

States,  provision  has  been  made  therefor  in  the  State  Constitution. 
Const,  of  Mass.  eh.  3,  sec.  2 ;  Const,  of  New  Hampshire,  sec.  74  ;  and 
of  course  in  such  case  official  responsibility  attaches  to  the  discharge  of 
the  duty,  and  thus  one  serious  objection  is  removed.  Although  we  con- 
fess that,  for  other  reasons,  such  a  constitutional  provision  does  not 
address  itself  to  our  minds  with  an}'  favor. 

Whether  under  the  territorial  organization  the  statute  referred  to 
could  have  been  sustained,  we  need  not  consider,  since  only  such  terri- 
torial laws  as  are  not  inconsistent  with  the  Constitution,  are  preserved 
by  the  schedule  to  that  instrument. 

We  are,  therefore,  unanimously  of  opinion  that  the  section  referred 
to  authorizing  tiie  action  of  the  Senate  is  unconstitutional  and  void,  and 
therefore  imposes  no  duty  on  the  court.  And  we  are  prevented  from 
voluntarily  complying  with  the  request,  by  the  views  we  entertain  of  our 
judicial  duty  and  the  injurious  tendency  of  such  a  precedent. 

We  must,  therefore,  respectfully  decline  to  comply  with  the  request 
contained  in  the  resolution.^ 

1  A  statute  similar  to  that  declared  unconstitutional  in  Minnesota,  is  found  in  Vermont 
(Rev.  St.  Vt.  (1880)  §  795) :  "The  Governor,  when  the  interests  of  the  State  demand 
it,  may  require  the  opinion  of  the  judges  of  the  Supreme  Court  or  a  majority  of  them 
upon  questions  of  law  connected  with  the  discharge  of  his  duties."  So  in  New  York, 
by  a  provision  first  introduced  in  1829  (2  Rev.  St.,  ed.  1829,  658;  Part  iv.  tit.  1,  §§  13, 
14),  when  a  person  was  convicted  and  sentenced  to  death,  the  presiding  judge  was  re- 
quired to  inform  the  Governor  and  to  send  to  him  the  judge's  notes  of  the  testimony ; 
whereupon  the  Governor  might  "  require  the  opinion  of  the  Chancellor,  the  justices  of 
the  Supreme  Court,  and  of  the  Attorney-General,  or  of  any  of  them,  upon  any  state- 
ment so  furnished."  A  case  in  which  an  opinion  was  given  under  this  statute  is  People 
V.  Green,  1  Denio,  614  (1845).  By  a  statute  of  1847,  the  judges  of  the  Court  of  Ap- 
peals were  substituted  for  the  Chancellor;  and  the  law  so  stands  now.  (N.  Y.  Code 
Crim.  Proc.  §§  493,  494.) 

Without  any  such  statute,  and  without  any  constitutional  requirement,  the  judges 
have  sometimes  been  called  on  for  such  extra-judicial  advice  and  aid,  and  have  given 
it.  There  are  indications  that  this  was  done,  more  or  less,  during  the  colonial  period,  — 
as  in  the  expressions  of  Mr.  Justice  Howell  {ante,\).  76)  in  the  Rhode  Island  case  of  Trevett 
V.  Weeden  in  1786.  On  February  25,  1780,  the  Constitutional  Convention  of  Massachu- 
setts voted  "  to  signify  to  the  judges  of  the  Superior  Court  in  writing  the  request  of 
this  Convention  that  they  would  give  their  attendance  this  evening,  as  matters  of  im- 
portance are  to  be  acted  on."  (Journal  of  Conv.  of  1779-80,  142.)  In  Pennsylvania 
(Archives,  vols.  8,  11,  and  12)  there  are  various  instances  of  opinions  given  by  the  jus- 
tices to  the  executive  department  between  1780  and  1790.  An  account  of  such  an 
opinion  is  found  in  Respubhca  v.  De  Longchamps,  1  Dall.  Ill,  115-116  (1784) ;  and  an 
opinion  or  "report"  is  found  in  3  Binney,  Appendix,  598  (1808).  For  other  like  opin- 
ions, given  upon  request,  without  any  legal  requirement,  see  Jameson,  Const.  Conv., 
4th  ed.  663  (in  New  York),  In  re  Power  of  the  Governor,  79  Ky.  621  (1881),  and  55 
N.  W.  Rep.  1092  (Nebraska,  1893).  In  this  last  case,  Norval,  J.,  gives  strong  reasons 
for  refusing  to  join  with  his  brethren  in  giving  the  opinion.  It  seems  to  have  been  not 
an  uncommon  practice  in  Nebraska  to  give  them. 

In  England  the  judges  are  sometimes  called  upon  to  exercise  what  is  there  called  a 
"  consultative  "  function ;  but  its  non-judicial  quality  is  distinctly  asserted.  Ex  parte 
Co.  Council  of  Kent  [1891],  1  Q.  B.  725;  compare  Overseers  v.  L.  if  N.  W.R'y.  Co., 
4  App.  Cas.  30.  —  Ed. 


184  HOUSTON   V.   WILLIAMS.  [CUAP.  L 


HOUSTON  V.   WILLIAMS. 
Supreme  Court  of  California.     1859. 

[13  Cal.  24.] 

Appeal  from  the  Third  District. 

This  was  an  action  of  ejectment.  The  defendant  recovered  judgment 
in  the  District  Court.  On  appeal,  the  judgment  was  reversed  b\-  the 
Supreme  Court  from  the  bench — no  opinion  in  writing  being  delivered. 
The  reasons  for  the  decision  w'ere  stated  orall}'.  The  counsel  for  the 
plaintiff  afterwards  presented  a  petition  asking  the  court  to  file  a  written 
opinion. 

Wm.  T.  Wallace^  for  petitioner. 

Spencer  &  Rhodes^  for  respondent. 

Field,  J.,  delivered  the  opinion  of  the  court  —  Terry,  C.  J.,  con- 
curring. 

At  the  present  term  the  judgment  in  this  case  was  reversed,  without 
an}-  opinion  being  given  setting  forth  the  reasons  for  the  reversal.  The 
appellant  now  moves  the  court  to  file  an  opinion,  and  cites  section  69  of 
the  statute  of  May  loth,  1854,  amending  the  Practice  Act,  which  pro- 
vides that  "  all  decisions  given  upon  an  appeal  in  any  Appellate  Court 
of  this  State,  shall  be  given  in  writing,  with  the  reason  therefor,  and 
filed  with  the  clerk  of  the  court,"  except  in  cases  tried  in  the  Count}' 
Court,  on  appeal  from  a  justice's  court. 

The  provisions  of  the  statute  had  not  been  overlooked  when  the  de- 
cision was  rendered.  It  is  but  one  of  many  provisions  embodied  in 
diflferent  statutes  by  which  control  over  the  judiciary  department  of  the 
government  has  been  attempted  by  legislation.  To  accord  to  it  any 
obligatory  force,  would  be  to  sanction  a  most  palpable  encroachment 
upon  the  independence  of  this  department.  If  the  power  of  the  legisla- 
ture to  prescribe  the  mode  and  manner  in  whinh  tbp  jndiciarv  shall 
discharge  their  official  duties  be  once  recognized,  there  will  be  no  limit 
to  the  dependence  of  the  latter.  If  the  legislature  can  require  the 
reasons  of  our  decisions  to  be  stated  in  writing,  it  can  forbid  their 
statement  in  writing,  and  enforce  their  oral  announcement,  or  prescribe 
the  paper  upon  which  they  shall  be  written,  and  the  ink  which  shall  be 
used.  And  yet  no  sane  man  will  justify  any  such  absurd  pretension, 
but  where  is  the  limit  to  this  power  if  its  exercise  in  any  particular  be 
admitted? 

The  truth  is,  no  such  power  can  exist  in  the  legislative  department, 
or  be  sanctioned  by  any  court  which  has  the  least  respect  for  its  own 
dignity  and  independence.  In  its  own  sphere  of  duties,  this  court  can- 
not be  trammelled  by  any  legislative  restrictions.  Its  constitutional 
duty  is  discharged  by  the  rendition  of  decisions.  The  legislature  can 
no  more  require  this  court  to  state  the  reasons  of  its  decisions,  than  this 
court  can  require,  for  the  validity  of  the  statutes,  that  the  legislature 


SECT.  II.J  HOUSTON   V.   WILLIAMS. 


185 


shall  accompany  them  with  the  reasons  for  their  enactment.  The  prin- 
ciples of  law  settled  are  to  be  extracted  from  the  records  of  the  cases  in 
which  the  decisions  are  rendered.  The  reports  are  full  of  adjudged 
cases,  in  which  opinions  were  never  delivered.  The  facts  are  stated 
by  the  reporter,  with  the  points  arising  thereon,  and  are  followed  by 
the  judgments  rendered,  and  yet  no  one  ever  doubted  that  the  courts, 
in  the  instances  mentioned,  were  discharging  their  entire  constitutional 
obligations.  (See,  by  way  of  illustration,  cases  in  1  Day's  Conn.  Re- 
ports ;  in  1  Brockenborough's  Va.  Cases  ;  and  in  4  Harris  &  McHenry's 
Maryland  Reports.) 

The  practice  of  giving  the  reasons  in  writing  for  judgments,  has 
grown  into  use  in  modern  times.  Formerly,  the  reasons,  if  any  were 
given,  were  generally  stated  orally  by  the  judges,  and  taken  down  by 
the  reporters  in  short-hand.     1  Blackstone,  71. 

In  the  judicial  records  of  the  King's  Courts,  "the  reasons  or  causes 
of  the  judgment,"  says  Lord  Coke,  "are  not  expressed,  for  wise  and 
learned  men  do,  before  they  judge,  labor  to  reach  to  the  depth  of  all  the 
reasons  of  the  case  in  question,  but  in  their  judgments  express  not  any  ; 
and,  in  truth,  if  judges  should  set  down  the  reasons  and  causes  of  their 
judgments  within  every  record,  that  immense  labor  should  withdraw 
them  from  the  necessary  services  of  the  commonwealth,  and  their 
records  should  grow  to  be  like  Elephantini  Libri,  of  infinite  length, 
and,  in  mine  opinion,  lose  somewhat  of  their  present  authority  and  rev- 
erence ;  and  this  is  also  worthy  for  learned  and  grave  men  to  imitate." 
Coke's  Rep.,  part  3,  pref  5. 

The  opinions  of  the  judges,  setting  forth  their  reasons  for  their  judg- 
ments, are,  of  course,  of  great  importance  in  the  information  they 
impart  as  to  the  principles  of  law  which  govern  the  court,  and  should 
guide  litigants;  and  right-minded  judges,  in  important  cases  — when 
the  pressure  of  other  business  will  permit  —  will  give  such  opinions.  It 
is  not  every  case,  however,  which  will  justify  the  expenditure  of  time 
necessary  to  write  an  opinion.  Many  cases  involve  no  new  principles 
and  are  appealed  only  for  delay.  It  can  serve  no  purpose  of  public 
good  to  repeat  elementary  principles  of  law  which  have  never  been 
questioned  for  centuries.  The  court  must  therefore  exercise  its  own 
discretion  as  to  the  necessity  of  giving  an  opinion  upon  pronounc- 
ing judgment,  and  if  one  is  given,  whether  it  shall  be  orally  or  in 
writing.  In  the  exercise  of  that  discretion,  the  authority  of  the 
court  is  absolute.  The  legislative  department  is  incompetent  to 
touch  it. 

With  the  expression  of  these  views,  we  might  close  this  opinion, 
by  denying  the  motion,  but  it  will  not  be  impertinent  to  the  matter 
under  consideration,  to  say  a  few  words  as  to  the  control  of  the  court 
over  its  opinions  and  records.  There  are  some  misapprehensions  on 
the  subject,  arising  chiefly  from  a  confusion  of  terms,  and  from  a  mis- 
conception  of  the  relation  of  the  different  departments  of  government  to 
each  other,  and  the  entire  independence  in  its  line  of  duties  of  the 


186  HOUSTON   V.   WILLIAMS.  [CHAP.  L 

jiuliciar}'.  The  terms  "opinions"  and  "decisions"  are  often  con- 
founded, yet  there  is  a  wide  difference  between  them,  and  in  ignorance 
of  this,  or  by  overlooking  it,  what  has  been  a  mere  revision  of  an 
opinion,  has  been  sometimes  regarded  as  a  mutilation  of  a  record.  A 
decision  of  the  court  is  its  judgment,  the  opinion  is  the  reasons  given  for 
that  judgment.  The  former  is  entered  of  record  immediately  upon  its 
rendition,  and  can  only  be  changed  through  a  regular  application  to  the 
court,  upon  a  petition  for  a  rehearing,  or  a  modification.  The  latter 
is  the  property  of  the  judges,  subject  to  their  revision,  correction,  and 
modification,  in  any  particular  deemed  advisable,  until,  witli  the  appro- 
bation of  the  writer,  it  is  transcribed  in  the  records.  In  the  haste  of 
composition,  some  errors  will  occur;  in  the  copying,  several;  in  the 
printing,  many.  There  will  also  be,  at  times,  expressions  of  opinion  on 
incidental  questions,  too  strong  and  unqualified.  All  these  errors, 
whether  in  language,  form,  or  substance,  should  be  corrected  before  a 
publication  is  permitted,  as  an  authoritative  exposition  of  the  law,  and, 
as  such,  binding  upon  the  court.  The  power  of  enforcing  a  correct 
publication,  when  the  publication  is  authorized,  cannot  reasonably  be 
denied.  In  no  civilized  State,  except  in  California,  has  the  existence 
of  this  power  ever  been  doubted.  Every  judge,  from  the  Chief  Justice 
of  the  Supreme  Court  of  the  United  States,  down,  claims  and  exercises, 
without  question,  the  right  of  revision,  including  thereby  modification 
and  partial  suppression  of  his  opinions.  In  the  recent  case  in  relalion 
to  the  Sutter  grant,  we  are  informed  that  application  was  made  for  a 
copy  of  the  opinion  delivered,  and  that  the  application  was  refused,  on 
the  ground  that  Mr.  Justice  Campbell,  who  delivered  it,  wished  to  revise 
it  before  it  left  the  clerk's  office.  When  the  opinions  have  been  revised 
and  finally  approved  and  recorded,  then  they  cease  to  be  the  subject  of 
change.  They  then  become  like  judgment  records,  and  are  beyond  the 
interference  of  the  judges,  except  through  regular  proceedings  before 
the  court  by  petition. 

The  records  of  the  courts  are  necessarily  subject  to  the  control  of 
the  judges,  so  far  as  may  be  essential  to  the  proper  administration  of 
justice.  The  court  hears  arguments  upon  its  records  ;  it  decides  upon 
its  records  ;  it  acts  by  its  records  ;  its  openings,  and  sessions,  and  ad- 
journments, can  be  proved  only  by  its  records  ;  its  judgments  can  onl}* 
be  evidenced  by  its  records;  in  a  word,  without  its  records  it  has  no 
vitality.  Legislation,  which  could  take  from  its  control  its  records, 
would  leave  it  impotent  for  good,  and  the  just  object  of  ridicule  and 
contempt.  The  clerk,  it  is  true,  is  a  constitutional  officer  —  not  subject 
to  appointment  or  removal  by  the  court  —  but  subject,  in  the  control  of 
the  records,  to  its  orders.  It  is  true  the  court  cannot,  without  great 
abuse  of  its  powers,  take,  directly  or  indirectl}',  from  the  clerk,  the 
perquisites  of  his  office  for  copies  of  opinions,  and  papers  on  file,  nor 
authorize  the  destruction  or  mutilation  of  an}'  of  the  records,  but,  sub- 
ject to  these  limitations,  it  must  necessarily  exercise  control  that  justice 
may  be  done  to  litigants  before  it. 


SECT,  ir.]  IN   RE  SANBORN.  187 

The  power  over  onr  opinions  and  the  records  of  our  court  we  shall 
exercise  at  all  times  while  we  have  the  honor  to  sit  on  the  bench, 
against  all  encroachments  from  an}'  source,  but  in  a  manner,  we  trust, 
befitting  the  liighest  tribunal  in  the  State.  We  cannot  possibly  have 
any  interest  in  the  opinions  except  that  the}'  shall  embody  the  results 
of  our  most  mature  deliberation,  and  be  presented  to  the  public  in  an 
authentic  form,  after  they  have  been  subjected  to  the  most  careful 
revision.  Motion  denied.^ 


In  re  SANBORN. 
Supreme  Court  of  the  United  States.     1892. 

[148  U.  S.  222.] 

The  case  is  stated  in  the  opinion. 

Mr.  George  A.  King  (with  whom  were  Mr.  Charles  King  and  Mr. 
William  B.  King  on  the  brief),  for  petitioner. 

3Ir.  Assistant  Attorney-  General  Maury  opposing. 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

A  claim  of  Jolm  B.  Sanborn,  presented  in  the  Department  of  the 
Interior,  for  certain  fees  under  a  contract  with  Sisseton  and  Wahpeton 
Indians,  of  ten  per  cent  of  the  amount  appropriated  for  said  Indians  by 
section  27  of  the  Indian  Appropriation  Act  of  March  3,  1891,  26  Stat. 
989,  c.  543,  was  referred  by  the  Secretary  of  that  Department,  with 
the  consent  of  the  claimant,  to  the  Court  of  Claims,  in  pursuance  of 
§  12  of  the  Act  of  March  3,  1887,  24  Stat.  505,  c.  359  ;  1  Sup.  Rev. 
Stat.  2d  ed.  50 1.  That  court  having  concluded  that  Sanborn  was  not 
entitled  to  recover,  and  having  reported  its  findings  of  fact  and  conclu- 
sions of  law  to  the  department,  Sanborn,  on  the  6th  day  of  July,  1892, 
asked  for  the  allowance  of  an  appeal  to  the  Supreme  Court  of  the 
United  States.  Tliis  application,  being  made  in  a  vacation  of  the  Court 
of  Claims,  was  heard  and  denied  by  the  Chief  Justice,  but  was  renewed 
and  argued  before  all  the  judges  on  November  2,  1892,  and  was  denied 
by  the  court,  which  adopted  the  opinion  of  the  Chief  Justice  previously 
filed  upon  the  motion  before  him. 

Thereupon  Sanborn  filed,  in  this  court,  his  petition  praying  that  a 
writ  of  mandamus  be  allowed  to  the  Chief  Justice  and  judges  of 
the  Court  of  Claims,  commanding  them  to  allow  his  appeal  as  prayed 
for. 

The  question  for  us  to  answer  is  whether,  where  a  claim  or  matter  is 
pending  in  one  of  the  executive  departments,  which  involves  contro- 
verted questions  of  fact  or  law,  and  the  head  of  such  department,  with 

^  In  Ex  parte  Griffiths,  Reporter,  118  Ind.  83  (1888),  it  was  held  beyond  the  power 
of  the  legislature  to  require  the  judges  of  the  Supreme  Court  to  write  headnotea  for 
their  opinions.  —  Ed. 


1S8  IN   RE   SANBORN.  [CHAP.  L 

the  consent  of  the  claimant,  has  transmitted  the  claim,  with  the  vouchers,. 
papcrs,  proofs  and  documents  pertaining  thereto,  to  the  Court  of  Claims, 
and  that  court  has  reported  its  findings  of  fact  and  law  to  the  depart- 
ment by  which  it  was  transmitted,  the  claimant  has  a  right  hy  appeal  to 
bring  the  action  of  that  court  before  us  for  review. 

The  petitioner  does  not  complain  of  any  illegality  on  the  part  of  the 
court  below  in  dealing  with  his  claim.  He  concedes  that  the  action  of 
that  court  had  been  invoked  with  his  consent.  What  he  complains  of 
is  the  refusal  of  the  court  to  allow  his  appeal ;  and  we  learn,  from  the 
opinion  of  the  court,  that  its  refusal  to  allow  the  appeal  was  not  put 
upon  any  irregularity  or  defect  in  the  claim,  or  in  the  application  for 
the  allowance  of  an  appeal,  but  upon  its  view  that  the  proceedings 
before  it  were  not  the  subject  of  appeal  to  this  court. 

We  must  find  an  answer  to  the  question  thus  put  to  us  b}'  a  construc- 
tion of  the  Act  of  March  3,  1887,  read  in  the  light  of  the  previous 
legislation  establishing  the  Court  of  Claims,  and  regulating  the  subject 
of  appeals  from  its  judgments  to  this  court. 

This  subject  came,  for  the  first  time,  before  this  court  in  the  case  of 
Gordon  v.  The  United  States,  2  Wall.  561,  wherein  it  was  held  that, 
as  the  law  then  stood,  no  appeal  would  lie  from  the  Court  of  Claims  to 
this  court.  The  reasons  for  this  conclusion  are  stated  in  the  opinion  of 
Chief  Justice  Taney,  reported  in  the  appendix  to  117  U.  S.  697,  and 
interesting  as  his  last  judicial  utterance.  Briefly  stated,  the  court  held 
that  as  the  so-called  judgments  of  the  Court  of  Claims  were  not  obliga- 
tory upon  Congress  or  upon  the  executive  department  of  thel^oyimi- 
ment,  but  were  _jpprply  npininnq  which  might  be  acted  upon  or 
disregarded  by  Congress  or  the  departments,  and  which  this  court 
had  no  power  to  compel  the  court  below  to  execute,  such  judgmentj^ 
could  not  be  daempd  nn  pvprrisp  nf  jiidi^-inl  pnwpr.  and  could  not,  there^ 
fore,  be  revised  by  this  court. 

A  similar  question  arose  in  this  court  as  early  as  1794,  in  the  case  of 
the  United  States  v.  Yale  Todd,  an  abstract  of  which  case  appears  in 
a  note  by  Chief  Justice  Taney  to  the  later  case  of  the  United  States  v. 
Ferreira,  13  How.  52,  and  wherein  it  was  held  that  an  Act  of  Congress 
conferring  powers  on  the  judges  of  the  Circuit  Court  to  pass  upon  the 
rights  of  applicants  to  be  placed  upon  the  pension  lists,  and  to  report 
their  findings  to  the  Secretary  of  War,  who  had  the  right  to  revise  such 
findings,  was  not  an  Act  conferring  judicial  power,  and  was,  therefore, 
unconstitutional.^ 

The  case  of  the  United  States  v.  Ferreira  was  that  of  an  appeal 
from  the  District  Court  of  the  United  States  for  the  District  of  Florida. 
The  judge  of  that  court  had  acted  in  pursuance  of  certain  Acts  of  Con- 
gress, directing  the  judge  to  receive,  examine  and  adjust  claims  for 
losses  suffered  by  Spaniards  by  reason  of  the  operations  of  the  Ameri- 
can army  in  Florida.    It  was  decided  that  the  judge's  decision  was  not 

1  Semble,  an  error.    See  ante,  p.  105  n.  —  Ed. 


SECT.  II.]  IN  RE  SANBORN.  189 

the  jndgraent  of  the  court,  but  a  mere  award,  with  a  power  to  review  it 
conferred  upon  the  Secretary  of  the  Treasury,  and  that  from  such  an 
award  no  appeal  could  lie  to  this  court. 

Afterwards,  and  perhaps  in  view  of  the  conclusion  reached  by  this 
court  in  these  cases,  on  March  17,  1866,  14  Stat.  9,  c.  19,  Congress 
passed  an  Act  giving  an  appeal  to  the  Supreme  Court  from  judgments 
of  the  Court  of  Claims,  and  repealing  those  provisions  of  the  Act  of 
March  3,  1863,  which  practically  subjected  the  judgments  of  the  Su- 
preme Court  to  the  re-examination  and  revision  of  the  departments, 
and  since  that  time  no  doubt  has  been  entertained  that  the  Supreme 
Court  can  exercise  jurisdiction  on  appeal  from  final  judgments  of  the 
Court  of  Claims.  United  States  v.  Alire,  6  Wall.  573  ;  United  States 
V.  0' Grady,  22  Wall.  641 ;    Uiited  States  v.  Jones^  119  U.  S.  477. 

Express  provision  for  such  appeals  was  made  by  section  707  of  the 
Revised  Statutes,  as  follows  :  "  An  appeal  to  the  Supreme  Court  shall 
be  allowed,  on  behalf  of  the  United  States,  from  all  judgments  of  the 
Court  of  Claims  adverse  to  the  United  States,  and  on  behalf  of  the 
plaintiff,  in  any  case  where  the  amount  in  controversy  exceeds  three 
thousand  dollars,  or  where  his  claim  is  forfeited  to  the  United  States 
by  the  judgment  of  said  court." 

Additions  were  made  to  the  statutory  law  on  this  subject  by  the  Act 
of  March  3,  1887,  24  Stat.  505,  c.  359  (1  Sup.  Rev.  Stat.  2d  ed.  559), 
the  9th  section  of  which  is  as  follows  :  "  That  the  plaintiff  or  the  United 
States,  in  any  suit  brought  under  the  provisions  of  this  Act,  shall  have 
the  same  rights  of  appeal  or  writ  of  error  as  are  now  reserved  in  the 
statutes  of  the  United  States  in  that  case  made,  and  upon  the  conditions 
and  limitations  therein  contained.  The  modes  of  procedure  in  claim- 
ing and  perfecting  an  appeal  or  writ  of  error  shall  conform  in  all 
respects  and  as  near  as  may  be  to  the  statutes  and  rules  of  court  gov- 
erning appeals  and  writs  of  error  in  like  causes." 

The  12lh  section  of  the  statute  is  in  the  following  words:  "That 
when  any  claim  or  matter  may  be  pending  in  any  of  the  executive  de- 
partments which  involves  controverted  questions  of  fact  or  law,  the 
head  of  such  department,  with  the  consent  of  the  claimant,  may  trans- 
mit the  same,  with  the  vouchers,  papers,  proofs,  and  documents  per- 
taining thereto,  to  said  Court  of  Claims,  and  the  same  shall  be  there 
proceeded  in  under  such  rules  as  the  court  shall  adopt.  When  the 
facts  and  conclusions  of  law  shall  have  been  found,  the  court  shall 
report  its  findings  to  the  department  b}'  which  it  was  transmitted." 

With  these  statutory'  provisions  and  decisions  of  the  Supreme  Court 
before  it,  the  court  below  held  that  a  finding  of  fact  and  law  made,  at 
the  request  of  a  head  of  a  department,  with  the  consent  of  the  claimant, 
and  transmitted  to  such  department,  is  not  a  judgment  within  the 
meaning  of  the  9th  section  of  the  Act  of  March  3,  1887,  or  of  the 
707th  section  of  the  Revised  Statutes,  and  is  not,  therefore,  appealable 
to  this  court. 

Such  a  finding  is  not  made  obligator^'  on  the  department  to  which  it 


190  IN   RE  SANBORN.  [cHAP.  I. 

is  reported  —  certainly  not  so  in  terms,  — and  not  so,  as  we  think,  b}* 
any  necessary  implication.  We  regard  the  function  of  tlic  Court  of 
Claims,  in  such  a  case,  as  ancillary  and  advisory  only.  The  findirg  or 
conclusion  reached  by  that  court  is  not  enforceable  by  any  process  of 
execution  issuing  from  the  court,  nor  is  it  made,  by  the  statute,  the 
final  and  indisputable  basis  of  action  either  by  the  department  or  by 
Congress. 

It  is,  therefore,  within  the  scope  of  the  decision  in  Gordon  v.  United 
States.  The  provisions  providing  for  appeals,  in  the  9th  section  of  the 
Act  of  1887,  have  reference  to  cases  under  the  prior  sections  of  the  Act 
which  treat  of  cases  or  suits  brought  against  the  United  States,  whether 
in  the  District  Courts,  Circuit  Courts,  or  Court  of  Claims,  and  wherein 
final  judgments  or  decrees  shall  be  entered.  This  seems  to  be  clear 
from  the  terms  used  —  "  the  plaintiff  or  the  United  States,  in  any  suit 
brought  under  the  provisions  of  this  Act,  shall  have  the  same  rights  of 
appeal  or  writ  of  error  as  are  now  reserved  in  the  statutes  of  the  United 
States  in  tliat  behalf  made,  and  upon  the  limitations  and  conditions 
therein  contained."  The  reference  here  is  to  the  707th  section  of  the 
Revised  Statutes,  which,  as  already  said,  provides  for  an  "  appeal  to 
the  Supreme  Court  on  behalf  of  the  United  States,  from  all  judgments 
of  the  Court  of  Claims,  adverse  to  the  United  States,  and  on  behalf 
of  the  plaintiff  in  any  case  where  the  amount  in  controversy  exceeds 
three  thousand  dollars." 

In  the  case  before  us  there  was,  as  held  by  the  Court  of  Claims,  no 
final  judgment  obligatory  upon  the  Department  of  the  Interior,  or  en- 
forceable by  execution  from  any  court.  Moreover,  there  was  really  no 
suit  to  which  tV)P  nrijfofl  Sfntps  woro  pnrMos.  The  claimant  did  not. 
pretend  that  the  government  owed  him  anything  for  property  sold  or 
services  rendered.^  His  effort  was  to  get  the  Department  of  the  Interior, 
which  was  paying  money  over  to  Indians  under  treaties,  to  withliold 
from  them  an  agreed  percentage  thereof  for  services  rendered  by  him 
to  the  Indians.  While  such  a  claim  may  be  rightfully  regarded  as  a 
matter  pending  in  one  of  the  executive  departments,  which  involves 
controverted  questions  of  fact  or  law,  within  the  meaning  of  the  12th 
section  of  the  Act  of  1887,  we  are  unable  to  regard  it  as  a  suit  brought 
against  the  United  States,  within  the  contemplation  of  the  9th  section 
of  that  Act.  It  is  true  that,  by  several  statutes  which  appear  in  a  com- 
pendious form  in  sections  2103,  2104  and  2105  of  the  Revised  Statutes, 
the  form  and  substance  of  contracts  between  Indians  and  agents  or 
attorneys,  for  services  to  be  performed  in  reference  to  claims  by  such 
Indians  against  the  United  States,  are  prescribed,  and  the  approval  of 
such  contracts  by  the  Secretary  of  the  Interior  and  the  Indian  Commis- 
sioner is  made  necessary.  But  such  enactments,  intended  to  protect 
the  Indians  from  improvident  and  unconscionable  contracts,  by  no 
means  create  a  legal  obligation  on  the  part  of  the  United  States  to  see 
that  the  Indians  perform  their  part  of  such  contracts. 

Section  2104  provides  that  ''the  Secretary  of  the  Interior  and  Com- 


SECT.  II.]  LUTHER  V.   BORDEN.  191 

missioner  of  Indian  Affairs  shall  determine  therefrom  whether,  in  their 
judgment,  such  contract  or  agreement  has  been  complied  with  or  ful- 
filled ;  if  so,  the  same  may  be  paid,  and  if  not,  it  shall  be  paid  in 
proportion  to  the  services  rendered  under  the  contract." 

Such  a  claim  ma\'  be,  as  alread}'  said,  a  matter  pending  in  th^'  De- 
partment of  the  Interior,  within  the  meaning  of  the  r2th  section  of  the 
Act  of  1887,  but  it  is  plainly'  not  a  suit  against  the  United  States,  with 
respect  to  which  an  appeal  is  provided  for  by  the  9th  section. 

The  application  for  a  writ  of  mandamus  must,  therefore,  be 

Denied  J 


LUTHER   V.   BORDEN. 

Supreme  Court  of  the  United  States.     1848. 

[7  How.  1  ;  17  Curtis,  1.] 

The  first  of  these  cases  came  up  by  a  writ  of  error,  the  second  upon 
a  certificate  of  division  of  opinion  bv  the  judges  of  the  Circuit  Court  of 
the  United  States  for  the  District  of  Rhode  Island.  The  first  case  is 
stated  in  the  opinion  of  the  court.  The  second  requires  no  statement,  as 
it  went  oft"  for  want  of  jurisdiction. 

Hallett  and  Clifford.,  for  the  plaintiff. 

Webster  and  Jl  hippie,  contra. 

Taney,  C.  J.,  delivered  the  opinion  of  the  court. 

This  case  has  arisen  out  of  the  unfortunate  political  differences  which 
agitated  the  people  of  Rliode  Island  in  1841  and  1842. 
/  It  is  an  action  of  trespass  brought  by  Martin  Luther,  the  plaintiff  in 
error,  against  Luther  M.  Borden  and  others,  the  defendants,  in  the  Cir- 
cuit Court  of  the  United  States  for  the  District  of  Rhode  Island,  for 
breaking  and  entering  the  plaintiffs  house.  The  defendants  justif^v 
upon  the  ground  that  large  numbers  of  men  were  assembled  in  different 

1  "The  Court  of  Claims  declined  to  go  behind  the  treaty  of  1846  npon  the  ground 
tliat  it  was  not  within  the  province  of  a  court,  either  of  law  or  equity,  to  determine  that 
a  treaty  or  an  Act  of  Congress  had  been  procured  by  duress  or  fraud,  and  declare  it 
inoperative  for  tliat  reason.  Fletcher  v.  Peck,  6  Cranch,  87,  130;  Ex  parte  McCardle, 
7  Wall.  506,  514  ;  People  v.  Draper,  15  N.  Y.  545,  555  ;  Railroad  Cumpany  v  Cooper, 
33  Teuu.  St   278;    Wright  v.  Defreea,  8  Indiana,  302. 

"  And  while  it  was  conceded  that  Congress  might  confer  upon  that  court  extra- 
judicial powers,  yet  tlie  court  was  of  opinion  that  this  could  not  be  held  to  have  been 
done  by  tlie  Act  authorizing  the  institution  of  this  suit,  since  it  was  therein  provided 
that  whatever  judgment  might  be  rendered,  whether  for  the  complainants  or  defend- 
ants, might  be  appealed  to  the  Supreme  Court,  whose  jurisdictionj_aj^  dffjned  by  thfi 
Constitution,  was  strictly  judicial,  and  could  neither  be  enlarged  nor  diminislied  by 
legislative  authoritj-]  Gordon  v.  United  States,  2  Wall.  561  ;  Taney,  C.  J.,  117  U.  8. 
697,  Appx. ;  In  re  Sanborn,  ante,  222." —Fuller,  C.  J.  (for  the  court)  in  U.  S.  v.  Old 
Settlers,  148  U.  S.  466.  —Ed. 


192  LUTHER   V.    BORDEN.  [CHAP.  L 

parts  of  the  State  for  the  purpose  of  overthrowing  the  governiiicnt  by 
military  force,  and  were  actually  levying  war  upon  the  State  ;  that,  in 
order  to  defend  itself  from  this  insurrection,  the  State  was  declared  by 
competent  authority'  to  be  under  martial  law  ;  that  the  plaintiff  was  en- 
gaged in  the  insurrection  ;  and  that  the  defendants,  being  in  the  military 
service  of  the  State,  by  command  of  their  superior  officer,  broke  and 
entered  the  house  and  searched  the  rooms  for  the  plaintitf,  who  was 
supposed  to  be  there  concealed,  in  order  to  arrest  him,  doing  as  little 
damage  as  possible.  The  plaintiff  replied,  that  the  trespass  was  com- 
mitted by  the  defendants  of  their  own  proper  wrong,  and  without  any 
such  cause ;  and  upon  the  issue  joined  on  this  replication,  the  parties 
proceeded  to  trial.  .  .  .  [The  case  involved  the  question  which  of  two 
organizations  was  the  legal  government  of  Rhode  Island.] 

Moreover,  the  Constitution  of  the  United  States,  as  far  as  it  has  pro- 
vided for  an  emergency  of  this  kind,  and  authorized  the  general  govern- 
ment to  interfere  in  the  domestic  concerns  of  a  State,  has  treated  the 
subject  as  political  in  its  nature,  and  placed  the  power  in  the  hands  of 
that  department. 

The  fourth  section  of  the  fourth  article  of  the  Constitution  of  the 
United  States  provides  that  the  United  States  shall  guarantee  to  every 
State  in  the  Union  a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion  ;  and  on  the  application  of  the  legislature 
or  of  the  executive  (when  the  legislature  cannot  be  convened)  against 
domestic  violence. 

Under  this  article  of  the  Constitution  it  rests  with  Congress  to  de- 
cide what  government  is  the  established  one  in  a  State.  F'or  as  the 
United  States  guarantee  to  each  State  a  republican  government.  Con- 
gress must  necessaril}'  decide  what  government  is  established  in  the 
State  before  it  can  determine  whether  it  is  republican  or  not.  And 
when  the  senators  and  representatives  of  a  State  are  admitted  into  the 
councils  of  the  Union,  the  authority  of  the  government  under  which 
the}'  are  appointed,  as  well  as  its  republican  character,  is  recognized  by 
the  proper  constitutional  authority.  And  its  decision  is  binding  on 
every  other  department  of  the  government,  and  could  not  be  questioned 
in  a  judicial  tribunal.  It  is  true  that  the  contest  in  this  case  did  not 
last  long  enough  to  bring  the  matter  to  this  issue  ;  and  as  no  senators 
or  representatives  were  elected  under  the  authority  of  the  government 
of  which  Mr.  Dorr  was  the  head.  Congress  was  not  called  upon  to  de- 
cide the  controversy.  Yet  the  right  to  decide  is  placed  there,  and  not 
in  the  courts. 

So,  too,  as  relates  to  the  clause  in  the  above-mentioned  article  of  the 
Constitution,  providing  for  cases  of  domestic  violence.  It  rested  with 
Congress,  too,  to  determine  upon  the  means  proper  to  be  adopted  to 
fulfil  this  guarantee.  They  might,  if  the}'  had  deemed  it  most  advisable 
to  do  so,  have  placed  it  in  the  power  of  a  court  to  decide  when  the  con- 
tingency had  happened  which  required  the  Federal  government  to  inter- 
fere.    But  Congress  thought  otherwise,  and  no  doubt  wisely ;  and  by 


SECT.  II.]  LUTHER   V.    BORDEN.  193 

the  Act  of  February  28,  1795,  provided  that,  "in  case  of  an  insurrec- 
tion in  any  State  against  the  government  thereof,  it  shall  be  lawful  for 
the  President  of  the  United  States,  on  application  of  the  legislature  of 
such  State  or  of  the  executive,  when  the  legislature  cannot  be  convened, 
to  call  forth  such  number  of  the  militia  of  an}'  other  State  or  States, 
as  may  be  applied  for,  as  he  may  judge  sufficient  to  suppress  such 
insurrection." 

B}-  this  Act,  the  power  of  deciding  whether  the  exigency  had  arisen 
ui)on  which  tlie  government  of  the  United  States  is  bound  to  interfere, 
is  given  to  the  President.  He  is  to  act  upon  the  application  of  the 
legislature,  or  of  the  executive,  and  consequentl}"  he  must  determine 
what  body  of  men  constitute  the  legislatm-e,  and  who  is  the  Governor, 
before  he  can  act.  The  fact  that  both  parties  claim  the  right  to  the 
government,  cannot  alter  the  case,  for  both  cannot  be  entitled  to  it.  If 
there  is  an  armed  conflict,  like  the  one  of  which  we  are  speaking,  it  is  a 
case  of  domestic  violence,  and  one  of  the  parties  must  be  in  insurrec- 
tion against  the  lawful  government.  And  the  President  must,  of  neces- 
sit}',  decide  which  is  the  government,  and  which  part}'  is  unlawfully 
arrayed  against  it,  before  he  can  perform  the  dut}-  imposed  upon  him 
b}'  the  Act  of  Congress. 

After  the  President  has  acted  and  called  out  the  militia,  is  a  Circuit 
Court  of  the  United  States  autliorized  to  inquire  whether  his  decision 
was  right?  Could  the  court,  while  the  parties  were  actually  contending 
in  arras  for  the  possession  of  the  government,  call  witnesses  before  it, 
and  inquire  which  party  represented  a  majority  of  the  people?  If  it 
could,  then  it  would  become  the  duty  of  the  court  (provided  it  came  to 
the  conclusion  that  the  President  had  decided  incorrectly)  to  discharge 
those  who  were  arrested  or  detained  by  the  troops  in  the  service  of  the 
United  States,  or  the  government  which  the  President  was  endeavoring 
to  maintain.  If  the  judicial  power  extends  so  far,  the  guarantee  con- 
tained in  the  Constitution  of  tlie  United  States  is  a  guarantee  of  anarchv, 
and  not  of  order.  Yet  ij^this'^ight  does  not  reside  in  tlie  courts  when 
the  conllict  is  raging — if  the  judicial  power  is,  at  that  tirneTTjound  1(7 
follow  the  decision  of  the  political,  it  must  be  equally  bound  when  the 
contest  is  over.  It  cannot,  wlien  peace  is  restored,  puliish  as  offences. 
and  crimes  the  acts  which  it  before  recognized,  ancTwas  bound  to  recog- 
nize,  as  lawful.  ^~ 

^  It  is  true  that  in  this  case  the  militia  were  not  called  out  by  the  Presi- 
dent. But  upon  the  application  of  the  Governor  under  the  charter  gov- 
ernment, the  President  recognized  him  as  the  executive  power  of  the 
State,  and  took  measures  to  call  out  the  militia  to  support  his  authority, 
if  it  should  be  found  necessary  for  the  general  government  to  interfere ; 
and  it  is  admitted  in  the  argument  that  it  was  the  knowledge  of  this 
decision  that  put  an  end  to  the  armed  opposition  to  the  charter  govern- 
ment, and  prevented  any  further  eff'orts  to  establish  by  force  the  pro- 
posed Constitution.  The  interference  of  the  President,  therefore,  by 
announcing  his  determination,  was  as  effectual  as  if  the  militia  had  been 

VOL.  I.  — 13 


194  LUTHER   V.   BORDEN.  [CIlAP.  I 

asserableil  nndor  his  orders.  And  it  should  be  equally  authoritative. 
For  certainly  no  court  of  the  United  States,  with  a  knowledge  of  this 
decision,  would  have  been  justified  in  recognizing  the  opposing  party  as 
the  lawful  government,  or  in  treating  as  wrong-doers  or  insurgents  the 
officers  of  the  government  which  the  President  had  recognized,  and  was 
prepared  to  support  by  an  armed  force.  In  the  case  of  foreign  nations, 
the  government  acknowledged  by  the  President  is  always  recognized  in 
the  courts  of  justice.  And  this  principle  has  been  applied  by  the  Act 
of  Congress  to  the  sovereign  States  of  the  Union. 

It  is  said  that  this  power  in  the  President  is  dangerous  to  liberty,  and 
may  be  abused.  All  power  may  be  abused  if  placed  in  unworthy  hands. 
But  it  would  be  difficult,  we  think,  to  point  out  any  other  hands  in  which 
this  power  would  be  more  safe,  and  at  the  same  time  equally  effectual. 
"When  citizens  of  the  same  State  are  in  arms  against  each  other,  and  the 
constituted  authorities  unable  to  execute  the  laws,  the  interposition  of 
the  United  States  must  be  prompt,  or  it  is  of  little  value.  The  ordi- 
nary course  of  proceedings  in  courts  of  justice  would  be  utterly  unfit  for 
the  crisis.  And  the  elevated  office  of  the  President,  chosen  as  he  is  by 
the  people  of  the  United  States,  and  the  high  responsibility  be  could  not 
fail  to  feel  when  acting  in  a  case  of  so  much  moment,  appear  to  furnish 
as  strong  safeguards  against  a  wilful  abuse  of  power  as  human  prudence 
and  foresight  could  well  provide.  At  all  events,  it  is  conferred  upon 
him  by  the  Constitution  and  laws  of  the  United  States,  and  must,  there- 
fore, be  respected  and  enforced  in  its  judicial  tribunals. 

A  question  verv  similar  to  this  arose  in  the  case  of  Martin  v.  Mott, 
12  Wheat.  29-31.  The  first  clause  of  the  first  section  of  the  Act  of 
February  28,  1795,  of  which  we  have  been  speaking,  authorizes  the 
President  to  call  out  the  militia  to  repel  invasion.  It  is  the  second 
clause  in  the  same  section  which  authorizes  the  call  to  suppress  an  in- 
surrection against  a  State  government.  The  power  given  to  the  Presi- 
dent in  each  case  is  the  same,  with  this  difference  only,  that  it  cannot 
be  exercised  by  him  in  the  latter  case,  except  upon  the  application  of 
the  legislature  or  executive  of  the  State.  The  case  above  mentioned 
arose  out  of  a  call  made  by  the  President,  by  virtue  of  the  power  con- 
ferred by  the  first  clause  ;  and  the  court  said  that  "  whenever  a  statule 
gives  a  discretionary  power  tr»  n\]j  person,  to  be  exercised  by  him  upon 
his  own  opinion  of  certain  facts,  it  is  a  sound  rule  of  construction  that 
the  statute  constitutes  him  the  sole  and  exclusive  judge  of  the  existence 
of  those  facts."  The  grounds  upon  which  that  opinion  is  maintained 
are  set  forth  in  the  report,  and,  we  think,  are  conclusive.  The  same 
principle  applies  to  the  case  now  before  the  court.  Undoubtedly,  if  the 
President,  in  exercising  this  power,  shall  fall  into  error,  or  invade  the 
rights  of  the  people  of  the  State,  it  would  be  in  the  power  of  Congress 
to  apply  the  proper  remed}'.  But  the  courts  must  administer  the  law  as 
they  find  it.  .   .   . 

Much  of  the  argument  on  the  part  of  the  plaintifll"  turned  upon  politi- 
cal rights  and  political  questions,  upon  which  the  court  has  been  urged 


SECT.  11.]  LUTHER   V.    BORDEN.  195 

to  express  an  opinion.  We  decline  doing  so.  The  high  power  has  been 
conferred  on  this  court  of  passing  judgment  upon  the  acts  of  the  State 
sovereignties,  and  of  the  legislative  and  executive  branches  of  the  Fed- 
eral government,  and  of  determining  whether  the}'  are  beyond  the  limits 
of  power  marked  out  for  them  respectively  b}-  the  Constitution  of  the 
United  States.  This  tribunal,  therefore,  should  be  the  last  to  overstep 
the  boundaries  which  limit  its  own  jurisdiction.  And  while  it  should 
always  be  ready  to  meet  any  question  confided  to  it  by  the  Constitution, 
it  is  equally  its  duty  not  to  pass  beyond  its  appropriate  sphere  of  action, 
and  to  take  care  not  to  involve  itself  in  discussions  which  properl}-  be- 
long to  other  forums.  No  one,  we  believe,  has  ever  doubted  the  propo- 
sition that,  according  to  the  institutions  of  this  countr}-,  the  sovereignty' 
in  every  State  resides  in  the  people  of  the  State,  and  that  they  may 
alter  and  change  their  form  of  government  at  their  own  pleasure.  But 
whether  they  have  changed  it  or  not,  b}-  abolishing  an  old  government, 
and  establishing  a  new  one  in  its  place,  is  a  question  to  be  settled  by 
the  political  power.  And  when  that  power  has  decided,  the  courts  are 
bound  to  take  notice  of  its  decision,  and  to  follow  it. 
The  judgment  of  the  Circuit  Court  must,  therefore,  be  affirmed.^ 

1  And  so  Ccesar  Griffin's  Case,  Chase's  Dec.  364,  412  (1869) ;  and,  as  to  the  con- 
tinued existence  of  an  Indian  tribe,  United  Slates  v.  Holliday,  3  Wall.  407,  419. 

See  Martin  v.  Mutt,  12  Wheat.  19,  and  cortipare  Opinion  of  Justices,  8  Mass.  548. 

In  Com.  of  Kentucky  v.  Dennison,  Governor  of  Ohio,  24  How.  66  (1860),  on  an  appli- 
cation to  the  Supreme  Court  of  the  United  States  for  a  writ  of  mandamus  to  the 
defendant  to  compel  the  delivery  of  an  alleged  fugitive  from  justice,  charged  with 
assisting  the  escape  of  a  fugitive  slave,  the  court  denied  the  application.  In  the  course 
of  the  opinion  of  the  court,  Taney,  C.  J.,  said  :  "  The  demand  being  thus  made,  the 
Act  of  Congress  declares  that  '  it  shall  be  the  duty  of  the  executive  authority  of  the 
State'  to  cause  the  fugitive  to  be  arrested  and  secured,  and  delivered  to  the  agent  of 
the  demanding  State.  The  words  '  it  shall  be  the  duty,'  in  ordinary  legislation,  imply 
the  assertion  of  the  power  to  command  and  to  coerce  obedience.  But  looking  to  the 
subject-matter  of  this  law,  and  the  relations  which  the  United  States  and  the  several 
States  bear  to  each  other,  the  court  is  of  opinion,  the  words  '  it  shall  be  the  duty ' 
were  not  used  as  mandatory  and  compulsory,  but  as  declaratory  of  the  moral  duty 
which  this  compact  created,  when  Congress  had  provided  the  mode  of  carrying  it  into 
execution.  .  .  .  But  if  the  Governor  of  Ohio  refuses  to  discharge  this  duty,  there  is 
no  power  delegated  to  the  General  Government,  either  through  the  Judicial  Depart- 
ment or  any  other  department,  to  use  any  coercive  means  to  compel  him.  And  upon 
this  ground  the  motion  for  the  mandamus  must  be  overruled."  —  Ed. 


196  STATE   OF   MISSISSIPPI   V.   JOHNSON.  [CIIAP.  L 


STATE  OF  MISSISSIPPI  v.  ANDREW  JOHNSON,  President 
OF  THE  United  States. 

Supreme  Court  of  the  United  States.     1867. 

[4   Wall.  Alb.'] 

This  was  a  motion  made  b}-  Messrs.  Sharkey  and  R.  J.  Walker.,  on 
behalf  of  the  State  of  Mississippi,  for  leave  to  file  a  bill  in  the  name  of 
the  State  praying  this  court  perpetually"  to  enjoin  and  restrain  Andrew 
Johnson,  a  citizen  of  the  State  of  Tennessee  and  President  of  the 
United  States,  and  his  officers  and  agents  appointed  for  that  purpose, 
and  especially  E.  O.  C.  Ord,  assigned  as  military  commander  of  the 
district  where  the  State  of  Mississippi  is,  from  executing  or  in  any  man- 
ner carrying  out  two  Acts  of  Congress  named  in  the  bill,  one  "  An  Act 
for  the  more  Efficient  Government  of  the  Rebel  States,"  passed  March  2, 
1867,  notwithstanding  the  President's  veto  of  it  as  unconstitutional,  and 
the  other  an  Act  supplementar}'  to  it,  passed  in  the  same  waj'  IVIarch 
23,  1867 ;  Acts  commonly  called  the  Reconstruction  Acts.  .   .   . 

The  })ill  set  out  the  political  histor}"  of  Mississippi  so  far  as  related  to 
its  having  become  one  of  the  United  States  ;  and  "  that  forever  after  it 
was  impossible  for  her  people,  of  for  the  State  in  its  corporate  capacity, 
to  dissolve  that  connection  with  the  other  States,  and  that  an}-  attempt 
to  do  so  b}'  secession  or  otherwise  was  a  nullit}' ;  "  and  she  "now 
solemnly  asserted  that  her  connection  with  the  Federal  government  was 
not  in  anywise  thereb}-  destroyed  or  impaired ; "  and  she  averred  and 
charged  "that  the  Congress  of  the  United  States  cannot  constitution- 
ally expel  her  from  the  Union,  and  that  anj'  attempt  which  practically 
does  so  is  a  nullity."  .  .  . 

It  then  charged  that,  from  information  and  belief,  the  said  Andrew 
Johnson,  President,  in  violation  of  the  Constitution,  and  in  violation  of 
the  sacred  rights  of  the  States,  would  proceed,  notwithstanding  his 
vetoes,  and  as  a  mere  ministerial  duty,  to  the  execution  of  said  Acts,  as 
though  the}-  were  the  law  of  the  land,  which  the  vetoes  prove  he  would 
not  do  if  he  had  any  discretion,  or  that  in  doing  so  he  performed  any- 
thing more  than  a  mere  ministerial  duty  ;  and  that  with  the  view  to  the 
execution  of  said  Acts  he  had  assigned  General  E.  0.  C.  Ord  to  the 
command  of  the  States  of  Mississippi  and  Arkansas. 

Upon  an  intimation  made  a  few  days  before  by  Mr.  Sharkey,  of  his 
desire  to  file  this  bill,  the  Attorney-General  objected  to  it  in  limine., 
as  containing  matter  not  fit  to  be  received.  The  Chief  Justice  then 
stated  that  while  as  a  general  thing  a  motion  to  file  a  bill  was  granted 
as  of  course,  yet  if  it  was  suggested  that  the  bill  contained  scandalous  or 
impertinent  matter,  or  was  in  other  respects  improper  to  be  received, 
the  court  would  either  examine  the  bill  or  refer  it  to  a  master  for  exam- 
ination. The  onl}'  matter,  therefore,  which  would  now  be  considered 
was  the  question  of  leave  to  file  the  bill. 


SECT.  II.]  STATE   OF   MISSISSIPPI   V.   JOHNSON.  197 

Messrs.  Sharkey,  R.  J.  Walker,  and  Garland,  by  briefs  filed.  .   .  . 

Mr.  Stanbei'y,  A.  G.,  contra.  .   .  . 

Now,  I  beg  attention  to  the  cases  upon  wliich  the  counsel  rel}',  not  as 
in  point,  but  as  in  close  analogy ;  and,  first  of  all,  is  what  was  decided 
in  the  case  of  Burr,  by  Chief  Justice  Marshall.  In  the  course  of  the 
prosecution  against  Colonel  Burr,  his  counsel  deemed  it  necessary  that 
they  should  have  possession  of  a  certain  letter  written  to  the  then  Presi- 
dent, Mr.  Jefferson,  by  General  Wilkinson.  It  did  not  exactly  appear 
whether  it  was  a  private  letter  or  an  official  letter,  but  it  was  said  to  be 
a  letter  in  the  possession  of  the  President.  The  counsel  of  Colonel 
Burr  moved  for  a  subpoena  to  be  issued  by  the  court  to  the  President, 
commanding  him  to  appear  and  bring  with  him  that  paper.  The  ques- 
tion was  argued  by  the  counsel  for  the  United  States,  and  by  the  coun- 
sel for  Colonel  Burr ;  and,  although  the  counsel  for  the  United  States 
did  not  admit  that  such  process  could  be  issued  against  the  President, 
they  waived  the  point,  and  the  whole  argument  was  upon  the  right  of 
the  party  to  have  the  paper  itself  They  got  upon  that  side  issue,  and 
did  not  arguC;  but  merely  stated  the  other  point,  that,  according  to  their 
idea,  a  subpoena  could  not  issue  against  the  President.  However,  when 
Chief  Justice  Marshall  came  to  decide  the  matter,  undoubtedly  he  was 
of  opinion  that  a  subpoena  might  issue  against  the  President,  as  Presi- 
dent, to  produce  a  paper  in  his  possession  as  President.  Counsel  in 
this  case  argue  from  that,  if  the  President  is  liable  to  the  process  of  the 
court  by  subpoena  to  testify,  he  is  liable  to  the  process  and  the  action 
of  the  court  as  a  party  to  abide  any  order  which  the  court  may  make. 
I  will  go  a  step  or  two  further  with  that  case,  to  show  how,  notwith- 
standing the  opinion  that  was  delivered  b}'  the  Chief  Justice,  the  court 
came  to  a  point  in  which  they  would  not  take  another  step. 

Wlien  the  subpoena  was  received  by  the  President,  Mr,  Jefferson,  he 
did  not  give  to  it  any  notice.  He  did  not  even  make  any  return  to  the 
court,  nor  any  excuse  to  the  court.  He  simpl}'  wrote  a  letter  to  the 
district  attorney,  in  which  he  stated,  that  he  could  not  conceive  how  it 
was  that,  under  such  circumstances,  the  court  should  order  him  to  go 
there  by  subpoena ;  that  he  would  not  go ;  that  he  did  not  propose  to 
go ;  but  he  said  to  the  district  attorney*  that  there  was  no  difficulty  in 
obtaining  the  paper  in  the  proper  way.  But  he  would  pay  no  respect 
to  the  subpoena.  Thereupon  Colonel  Burr  himself  moved  for  compul- 
sory process  to  compel  the  President  to  come.  Of  course  that  was 
legitimate.  If  the  court,  in  saying  that  the  President  was  amenable  to 
subpoena,  was  right,  the  court  was  bound,  at  the  instance  of  the  defend- 
ant, to  follow  it  up  by  process  of  attachment  to  compel  obedience  to 
its  lawful  order.  At  that  point,  however,  the  court  hesitated,  and  not 
a  step  further  was  taken  toward  enforcing  the  doctrine  laid  down  bj'the 
Chief  Justice.  It  then  became  quite  too  apparent  that  a  verj-  great 
error  had  been  committed.  I  say  a  verj-  great  error,  with  the  greatest 
submission  to  the  great  Chief  Justice,   who,  on  circuit,  at  nisi  prius^ 


198  STATE   OF   MISSISSIPPI   V.   JOHNSON.  [CHAP.  L 

suddenlv,  on  a  motion  of  this  kind,  bad  liold  that  tlie  President  of  the 
United  States  was  liable  to  the  subpoena  of  any  court  as  President.  .  .  . 

It  is  with  the  approbation,  advice,  and  instruction  of  the  President 
that  I  appear  here  to  make  this  objection.  I  should  have  felt  bound  to 
make  it  on  m}'  own  motion,  as  the  law  officer  of  the  government.  But 
although  counsel,  in  their  bill,  have  said  that  the  President  has  vetoed 
these  Acts  of  Congress  as  unconstitutional,  I  must  say,  in  defence  of 
the  President,  this,  that  when  the  President  did  that,  he  did  everything 
he  intended  to  do  in  opposition  to  these  laws.  From  the  moment  they 
were  passed  over  his  veto  there  was  but  one  duty  in  his  estimation 
resting  upon  him,  and  that  was  faithfully  to  carry  out  and  execute  these 
laws.  He  has  instructed  me  to  say  that  in  making  this  objection,  it  is 
not  for  the  purpose  of  escaping  from  any  responsibility  either  to  per- 
form or  to  refuse  to  perform.  ,  .  . 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

A  motion  was  made,  some  days  since,  in  behalf  of  the  State  of  Mis- 
sissippi, for  leave  to  file  a  bill  in  the  name  of  the  State,  praying  this 
court  perpetuall}'  to  enjoin  and  restrain  Andrew  Johnson,  President  of 
the  United  States,  and  E.  O.  C.  Ord,  general  commanding  in  the  Dis- 
trict of  Mississippi  and  Arkansas,  from  executing,  or  in  any  manner 
carrying  out,  certain  Acts  of  Congress  therein  named. 

The  Acts  referred  to  are  those  of  March  2,  and  March  23,  1867, 
commonly  known  as  the  Reconstruction  Acts. 

The  Attorne3-General  objected  to  the  leave  asked  for,  upon  the 
ground  that  no  bill  which  makes  a  President  a  defendant,  and  seeks  an 
injunction  against  him  to  restrain  the  performance  of  his  duties  as 
President,  should  be  allowed  to  be  filed  in  this  court. 

This  point  has  been  fulh'  argued,  and  we  will  now  dispose  of  it. 

We  shall  limit  our  inquiry  to  the  question  presented  b}-  the  objection, 
without  expressing  any  opinion  on  the  broader  issues  discussed  in 
argument,  whether,  in  any  case,  the  President  of  the  United  States 
may  be  required,  by  the  process  of  this  court,  to  perform  a  purel}- 
ministerial  act  under  a  positive  law,  or  ma}'  be  held  amenable,  in  any 
case,  otherwise  than  b}'  impeachment  for  crime. 

The  single  point  which  requires  consideration  is  this :  Can  the  Presi- 
dent be  restrained  b}'  injunction  from  carrying  into  effect  an  Act  of 
Congress  alleged  to  be  unconstitutional? 

It  is  assumed  by  the  counsel  for  the  State  of  Mississippi,  that  the 
President,  in  the  execution  of  the  Reconstruction  Acts,  is  required  to 
perform  a  mere  ministerial  dut}'.  In  this  assumption  there  is,  we  think, 
a  confounding  of  the  terms  ministerial  and  executive,  which  are  by 
no  means  equivalent  in  import. 

A  ministerial  dut}',  the  performance  of  which  may,  in  proper  cases, 
be  required  of  the  head  of  a  department,  by  judicial  process,  is  one  in 
respect  to  which  nothing  is  left  to  discretion.  It  is  a  simple,  definite 
duty,  arising  under  conditions  admitted  or  proved  to  exist,  and  imposed 
by  law. 


SECT.  II.]  STATE   OF   MISSISSIPPI   V.   JOHNSON.  199 

The  case  of  Jlnrhimj  v.  Madison,  Secretary  of  State,  1  Cranch,  137, 
furnishes  an  iUustration.  A  citizen  had  been  nominated,  confirmed, 
and  appointed  a  justice  of  the  peace  for  the  District  of  Columbia,  and 
liis  commission  had  been  made  out,  signed,  and  sealed.  Nothing 
remained  to  be  done  except  delivery,  and  the  duty  of  delivery  was  im- 
posed by  law  on  the  Secretary  of  State.  It  was  held  that  the  perform- 
ance of  this  duty  might  be  enforced  by  mandamus  issuing  from  a  court 
having  jurisdiction. 

So,  in  the  case  of  Kendall,  Postmaster-  General,  v.  Stockton  &  Stokes, 
12  Peters,  527,  an  Act  of  Congress  had  directed  the  Postmaster-Gen- 
eral to  credit  Stockton  &  Stokes  with  such  sums  as  the  Solicitor  of  the 
Treasury  should  find  due  to  them  ;  and  that  officer  refused  to  credit 
them  with  certain  sums,  so  found  due.  It  was  held  that  the  crediting 
of  this  money  was  a  mere  ministerial  duty,  the  performance  of  which 
might  be  judicially  enforced. 

In  each  of  tliese  cases  nothing  was  left  to  discretion.  There  was  no 
room  for  the  exercise  of  judgment.  The  law  required  the  performance 
of  a  single  specific  act;  and  that  performance,  it  was  held,  might  be 
required  by  mandamus. 

Very  different  is  the  duty  of  the  President  in  the  exercise  of  the 
power  to  see  that  the  laws  are  faithfully  executed,  and  among  these 
laws  the  Acts  named  in  the  bill.  By  the  first  of  these  Acts  he  is  required 
to  assign  generals  to  command  in  the  several  military  districts,  and  to 
detail  sufficient  military  force  to  enable  such  officers  to  discharge  their 
duties  under  the  law.  By  the  supplementary  Act,  other  duties  are  im- 
posed on  tlie  several  commanding  generals,  and  these  duties  must 
necessarily  be  performed  under  the  supervision  of  tlie  President  as  Com- 
mander-in-Chief. The  duty  thus  imposed  on  the  President  is  in  no  just 
sense  ministerial.     It  is  purely  executive  anc]j2pTitIcal. 

An  attempt  on  tlie  part  of  the  judicial  department  of  the  government 
to  enforce  the  performance  of  such  duties  by  the  President  might  be 
justly  characterized,  in  the  language  of  Chief  Justice  Marshall,  as  "an 
absurd  and  excessive  extravagance." 

It  is  true  that  in  the  instance  before  us  the  interposition  of  the  court 
is  not  sought  to  enforce  action  by  the  executive  under  constitutional 
legislation,  but  to  restrain  such  action  under  legislation  alleged  to  be 
unconstitutional.  But  Ave  are  unable  to  perceive  that  tins  circumstance 
takes  the  case  out  of  the  general  principles  which  forbid  judicial  inter- 
ference with  the  exercise  of  executive  discretion. 

It  was  admitted  in  the  argument  that  the  application  now  made  to 
us  is  without  a  precedent ;  and  tins  is  of  much  weight  against  it. 

Had  it  been  supposed  at  the  bar  that  this  court  would,  in  any  case, 
interpose,  by  injunction,  to  prevent  the  execution  of  an  unconstitutional 
Act  of  Congress,  it  can  hardly  be  doubted  that  applications  with  that 
object  would  have  been  heretofore  addressed  to  it. 

Occasions  have  not  been  wanting. 

The  constitutionality  of  the  Act  for  the  annexation  of  Texas  was 


200  STATE   OF   MISSISSIPPI   V.   JOHNSON.  [CIIAP.  L 

vehemently  denied.  It  made  important  and  permanent  changes  in  the 
relative  importance  of  States  and  sections,  and  was  by  many  supposed 
to  be  pregnant  with  disastrous  results  to  large  interests  in  particular 
States.  But  no  one  seems  to  have  thought  of  an  application  for  an 
injunction  against  the  execution  of  the  Act  by  the  President. 

And  yet  it  is  difficult  to  perceive  upon  what  principle  the  application 
now  before  us  can  be  allowed  and  similar  applications  in  that  and  other 
cases  have  been  denied. 

The  fact  that  no  such  application  was  ever  before  made  in  an}-  case 
indicates  the  general  judgment  of  the  profession  that  no  such  applica- 
tion should  be  entertained. 

It  will  hardly  be  contended  that  Congress  [the  judges]  can  interpose, 
in  any  case,  to  restrain  the  enactment  of  an  unconstitutional  law  ;  and 
yet  how  can  the  right  to  judicial  interposition  to  prevent  such  an 
enactment,  when  the  purpose  is  evident  and  the  execution  of  that  pur- 
l)ose  certain,  be  distinguished,  in  piinciple,  from  the  right  to  such  inter- 
position against  the  execution  of  such  a  law  by  the  President? 

The  Congress  is  the  legislative  department  of  the  goverJlDJcnt j  the 
President  is  the  executive  de^jartment.  Neitlier  can  be  restrained  in 
its  action  by  tlic  judicial  dei)artment ;  though  the  acts  of  both,  when 
])erformed,  are,  in  proper  cases,  subject  to  its  cognizance. 

The  impropriety  of  such  interference  will  be  clearly  seen  upon  con- 
sideration of  its  possible  consequences. 

Suppose  the  bill  filed  and  the  injunction  prayed  for  allowed.  If  the 
President  refuse  obedience,  it  is  needless  to  observe  that  the  court  is 
without  power  to  enforce  its  process.  If,  on  the  other  hand,  the  Presi- 
dent complies  with  the  order  of  the  court  and  refuses  to  execute  the 
Acts  of  Congress,  is  it  not  clear  that  a  collision  may  occur  between  the 
executive  and  legislative  departments  of  the  government?  Ma}'  not 
the  House  of  Representatives  impeach  the  President  for  such  refusal? 
And  in  that  case  could  this  court  interfere,  in  behalf  of  the  President, 
thus  endangered  by  compliance  with  its  mandate,  and  restrain  by 
injunction  the  Senate  of  the  United  States  from  sitting  as  a  court  of 
impeachment?  Would  the  strange  spectacle  be  offered  to  the  public 
world  of  an  attempt  by  this  court  to  arrest  proceedings  in  that  court? 

These  questions  answer  themselves. 

It  is  true  that  a  State  may  file  an  original  bill  in  this  court.  And  it 
may  be  true,  in  some  cases,  that  such  a  bill  may  be  filed  against  the 
United  States.  But  we  are  fully  satisfied  that  this  court  has  no  juris- 
diction of  a  bill  to  enjoin  the  President  in  the  performance  of  his  oflUcial 
duties ;  and  that  no  such  bill  ought  to  be  received  by  us. 

It  has  been  suggested  that  the  bill  contains  a  prayer  that,  if  the 
relief  sought  cannot  be  had  against  Andrew  Johnson,  as  President,  it 
may  be  granted  against  Andrew  Johnson  as  a  citizen  of  Tennessee. 
But  it  is  plain  that  relief  as  against  the  execution  of  an  Act  of  Congress 
by  Andrew  Johnson,  is  relief  against  its  execution  by  the  President. 
A  bill  praying  an  injunction  against  the  execution  of  an  Act  of  Congress 


SECT.  II.]  STATE   OF   GEORGIA   V.   STANTON.  201 

by  the  incumbent  of  the  Presidential  office  cannot  be  received,  whether 
it  describes  him  as  President  or  as  a  citizen  of  a  State. 
The  motion  for  leave  to  file  the  bill  is,  therefore, 

Denied} 


STATE  OF  GEORGIA  v.  STANTON. 
Supreme  Court  of  the  United  States.     1867. 

[6  Wall.  50.] 

This  was  a  bill  filed  April  15,  1867,  in  this  court,  invoking  the  exer- 
cise of  its  original  jurisdiction,  against  Stanton,  Secretary  of  War, 
Grant,  General  of  the  Army,  and  Pope,  Major-General,  assigned  to 
the  command  of  the  Third  Military  District,  consisting  of  the  States  of 
Georgia,  Florida,  and  Alabama  (a  district  organized  under  the  Acts  of 
Congress  of  the  2d  March,  1867,  entitled  "An  Act  to  provide  for  the 
more  Efficient  Government  of  the  Rebel  States,"  and  an  Act  of  the  23d 
of  tiie  same  month  supplementary  thereto),  for  the  purpose  of  restrain- 
ing the  defendants  from  carrying  into  execution  the  several  provisions 
of  these  Acts;  Acts  known  in  common  parlance  as  the  "  Reconstruc- 
tion Acts."  Both  these  Acts  had  been  passed  over  the  President's 
veto.  .   .  . 

The  bill  set  forth  the  existence  of  the  State  of  Georgia,  the  com- 
plainant, as  one  of  the  States  of  this  Union  under  the  Constitution  ; 
the  Civil  War  of  1861-1865  in  which  she  was  involved;  the  surrender 
of  the  Confederate  armies  in  the  latter  year,  and  submission  to  the 
Constitution  and  laws  of  the  Union  ;  the  withdrawal  of  the  military 
government  from  Georgia  by  the  President,  Commander-in-Chief  of  the 
army  ;  and  the  revival  and  reorganization  of  the  civil  government  of 
the  State  with  his  permission  ;  and  that  the  government  thus  reorgan- 
ized was  in  the  possession  and  enjoyment  of  all  tlie  rights  and  privileges 
in  her  several  departments — executive,  legislative,  and  judicial  —  be- 
longing to  a  State  in  the  Union  under  the  Constitution,  with  the  excep- 
tion of  a  representation  in  the  Senate  and  House  of  Representatives  of 
the  United  States. 

It  set  forth  further  that  the  intent  and  design  of  the  Acts  of  Con- 
gress, as  was  apparent  on  their  face  and  by  their  terms,  was  to  over- 
throw  and    to   annul    this   existing   State  government,  and  to  erect 

1  As  to  the  power  of  courts  to  control  the  action  of  other  departments,  see  1  Tuck- 
er's Bl.  358,  note;  1  Burr's  Trial  (Phila.  1808),  114,  127,  131,  180,  249,  254;  Low  v. 
Towns,  8  Ga.  360,  372  ;  Apj)eal  of  Hartrunft,  Governor,  85  Pa.  St.  433  ;  s.  c.  Thayer's 
Cas.  Ev.  1153;  Martin  v.  Inf/ham,  38  Kans.  641  ;  In  re  Gunn,  50  Kans.  155  (1893). 
In  the  dissenting  opinion  of  Allen,  J.,  in  the  case  last  named,  the  authorities  are  very 
fully  cited. 

See  also  United  States  v.  Guthrie,  17  How.  284,  as  to  the  limits  of  the  power  to  con 
trol  the  action  of  a  subordinate  member  of  the  executive  department.  — Ed. 


202  STATE   OF   GEORGIA   V.   STANTON.  [cilAJ*.  I. 

another  and  different  government  in  its  place,  unauthorized  by  the 
Constitution  and  in  defiance  of  its  guarantees  ;  and  that,  in  furtlier- 
ance  of  this  intent  and  design,  the  defendants  (the  Secretary  of  War, 
the  General  of  the  Army,  and  Major-General  Tope),  acting  under 
orders  of  the  President,  were  about  setting  in  motion  a  portion  of  the 
army  to  take  military  possession  of  the  State,  and  threatened  to  subvert 
her  government,  and  to  subject  her  people  to  military  rule ;  that  the 
State  was  wholly  inadequate  to  resist  the  power  and  force  of  the  P>x- 
ecutive  Department  of  the  United  States.  She  therefore  insisted  that 
such  protection  could,  and  ought  to  be  afforded  by  a  decree,  or  order, 
of  this  court  in  the  premises.  .  .  . 

3tr.  Stanhery,  A.  G.,  at  the  last  term  moved  to  dismiss  the  bill  for 
want  of  jurisdiction. 

Messrs.  Charles  O'Comwr,  R.  J.  Walker  (with  whom  were  Messrs. 
Sharkey,  Black.,  Brent.,  and  E.  Cowan),  contra. 

The  bill  having  been  dismissed  at  the  last  term,  Mr.  Justice  Nelson 
now  delivered  the  opinion  of  the  court. 

A  motion  has  been  made  by  the  counsel  for  the  defendants  to  dismiss 
the  bill  for  want  of  jurisdiction,  for  which  a  precedent  is  found  in  the 
case  of  The  State  of  Rhode  Island  \.  The  State  of  Massachusetts,  12 
Peters,  669.  It  is  claimed  that  the  court  has  no  jurisdiction  either  over 
the  subject-matter  set  forth  in  the  bill  or  over  the  parties  defendants. 
And,  in  support  of  the  first  ground,  it  is  urged  that  the  matters  involved, 
and  presented  for  adjudication,  are  political  and  not  judicial,  and,  there- 
fore, not  the  subject  of  judicial  cognizance. 

This  distinction  results  from  the  organization  of  the  government  into 
the  three  great  departments,  executive,  legislative,  and  judicial,  and 
from  the  assignment  and  limitation  of  the  powers  of  each  by  the  Consti- 
tution. 

The  judicial  power  is  vested  in  one  supreme  court,  and  in  such  in- 
ferior courts  as  Congress  may  ordain  and  establish  :  the  political  power 
of  the  government  in  the  other  two  departments. 

The  distinction  between  judicial  and  political  power  is  so  generally 
acknowledged  in  the  jurisprudence  both  of  England  and  of  this  country, 
that  we  need  do  no  more  than  refer  to  some  of  the  authorities  on  the 
subject.  They  are  all  in  one  direction.  Nabob  of  Carnatic  v.  The 
East  India  Co.,  1  Vesey,  Jr.,  375-393,  S.  C,  2  lb.  56-60;  Peim  v. 
Lord  Baltimore,  1  Vesey,  446-447 ;  Neio  York  v.  Connecticut.,  4 
Dallas,  4-6  ;  The  Cherokee  Nation  v.  Georgia,  5  Peters,  1,  20,  29,  30, 
51,  75  :  The  State  of  Rhode  Island  v.  The  State  of  Massachusetts, 
12  lb.  657,  733,  734,  737,  738. 

It  has  been  supposed  that  the  case  of  The  State  of  Rhode  Ishmd  v. 
The  State  of  Massachusetts,  12  Peters,  657,  is  an  exception,  and 
affords  an  authority  for  hearing  and  adjudicating  upon  political  ques- 
tions in  the  usual  course  of  judicial  proceedings  on  a  bill  in  equity. 
But  it  will  be  seen  on  a  close  examination  of  the  case,  that  this  is  a  mis- 
take.    It  involved  a  question  of  boundary  between  the  two  States.    Mr 


SECT.  II.]  STATE   OF   GEORGIA   V.    STANTOX.  203 

Justice  Baldwin,  who  delivered  the  opinion  of  the  court,  states  the  objec- 
tion, and  proceeds  to  answer  it.  He  observes  (p.  736),  ''  It  is  said  that 
tliis  is  a  political,  not  civil  controversy,  between  the  parties  ;  and,  so 
not  within  the  Constitution,  or  thirteenth  section  of  the  Judiciary  Act. 
As  it  is  viewed  by  the  court,  on  the  bill  alone,  had  it  been  demurred  to, 
a  controversy  as  to  the  locality  of  a  point  three  miles  south  of  the 
southernmost  point  of  Charles  River,  is  the  only  question  that  can 
arise  under  the  charter.  Taking  the  case  on  the  bill  and  plea,  the 
question  is,  whether  the  stake  set  up  on  Wrentham  Plain  by  Wood- 
ward and  Saffrey,  in  1842,  is  the  true  point  from  which  to  run  an  east 
and  west  line  as  the  compact  boundary  between  the  States.  In  the 
first  aspect  of  the  case  ,it  depends  on  a  fact ;  in  the  second,  on  the 
law  of  equity,  whether  the  agreement  is  void  or  valid  ;  neither  of  which 
present  a  political  controversy,  but  one  of  an  ordinary  judicial  nature  of 
frequent  occurrence  in  suits  between  individuals."  In  another  part  of 
the  opinion,  speaking  of  the  submission  by  sovereigns  or  States,  of  a 
controversy  between  them,  he  observes,  "  From  the  time  of  such  sub- 
mission the  question  ceases  to  be  a  political  one,  to  be  decided  by  the 
SIC  volo,  sic  jubeo,  of  political  power.  It  comes  to  the  court  to  be 
decided  by  its  judgment,  legal  discretion,  and  solenin  consideration  of 
tlie  rules  of  law,  appropriate  to  its  nature  as  a  judicial  question,  de- 
pending on  the  exercise  of  judicial  powers,  as  it  is  bound  to  act  by 
known  and  settled  principles  of  national  or  municipal  jurisprudence, 
as  the  case  requires."  And  he  might  have  added,  what,  indeed,  is 
probably  implied  in  the  opinion,  that  the  question  thus  submitted  by 
the  sovereign  or  State,  to  a  judicial  determination,  must  be  one  appro- 
priate for  the  exercise  of  judicial  power;  such  as  a  question  of  bound- 
ary, or  as  in  the  case  of  Fetin  v.  Lord  Baltimore,  a  contract  between 
the  parties  in  respect  to  their  boundary.  Lord  Hardwicke  places  his 
riglit  in  that  case  to  entertain  jurisdiction  upon  this  ground. 

Tlie  objections  to  the  jurisdiction  of  the  court  in  the  case  of  Rhode 
Island  against  Massacliusetts  were,  that  the  subject-matter  of  the  bill 
involved  sovereignty  and  jurisdiction,  which  were  not  matters  of  prop- 
erty, but  of  political  rights  over  the  territory  in  question.  They  are 
forcibly  stated  by  the  Chief  Justice,  who  dissented  from  the  opinion. 
12  Peters,  752,  754.  The  very  elaborate  examination  of  the  case  by 
Mr.  Justice  Baldwin,  was  devoted  to  an  answer  and  refutation  of  these 
objections.  He  endeavored  to  show,  and,  we  think,  did  show,  that  the 
question  was  one  of  boundary,  which,  of  itself,  was  not  a  political  ques- 
tion, but  one  of  property,  appropriate  for  judicial  cognizance  ;  and,  that 
sovereignty  and  jurisdiction  were  but  incidental,  and  dependent  upon 
the  main  issue  in  the  case.  The  right  of  property  was  undoubtedly 
involved  ;  as  in  this  country,  where  feudal  tenures  are  abolished,  in 
cases  of  escheat,  the  State  takes  the  place  of  the  feudal  lord,  by  virtue 
of  its  sovereignty,  as  the  original  and  ultimate  proprietor  of  all  the 
lands  within  its  jurisdiction. 

In  the  case  of  The  State  of  Florida  v.  Georgia,  17  Howard,  478, 


204  STATE   OF   GEOKGIA   V.    STANTON.  [fllAP.  I. 

the  United  States  were  allowed  to  intervene,  being  the  propiictors  of  a 
large  part  of  the  land  situated  within  the  disputed  boundary',  eeded  by 
Spain  as  a  part  of  Florida.  The  State  of  Florida  was  also  deeply  inter- 
ested as  a  proprietor. 

The  case,  bearing  most  directly  on  the  one  before  us,  is  The  Chero- 
kee nation  v.  The  State  of  Georgia,  5  Peters,  1.  A  bill  was  liled  in 
that  case  and  an  injunction  prayed  for,  to  prevent  the  execution  of  cer- 
tain Acts  of  the  Legislature  of  Georgia  within  the  territory  of  the 
Cherokee  Nation  of  Indians,  they  claiming  a  right  to  file  it  in  this 
court,  in  the  exercise  of  its  original  jurisdiction,  as  a  foreign  nation. 
The  Acts  of  the  Legislature,  if  permitted  to  be  carried  into  execution, 
would  have  subverted  the  tribal  government  of  the  Indians  ;  and  sub- 
jected them  to  the  jurisdiction  of  the  State.  The  injunction  was 
denied,  on  the  ground  that  the  Cherokee  Nation  could  not  be  legarded 
as  a  foreign  nation  within  the  Judiciary  Act;  and,  that,  therefore,  they 
had  no  standing  in  court.  But  Chief  Justice  Marshall,  who  delivered 
the  opinion  of  the  majority,  very  strongl}'  intimated,  that  the  bill  was 
untenable  on  another  ground,  namely,  that  it  involved  simply  a  political 
question.  He  observed,  ''That  the  part  of  the  bill  which  respects  the 
land  occupied  by  the  Indians,  and  prays  the  aid  of  the  court  to  pro- 
tect their  possessions,  may  be  more  doubtful.  The  mere  question  of 
right  might,  perhaps,  be  decided  by  this  court  in  a  proper  case  with 
proper  parties.  But  the  court  is  asked  to  do  more  than  decide  on  the 
title.  The  bill  requires  us  to  control  the  Legislature  of  Georgia,  and  to 
restrain  the  exertion  of  its  physical  force.  The  propriety  of  such  an 
interposition  by  the  court  may  be  well  questioned.  It  savors  too  much  of 
the  exercise  of  political  power,  to  be  within  the  province  of  the  judi- 
cial department."  Several  opinions  were  delivered  in  the  case  ;  a  very 
elaborate  one,  b\-  Mr.  Justice  Thompson,  in  which  Judge  Storj'  con- 
curred. The}'  maintained  that  the  Cherokee  Nation  was  a  foreign 
nation  within  the  Judiciary  Act,  and  competent  to  bring  the  suit ;  but 
agreed  with  the  Chief  Justice,  that  all  the  matters  set  up  in  the  bill 
involved  political  questions,  with  the  exception  of  the  right  and  title  of 
the  Indians  to  the  possession  of  the  land  which  they  occupied.  Mr. 
Justice  Thompson,  referring  to  this  branch  of  the  case,  observed  :  "  For 
the  purpose  of  guarding  against  any  erroneous  conclusions,  it  is  proper 
I  should  state,  that  I  do  not  claim  for  this  court,  the  exercise  of  juris- 
diction upon  an}'  matter  properly  falling  under  the  denomination  of 
political  power.  Relief  to  the  full  extent  prayed  for  by  the  bill  may  be 
beyond  the  reach  of  this  court.  Much  of  the  matters  therein  contained 
by  way  of  complaint,  would  seem  to  depend  for  relief  upon  the  exer- 
cise of  political  power;  and,  as  such,  appropriately  devolving  upon  the 
executive,  and  not  the  judicial  department  of  the  government.  This 
court  can  grant  relief  so  far,  only,  as  the  rights  of  persons  or  property 
are  drawn  in  question,  and  have  been  infringed."  And,  in  another  part 
of  the  opinion,  he  returns,  again,  to  this  question,  and  is  still  more 
emphatic  in  disclaiming  jurisdiction.     He  observes:   "I  certainly  do 


SECT.  II.]  STATE   OF   GEORGIA   V.   STANTON.  205 

not  claim,  as  belonging  to  the  judiciaiy,  the  exercise  of  political  power. 
That  belongs  to  another  branch  of  the  government.  The  protection  and 
enforcement  of  many  rights  secured  by  treaties,  most  certainly  do  not 
belong  to  the  judiciary.  It  is  only  where  the  rights  of  persons  or  prop- 
erty are  involved,  and  when  such  rights  can  be  presented  under  some 
judicial  form  of  proceedings,  that  courts  of  justice  can  interpose  relief. 
This  court  can  have  no  right  to  pronounce  an  abstract  opinion  upon  the 
constitutionality  of  a  State  law.  Such  law  must  be  brought  into  actual, 
or  threatened  operation  upon  rights  properly  falling  under  judicial  cog- 
nizance, or  a  remedy  is  not  to  be  had  here."  We  have  said  Mr.  Justice 
Story  concurred  in  this  opinion  ;  and  Mr.  Justice  Joinison,  who  also 
delivered  one,  recognized  the  same  distinctions.     5  Peters,  29-30. 

By  the  second  section  of  the  third  article  of  the  Constitution  "  the 
judicial  power  extends  to  all  cases,  in  law  and  equity,  arising  under  the 
Constitution,  the  laws  of  the  United  States,"  «S:c.,  and  as  applicable  to 
the  case  in  hand,  "  to  controversies,  between  a  State  and  citizens  of 
another  State,"  —  which  controversies,  under  the  Judiciary  Act,  may  be 
brought,  in  the  first  instance,  before  this  court  in  the  exercise  of  its 
original  jurisdiction,  and  we  agree,  that  the  bill  filed,  presents  a  case, 
which,  if  it  be  the  subject  of  judicial  cognizance,  would,  in  form,  come 
under  a  familiar  head  of  equity  jurisdiction,  that  is,  jurisdiction  to  grant 
an  injunction  to  restrain  a  party  from  a  wrong  or  injury  to  the  rights  of 
another,  where  the  danger,  actual  or  threatened,  is  irreparable,  or  the 
remedy  at  law  inadequate.  But,  according  to  the  course  of  proceeding 
under  this  head  in  equit}-,  in  order  to  entitle  the  party  to  the  remedy,  a 
case  must  be  presented  appropriate  for  the  exercise  of  judicial  power ; 
the  rights  in  danger,  as  we  have  seen,  must  be  rights  of  persons  or 
property,  not  merely  political  rights,  which  do  not  belong  to  the  juris- 
diction of  a  court,  eitlier  in  law  or  equit}'. 

The  remaining  question  on  this  branch  of  our  inquir}'  is,  whether,  in 
view  of  the  principles  above  stated,  and  which  we  have  endeavored  to 
explain,  a  case  is  made  out  in  the  bill  of  which  this  court  can  take 
judicial  cognizance.  In  looking  into  it,  it  will  be  seen  that  we  are 
called  upon  to  restrain  the  defendants,  who  represent  the  executive 
authority  of  the  government,  from  carrying  into  execution  certain  Acts 
of  Congress,  inasmuch  as  such  execution  would  annul,  and  totally 
abolish  the  existing  State  government  of  Georgia,  and  establish  another 
and  difTerent  one  in  its  i)lace  ;  in  other  words,  would  overthrow  and 
dcstro}'  the  corporate  existence  of  the  State,  by  depriving  it  of  all  the 
means  and  instrumentalities  whereb}'  its  existence  might,  and,  other- 
wise would,  be  maintained. 

This  is  the  substance  of  the  complaint,  and  of  the  relief  praj'ed  for. 
Tlie  bill,  it  is  true,  sets  out  in  detail  the  different  and  substantial 
changes  in  the  structure  and  organization  of  the  existing  govern- 
ment, as  contemplated  in  these  Acts  of  Congress  ;  which,  it  is  charged, 
if  carried  into  effect  by  the  defendants,  will  work  this  destruction.  But 
they  are  grievances,  because  they  necessarily  and  inevitably  tend  to  the 


206  STATE   OF   GEORGIA   V.   STANTON.  [CHAP.  L 

overthrow  of  the  State  as  an  organized  politieal  body.  They  are  stated, 
in  detail,  as  laying  a  foundation  for  the  interposition  of  the  eourt  to 
prevent  the  specific  execution  of  them ;  and  the  resulting  threatened 
mischief.  So  in  respect  to  the  prayers  of  the  bill.  The  first  is,  that 
the  defendants  may  be  enjoined  against  doing  or  permitting  an}-  act  or 
thing,  within  or  concerning  the  State,  which  is  or  may  be  directed, 
or  required  of  them,  by  or  under  the  two  Acts  of  Congress  complained 
of;  and  the  remaining  four  prayers  are  of  the  same  character,  except 
more  specific  as  to  the  particular  acts  threatened  to  be  committed. 

That  these  matters,  both  as  stated  in  the  body  of  the  bill,  and  in 
the  prayers  for  relief,  call  for  the  judgment  of  the  court  upon  political 
questions,  and,  upon  rights,  not  of  persons  or  propertj,  but  of  a  political 
character,  will  hardly  be  denied.  For  the  rights  for  the  protection  of 
which  our  authority  is  invoked,  are  the  rights  of  sovereignty,  of  politi- 
cal jurisdiction,  of  government,  of  corporate  existence  as  a  State,  with 
all  its  constitutional  powers  and  privileges.  No  case  of  private  rights 
or  private  property  infringed,  or  in  danger  of  actual  or  threatened 
infringement,  is  presented  by  the  bill,  in  a  judicial  form,  for  the  judg- 
ment of  the  court. 

It  is  true,  the  bill,  in  setting  forth  the  political  rights  of  the  State,  and 
of  its  people  to  be  protected,  among  other  matters,  avers,  that  Georgia 
owns  certain  real  estate  and  buildings  therein,  State  Capitol,  and  ex- 
ecutive mansion,  and  other  real  and  personal  propertj' ;  and  that  put- 
ting the  Acts  of  Congress  into  execution,  and  destroying  the  State, 
would  deprive  it  of  the  possession  and  enjoyment  of  its  property'.  But, 
it  is  apparent,  that  this  reference  to  propert}-  and  statement  concerning 
it,  are  only  by  wa}'  of  showing  one  of  the  grievances  resulting  from  the 
threatened  destruction  of  the  State,  and  in  aggravation  of  it,  not  as  a 
specific  ground  of  relief.  This  matter  of  propert}-  is  neither  stated  as 
an  independent  ground,  nor  is  it  noticed  at  all  in  the  prayers  for 
relief.  Indeed  the  case,  as  made  in  the  bill,  would  have  stopped  far 
short  of  the  relief  sought  by  the  State,  and  its  main  purpose  and  design 
given  up,  b}'  restraining  its  remedial  effect,  simply  to  the  protection  of 
the  title  and  possession  of  its  propert}'.  Such  relief  wouhi  have  called 
for  a  very  different  bill  from  the  one  before  us. 

Having  arrived  at  the  conclusion  that  this  court,  for  the  reasons 
above  stated,  possesses  no  jurisdiction  over  the  subject-matter  pre- 
sented in  the  bill  for  relief,  it  is  unimportant  to  examine  the  question 
as  it  respects  jurisdiction  over  the  parties  defendants. 

The  Chief  Justice  :  Without  being  able  to  3'ield  my  assent  to  the 
grounds  stated  in  the  opinion  just  read  for  the  dismissal  of  the  com- 
plainant's bill,  I  concur  full}'  in  the  conclusion  that  the  case  made  by 
the  bill,  is  one  of  which  this  court  has  no  jurisdiction. 

Bill  dismissed  for  want  of  jurisdiction. 


CHAP.  II. J       MAKING  AND  CHANGING  WRITTEN   CONSTITUTIONS.        207 


CHAPTER  II. 

MAKING  AND  CHANGING   WRITTEN  CONSTITUTIONS. 
1.  Constitution  of  the  United  States. 

"In  1774,  Massachusetts  recommended  the  assembling  of  a  Continen- 
tal Congress  to  deliberate  upon  the  state  of  public  affairs  ;  and  accord- 
ing to  her  recommendation,  delegates  were  appointed  b}'  the  colonies 
for  a  congress  to  be  held  in  Philadelphia  in  the  autumn  of  the  same 
year.  In  some  of  the  legislatures  of  the  colonies,  which  were  then  in 
session,  delegates  were  appointed  by  the  popular  or  representative 
branch ;  and  in  other  cases  they  were  appointed  by  conventions  of 
the  people  in  the  colonies.  The  congress  of  delegates  (calling  them- 
selves in  their  more  formal  acts  '  the  delegates  appointed  by  the  good 
people  of  these  colonies')  assembled  on  the  4th  of  September,  1774; 
and  having  chosen  officers,  they  adopted  certain  fundamental  rules  for 
their  proceedings. 

"  Tiius  was  organized  under  the  auspices  and  with  the  consent  of  the 
people,  acting  directl}'  in  their  primary,  sovereign  capacity,  and  with- 
out the  intervention  of  the  functionaries,  to  whom  the  ordinar}'  powers 
of  government  were  delegated  in  the  colonies,  tlie  first  general  or  na- 
tional government,  which  has  been  very  aptl}'  called  '  the  revolutionary 
government,'  since  in  its  origin  and  progress  it  was  wholl}'  conducted 
upon  revolutionary  principles.  The  congress  thus  assembled,  exercised 
de  facto  and  dejure  a  sovereign  authority  ;  not  as  the  delegated  agents 
of  the  governments  de  facto  of  the  colonies,  but  in  virtue  of  original 
powers  derived  from  the  people.  The  revolutionary  government,  thus 
formed,  terminated  only  when  it  was  regularly  superseded  by  the  con- 
federated government  under  the  articles  finall}'  ratified,  as  we  shall 
hereafter  see,  in  1781.  .  .   . 

"In  Ware  v.  Hylton,  3  Dall.  199,  Mr.  Justice  Chase  (himself  also  a 
Revolutionary  statesman)  said :  '  It  has  been  inquired,  what  powers 
Congress  possessed  from  the  first  meeting  in  September,  1774,  until 
the  ratification  of  tlie  confederation  on  the  1st  of  March,  1781.  It 
appears  to  me  that  the  powers  of  Congress  during  that  whole  period 
were  derived  from  the  people  they  represented,  expressly  given  through 
the  medium  of  their  State  conventions  or  State  legislatures ;  or  that 
after  they  were  exercised,  they  were  impliedly  ratified  by  the  acquies- 
cence and  obedience  of  the  people,  &c.  The  powers  of  Congress  origi- 
nated from  necessity,  and  arose  out  of  it,  and  were  only  limited  by 
events ;  or,  in  other  words,  they  were  revolutionarj-  in  their  nature. 
Their  extent  depended  on  the  exigencies  and   necessities  of  public 


208         MAKINC;    AND    CHANGING    WKITTEN    CONSTITUTIONS.        r*^HAl\  IL 

affairs.  I  entertain  this  general  idea,  that  the  several  States  retained 
all  internal  sovereignty  ;  and  tluit  Congress  properly  possessed  tlie 
rights  of  external  sovereignty.  In  deciding  on  the  powers  of  Congress, 
and  of  the  several  States  before  the  confederation,  1  see  but  one  safe 
rule,  namely,  that  all  the  powers  actually  exercised  by  Congress  before 
that  period  were  rightfully  exercised  on  the  presumption  not  to  be  con- 
troverted, that  tliey  were  so  authorized  by  the  people  they  represented, 
by  an  express  or  implied  grant ;  and  that  all  the  powers  exercised  by 
the  State  conventions  or  State  legislatures  were  also  rightfully  exer- 
cised on  the  same  presumption  of  authority  from  the  people.'  ,  .  . 

"On  the  llth  of  June,  1776,  the  same  day  on  which  tlie  committee 
for  preparing  the  Declaration  of  Independence  was  appointed.  Con- 
gress resolved  that  '  a  committee  be  appointed  to  prepare  and  digest 
the  form  of  a  confederation  to  be  entered  into  between  these  colonies  ; ' 
and  on  the  next  day  a  committee  was  accordingly  api)ointed,  consist- 
ing of  a  member  from  each  colony.  Nearly  a  year  before  this  period 
{viz.,  on  the  21st  of  July,  1775),  Dr.  Franklin  had  submitted  to  Con- 
gress a  sketch  of  Articles  of  Confederation,  which  does  not,  however, 
appear  to  have  been  acted  on.  These  articles  contemplated  a  union  until 
a  reconciliation  with  Great  Britain,  and,  on  failure  thereof,  the  confed- 
eration to  be  perpetual. 

•'On  the  12th  of  July,  1776,  the  committee  appointed  to  prepare  Arti- 
cles of  Confederation  presented  a  draft,  which  was  in  the  handwriting 
of  Mr.  Dickenson,  one  of  the  committee,  and  a  delegate  from  Pennsyl- 
vania. The  draft,  so  reported,  was  debated  from  the  2 2d  to  the  31st 
of  July,  and  on  several  days  between  the  5th  and  20th  of  August,  1776. 
On  this  last  day  Congress,  in  committee  of  the  whole,  reported  a  new 
draft,  which  was  ordered  to  be  printed  for  the  use  of  the  members. 

"The  subject  seems  not  again  to  have  been  touched  until  the  8th  of 
April,  1777,  and  the  articles  were  debated  at  several  times  between 
that  time  and  the  15th  of  November  of  the  same  3-ear.  On  this  last 
da}'  the  articles  were  reported  with  sundry  amendments,  and  finally 
adopted  by  Congress.  A  committee  was  then  appointed  to  draft,  and 
the}'  accordingl}'  drafted  a  circular  letter,  requesting  the  States  re- 
spectively to  authorize  their  delegates  in  Congress  to  subscribe  the  same 
in  behalf  of  the  State.  .   .  . 

"  Many  objections  were  stated,  and  man}'  amendments  were  proposed. 
All  of  them,  however,  were  rejected  by  Congress,  not  probably  because 
they  were  all  deemed  inexpedient  or  improper  in  themselves,  but  from 
the  danger  of  sending  the  instrument  back  again  to  all  the  States 
for  reconsideration.  Accordingly,  on  the  26th  of  June,  1778,  a  copy, 
engrossed  for  ratification,  was  prepared,  and  the  ratification  began  on 
the  9th  day  of  July  following.  It  was  ratified  by  all  the  States,  except 
Delaware  and  Maryland,  in  1778;  by  Delaware  in  1779,  and  by  Mary- 
land on  the  1st  of  March,  1781,  from  which  last  date  its  final  ratifica- 
tion took  effect,  and  was  joyfully  announced  by  Congress.  .  .  . 

"  Such  is  the  substance  of  this  celebrated  instrument,  under  which  the 


CHAP.  II.]        MAKING   AND   CHANGING    WKITTEN   CONSTITUTIONS.         209 

treaty  of  peace,  acknowledging  our  independence,  was  negotiated,  the 
^Var  of  the  Revolution  concluded,  and  the  Union  of  the  States  main- 
tained until  the  adoption  of  the  present  Constitution.  .  .  . 

"  The  leading  defects  of  the  confederation  may  be  enumerated  under 
the  following  heads  ;  — 

"  In  the  first  place,  there  was  an  utter  want  of  all  coercive  authority  to 
carry  into  effect  its  own  constitutional  measures.  This,  of  itself,  was 
sufficient  to  destro\"  its  whole  efflcienc}',  as  a  superintending  govern- 
ment, if  that  may  be  called  a  government  which  possessed  no  one  solid 
attribute  of  power.  It  has  been  justl}'  observed  that,  '  a  government 
authorized  to  declare  war,  but  relying  on  independent  States  for  the 
moans  of  prosecuting  it ;  capable  of  contracting  debts,  and  of  pledging 
the  public  faith  for  their  payment,  but  depending  on  thirteen  distinct 
sovereignties  for  the  preservation  of  that  faith,  could  only  be  rescued 
from  ignominy  and  contempt  by  finding  those  sovereignties  adminis- 
tered l)y  men  exempt  from  the  passions  incident  to  human  nature.' 
That  is,  by  supposing  a  case  in  which  all  human  governments  would 
become  unnecessary,  and  all  difl^erences  of  opinion  would  become  im- 
possible. In  truth,  Congress  possessed  only  the  power  of  recommenda- 
tion. It  depended  altogetlier  ui)on  the  good-will  of  the  States,  whether 
a  measure  should  be  carried  into  effect  or  not.  And  it  can  furnish  no 
matter  of  surprise,  under  such  circumstances,  that  great  differences  of 
opinion  as  to  measures  sljould  have  existed  in  the  legislatures  of  the 
dillerent  States  ;  and  that  a  policy,  strongly  supported  in  some,  should 
have  been  denounced  as  ruinous  in  others.  Honest  and  enlightened 
men  might  well  divide  on  such  n)atters  ;  and  in  this  perpetual  conflict 
of  opinion  the  State  might  feel  itself  justified  in  a  silent  or  open  disre- 
gard of  the  Act  of  Congress.   .  .  . 

''  In  this  state  of  things,  commissioners  were  appointed  by  the  Legisla- 
tures of  Virginia  and  Maryland,  early  in  1785,  to  form  a  compact  rela- 
tive to  the  navigation  of  the  rivers  Potomac  and  Pocomoke,  and  the 
Chesapeake  Bay.  The  commissioners  having  met  at  Alexandria  in 
Virginia  in  March,  in  that  year,  felt  the  want  of  more  enlarged  powers, 
and  particularly  of  powers  to  provide  for  a  local  naval  force  and  a  tariff 
of  duties  upon  imports.  Upon  receiving  their  recommendation,  the 
Legislature  of  Virginia  j)assed  a  resolution  for  laying  the  subject  of  a 
tarifl"  before  all  the  States  composing  the  Union.  Soon  afterwards,  in 
January,  178G,  the  legislature  adopted  another  resolution,  appointing 
commissioners,  '  who  were  to  meet  such  as  might  be  appointed  by  the 
other  States  in  the  Union  at  a  time  and  place  to  be  agreed  on,  to  take 
into  consideration  tlie  trade  of  the  United  States  ;  to  examine  the  rela- 
tive situation  and  trade  of  the  States ;  to  consider  how  far  a  uniform 
system  in  their  commercial  relations  may  be  necessary  to  their  com- 
mon interest  and  their  permanent  harmony ;  and  to  report  to  the 
several  States  such  an  Act,  relative  to  this  great  object,  as,  when  unani- 
mously ratified  by  them,  will  enable  the  United  States  in  Congress 
assembled  to  provide  for  the  same.' 

VOL.  I.  — 11 


210         MAKING   AND   CHANGING   WRITTEN   CONSTITUTIONS.        [ciIAP.  II. 

"These  resolutions  were  coramunicated  to  the  States,  and  a  conven- 
tion of  commissioners  from  five  States  only,  namely,  New  York,  New 
Jersey-,  Pennsylvania,  Delaware,  and  Virginia,  met  at  Annapolis  In 
September,  1786.  After  discussing  the  subject,  they  deemed  more 
ample  powers  necessary-,  and  as  well  from  this  consideration,  as  be- 
cause a  small  number  only  of  the  States  was  represented,  the}'  agreed 
to  come  to  no  decision,  but  to  frame  a  report  to  be  laid  before  the  seve- 
ral States,  as  well  as  before  Congress.  In  this  report  they  recommended 
^he  appointment  of  commissioners  from  all  the  States,  '  to  meet  at 
Philadelphia  on  the  second  Monday  of  May,  then  next,  to  take  into 
consideration  the  situation  of  the  United  States  ;  to  devise  such  further 
provisions  as  shall  appear  to  them  necessary  to  render  the  Constitution 
of  the  P'ederal  government  adequate  to  the  exigencies  of  the  Union ; 
and  to  report  such  an  Act  for  that  purpose  to  the  United  States  in  Con- 
gress assembled,  as,  when  agreed  to  by  them,  and  afterwards  confirmed 
by  the  legislature  of  ever}'  State,  will  effectually  provide  for  the  same.' 

"  On  receiving  this  report,  the  Legislature  of  Virginia  passed  an  Act 
for  the  appointment  of  delegates  to  meet  such  as  might  be  ai)pointed  by 
other  States,  at  Philadelphia.  The  report  was  also  received  in  Congress. 
But  no  step  was  taken  until  the  Legislature  of  New  York  instructed  its 
delegation  in  Congress  to  move  a  resolution,  recommending  to  the  seve- 
ral States  to  appoint  deputies  to  meet  in  convention  for  the  purpose  of 
revising  and  proposing  amendments  to  the  Federal  Constitution.  On 
the  21st  of  February,  1787,  a  resolution  was  accordingly  moved  and 
carried  in  Congress,  recommending  a  convention  to  meet  in  Philadel- 
phia, on  the  second  Monday  in  May  ensuing,  '  for  the  purpose  of  levis- 
ing  the  Articles  of  Confederation,  and  reporting  to  Congress  and  the 
several  legislatures  such  alterations  and  provisions  therein,  as  shall, 
when  agreed  to  in  Congress  and  confirmed  by  the  States,  render  the 
Federal  Constitution  adequate  to  the  exigencies  of  government  and  the 
preservation  of  the  Union.'  The  alarming  insurrection  then  existing  in 
Massachusetts,  without  doubt,  had  no  small  share  in  producing  this 
result.  The  report  of  Congress  on  that  subject  at  once  demonstrates 
their  fears  and  their  political  weakness, 

"  At  the  time  and  place  appointed,  the  representatives  of  twelve  States 
assembled.  Rhode  Island  alone  declined  to  appoint  any  on  this  mo- 
mentous occasion.  After  very  protracted  deliberations,  the  convention 
finally  adopted  the  plan  of  the  present  Constitution  on  the  17th  of  Sep- 
tember, 1787;  and  by  a  contemporaneous  resolution,  directed  it  to  be 
'  laid  before  the  United  States  in  Congress  assembled,'  and  declared 
their  opinion,  '  that  it  should  afterwards  be  submitted  to  a  convention 
of  delegates  chosen  in  each  State  by  the  people  thereof,  under  a  recom- 
mendation of  its  legislature  for  their  assent  and  ratification  ; '  and  that 
each  convention  assenting  to  and  ratifying  the  same  should  give  notice 
thereof  to  Congress.  Tlie  convention,  by  a  further  resolution,  declared 
their  opinion,  that  as  soon  as  nine  States  had  ratified  the  Constitution, 
Congress  should  fix  a  day  on  which  electors  should  be  appointed  by  the 


CHAP.  II.]       MAKING   AND   CHANGING   WRITTEN   CONSTITUTIONS.         211 

States  which  should  have  ratified  the  same,  and  a  day  on  which  the  elec- 
tors should  assemble  and  vote  for  the  president,  and  time  and  place  of 
commencing  proceedings  under  the  Constitution ;  and  that  after  such 
publication  the  electors  should  be  appointed  and  the  senators  and  repre- 
sentatives elected.  The  same  resolution  contained  further  recommen- 
dations for  the  purpose  of  carrying  the  Constitution  into  effect.  .  .  . 

"  Congress,  having  received  the  report  of  the  convention  on  the  28th 
of  September,  1787,  unanimously  resolved,  '  that  the  said  report,  with 
the  resolutions  and  letter  accompanying  the  same,  be  transmitted  to 
the  several  legislatures  in  order  to  be  submitted  to  a  convention  of  dele- 
gates chosen  in  each  State  by  the  people  thereof,  in  conformity  to  the 
resolves  of  the  convention,  made  and  provided  in  that  case.' 

"  Conventions  in  the  various  States  which  had  been  represented  in  the 
general  convention  were  accordingly  called  by  their  respective  legisla- 
tures ;  and  the  Constitution  having  been  ratified  by  eleven  out  of  the 
twelve  States,  Congress,  on  the  13th  of  September,  1788,  passed  a  reso- 
lution appointing  the  first  Wednesday  in  January  following  for  the 
choice  of  electors  of  president ;  the  first  Wednesday  of  February  fol- 
lowing, for  the  assembling  of  the  electors  to  vote  for  a  president ;  and 
the  first  Wednesday  of  March  following,  at  the  then  seat  of  Congress 
[New  York],  the  time  and  place  for  commencing  proceedings  under 
the  Constitution.  Electors  were  accordingly  appointed  in  the  several 
States,  who  met  and  gave  their  votes  for  a  president ;  and  the  other 
elections  for  senators  and  representatives  having  been  duly  made,  on 
Wednesday,  the  4th  of  March,  1789,  Congress  assembled  and  com- 
menced proceedings  under  the  new  Constitution.  A  quorum  of  both 
Houses,  however,  did  not  assemble  until  the  6th  of  April,  when,  the 
votes  for  President  being  counted,  it  was  found  that  George  Washing- 
ton was  unanimousl}'  elected  President,  and  John  Adams  was  elected 
Vice-President.  On  the  30th  of  April  President  Washington  was  sworn 
into  office,  and  the  government  then  went  into  full  operation  in  all 
its  departments. 

"North  Carolina  had  not,  as  yet,  ratified  the  Constitution.  The  first 
convention  called  in  that  State,  in  August,  1788,  refused  to  ratify  it 
without  some  previous  amendments  and  a  declaration  of  rights.  In 
a  second  convention,  however,  called  in  November,  1789,  this  State 
adopted  the  Constitution.  The  State  of  Rhode  Island  had  declined  to 
call  a  convention  ;  but  finally,  by  a  convention  held  in  Maj',  1790,  its 
assent  was  obtained  ;  and  thus  all  the  thirteen  original  States  became 
parties  to  the  new  government." —  1  Story's  Commentaries  on  the  Con- 
stitution of  the  United  States  {bth  eel),  §§  200,  201,  216,  222-224, 
225,  242,  248,  272-276,  277-280.' 

^  Reprinted  by  permission.  —  Ed. 


212         MAKING   AND   CHANGING    WKITTEN    CONSTITUTIONS.        [cHAi'.  II. 


NOTE. 

For  the  methods  of  changing  the  Constitution  of  the  United  States,  see  Article 
V.  of  that  iustrunieut.  Can  it  legally  be  changed  in  any  other  way  1  See  Jameson, 
Const.  Conv.  (4th  ed.)  s.  575. 

It  sliould,  however,  be  carefully  noted  that  the  term  "sovereignty,"  as  long  as  it  is 
accurately  employed  in  the  sense  in  which  Austin  sometimes  (compare  Austin,  Juris- 
prudence,  i.  (4th  ed.)  p.  2C8)  uses  it,  is  a  merely  legal  conception,  and  means  simply 
tlie  power  of  law-making  unrestricted  by  any  legal  limit.  If  the  term  "  sovereignty  " 
be  tirns  used,  the  sovereign  power  under  the  English  Constitution  is  clearly  "  Tarlia- 
ment."  But  the  word  "  sovereignty  "  is  sometimes  employed  in  a  political  rather  than 
in  a  strictlv  legal  sense.  That  body  is  "  politically  "  sovereign  or  supreme  in  a  State 
the  will  of  which  is  ultimately  obeyed  by  the  citizens  of  the  State.  In  this  sense  of  the 
word  the  electors  of  Great  Britain  may  be  said  to  be,  togetiier  with  the  Crown  and 
the  Lords,  or  perhaps  in  strict  accuracy  independently  of  the  King  and  the  Peers,  the 
bodv  in  vviiich  sovereign  power  is  vested.  For,  as  things  now  stand,  tiie  will  of  the 
electorate  and  certainly  of  the  electorate  in  combination  witli  the  Lords  and  the  Crown 
is  sure  ultimately  to  prevail  on  all  subjects  to  be  determined  by  the  British  Govern- 
ment. 'I'he  matter  indeed  may  be  carried  a  little  furtiier,  and  we  may  assert  that  the 
arrangements  of  the  Constitution  are  now  such  as  to  insure  that  the  will  of  the  electors 
shall  by  regular  and  constitutional  means  always  in  the  end  assert  itself  as  the  pre- 
dominant influence  in  the  country.  But  this  is  a  political,  not  a  legal  fact.  The  elec- 
tors can  in  tlie  long  run  always  enforce  their  will.  But  the  courts  will  take  no  notice 
of  the  will  of  tlie  electors.  The  judges  know  nothing  about  any  will  of  the  people 
except  in  so  far  as  that  will  is  expressed  by  an  Act  of  I'arliament,  and  would  never 
suffer  the  validity  of  a  statute  to  be  questioned  on  the  ground  of  its  having  been 
passed  or  being  kept  alive  in  opposition  to  the  wishes  of  the  electors.  The  political 
sense  of  the  word  "  sovereignty  "  is,  it  is  true,  fully  as  important  as  the  legal  sense  or 
more  so.  But  the  two  significations,  tliough  intimately  connected  together,  are  essen- 
tiallv  different,  and  in  some  parts  of  his  work  Austin  has  apparently  confused  the  one 
sense  with  the  other.  —  Dicey,  Law  of  the  Constilution  (4th  ed.),  69,  71. 

In  spite  of  the  doctrine  enunciated  by  some  jurists  that  in  every  country  there 
must  be  found  some  person  or  body  legally  capable  of  changing  every  institution 
thereof,  it  is  hard  to  see  why  it  should  be  held  inconceivable  ^  that  the  founders  of  a 
polity  should  have  deliberately  omitted  to  provide  any  means  for  lawfully  changing  its 
bases.  Such  an  omission  would  not  be  unnatural  on  the  part  of  the  authors  of  a 
Federal  union,  since  one  main  object  of  the  States  entering  into  the  compact  is  to 
prevent  further  encroachments  upon  their  several  State  rights;  and  in  the  fifth  article 
of  the  United  States  Constitution  may  still  be  read  the  record  of  an  attemjjt  to  give  to 
some  of  its  provisions  temporary  immutability.  The  question,  however,  whether  a 
Federal  Constitution  necessarily  involves  the  existence  of  some  ultimate  sovereign 
power  authorized  to  amend  or  alter  its  terms  is  of  merely  speculative  interest,  for 
under  existing  Federal  governments  the  Constitution  will  be  found  to  provide  the 
means  for  its  own  improvement.     It  is,  at  any  rate,  certain  that  whenever  the  foun- 

1  Eminent  American  lawyers,  whose  opinion  is  entitled  to  the  highest  respect, 
maintain  that  under  the  Constitution  there  exists  no  person,  or  body  of  persons,  pos- 
sessed of  legal  sovereignty,  in  the  sense  given  by  Austin  to  that  term,  and  it  is  diffi- 
cult to  see  that  this  opinion  involves  any  absurdity.  Compare  Constitution  of  United 
States,  art.  5.  It  would  appear  further  tliat  certain  rights  reserved  under  the  Con- 
stitution of  the  German  Empire  to  particular  States  cannot  under  the  Constitution  be 
taken  away  from  a  State  without  its  assent.  (See  Reichsverfassunq,  art.  78.)  The 
truth  is  that  a  Federal  Constitution  partakes  of  the  nature  of  a  treaty,  and  it  is  quite 
conceivable  that  the  authors  of  the  Constitution  may  intend  to  provide  no  constitu- 
tional means  of  changing  its  terms,  except  the  assent  of  all  tlie  parties  to  the  treaty. 


CHAP.  II.]       MAKING   AND   CHANGING   WRITTEN   CONSTITUTIONS.         213 

ders  of  a  Fetleral  government  hold  the  maintenance  of  a  Federal  system  to  be  of  pri- 
marv  importance,  supreme  legislative  power  cannot  in  a  confederacy  be  vested  in  any 
ordiiiarv  legislature  acting  under  the  Constitution.^  For  so  to  vest  legislative  sover- 
eignty would  be  inconsistent  with  the  aim  of  Federalism,  namely,  the  permanent 
division  between  the  spheres  of  the  National  Government  and  of  the  several  States.  If 
Congress  could  change  the  Constitution,  New  York  and  Massachusetts  would  have  no 
legal  guarantee  for  the  amount  of  independence  reserved  to  them  under  the  Constitu- 
tion, and  would  be  as  subject  to  the  sovereign  power  of  Congress  as  is  Scotland  to  the 
sovereignty  of  Tarlianient ;  the  Union  would  cease  to  be  a  Federal  State,  and  would 
become  a  unitarian  republic.  If,  on  the  other  hand,  the  Legislature  of  South  Caro- 
lina could  of  its  own  will  amend  the  Constitution,  the  authority  of  the  central  gov- 
ernment would  (from  a  legal  point  of  view)  be  illusory;  the  United  States  would  sink 
from  a  nation  into  a  collection  of  independent  countries  united  by  the  bond  of  a  more 
or  less  permanent  alliance.  Hence  the  power  of  amending  the  Constitution  has  been 
placed,  so  to  speak,  outside  the  Constitution,  and  one  may  say,  with  sufficient  accuracy 
for  our  present  purpose,  that  the  legal  sovereignty  of  the  United  States  resides  in  the 
majority  of  a  body  constituted  by  the  joint  action  of  three  fourths  of  the  several  States 
at  any  time  belonging  to  the  Union.  See  Constitution  of  U.  S.,  art.  5.  Now  from  the 
necessity  for  placing  ultimate  legislative  authority  in  some  body  outside  the  Constitu- 
tion a  remarkal)le  consequence  ensues.  Under  a  federal  as  under  a  unitarian  system 
there  exists  a  sovereign  power,  but  the  sovereign  is  in  a  Federal  State  a  despot  hard 
to  rouse.  He  is  not,  like  the  English  Parliament,  an  ever-wakeful  legislator,  but  a 
monarch  who  slumbers  and  sleeps.  'I'he  sovereign  of  tlie  United  States  has  been 
roused  to  serious  action  but  once  during  the  course  of  ninety  years.  It  needed  the 
thunder  of  the  Civil  War  to  break  his  repose,  and  it  may  be  doubted  whether  any- 
thing short  of  impending  revolution  will  ever  again  arouse  him  to  activity.  But  a 
monarch  who  slumbers  for  years  is  like  a  monarch  who  does  not  exist.  A  Federal 
Constitution  is  capable  of  change,  but  for  all  that,  a  Federal  Constitution  is  apt  to  be 
unchangeable.     //).  137-140.  —  Ed. 


2.  State  Constitutions. 

"  When  the  colonies  entered  upon  that  course  of  opposition  to  the  Crown  which 
ripened  into  the  Revolution,  it  was  neither  their  intention  nor  their  desire  to  effect  a 
separation  from  Great  Britain.  .  .  .  The  organizations  provided  were  of  the  simple.st 
character,  consisting  of  Provincial  Conventions  or  Congresses,  modelled  on  the  same 
plan  as  the  General  Congress  at  Philadelphia,  comprising  a  single  chamber,  in  which 
was  vested  all  the  powers  of  government.  These  bodies,  found  in  all  the  colonies, 
save  Connecticut  and  Rhode  Island,  whose  As.semblics,  fairly  chosen  by  the  people,  it 
was  not  found  necessary  to  supersede,  were  made  up  of  deputies  elected  by  the  con- 
stituencies established  under  the  Crown,  or  appointed  by  meetings  of  tlie  princi|)al 
citizens  or  by  the  municipal  authorities  of  the  chief  towns  and  cities.  All  legislative 
authority  was  exerci.sed  by  tliose  bodies  directly.  Their  executive  functions  were 
intrusted  to  Committees  of  Correspondence,  of  Public  Safety,  and  the  like,  appointed 
by  themselves,  and  during  the  sittings  of  the  Conventions  or  Congresses,  were  dis- 
charged under  their  own  supervision.  In  the  interims  between  their  sessions,  however, 
the  powers  of  those  committees  were  substantially  absolute. 

J  Under  the  Constitution  of  the  German  Empire  the  Imperial  legislative  body  can 
amend  the  Constitution.  But  the  character  of  the  Federal  Council  (Bundesrath) 
gives  ample  security  for  the  protection  of  State  rights.  No  change  in  the  Constitution 
can  be  effected  which  is  opposed  by  fourteen  votes  in  the  Federal  Council.  This  gives 
a  veto  on  change  to  any  one  of  three  States  and  to  combinations  of  minor  States.  The 
extent  to  which  national  sentiment  and  State  patriotism  respectively  predominate  under 
a  Federal  system  may  be  conjectured  from  the  nature  of  the  authority  which  has  the 
right  to  modify  the  Constitution.  ... 


214        MAKING   AND   CHANGING   WRITTEN   CONSTITUTIONS.        [("HAP.  IL 

"  Under  organizations  thus  loose  and  unrestricted,  government  was  carried  on  in 
the  colonies  for  many  months,  and  that  without  protest  or  discontent,  so  long  as  the 
general  expectation  of  a  return  to  allegiance,  following  upon  a  redress  of  grievances, 
continued  to  exist.  As  time  advanced,  however,  and  it  became  evident,  on  the  one 
hand,  that  the  mother  country  would  not  purchase  the  submission  of  her  revolted 
subjects  by  compromise  or  even  by  conciliation,  and,  on  the  otlier,  that  the  work  of 
subduing  them,  if  possible  at  all,  could  be  accomplished  only  by  a  long  and  bloody 
contest,  there  arose  a  general  desire  for  the  establishment  of  more  regular  govern- 
ments than  those  by  Congresses  and  committees.  Thus,  in  May,  1775,  tiie  Provincial 
Convention  of  Massachusetts,  charged  with  the  government  of  the  colony,  applied  to 
the  Congress  at  Philadelphia  for  explicit  advice  respecting  the  pr6per  exercise  of  the 
powers  of  government.  In  reply,  after  declaring  that  no  obedience  was  due  to  the 
Act  of  Parliament  lately  passed  for  altering  her  charter,  that  body  recommended  tiiat 
the  convention  should  write  letters  to  the  several  towns  entitled  to  representation  in 
the  Assembly,  requesting  them  to  choose  representatives  to  form  an  Assembly,  and 
to  instruct  the  latter,  when  convened,  to  elect  counsellors ;  adding  their  wish,  that  the 
bodies  thus  formed  should  exercise  the  powers  of  government  until  a  governor  of  the 
king's  appointment  would  consent  to  govern  the  colony  according  to  its  charter.  This 
answer  was  made  in  June,  1775,  and  the  advice  given  was  followed,  and  the  govern- 
ment thus  constituted  was  the  only  one  Massachusetts  had  until  the  establishment  of 
her  first  Constitution  in  1780.  In  Octolier,  1775,  the  delegates  to  the  Continental 
Congress  from  New  Hampshire  laid  before  that  body  instructions,  received  by  them 
from  the  New  Hampshire  Convention,  to  obtain  the  advice  and  direction  of  Congress 
in  relation  to  the  establishment  of  civil  government  in  that  colony.  Similar  requests 
were,  about  the  same  time,  sent  up  from  the  Provincial  Couventious  of  Virginia  and 
South  Carolina.  At  length,  on  the  3d  and  4th  of  November,  1775,  Congress  agreed 
upon  a  reply  to  these  applications,  in  which  those  bodies  were  advised  '  to  call  a  full 
and  free  representation  of  the  people,  in  order  to  form  such  a  form  of  government  as, 
in  their  judgment,  would  best  promote  the  happiness  of  the  people,  and  most  effectu- 
ally secure  peace  and  good  order  in  their  provinces  during  the  continuance  of  the  dis- 
pute with  Great  Britain.'  .  .  . 

"  The  first  colony  to  act  upon  the  recommendations  of  Congress  was  New  Hamp- 
shire. In  less  than  a  fortnight  after  the  passage  by  Congress  of  the  resolutions  of 
November  3d,  1775,  the  Provincial  Convention  of  that  Colony  took  into  consideration 
the  mode  in  which  'a  full  and  free  representation'  for  the  purpose  indicated  by 
Congress  should  be  constituted.  It  was  finally  determined  that  it  should  take  the  form 
of  a  new  convention,  to  be  summoned  by  the  Provincial  Convention,  and  that  for  the 
purpose  of  apportioning  fairly  the  delegates  to  be  chosen  to  it,  a  census  of  the  inhabi- 
tants should  be  taken.  It  was  moreover  recommended,  that  the  representatives 
chosen  '  should  be  empowered  by  their  constituents  to  assume  government,  as  recom- 
mended by  the  General  Congress,  and  to  continue  for  oue  w-hole  year  from  the  time  of 
such  assumption.'  Having  recommended  this  plan,  and  'sent  copies  of  it  to  the  sev- 
eral towns,  the  convention  dissolved.'  In  pursuance  of  the  recommendations  accom- 
panying the  plan,  a  new  convention  was  chosen,  and  assembled  on  the  21st  of  December 
following,  by  which  the  first  Constitution  of  New  Hampshire  was  framed,  and  her  first 
formal  government,  independent  of  the  Crown,  established.  According  to  Dr.  Belk- 
nap, the  historian  of  the  State,  '  as  soon  as  the  new  convention  came  together,  they 
drew  up  a  temporary  form  of  government ;  and,  agreeably  to  the  trust  reposed  in  them 
by  their  constituents,  having  assumed  the  name  and  authority  of  a  House  of  Repre- 
sentatives, they  proceeded  to  choose  twelve  persons,  to  be  a  distinct  branch  of  the 
legislature,  by  the  name  of  a  council.'  This  form  of  government  was  practically  lim- 
ited to  a  single  year  by  an  ordinance  providing  'that  the  present  Assembly  should 
subsist  one  year,  and  if  the  dispute  with  Great  Britain  should  continue  longer,  and  the 
General  Congress  should  give  no  directions  to  the  contrary,  that  precepts  should  be 
issued  annually  '  for  the  return  of  '  new  Counsellors  and  Representatives.'  By  the  con- 
vention thus  called  and  organized  were  assumed  all  the  powers  of  government.  In  a 
word,  it  was  a  revolutionary  convention.  As  distinguished  from  the  body  itself,  there 
was  no  judiciary,  and  no  executive.     The  only  feature  in  which  it  resembled  a  regularly 


CHAP.  II.]        MAKING   AND   CHANGING   WRITTEN   CONSTITUTIONS.         215 

constituted  government,  was  in  its  division  into  two  chambers.  But  even  this  resemblance 
vanishes,  wiien  it  is  cuusidered  that  it  was  a  voluntary  division,  the  council  being  its 
own  creation,  and,  of  course,  :is  little  independent  of  the  main  body  as  any  one  of  its 
committees.  All  the  powers  of  the  State  were  concentrated  in  that  single  body,  wliich 
was  revolutionary  not  only  in  its  proceedings,  but  in  its  origin,  as  called  by  one  revo- 
lutionary convention  at  tlie  instance  of  another,  and  as  exercising,  when  a.ssembled, 
the  functions  of  a  govenmieut,  provisionally,  in  place  of  that  by  which  it  was  con- 
vened. 

"  The  people  of  New  Hampshire,  however,  becoming  dissatisfied  with  the  temporary 
Constitution  of  1776,  an  attempt  was  made  three  years  later  to  frame  a  new  one.  A 
convention  of  delegates,  chosen  for  that  purpose,  under  the  direction  of  the  existing 
government,  drew  up  and  presented  to  the  people  a  form  of  a  constitution,  but  so 
deficient  in  its  principles  and  so  inadequate  in  its  provisions,  that,  being  proposed  to 
the  people  in  their  town-meetings,  it  was  rejected.  On  the  failure  to  adopt  this,  a  new 
convention  was  elected  for  the  same  purpose,  and  commenced  its  sessions  in  1781.  The 
year  before,  Massachusetts  had  adopted  a  constitution,  in  the  main  from  a  draft 
prepared  by  John  Adams,  which  was  supposed  to  be  an  improvement  on  all  that  had 
been  framed  in  America.  Having  the  advantage  of  this,  the  New  Hampshire  Conven- 
tion digested  a  plan  and  submitted  it  to  the  people  in  their  town-meetings,  with  a 
request  that  tliey  should  state  their  objections  distinctly  to  any  particular  part,  and 
return  them  to  the  convention  at  a  fixed  time.  The  objections  were  so  many  and 
various,  that  it  became  necessary  to  alter  the  form  and  send  it  out  a  second  time.  The 
second  plan  was  generally  approved  by  the  people,  and  thus,  finally,  after  nine  sessions 
of  the  convention,  running  through  more  than  two  years,  a  constitution  was  adopted 
and  put  in  operation,  — the  instrument  being  completed  October  31,  1783,  and  estab- 
lished with  religious  solemnities  June  2,  1784. 

"  Of  these  two  last  conventions,  it  is  to  be  noted,  that,  unlike  the  first,  they  were,  in 
the  strict  sense  of  the  term,  constitutional  conventions.  They  were  initiated  by  the 
existing  government  of  the  State,  which,  whatever  may  be  thought  of  its  legitimacy  or 
regularity,  was  a  f/e/«r^;  government,  by  revolution  placed  in  power,  and  made  the 
ba"is  on  which  the  political  structure  of  the  State  has  ever  since  rested  ;  the  people 
were  fairly  represented  in  them  ;  they  confined  themselves  strictly  to  their  constitu- 
tional duty,  that  of  proposing  a  code  of  organic  laws,  abstaining  from  all  usurpation 
of  governmental  powers  ;  and,  finally,  they  severally  submitted  their  projected  consti- 
tutions to  a  vote  of  the  electors  of  tlie  State,  in  their  town-meetings  —  an  act  which, 
as  we  shall  see,  constitutes  the  best  guarantee  of  the  sovereign  right  of  the  people  over 
tlie  form  of  their  government  that  has  ever  been  devised." — Jameson,  Const.  Conv. 
(4th  ed.)  ss.  126,  127,  131,  132.^ 

"  At  a  quite  early  date,  June  6,  1776,  a  proposition  was  made  in  the 
General  Court  ^  that  a  committee  should  be  appointed  to  prepare  a  form 
of  government,  and  such  committee  was  appointed  ;  but  the  business 
was  not  proceeded  in,  as  the  opinion  was  generally  expressed  that  the 
suliject  should  originate  with  the  people,  who  were  the  proper  source 
of  the  organic  law.  The  House  therefore  contented  themselves  with 
recommending  to  their  constituents  to  choose  their  deputies  to  the  next 
General  Court  with  power  to  adopt  a  form  of  government  for  the 
State ;  and,  to  give  greater  effect  to  this  recommendation,  it  was  re- 
newed more  formally  in  the  following  spring.     In  this  interval,  a  con- 

1  Reprinted  by  permission  of  the  publishers,  Messrs.  Callaghan  &  Co.  of  Chicago, 
and  of  the  owners  of  the  copyright.  —  Ed. 

2  Of  Massachusetts.  The  facts  relating  to  the  formation  of  this  particular  consti- 
tution are  here  given  because  it  is  the  oldest  of  those  now  existing,  and  for  other 
reasoBS,  indicated  at  pp.  54-55,  ante.  —  Ed. 


216         MAKING   AND   CHANGING   WRITTEN   CONSTITUTIONS.        [cHAP.  II, 

volition  was  held  in  the  county  of  "Worcester  of  the  Committees  of 
Safety  from  a  majority  of  the  towns,  who  voted  that  it  would  he  im- 
proper for  the  existing  General  Court  to  form  a  constitution,  hut  that 
a  convention  of  delegates  from  all  the  towns  in  the  State  should  be 
called  for  that  purpose. 

"  How  far  the  decision  of  this  convention  influenced  the  action  of  the 
people  does  not  appear ;  but  a  majority  of  the  towns  in  the  State,  it 
would  seem,  chose  their  representatives  for  the  next  annual  session  of 
the  General  Court  with  a  special  view,  or,  at  least,  with  an  implied 
consent,  to  the  formation  of  a  constitution  by  that  body.  The  citizens 
of  Boston,  and  of  a  number  of  other  towns,  as  well  as  the  Committees 
of  Safety  in  the  county  of  Worcester,  were  opposed  to  this  proceeding, 
and  favored  the  calling  of  a  convention  of  delegates.  .  .  . 

"At  the  usual  time  the  General  Court  was  convened;  and,  a  few 
weeks  after  the  opening  of  its  sessions,  a  committee  was  appointed, 
consisting  of  four  members  of  the  Council  and  eight  members  of  the 
House,  for  the  purpose  of  preparing  a  constitution.  Of  the  proceedings 
of  this  committee  but  little  is  known,  as  their  records  have  not  been 
published ;  but  the  result  of  their  deliberations  was  a  draft  of  a 
constitution,  which  was  debated  at  length,  approved  by  the  conven- 
tion, Februar}-  28,  1778,  presented  to  the  legislature,  and  submitted 
to  the  people,  by  whom  it  was  rejected.  .  .   . 

"  The  opinion  was  still  current  that  a  convention  was  the  proper  bod}' 
to  decide  upon  a  Constitution  for  the  State,  and  that  no  other  body 
could  successfully  discharge  that  duty.  A  majority  of  the  people, 
therefore,  favored  the  calling  of  such  a  convention  ;  and,  at  the  annual 
election  in  the  following  3ear,  bj-  the  advice  of  the  General  Court  pre- 
viously given,  the  returns  from  the  towns  were  so  conclusive  that  pre- 
cepts were  issued  for  the  choice  of  delegates,  to  meet  at  Cambridge  in 
the  ensuing  September."  —  3  Barry's  Hist.  Mass.  173-176. 

In  the  House  of  Representatives,  Feb.  19,  1779. 

Whereas,  the  Constitution  or  Form  of  Civil  Government,  which  was 
proposed  by  the  late  convention  of  this  State  to  the  people  thereof, 
hath  been  disapproved  b}-  a  majority  of  the  inhabitants  of  said  State,  — 

And  whereas,  It  is  doubtful  from  the  representations  made  to  this 
court,  what  are  the  sentiments  of  the  major  part  of  the  good  people  of 
this  State,  as  to  the  expedienc}'  of  now  proceeding  to  form  a  new 
constitution  of  government,  — 

Therefore  resolved.  That  the  selectmen  of  the  several  towns  within 
this  State  cause  the  freeholders  and  other  inhabitants  in  their  respective 
towns,  duly  qualified  to  vote  for  representatives,^  to  be  lawfully  warned 
to  meet  together  in  some  conveoient  place  therein,  on  or  before  the  last 
Wednesday  of  Ma}'  next,  to  consider  of,  and  determine  upon,  the  fol- 
lowing questions : 

^  For  the  property  qualifications  of  snch  electors  see  the  Province  Charter.  1  Acts 
and  Resolves  of  the  Province,  11-12;  1  Poore's  Charters,  949.  —  Ed. 


CHAP.  II.]       M.\KING   AND   CHANGING   WRITTEN   CONSTITUTIONS.         217 

First.  —  Whether  the}'  choose,  at  this  time,  to  have  a  new  consti- 
tution or  form  of  government  made. 

Secondly.  —  Whether  tiiey  will  empower  their  representatives  for 
the  next  year  to  vote  for  the  calling  a  State  convention,  for  the  sole 
purpose  of  forming  a  new  constitution  ;  provided  it  shall  appear  to 
them,  on  examination,  that  a  major  part  of  the  people  present  and 
voting  at  the  meetings,  called  in  the  manner  and  for  the  purpose  afore- 
said, shall  have  answered  the  first  question  in  the  affirmative? 

And  in  order  that  the  sense  of  the  people  may  be  known  thereon,  — 

Be  it  further  resolved.,  That  the  selectmen  of  each  town  be  and 
hereby  are  directed  to  return  into  the  secretary's  office,  on  or  before  the 
first  Wednesday  in  June  next,  the  doings  of  their  respective  towns, 
on  the  first  question  above  mentioned,  certifying  the  numbers  voting 
in  the  affirmative,  and  the  numbers  voting  in  the  negative,  on  said 
question. 

Sent  up  for  concurrence.  John  Pickering,  Speaker. 

In  Council,  February  20,  1779.     Read  and  concurred. 

John  Avery,  D.  Secretary. 
Journal  of  Mass.  Convention,  1779-80,  pp.  189,  190. 

In  the  House  of  Representatives,  June  15,  1779. 

Whereas,  By  the  returns  made  into  the  secretary's  office,  from  more 
than  two  thirds  of  the  towns  belonging  to  this  State,  agreeably  to  a 
Resolve  of  the  General  Court,  of  the  20th  of  February  last,  it  appears, 
tliat  a  large  majority  of  the  inhabitants  of  such  towns,  as  have  made 
return  as  aforesaid,  tliink  it  proper  to  have  a  new  constitution  or  form 
of  government,  and  are  of  opinion,  that  the  same  ought  to  be  formed 
by  a  convention  of  delegates,  who  should  be  specially  authorized  to 
meet  for  this  purpose, 

Therefore  resolred,  That  it  be,  and  it  hereby  is  recommended  to 
the  several  inhabitants  of  the  several  towns  in  this  State  to  form  a 
convention,  for  the  sole  purpose  of  framing  a  new  constitution,  con- 
sisting of  such  number  of  delegates,  from  each  town  throughout  this 
State,  as  every  different  town  is  entitled  to  send  representatives  to  the 
General  Court,  to  meet  at  Cambridge,  in  the  county  of  Middlesex,  on 
the  first  da}'  of  September  next.  And  the  selectmen  of  the  several 
towns  and  places  within  this  State,  empowered  by  the  laws  thereof  to 
send  members  to  the  General  Assembly,  are  hereby  authorized  and 
directed  to  call  a  meeting  of  their  respective  towns,  at  least  fourteen 
days  before  the  meeting  of  said  convention,  to  elect  one  or  more  dele- 
gates, to  represent  them  in  said  convention,  at  which  meeting,  for  the 
election  of  such  delegate  or  delegates,  every  freeman,  inhabitant  of 
such  town,  who  is  twenty-one  years  of  age,  shall  have  a  right  to  vote. 

Be  it  also  resolved,  That  it  be,  and  it  hereby  is  recommended,  to 
the  inhabitants  of  the  several  towns  in  this  State,  to  instruct  their 
respective  delegates,  to  cause  a  printed  copy  of  the  form  of  a  constitution 


218         MAKING   AND   CHANGING   WRITTEN   CONSTITUTIONS.        [cHAP.  IL 

thej'  ma}'  agree  upon  in  convention,  to  be  transmitted  to  the  selectmen 
of  each  town,  and  the  committee  of  each  plantation  ;  and  the  said 
selectmen  and  committees  are  hereb}'  empowered  and  directed  to  lay 
the  same  before  their  respective  towns  and  plantations,  at  a  regular 
meeting  of  the  male  inhabitants  thereof,  being  free  and  twent^'-one 
years  of  age,  to  be  called  for  that  purpose,  in  order  to  its  being  duly 
considered  and  approved  or  disapproved  by  said  towns  and  planta- 
tions. And  it  is  also  recommended  to  the  several  towns  within  tliis 
State,  to  instruct  their  respective  representatives  to  establish  the  said 
form  of  a  Constitution,  as  the  Constitution  and  form  of  government  of 
the  State  of  Massachusetts  Ba}',  if,  upon  a  fair  examination,  it  shall 
appear,  that  it  is  approved  of  by  at  least  two  thirds  of  those,  who  are 
free  and  twent3-one  years  of  age,  belonging  to  this  State,  and  present 
in  the  several  meetings. 

Sent  up  for  concurrence.  John  Hancock,   Speaker. 

In  Council,  June  17,  1779.     Read  and  concurred. 

John  Avery,  Deputy  Secretary. 

Consented  to  b}'  a  major  part  of  the  Council.     A  tiiie  copy. 

Attest,  John  Avert,  Deputy  Secretary. 

lb.  5,  6. 
The  Convention  met  at  Cambridge,  September  1,  1779. 


In  Convention,  March  2,  1780. 

Resolved,  That  this  convention  be  adjourned  to  the  first  Wednesday 
in  June  next,  to  meet  at  Boston  ;  and  tiiat  eighteen  hundred  copies  of 
the  form  of  government,  which  shall  be  agreed  upon,  be  printed  ;  and 
including  such  as  shall  be  ordered  to  each  member  of  the  convention, 
be  sent  to  the  selectmen  of  each  town,  and  the  committees  of  each 
plantation,  under  the  direction  of  a  committee  to  be  appointed  for  the 
purpose :  and  that  they  be  requested,  as  soon  as  may  be,  to  lay  them 
before  the  inhabitants  of  their  respective  towns  and  plantations.  And 
if  the  major  part  of  the  inhabitants  of  the  said  towns  and  plantations 
disapprove  of  any  particular  part  of  the  same,  that  they  be  desired  to 
state  their  objections  distinctly,  and  the  reasons  therefor  :  and  the  select- 
men and  committees  aforesaid  are  desired  to  transmit  the  same  to  the 
secretary  of  the  convention,  on  the  first  Wednesday  in  June,  or  if  may 
be,  on  the  last  Wednesday  in  May,  in  order  to  his  laying  the  same 
before  a  committee,  to  be  appointed  for  the  purpose  of  examining  and 
arranging  them  for  the  revision  and  consideration  of  the  convention  at 
the  adjournment ;  with  the  number  of  voters  in  the  said  town  and  plan- 
tation meetings,  on  each  side  of  every  question  ;  in  order  that  the  said 
convention,  at  the  adjournment,  ma}'  collect  the  general  sense  of  their 
constituents  on  the  several  parts  of  the  proposed  Constitution  :  And 
if  there  doth  not  appear  to  be  two  thirds  of  their  constituents  in  favor 
thereof,  that  the  convention  may  alter  it  in  such  a  manner  as  that  it 


CHAP.  II.]        MAKING   AND   CHANGING   WRITTEN   CONSTITUTIONS.         219 

may  be  agreeable  to  the  sentiments  of  two  thirds  of  the  voters  through- 
out the  State. 

Besolved,  That  it  be  recommended  to  the  inhabitants  of  the  several 
towns  and  plantations  in  this  State,  to  empower  their  delegates,  at  the 
next  session  of  this  convention,  to  agree  upon  a  time  when  this  form 
of  government  shall  take  place,  without  returning  the  same  again  to 
the  people :  Provided^  That  two  thirds  of  the  male  inhabitants  of 
the  age  of  twentj'-one  3-ears  and  upwards,  voting  in  the  several  town 
and  plantation  meetings,  shall  agree  to  the  same,  or  the  Con- 
vention shall  conform  it  to  the  sentiments  of  two  thirds  of  the  people 
as  aforesaid. 

Resolved^  That  the  towns  and' plantations  through  this  State  have 
a  riglit  to  choose  otlier  delegates,  instead  of  the  present  members,  to 
meet  in  convention  on  the  first  Wednesday  in  June  next,  if  the}'  see  fit. 

A  true  copy.  Attest,     Samuel  Barrett,  Secretary. 

lb.  168,  1G9. 

In  Convention,  Jjine  16,  1780. 

Whereas.,  Upon  due  examination  of  the  returns  made  by  the  several 
towns  and  plantations,  within  this  State,  it  appears  that  more  than 
two  thirds  of  the  inhabitants  thereof,  who  have  voted  on  the  same,  have 
expressed  their  approbation  of  the  form  of  government  agreed  upon  by 
this  convention,  and  laid  before  them  for  their  consideration,  in  con- 
formity to  a  Resolve  of  the  said  convention,  of  the  second  day  of 
March  last.  This  convention  do,  hereupon,  declare  the  said  form  to 
be  the  constitution  of  government  established  by  and  for  the  inhabitants 
of  the  State  of  Massachusetts  Ba}'. 

And  as  the  said  inhabitants  have  authorized  and  empowered  this 
convention  to  agree  upon  a  time  when  the  same  shall  take  place,  in 
order  that  the  good  people  of  this  State  may  have  the  benefit  thereof, 
as  soon  as  conveniently  may  be. 

It  is  resolved.,  That  the  said  Constitution  or  frame  of  government 
shall  take  place  on  the  last  Wednesday  in  October  next ;  and  not 
before,  for  any  purpose,  save  onl}'  for  that  of  making  elections  agree- 
able to  this  resolution. 

And  the  first  General  Court  under  the  same  shall  be  holden  on  the 
said  last  Wednesday  in  October,  at  the  State-House  in  Boston,  at  ten 
o'clock  in  the  forenoon.  And  in  order  thereto,  there  shall  be  a  meeting 
of  the  inhabitants  of  each  town  and  plantation  in  the  several  counties 
within  this  State,  legally  warned  and  held,  on  the  first  Monday  in 
September  next,  for  the  purpose  of  electing  a  governor,  lieutenant- 
governor,  and  persons  for  councillors  and  senators.  And  there  shall 
also  be  a  meeting  of  the  inhabitants  of  the  several  towns  within  this 
State,  duly  warned  and  held,  some  time  in  October  next,  and  ten  davs 
at  the  least  before  the  last  Wednesda}'  in  the  same  month,  for  the  pur- 
pose of  choosing  representatives  to  serve  in  the  said  General  Court. 
And  the  selectmen  are  hereby  enjoined  to  call  such  meetings  and  to 


220        MAKING   AND   CHANGING   WRITTEN   CONSTITUTIONS.        [CHAP.  II. 

preside  at  the  same.  And  in  all  elections,  and  in  making,  receiving, 
and  examining  returns,  and  in  conducting  the  whole  business  of  organ- 
izing and  establishing  the  said  General  Court,  the  same  rules  are  to  be 
observed,  tliat  are  prescribed  in  the  form  of  government  for  making 
such  elections,  and  for  the  constituting  the  first  General  Court;  saving 
onl}'  the  difference  of  time.^ 

Aiid  be  it  fnrtlier  7'esolred,  That  Samuel  Barrett,  Esq.  (secretar}- 
to  this  convention),  do,  on  or  before  the  fifteenth  day  of  July  next, 
cause  printed  copies  of  this  resolution  to  be  sent  to  the  selectmen  of 
the  several  towns,  and  the  assessors  of  the  several  plantations  afore- 
said, who  are  respectively  to  perform  the  duties  required  by  this  resolu- 
tion, and  to  make  seasonable  and  regular  returns  of  the  persons  elected 
to  the  several  offices  herein  mentioned,  into  the  secretary's  ofl3ce  of  this 
State,  agreeably  to  the  rules  contained  in  the  form  of  government 
above  referred  to. 

In  the  name,  and  pursuant  to  a  resolution  of  the  convention. 

James  Bowdoin,  President. 

Attest,     Samuel  Barrett,  Secretary. 

lb.  186,  187. 

NOTE. 

No  steps  were  taken  in  1795  towards  revising  the  Constitution  of  Massachusetts 
under  Part  IT.  c.  6,  art.  10,  —  the  only  provision  made  for  that  purpose  in  the  instru- 
ment. Nevertheless,  in  1820,  the  legislature  passed  an  Act  submitting  to  the  electors 
the  question  whetlier  it  was  expedient  to  hold  a  convention  for  "  revising  or  altering" 
the  Constitution,  and  providing,  in  case  of  an  aflBrniative  vote,  for  the  subsequent  elec- 
tion of  delegates  and  the  holding  of  the  convention.  In  accordance  with  this  law,  a 
convention  met  in  1820,  and  fourteen  amendments  were  submitted  to  the  people  (/.  e., 
electors),  of  which  nine  were  adopted.  The  last  of  these,  Art.  IX.,  will  be  found  below, 
in  the  Appendix  to  Part  I.  p.  399,  n. 

In  18.5.3,  another  convention  was  called  for  the  same  purpose  and  in  the  same  manner 
as  that  of  1820.  It  submitted  to  the  people  a  new  draft  of  the  Constitution;  this  was 
rejected. 

As  regards  the  now  prevalent  mode  of  amending,  by  means  of  a  legislative  proposal 
submitted  to  the  people,  —  adopted  in  the  ninth  Massachusetts  Amendment,  —  the  origin 
of  it  is  traced  to  tlie  Articles  of  Confederation,  Art.  XIII. ,  requiring  that  any  alteration 
should  be  "agreed  to  in  a  Congress  of  the  United  States,  and  be  afterwards  confirmed 
by  the  legislatures  of  every  State."  And  so  the  Constitution  of  the  United  States, 
-Art.  v.,  provided  for  amendments  through  a  legislative  proposal  ratified  by  the  States. 
As  among  State  constitutions,  Connecticut  seems  to  have  been  the  first  to  introduce  it. 
Au  intelligent  and  accurate  French  writer  has  said:  "La  proce'dure  inaugure'e  aa 
Massachusetts  [II.  c.  6,  10]  c'tait  bonne  pour  une  revision  totale,  mais  cette  occurrence 
e'tait  rare  et,  dans  les  cas  de  plus  en  plus  frequents  ou  Ton  desirait  une  re'vision  par- 
tielle,  ne  comportant  parfois  qu'un  seul  amendement,  I'election  d'une  convention,  aprcs 
consultation  pre'alable  du  peuple,  etait  un  moyen  coftteux,  encombrant,  et  susceptible 
de  provoquer  une  agitation  inutile.  11  appartenait  a  un  autre  Etat  de  la  Nouvelle- 
Angleterre  de  donuer  sa  formule  a  la  me'thode  qui  devait  re'pondre  a  cette  ne'cessite 
nouvelle  et  prevaloir  e'gaiement  peu  a  peu  dans  I'Uuion. 

"  En  1818,  lorsque  1  antique  charte  du  Connecticut,  de'passee  par  le  progres  de  cette 
democratie  dont  elle  avait  elle-meme  fraye  le  chemin,  fut  remplace'e  par  la  Constitution 

^  For  the  property  qualifications  of  the  electors  under  the  new  Constitution,  see 
Const.  Mass.  Part  II.  c.  1,  §  2,  art.  2,  and  §  3,  art.  4 ;  and  c.  2,  §  I,  art.  3.  —  Ed. 


CHAP.  II.]  OPINION    OF   THE  JUSTICES.  221 

actuelle,  la  convention  d'Hartford,  avant  de  souraettre  son  ceuvre  au  peuple,  y  insera 
I'artide  suivant :  — 

"  '  Art.  II.  —  Lorsque  la  chambre  des  represeutauts  jugera  ne'cessaire  d'apporter  des 
amendemeuts  ou  des  modifications  a  cette  Constitution,  la  majorite  pourra  en  faire  la 
proposition.  Les  aniendements  projete's  serout  renvoycs  a  la  prochaine  asserablc'e 
"■e'ucrale  et  publics  avec  les  lois  qui  pourront  avoir  e'te'  faites  pendant  la  session.  Si, 
par  un  vote  de  division  provoque  au  cours  de  la  session  suivaute,  les  deux  tiers  des 
membres  de  chaque  chambre  approuvent  les  dits  amendemeuts,  ils  seront  trausmis  par 
le  chancelier  aux  secretaires  muuicipaux  (town  clerks)  de  chacuues  des  communes  de 
I'fitat. 

"  '  Ces  derniers  auront  a  les  soumettre  aux  habitants,  pour  etre  e.xamincs,  dans  un 
totrn  lueHinq  le'galement  convoque'  et  tenu  h,  cet  effet.  S'il  resulte  de  cette  consultation, 
dout  la  loi  determinera  les  formes,  que  ces  amendemeuts  out  e'te  sanctiouues  par  la  mar 
jorite  des  clecteurs  presents,  ils  deviendront  exe'cutoires  comme  partie  iute'graute  de 
cette  Constitution.' 

"  Cet  article  e'tait  le  resultat  d'une  transaction  heureuse  entre  le  systeme  du  Massa- 
chusetts et  un  autre,  celui  qu'avait  cousacre,  en  1776,  la  Constitution  du  Maryland  et 
qu'avait  adopte  la  Caroline  me'ridionale,  en  1790,  et  la  Ge'orgie  en  1798.  Daus  ces 
Etats,  un  vote  des  deux  chambres,  re'pe'te'  apres  uue  election  geuerale,  e'tait  la  condition 
requise  pour  I'adoptiou  d'un  ou  de  plusieurs  ameudements  coustitutiouuels.  Cette  pro- 
ce'dure  facilitait,  dans  une  certaine  mesure,  la  re'vision  partielle.  La  convention 
d'Hartford  en  fit  son  profit,  mais  sans  abandonner  le  principe  que  le  peuple  doit  avoir 
le  dernier  mot.  Dans  la  disposition  qu'elle  re'digea,  les  de'putc's  a  la  legislature  re- 
vurent  le  droit  d'initiative.exerce'  a  la  majorite'  des  deux  tiers,  ce  qui  e'tait  la  clause  inse'- 
re'e  en  1787  daus  la  Constitution  Fe'de'rale,  et  les  town  meetings  conserverentla  decision, 
couformenient  aux  traditions  de  la  Nouvelle-Angleterre. 

"  L'article  passa  presque  aussitot  daus  la  Constitution  du  Maine,  vaste  district  du 
Massachu.setts,  dout  on  faisait  un  nouvel  6tat.  La  Convention  de  Portland,  qui  elabora 
cette  Constitutiou,  en  1819,  e'tait  anime'e  d'un  esprit  tres  de'mocratique.  En  s'assimi- 
lant  l'article  cre'e'  par  la  Convention  d'Hartford,  elle  y  apporta,  d'emblee,  une  modifica- 
tion (jui  ne  devait  etre  imitee  que  beaucoup  plus  tard  dans  les  autres  Etats.  Elle  y 
supprinia  la  conditiou  de  la  double  epreuve  pour  I'exercice  du  droit  d'initiative. 
li'adoptiou  par  une  seule  le'<zislature,  a  la  majorite'  des  deux  tiers  des  membres  dans 
les  deux  chambres,  lui  paraissait  suffisante  pour  qu'un  amendement  put  etre  soumis 
au  peuple." 

Annales  de  I'^fecole  Libre  des  Sciences  Politiques  (1893);  L' £tabUssement  et  la  Re- 
vision des  Constitutions  aux  £lats-Unis  d'Amerique,  by  Charles  Borgeaud. 

Jameson's  note  on  this  subject  (Const.  Conv.  (4th  ed.)  §  574  c/,  note)  is  not  entirely 
accurate.  —  Ed. 


OPINION  OF  THE  JUSTICES. 

The  Justices  of  the  Supreme  Judicial  Court  of  Massachu- 
setts.    1833. 

[6  Cush.  573.] 

The  justices  of  the  Supreme  Judicial  Court  have  taken  into  consider- 
ation the  two  questions  submitted  to  them  [by  the  House  of  Representa- 
tives], and  upon  which  the  honorable  House  has  requested  their  opinion, 
of  the  following  tenor,  namel}' :  — 

First.  Whether,  if  the  legislature  should  submit  to  the  people  to  vote 
upon  the  expediency  of  having  a  convention  of  delegates  of  the  people, 


222  oriNioN  OF  tue  justices.  [chap,  il 

for  the  purpose  of  revising  or  altering  the  Constitution  of  the  Common- 
wealth in  any  specified  parts  of  the  same  ;  and  a  majority  of  the  people 
voting  thereon  should  decide  in  favor  thereof,  could  such  convention 
holden  in  pursuance  thereof  act  upon,  and  propose  to  the  people,  amend- 
ments in  other  parts  of  the  Constitution  not  so  specified? 

Second.  Can  any  specific  and  particular  amendment  or  amendments 
to  the  Constitution  be  made  in  any  other  manner  than  that  prescribed 
in  the  ninth  article  of  the  amendments  adopted  in  1820? 

And  thereupon  have  the  honor  to  submit  the  following  opinion :  — 

The  court  do  not  understand  that  it  was  the  intention  of  the  House 
of  Representatives  to  request  their  opinion  upon  the  natural  right  of  the 
people  in  cases  of  great  emergency,  or  upon  the  obvious  failure  of  their 
existing  Constitution  to  accomplish  the  objects  for  which  it  was  designed, 
to  provide  for  the  amendment  or  alteration  of  their  fundamental  laws ; 
nor  what  would  be  the  effect  of  any  change  and  alteration  of  their  Con- 
stitution, made  under  such  circumstances  and  sanctioned  by  the  assent 
of  the  people.  Such  a  view  of  the  subject  would  involve  the  general 
question  of  natural  rights,  and  the  inherent  and  fundamental  principles 
upon  which  civil  society  is  founded,  rather  than  any  question  upon  the 
nature,  construction,  or  operation  of  the  existing  Constitution  of  the 
Commonwealth,  and  the  laws  made  under  it.  We  t)resume,  therefore, 
that  the  opinion  requested  applies  to  the  existing  Constitution  and  law9_ 
of  the  Cominon wealth,  and  the  rights  and  powers  derived  from  and  under 
them.  ConsKtenng  the  questions  in  tliis  light,  we  are  of  opinion,  taking 
the  second  question  first,  that,  under  and  pursuant  to  the  existing  Con- 
stitution, there  is  no  authority  given  by  any  reasonable  construction  or 
necessary  implication,  by  which  any  specific  and  particular  amendment 
or  amendments  of  the  Constitution  can  be  made,  in  any  other  manner 
than  that  prescribed  in  the  ninth  article  of  the  amendments  adopted  in 
1820.  Considering  that  previous  to  1820  no  mode  was  provided  by  the 
Constitution  for  its  own  amendment,  that  no  other  power  for  that  pur- 
pose, than  in  the  mode  alluded  to,  is  anywhere  given  in  the  Constitu- 
tion, b}-  implication  or  otherwise,  and  that  the  mode  thereby  provided 
appears  manifestly  to  have  been  carefnllv  copgi'if"-f"Tj  nu,\  tlm  pmvpr  nP 
altering  the  Constitution  thereby  conferred  to  have  been  cautiously  re- 
strained and  guarded,  we  think  a  strong  implication  arises  against  the 
existence  of  any  other  powfr,  nndpr  tlip  rinnstitntion.  for  the  samft 
purposes. 

Upon  the  first  question,  considering  that  the  Constitution  has  vested 
no  authority  in  the  legislature,  in  its  ordinarj'  action,  to  provide  by  law 
for  submitting  to  the  people  the  expediency  of  calling  a  convention  of 
delegates,  for  the  i)urpose  of  revising  or  altering  the  Constitution  of  the 
Commonwealth,  it  is  difficult  to  give  an  opinion  upon  the  question,  what 
would  be  the  power  of  such  a  convention,  if  called.  If,  however,  the 
people  should,  by  the  terms  of  their  vote,  decide  to  call  a  convention  of 
delegates  to  consider  the  expediency  of  altering  the  Constitution  in  some 
particular  part  thereof,  we  are  of  opinion  that  such  delegates  would 


CHAP.  II.]  IN  RE  THE  CONSTITUTIONAL  CONVENTION. 


223 


derive  tbeipyhole^ajitlioritX-^^^^  nominission,  from  such  vote  :  and,  upon 
the  general  principles  ooverning  the  delegation  of  power  and  authority, 
they  woukUinvf^  no  r't;''^  'indor  siu-h  vote,  tnTaet  upon  and  propose 
amendments  in  other  parts  of  the  Constitution  not  so  specified. 

~  Lemuel  Shaw, 

Samuel  Putnam, 
S.  S.  Wilde, 
January  24,  1833.  MakCUS   MortON. 


In  re  the  constitutional   CONVENTION. 

The  Justices  of  the  Supreme  Court  of  Rhode  Island.     1883. 

[14  R.  I.  649.] 

Article  13  of  the  Constitution  of  the  State  of  Rhode  Island  is  as 
follows : 

"The  General  Assembly  may  propose  amendments  to  this  Constitu- 
tion by  the  votes  of  a  majority  of  all  the  members  elected  to  each 
House.  Such  propositions  for  amendment  shall  be  published  in  the 
newspapers,  and  printed  copies  of  them  shall  be  sent  by  the  Secretary 
of  State,  with  the  names  of  all  the  members  who  shall  have  voted 
thereon,  with  the  yeas  and  nays,  to  all  the  town  and  city  clerks  in  the 
State.  The  said  propositions  shall  be,  by  said  clerks,  inserted  in  the 
warrants  or  notices  by  them  issued  for  warning  the  next  annual  town  and 
ward  meetings  in  April ;  and  the  clerks  shall  read  said  propositions  to 
the  electors  when  thus  assembled,  with  the  names  of  all  the  representa- 
tives and  senators  who  shall  have  voted  thereon,  with  the  yeas  and 
nays,  before  the  election  of  sena-tors  and  representatives  shall  be  had. 
If  a  majority  of  all  the  members  elected  to  each  House,  at  said  annual 
meeting,  shall  approve  any  proposition  thus  made,  the  same  shall  be 
published  and  submitted  to  the  electors  in  the  mode  provided  in  the 
Act  of  approval ;  and  if  then  approved  by  three  fifths  of  the  electors 
of  the  State  present  and  voting  thereon  in  town  and  ward  meetings,  it 
shall  become  a  part  of  the  Constitution  of  the  State." 

Article  10,  section  3,  provides,  that  "  the  judges  of  the  Supreme 
Court  shall  .  .  .  give  their  written  opinion  upon  any  question  of  law 
whenever  requested  ...  by  either  House  of  the  General  Assembly." 

March  20,  1883,  the  Senate  of  the  State  adopted  the  following 
resolution : 

"  Whereas,  a  difference  of  opinion  has  arisen  among  members  of  the 
General  Assembl}', 

"  L  As  to  the  legal  competency  thereof  under  the  Constitution  of 
the  State  to  call  upon  the  electors  to  elect  members  to  constitute  a  con- 
vention to  frame  a  new  Constitution  of  the  State,  and  to  provide  that 
the  new  Constitution  should  be  submitted  for  adoption,  either  to  the 
qualified  electors  of  the  State,  or  to  the  persons  who  would  be  entitled 


224  IN   RE   THE   CONSTITUTIONAL   CONVENTION.  [cHAP.  II. 

to  vote  under  said  new  Constitution,  for  adoption,  and  if  a  niujorit}  of 
such  electors  or  persons  voting  should  vote  in  favor  thereof,  whether  the 
new  Constitution  would  then  become  the  legally  adopted  Constitution 
of  the  State  and  be  binding  as  such  upon  all  of  the  people  thereof. 

"  II.  As  to  wliether  it  is  legall}'  competent  for  the  General  Assembly 
to  submit  to  the  qualified  electors  the  question  whether  said  electors 
will  call  a  convention  to  frame  a  new  Constitution,  and  to  provide  by 
law  if  a  majority  of  the  electors  voting  upon  said  question  shall  vote  in 
favor  of  calling  such  convention,  that  the  same  be  held,  and  the  new 
Constitution  framed  by  said  convention  be  submitted  to  the  electors  for 
their  adoption,  either  to  the  electors  qualified  by  law,  or  to  the  persons 
who  ma}'  be  qualified  to  vote  under  such  new  Constitution,  and  whether 
if  a  majority  of  the  electors,  or  persons  voting  thereon,  vote  for  the 
adoption  of  such  Constitution,  whether  the  Constitution  so  to  be  framed 
and  adopted  would  be  the  legal  Constitution  of  the  State,  and  as  such 
be  binding  upon  all  the  people  thereof. 

"  And  whereas,  the  existing  Constitution  provides  that  either  House 
of  the  General  Assembly  may  require  the  opinion  of  the  judges  of  the 
Supreme  Court  upon  any  question  of  law,  it  is  therefore  hereby 

"  Resolved,  that  the  said  judges  of  the  said  Supreme  Court  be,  and 
they  hereby  are  requested  without  unnecessary  delay  to  give  their 
opinion  to  the  Senate  upon  the  two  questions  stated  in  the  preamble 
hereto,  upon  which  diff"erences  of  opinion  have  arisen  between  the 
members  of  this  General  Assembly. 

"  Resolved,  that  his  Excellency  the  Governor  be,  and  he  hereby  is, 
requested  to  forward  copies  of  the  preceding  preamble  and  resolution 
to  each  of  the  judges  of  the  said  Supreme  Court." 

Opinion  of  the  Court.^ 

March  30,  1883. 

To  the  HonoraUe  the  Seriate  of  the  State  of  Rhode  Island  and 
Providence  Plantations : 
We  received  from  your  Honors  on  the  24th  inst.  a  resolution  request- 
ing our  opinion  in  regard  to  the  legal  competenc}'  of  the  General 
Assembly  to  call  a  convention  for  the  revision  of  the  Constitution. 
In  repl}'  we  have  to  sa}'  that  we  are  of  opinion  that  the  mode  provided 
in  the  Constitution  for  the  amendment  thereof  is  the  only  mode  in  which 
it  can  be  constitutionally  amended.  The  ordinary  rule  is  that  where 
power  is  given  to  do  a  thing  in  a  particular  waj*,  there  the  affirmative 
words,  marking  out  the  particular  wa}',  prohibit  all  other  ways  b}-  im- 
plication, so  that  the  particular  way  is  the  only  way  in  which  the  power 
can  be  legally  executed.  The  rule  was  recently'  recognized  bj^  the 
Supreme  Court  of  the  United  States  in  Smith  v.  Steve?is,  10  Wall.  321. 
There  by  Act  of  Congress,  lands  were  ceded  to  Indians  with  power 

1  See  Taylor  v.  Place,  ante,  180  n.  —  Ed. 


CHAP.  II.]  IN   RE   THE   CONSTITUTIONAL   CONVENTION.  225 

to  sell  tbem,  or  parts  of  them,  iu  a  particular  manner,  and  the  court 
held  that  a  sale  in  an}-  other  manner  was  void.  The  rule  was  likewise 
recently  recognized  b}*  the  English  Court  of  Exchequer  in  a  case  in 
which  it  was  thus  expressed :  "  If  authority  is  given  expressly,  though 
by  affirmative  words,  upon  a  defined  condition,  the  expression  of  that 
condition  excludes  the  doing  of  the  Act  authorized  under  other  circum- 
stances than  those  so  defined  :  '  Ex^yressio  imius  est  exdusio  alterius.'  " 
North  Stafford  Steel,  &c.  Co.  v.  Ward,  L.  R.  3  Exch.  172,  177. 
Cases  to  the  same  point  might  be  indefinitely  multiplied.  1  Kent 
Comment.  *467,  note  d;  1  Sugden  on  Powers,  258  et  seq. ;  City  of 
Neiv  Haven  v.  Whitney,  36  Conn.  373  ;  District  Township  of  the  City 
of  Dubuque  v.  The  City  of  Dubuque,  7  Iowa,  262.  It  has  been 
claimed,  indeed,  that  the  rule,  though  applicable  in  the  interpretation 
of  statutes,  deeds,  wills,  and  other  ordinary  instruments,  is  inappli- 
cable in  the  interpretation  of  a  State  constitution.  Those  who  assert 
this  difference,  however,  do  not  appear  to  have  any  reason  to  give  for 
it  but  this,  namely :  that  under  stress  of  strong  political  excitement, 
the  rule,  if  it  exists,  is  pretty  sure  to  be  disregarded,  as  past  experi 
ence  proves,  and  therefore  it  is  better  to  conclude  that  it  does  not 
exist.  We  do  not  consider  the  reason  satis  factor}-.  The  rule  is  simply 
a  guide  to  the  meaning  of  language  when  used  in  a  particular  way,  and 
we  do  not  see  why  it  is  not  as  trustworthy  a  guide  to  the  meaning  when 
the  language  so  used  occurs  in  a  State  Constitution,  as  when  it  occurs 
in  a  statute  or  a  will.  Men  do  not  put  awa}-  their  spontaneous  and 
habitual  modes  of  expressing  themselves  merely  because  they  are  en- 
gaged in  the  unaccustomed  work  of  framing  or  adopting  a  constitution. 
In  this  view  we  are  not  without  precedent.  One  of  the  greatest  of  modern 
jurists.  Chief  Justice  Shaw,  was  of  the  same  way  of  thinking,  and  con- 
jointly with  his  associates,  declared  it  to  be  his  opinion  that  the  Con- 
stitution of  Massachusetts  is  constitutionally  amendable  only  as  therein 
provided.  Opinion  of  the  Justices,  6  Cush.  573.  The  provision  for 
amendment  in  our  Constitution  is  singularly  explicit.  The  proposed 
amendment  is  first  to  pass  the  two  Houses  of.  the  General  Assembly 
b}'  a  majority  of  the  members  elected ;  it  is  then  to  be  published, 
with  the  vote  thereon,  in  the  newspapers,  and  otherwise  brought  to 
the  attention  of  the  people ;  it  is  then  to  pass  the  Assembl}-  elected 
after  such  publication  by  a  majority  of  both  Houses  ;  and  finally  it  is 
to  be  submitted  to  the  approval  of  the  electors,  and  if  it  be  approved 
by  three  fifths  of  the  electors  voting,  and  not  otherwise,  it  is  to  become 
incorporated  in  the  Constitution.  Evidently  the  purpose  was  to  insure 
the  calm  and  considerate  action  of  both  the  Assembh'  and  the  people. 
It  was  to  pass  two  Assemblies,  so  that  the  members  of  the  second, 
elected  after  publication,  might,  if  the  electors  thought  proper,  be 
elected  speciall}-  to  consider  it.  The  popular  mind  was  not  to  be  taken 
by  surprise  or  to  be  carried  awa}-  by  any  sudden  sentiment,  but  it  was 
to  act  deliberately  after  reflection.  To  this  end  a  three  fifths  vote  was 
required  for  approval.     The  object  was  not  to  hamper  or  baffle  the 

VOL.  I.  — 15 


226  IN   RE   THE   CONSTITUTIONAL   CONVENTION.  [CHAP.  II. 

popular  will,  but  to  insure  its  full  expression.  Our  ancestors  knew,  what 
we  all  know,  that  in  spite  of  all  precautions  a  majority  may  be  worked 
up  for  an  occasion,  which  is  not  the  true  and  permanent  majority. 
The}'  also  knew,  what  we  all  know,  that  many  electors,  perfectlj'  satis- 
fied with  the  existing  state  of  things,  stay  awaj'  from  the  polls  on  election 
day  from  mere  inertness  of  temperament.  It  is  inconceivable  to  us, 
that  the}'  would  have  elaborated  so  guarded  a  mode  of  amendment, 
unless  they  had  intended  to  have  it  exclusive  and  controlling.  The}' 
doubtless  did  so  intend,  and  if  they  did,  we  cannot  say  the}'  did  not, 
simply  because  since  then  the  constitutions  of  other  States,  having 
similar  provisions,  have  been  amended  through  the  medium  of  conven- 
tions. The  framers  of  our  Constitution  could  not  foreknow  this  action 
in  other  States,  and  therefore  cannot  have  been  influenced  by  it.  If 
our  Constitution  had  no  provision  for  amendment,  then,  indeed,  a  power 
in  the  Assembly  to  call  a  convention  or  to  initiate  amendments  in 
some  other  manner  might  be  implied  ex  7iecessitate.  The  Assembly, 
under  the  charter,  exercised  such  a  power  because  the  charter  had  no 
such  provision  ;  though  it  is  proper  to  remark  that  under  the  charter 
the  legislative  power  of  the  Assembly  was  practically  unlimited.  Again, 
if  the  provision  for  amendment  was  impracticable,  there  might  be,  if 
no  legal  reason,  yet  some  excuse  for  disregarding  it.  But  it  is  prac- 
ticable, as  a  successful  resort  to  it  in  several  instances  has  demon- 
strated. The  only  things  which  can  be  said  against  it  are  that  it  is 
dilatory,  and  that  it  requires  the  assent  of  more  than  a  bare  majority. 
But  these  are  the  very  things  which  recommended  it  to  its  authors,  and 
therefore  they  cannot  be  alleged  as  reasons  for  believing  that  they  did 
not  mean  it  to  be  exclusive  and  controlling. 

Our  Constitution  is,  bv  its  own  express  declaration,  the  supreme  law 
of  the  State  ;  any  law  inconsistent  with  it  is  void,  and,  therefore,  if  the 
provision  which  it  contains  for  its  own  amendment  is^xclusive.  imply-^ 
ing  a  prohibition  of  amendments  in  any  other  manner,  then,  of  course^ 
any  Act  ot  the  Assembly  providing  for  ajconvention  to  amend~the  Con- 
stitution is  unconstitutional  and  void. 

An  argument  in  favor  of  a  convention  has  been  suggested  which  is 
not  specifically  met  in  the  preceding.  It  is  this,  namely :  that  though 
the  General  Assembly  has  no  power  to  introduce  amendments  and  carry 
them  to  their  consummation  in  any  manner  not  provided  in  the  Consti- 
tution, it  nevertheless  has  power  to  call  a  convention  to  frame  a  new 
constitution  for  submission  to  the  people.  The  argument  is,  in  our 
opinion,  rather  specious  than  sound.  The  convention,  if  called,  would 
be  confined  by  the  Constitution  of  the  United  States  to  the  formation 
of  a  constitution  for  a  republican  form  of  government,  and  our  present 
Constitution  contains  the  fundamental  provisions,  the  great  ground 
plan,  of  such  a  form  of  government  as  it  is  known  throughout  the  Union. 
Any  changes  which  are  in  contemplation  are  merely  changes  of  super- 
structure or  detail.  Our  Constitution,  too,  contains  in  its  Bill  of  Rights 
the  great  historic  safeguards  of  liberty  and  property,  which  certainlj 


CHAP.  II.]  IN   RE   THE   CONSTITUTIONAL   CONVENTION.  227 

no  convention  would  venture  either  materially  to  alter  or  to  abolish. 
Any  new  constitution,  therefore,  which  a  convention  would  form,  would 
be  a  new  constitution  only  in  name  ;  but  would  be  in  fact  our  present 
Constitution  amended.  It  is  impossible  for  us  to  imagine  any  altera- 
tion, consistent  with  a  republican  form  of  government,  which  cannot  be 
effected  by  specific  amendment  as  provided  in  the  Constitution. 

Again,  it  has  been  maintained  that  the  General  Assembly  has  power 
to  call  a  convention  under  section  10,  of  article  4,  which  provides  that 
"  the  General  Assembly  shall  continue  to  exercise  the  powers  they  have 
heretofore  exercised,  unless  prohibited  in  this  Constitution."  But, 
under  this  section,  the  General  Assembly  can  only  exercise  powers 
which  are  not  prohibited  ;  and,  if  the  provision  for  amendment  is,  as 
we  think  it  is,  exclusive,  then  a  power  to  call  a  convention  is  prohibited 
by  implication,  and,  as  was  clearly  shown  in  Taylor  v.  Place,  4  R.  I. 
324,  an  implied  is  as  effectual  as  an  express  prohibition. 

Finally,  it  has  been  contended  that  there  is  a  great  unwritten  common 
law  of  the  States,  which  existed  before  the  Constitution,  and  which  the 
Constitution  was  powerless  to  modify  or  abolish,  under  which  the  people 
have  the  right,  whenever  invited  by  the  General  Assembly,  and  as  some 
maintain,  without  any  invitation,  to  alter  and  amend  their  constitutions. 
If  there  be  any  such  law,  for  there  is  no  record  of  it,  or  of  any  legisla- 
tion or  custom  in  this  State  recognizing  it,  then  it  is,  in  our  opinion, 
rather  a  law,  if  law  it  can  be  called,  of  revolutionary  than  of  consti- 
tutional change.  Our  Constitution  is,  as  already  stated,  by  its  own 
terms,  "  the  supreme  law  of  the  State."  We  know  of  no  law,  except 
the  Constitution  and  laws  of  the  United  States,  which  is  paramount 
to  it. 

We  think  the  foregoing  is  in  effect,  if  not  in  form,  an  answer  to  the 
questions  propounded  to  us  in  the  resolutions.  The  questions  are  ex- 
tremely important,  and  we  should  have  been  glad  of  an  opportunity  to 
give  them  a  more  careful  study,  but  under  the  request  of  the  Senate  for 
our  opinion,  "  without  any  unnecessary  delay,"  we  have  thought  it  to 
be  our  duty  to  return  our  opinion  as  soon  as  we  could,  without  neglect- 
ing other  duties,  prepare  it 

Thomas  Durfee, 
Charles  Matteson, 
John  H.  Stiness, 

P.    E.    Tir.LINGHAST, 

G.  M.  Carpenter,  Jdn.^ 

1  For  the  practice  in  different  States,  see  a  valuable  pamphlet,  called  out  by  this 
opinion,  entitled  "  The  metliods  of  changing  the  Constitutions  of  the  States,  especially 
that  of  Rhode  Island"  (Boston:  Alfred  Mudge  &  Son,  Printers,  1885),  written  by 
Hon.  Charles  S.  Bradley,  formerly  Chief  Justice  of  Rhode  Island.  See  also  the 
comments  of  Judge  Jameson  on  this  opinion  in  Const.  Conventions  (4th  ed.),  ss. 
573,  574,  et  seq.  — Ed. 


228  WELLS   V.   BAIN.  [CIIAJ'.  II. 

WELLS   V.  BAIN. 
Supreme  Court  of  Pennsylvania.     1874. 

[75  Pa.  St.  39.]  1 

December  2d,  1873.  At  Nisi  Prius,  before  Gordon,  J.,  with  Agnew, 
C.  J.,  Sharswood,  Williams,  and  Mercur,  JJ.,  as  assessors.  The 
matter  considered  arose  upon  two  bills  in  equity  in  the  Supreme  Court, 
No.  13  and  No.  14,  to  January  Term,  1874. 

No.  13  was  a  bill  filed  by  Francis  Wells  and  others,  citizens  and 
voters  of  Philadelphia,  against  James  Bain  and  others,  commissioners 
of  the  city  of  Philadelphia,  and  Edwin  H.  Filler  and  others,  commis- 
sioners of  election  under  an  ordinance  of  the  convention  to  revise  and 
amend  the  Constitution  of  Pennsylvania. 

No.  14  was  a  bill  filed  by  John  H.  Donnelly,  an  inspector  of  elec- 
tions of  the  Fifth  Ward  of  Philadelphia,  against  Edwin  H.  Fitler  and 
others,  commissioners  of  elections,  &c.,  as  above  stated. 

An  Act  of  the  Legislature  of  June  2,  1871,  submitted  to  the  people 
the  question  of  "  calling  a  convention  to  amend  the  Constitution  of 
Pennsylvania."  In  pursuance  of  the  popular  vote  in  the  affirmative,  an 
Act  of  April  11,  1872,  provided  for  the  election  of  delegates  to  such  a 
convention,  fixing  the  number  of  members,  the  manner  of  voting,  and 
other  details.  The  convention  was  to  meet  on  the  second  Tuesday  of 
November,  1872,  and  was  to  "  have  power  to  propose  to  the  citizens  of 
this  Commonwealth,  for  their  approval  or  rejection,  a  new  constitution 
or  amendments  to  the  present  one,  or  specific  amendments  to  be  voted 
for  separately."  It  was  provided  that  "the  election  to  decide  for  or 
against  the  adoption  of  the  new  constitution  or  specific  amendments 
shall  be  conducted  as  the  general  elections  of  this  Commonwealth  are 
now  b}'  law  conducted." 

The  Constitutional  Convention  prepared  a  new  constitution,  and 
passed  an  "  ordinance"  for  submitting  it  to  the  people  which  departed 
from  the  provisions  of  the  statute  of  April  11th  ;  it  named,  for  exam- 
ple, five  persons  (not  the  regular  officials)  who  should  act  as  commis- 
sioners of  election  in  Philadelphia. 

Bill  No.  13,  above  mentioned,  averred  that  the  commissioners  named 
in  this  ordinance  were  proposing  to  hold  an  election  in  Philadelphia  on 
the  sixteenth  of  December,  1873,  under  the  authority  of  the  ordinance, 
and  contrary  to  certain  provisions  of  the  statute  of  April  11th,  and  that 
Bain  and  other  city  commissioners  of  Philadelphia  were  proposing  to 
expend  the  money  of  the  city  for  the  purposes  of  such  election  ;  and  it 
prayed  for  an  injunction  restraining  the  said  persons  from  holding  the 
election  and  paying  out  the  mone}'. 

Bill  No.  14  averred  that  the  plaintiff  was  a  duly  appointed  inspector 
of  elections  in  the  Fifth  Ward  of  Philadelphia,  and,  after  setting  forth 

1  The  statement  of  facts  is  condensed.  —  Ed. 


CHAP.  II.]  WELLS   V.    BAIN.  229 

the  same  state  of  facts  contained  in  the  other  bill,  it  alleged  that  the 
defeiuhints,  the  commissioners  under  the  ordinance  of  the  convention, 
designed  to  prevent  him  and  the  other  election  officers  of  Philadelphia 
from  performing  their  duties,  and  praj-ed  for  an  injunction  to  restrain 
the  defendants  from  interfering  with  the  plaintiff  in  the  exercise  of  their 
ofllce.* 

The  cases  were  argued  by  R.  S.  Ashurst,  J'.  E.  Goxven,  and  B.  II. 
Brewster,  for  the  plaintiffs,  and  b}'  C.  R.  Buckaleic^  W.  II.  Armstrong, 
and  G.  W.  Biddle,  for  the  defendants. 

The  opinion  of  the  court  was  delivered,  December  6th,  1873,  b}' 

Agnew,  C.J.  Since  the  Declaration  of  Independence  in  1776,  it 
has  been  an  axiom  of  the  American  people  that  all  just  government  is 
founded  in  the  consent  of  the  people.  This  is  recognized  in  the  second 
section  of  the  Declaration  of  Rights  of  the  Constitution  of  Pennsylvania, 
which  affirms  that  the  people  "  have  at  all  times  an  inalienable  and  in- 
defeasible right  to  alter,  reform,  or  abolish  their  government  in  such 
manner  as  they  may  think  proper."  A  self-evident  corollary  is,  that  an 
existing  lawful  government  of  the  people  cannot  be  altered  or  abolished 
unless  by  the  consent  of  the  same  people,  and  this  consent  must  be 
legally  gathered  or  obtained.  The  people  here  meant  are  the  whole, — 
those  who  constitute  the  entire  State,  male  and  female  citizens,  infants 
and  adults.  A  mere  majority  of  those  persons  who  are  qualified  as 
electors  are  not  the  people,  though  when  authorized  to  do  so,  they 
may  represent  the  whole  people. 

The  words  "  in  such  manner  as  the}*  ma}'  think  proper,"  in  the  Decla- 
ration of  Rights,  embrace  but  three  known  recognized  modes  b}'  which 
the  whole  people,  the  State,  can  give  their  consent  to  an  alteration  of 
an  existing  lawful  frame  of  government,  viz. :  — 

1.  The  mode  provided  in  the  existing  constitution. 

2.  A  law,  as  the  instrumental  process  of  raising  the  body  for  revision 
and  conveying  to  it  the  powers  of  the  people. 

3.  A  revolution. 

The  first  two  are  peaceful  means  through  which  the  consent  of  the 
people  to  alteration  is  obtained,  and  by  which  the  existing  government 
consents  to  be  displaced  without  revolution.  The  government  gives  its 
consent,  either  by  pursuing  the  mode  provided  in  the  Constitution,  or 
by  passing  a  law  to  call  a  convention.  If  consent  be  not  so  given  by 
the  existing  government  the  remedy  of  the  people  is  in  the  third  mode, 
—  revolution. 

When  a  law  becomes  the  instrumental  process  of  amendment,  it  is 
not  because  the  legislature  possesses  any  inherent  power  to  change  the 
existing  constitution  through  a  convention,  but  because  it  is  the  only 
means  through  which  an  authorized  consent  of  the  whole  people,  the 
entire  State,  can  be  lawfully  obtained  in  a  state  of  peace.  Irregular  action, 

^  The  report  does  not  state  in  what  manner  the  pleadings  were  concluded,  or  how  the 
case  was  shaped.  —  Ed. 


230  WELLS   V.    BAIN.  [CIIAP.  IL 

whereby  a,  certain  number  of  the  people  assume  to  act  for  the  whole, 
is  evidently  revolutionary.  The  people,  that  entire  body  called  the 
State,  can  be  bound  as  a  whole  only  by  an  act  of  authority  proceeding 
from  themselves.  In  a  state  of  peaceful  government  they  have  con- 
ferred this  authority  upon  a  part  to  speak  for  the  whole  only  at  an  elec- 
tion authorized  by  law.  It  is  only  when  an  election  is  authorized  by 
law,  the  electors,  who  represent  the  State  or  whole  people,  are  bound 
to  attend,  and  if  they  do  not,  can  be  bound  b^'  the  expression  of  the 
will  of  those  who  do  attend.  The  electors  who  can  pronounce  the 
voice  of  the  people  are  those  alone  who  possess  the  qualifications  sanc- 
tioned by  the  people  in  order  to  represent  them,  otherwise  they  speak 
for  themselves  only,  and  do  not  represent  the  people. 
^  The  people,  having  reserved  the  right  to  alter  or  abolish  their  form 
of  government,  have,  in  the  same  declaration  of  their  rights,  reserved 
the  means  of  procuring  a  law  as  the  instrumental  process  of  so  doing. 
The  twentieth  section  is  as  follows  :  — 

"  The  citizens  have  a  right,  in  a  peaceable  manner,  to  assemble  to- 
gether for  their  common  good,  and  to  appl}*  to  those  invested  with  the 
powers  of  government  for  redress  of  grievances  or  other  proper  pur- 
poses, b}'  petition,  address,  or  remonstrance." 

If  the  legislature,  possessing  these  powers  of  government,  be  un- 
willing to  pass  a  law  to  take  the  sense  of  the  people,  or  to  delegate  to  a 
convention  all  the  powers  the  people  desire  to  confer  upon  their  dele- 
gates, the  remedy  is  still  in  their  own  hands  ;  they  can  elect  new  repre- 
sentatives that  will.  If  their  representatives  are  still  unfaithful,  or  the 
government  becomes  tyrannical,  the  right  of  revolution  yet  remains. 
To  what  extent  the  Constitution  of  the  United  States  controls  this  it  is 
unnecessary  now  to  inquire. 

It  is  not  pretended  that  the  late  convention  sat  as  a  revolutionary 
body,  or  in  defiance  of  the  existing  government,  and  it  did  not  proceed 
in  the  mode  provided  for  amendment  in  the  Constitution,  that  being  a 
legislative  proceeding  only.  It  was,  therefore,  the  offspring  of  law.  It 
had  no  other  source  of  existence.  The  process  was  an  application  or 
petition  to  the  legislature  to  call  a  convention  ;  the  passage  of  a  law 
to  gather  the  sense  of  the  people  on  the  question  whether  a  convention 
should  be  called  ;  an  election  authorized  b}'  this  law  to  take  the  sense 
of  the  wliole  people  on  this  question,  and,  finally,  the  passage  of  a  law 
to  call  the  convention  and  define  its  powers  and  duties.  A  law  is  the 
only  form  in  which  the  legislature,  the  body  invested  with  the  powers 
of  government,  can  act,  and  thereby  its  own  consent  be  given  and  revo- 
lution avoided.  The  people  having  adopted  a  proceeding  b}'  law  as 
the  means  of  executing  their  will,  having  acted  under  it  and  chosen 
their  delegates  b}'  virtue  of  its  authority',  submitted  themselves  to  it,  as 
their  own  selected  and  approved  means  of  carrying  out  peacefully  their 
purpose  of  amendment.  The  law,  being  thus  the  instrument  of  their 
own  choice  to  express  their  will,  necessaril}'  became  the  channel  of 
their  authorit}-.     Having  furnished  no  other  means  of  arriving  at  their 


CHAP.  II.]  WELLS   V.    BAIN. 


231 


will,  it  is  the  only  channel  through  which  it  has  been  conveyed.  The 
law,  therefore,  being  the  instrument  of  delegation,  this  warrant  to  tlie 
delegates  from  the  people  becomes  the  only  chart  of  their  powers. 
The  will  of  the  people  has  been  expressed  in  no  other  form,  and  the 
powers  of  the  delegates,  therefore,  come  in  no  other  wise. 

It  will  not  do  to  assert  that  the  whole  original  power  of  the  people 
was  conferred  by  the  election.  This  election  itself  was  a  part  of  the 
instrumental  process  of  the  law,  the  means  provided  by  this  very  law,  of 
selecting  the  delegates.  The  law  was  the  warrant  for  their  election, 
and  expressed  the  very  terms  chosen  and  adopted  by  the  people,  under 
which  they  delegated  their  power  to  these  agents.  The  delegates  pos- 
sess no  inherent  power,  and  when  convened  by  the  law  at  the"  time  and 
place  fixed  in  it,  sit  and  act  under  it,  as  their  letter  of  attorney  from 
the  people  themselves,  and  can  know  and  discover  the  will  of  the 
people  only  so  far  as  they  can  discern  it  through  this  the  only  warrant 
they  have  ever  received  to  act  for  the  people.  If  they  claim  through 
any  other  source,  they  must  be  able  to  point  to  it. 

Outside  of  the  law  to  take  the  sense  of  the  people  whether  a  conven- 
tion should  be  called,  and  -the  law  to  call  the  convention,  no  other 
source  has  been  or  can  be  shown.  To  make  this  more  distinct,  let  us 
suppose  a  voluntary  election  unauthorized  by  law,  and  delegates  elected. 
It  is  plain  a  convention  composed  of  such  delegates  would  possess  no 
power  to  displace  the  existing  government,  and  impose  a  new  constitu- 
tion on  the  whole  people.  Those  voting  at  the  unauthorized  election 
had  no  power  to  represent  or  to  bind  those  who  did  not  choose  to  vote. 
A  majority  of  the  adult  males  having  the  qualifications  of  electors  can 
bind  the  whole  people  only  when  they  have  authority  to  do  so. 

To  make  this  still  more  plain.  Suppose  a  constitution  formed  by  a 
volunteer  convention,  assuming  to  represent  the  people,  and  an  attempt 
to  set  it  up  and  displace  the  existing  lawful  government.  It  is  clear 
that  neither  the  people  as  a  whole  nor  the  government  having  given 
their  assent  in  any  binding  form,  the  executive,  judiciary,  and  alf  offi- 
cers sworn  to  support  the  existing  constitution  would" be  bound,  in 
maintenance  of  the  lawfully-existing  institutions  of  the  people,  to  resist 
the  usurpation,  even  to  the  whole  extent  of  the  force  of  the  State.  If 
overpowered,  the  new  government  would  be  established,  not  by  peace- 
ful means,  but  by  actual  revolution. 

It  follows,  therefore,  that  in  a  state  of  peace  a  law  is  the  only  means 
by  which  the  will  of  the  whole  people  can  be  collected  in  an  authorized 
form,  and  the  powers  of  the  people  can  be  delegated  to  the  aoents  who 
compose  the  convention.  The  form  of  the  law  is  imraaterid  in  this 
question  of  derivative  authority.  It  may  be  a  law  to  confer  general 
authority  or  one  to  confer  special  authority.  It  may  be  an  invitation 
in  the  first  place,  as  was  the  Act  of  1789,  under  which  the  convention 
of  1790  was  convened,  and  an  authority  to  the  people  to  meet  in  pri- 
mary assemblies  to  select  delegates  and  confer  on  them  unrestricted 
powers ;  or  it  may  be  a  law  to  take  the  sense  of  the  people  on  the 


232  WELLS   V.   BAIX.  [CIIAI'.  IL 

question  of  calling  a  convention,  and  then  a  law  to  make  the  call  and 
confer  the  powers  the  peoi)le  intend  to  confer  ui)on  their  agents.  Tho 
power  to  pass  the  law  carries  with  it  of  necessity  that  to  frame  and  de- 
clare the  terms  of  the  law.  The  terms  of  delegation,  which  the  people 
themselves  declare,  when  acting  under  and  by  virtue  of  the  law  which 
they  have  called  to  their  aid,  as  the  instrumental  process  of  conferring 
their  authorities  and  reaching  their  purpose  of  amendment,  become  of 
necessity  the  terms  of  their  own  will.  All  outside  of  this  channel  is 
revolutionar}',  for  it  has  neither  the  consent  of  the  government  nor  of 
the  people  who  have  called  the  government  to  their  aid  and  acted 
through  it.  The  process  of  amendment  being  through  the  instrumen- 
tality of  legislation,  these  laws  must  be  enacted  in  the  forms  of  the 
Constitution  and  be  interpreted  by  the  rules  which  govern  in  the  inter- 
pretation of  laws. 

The  next  inquir}-  is,  What  powers  of  the  people  were  conferred  upon 
the  late  convention?  A  change  in  the  fundamental  lelations  of  the 
people  and  of  that  sacred  compact  which  they  have  instituted  to  guard 
and  protect  their  own  rights  and  interests  is  one  of  vast,  indeed  most 
solemn  import ;  for  to  impose  a  new  constitution  without  authority,  or 
to  usurp  powers  not  delegated,  may  lead  to  bloodshed  and  ruin.  The 
power  to  act,  then,  should  be  clearh"  conferred.  The  sacred  fire  from 
the  altar  of  the  people's  authorit}'  cannot  be  snatched  bj"  unhallowed 
hands. 

The  present  inquirj-  is  not  how  much  power  mav  be  conferred  b}-  law, 
but  what  power  was  conferred  on  this  convention?  A  law  must  be 
passed  according  to  the  forms  of  the  Constitution.  One  of  these  is  that 
no  bill  shall  contain  "  more  than  one  subject,  which  shall  be  clearly  ex- 
pressed in  the  title."  The  title  of  the  Act  of  June  2d,  1871,  is  "  An 
Act  to  authorize  a  Popular  Vote  upon  the  Question  of  calling  a  Conven- 
tion to  amend  the  Constitution  of  Pennsylvania."  The  text  of  the  Act 
is  :  "  That  the  question  of  calling  a  convention  to  amend  the  Constitu- 
tion of  this  Commonwealth  be  submitted  to  a  vote  of  the  people  at  the 
general  election,  to  be  held,"  &c.  The  one  subject  of  both  title  and 
text  is  the  question  of  calling  a  convention.  That  question  was  author- 
ized to  be  submitted  to  a  popular  vote.  In  that  election  each  elector 
expressed  his  individual  opinion  on  that  question,  and  that  alone,  by 
voting  "  for  a  convention  "  or  "  against  a  convention."  This  question 
was  answered  in  the  affirmative  b}-  a  majorit}'  of  votes,  and  the  people, 
answering  the  legislature,  said  :  "You  ma}- call  a  convention."  This 
was  all  the  vote  expressed.  Each  vote  expressing  the  opinion  of  the 
elector  on  that  question,  the  majorit}'  expressed  no  more,  for  the  major- 
ity was  composed  of  the  sum  total  of  the  votes  on  that  side.  Thus  an 
analysis  of  the  Act,  both  in  its  title  and  its  text,  demonstrates  that  the 
vote  was  not  a  delegation  of  power,  except  to  the  legislature.  There 
is  no  principle  of  sound  interpretation  which  can  extend  the  voice  of 
the  elector  or  the  sum  total  of  those  voices,  beyond  the  question  each 
was  called  to  answer.     The  result  of  that  vote,  therefore,  was  that  the 


CHAP.  II.]  WELLS   V.    BAIN.  233 

legislature  might  call  a  convention.  It  was  not  in  itself  a  call,  nor  did 
it  declare  when,  how,  or  on  what  terms  the  call  should  be  made.  That, 
the  very  answer  to  the  question  proposed  to  the  electors,  necessarily 
left  to  those  who  asked  their  judgment  on  the  propriety  of  making  the 
call. 

It  was  not  even  a  mandate,  further  than  the  moral  force  contained  in 
an  expressed  desire  of  the  people.  It  is  verj*  evident,  had  the  matter 
dropped  there,  and  the  legislature  had  made  no  call,  no  convention 
and  no  terms  would  ever  have  existed.  Not  a  line,  nor  a  word,  nor  a 
syllable  in  this  Act  expresses  an  intent  of  the  people  to  make  the  call 
themselves,  or  on  what  terms  it  shall  be  made,  or  what  powers  should 
be  conferred.  Did  the  people  by  this  Act,  without  an  expressed  intent, 
and  by  mere  inference,  intend  to  abdicate  all  their  own  power,  their 
rights,  their  interests,  and  their  duty  to  each  other  in  favor  of  a  body 
of  mere  agents,  and  to  confer  upon  them,  by  a  blank  warrant,  the  abso- 
lute power  to  dictate  their  institutions,  and  to  determine  finally  upon 
all  their  most  cherished  interests?  If  the  argument  be  admitted  for  an 
instant  that  because  nothing  was  said  in  this  law  on  the  subject  of  dele- 
gation, therefore  greater  powers  were  conferred  than  were  granted  in 
the  subsequent  Act  of  1872,  then  all  power  belonging  to  the  people 
passed,  and  they  did  grant  by  it  the  enormous  power  stated.  Then,  b}' 
a  covert  intent,  hidden  in  the  folds  of  this  Act,  the  people  delegated 
power  to  repeal  all  laws,  abolish  all  institutions,  and  drive  from  place  the 
legislature,  the  Governor,  the  judges,  and  every  officer  of  the  Common- 
wealth, without  submitting  the  work  of  the  delegates  to  the  ratification 
of  the  people.  If  by  an  ordinance  under  a  power  derived  from  this  Act 
of  1871,  the  delegates  can  set  aside  the  lawfully-existing  election  laws 
for  Philadelphia,  where  shall  their  power  end?  Can  they  draw  money 
from  the  treasury  to  pa}'  their  own  salaries?  Can  they  seize  and  con- 
demn a  hall  for  their  own  use  under  the  power  of  eminent  domain?  It 
is  not  possible,  bj'  an}'  sound  rule  of  interpretation,  natural  or  civil,  we 
can  attribute  to  the  Act  of  1871  such  an  enormous,  fearful,  portentous 
delegation  of  power,  founded  on  a  vote  upon  the  mere  question  of  call- 
ing a  convention.  The  result  of  the  vote  on  this  question  declared  the 
sense  of  the  greater  number  of  electors  that  a  convention  might  be 
called.  But  how  called?  It  was  not  itself  a  call.  It  left  that  to  those 
invested  with  the  powers  of  government.  In  and  of  itself  it  conferred 
no  authority  upon  the  delegates,  but  left  that  to  a  subsequent  Act.  The 
call  proceeding  from  the  legislature  was  necessaril}'  by  means  of  a  law, 
for  in  no  other  form  can  the  legislative  will  be  expressed.  When  the 
people  called  in  legislative  aid  to  procure  the  call  of  a  convention,  they 
knew,  therefore,  that  a  law  could  be  the  only  instrumental  process  the 
legislature  could  give ;  and  a  law  being  invoked,  they  knew  that  the 
power  to  legislate  carried  with  it  the  power  to  frame  the  terms  of 
the  law.  They  knew  still  more,  when  they  accepted  the  law  as  the 
means  of  making  the  call,  that  they  adopted  its  terms  b}'  acting  under 
it.     When,  therefore,  they,  in  1872,  elected  delegates  under  the  Act  of 


234  WELLS   V.   BAIN.  [CIIAP.  IL 

1872,  they  elected  tlicm  under  the  terms  and  provisions  of  that  law, 
and  none  other,  for  there  was  no  other  law  under  which  an  authorized 
and  binding  election  was  or  could  be  had.  The  people  themselves, 
therefore,  ratified  and  adopted  the  terms  of  the  Act  of  1872,  as  the 
terms  on  which  the}-  delegated  their  powers  to  those  elected  under  it. 
The  delegates  so  elected  are  clearh*  estopped,  b}'  the  record  itself,  from 
denying  the  terms  under  which  they  hold  their  seats,  for  they  hold  them 
under  the  Act  of  1872,  and  no  other.  The  entire  process  of  raising  a 
convention  and  conferring  uj^on  it  the  powers  of  the  people  was  a  mat- 
ter of  law,  in  a  state  of  peace,  under  the  forms  of  the  Constitution, 
through  which  the  consent  both  of  the  people  and  of  the  existing  gov- 
ernment was  given  to  prevent  the  convention  from  being  or  becoming 
a  revolutionary  bod}-. 

Accordingl}',  the  Act  of  April  11th,  1872,  is  entitled  "An  Act  to 
provide  for  calling  a  Convention  to  amend  the  Constitution."  The  text 
of  the  Act  is,  "  that  at  the  general  election  to  be  held,  &c.,  there  shall 
be  elected  by  the  qualified  voters  of  the  Commonwealth,  delegates  to  a 
convention  to  revise  and  amend  tlie  Constitution  of  the  State,"  &c. 
The  Act  then  provides  for  the  election,  the  assembling  of  the  delegates, 
their  powers  and  duties,  and  the  submission  of  the  Constitution  or 
amendments  agreed  upon  to  a  vote  of  the  people  for  adoption  or  rejec- 
tion. When  the  people  voted  under  this  law,  did  the}-  not  vote  for 
delegates  upon  the  express  terms  that  they  should  submit  their  work  to 
the  people  for  approval  ?  Did  not  ever}-  man  who  went  to  the  polls  do 
so  with  the  belief  in  his  heart  that,  b}-  the  express  condition  on  which 
his  vote  was  given,  the  delegates  could  not  bind  him  without  his  subse- 
quent assent  to  what  the  delegates  had  done?  On  what  principle  of 
interpretation  of  human  action  can  the  servant  now  set  himself  up 
against  the  condition  of  his  master  and  say  the  condition  is  void?  \yho 
made  it  void?  Not  the  electors  ;  they  voted  upon  it.  The  people  re- 
quired the  law,  as  the  act  of  the  existing  government,  to  whicii  tliey 
had  appealed  under  the  Bill  of  Rights,  to  furnish  them  legal  process  to 
raise  a  convention  for  revision  of  their  fundamental  compact,  and  with- 
out which  legal  process  the  act  of  no  one  man  could  bind  another. 
This  law,  being  unrepealed,  and  being  acted  upon  by  the  people,  became 
their  own  delegation  of  authority,  —  the  chart  of  the  delegates  to  guide 
and  control  them  in  the  duties  they  were  elected  to  perform  as  the  ser- 
vants of  the  people.  Without  this  legislation  the  convention  had  not 
existed ;  and  to  exist  on  terms  not  found  in  or  contrar}'  to  the  law,  is 
to  seek  for  a  grant  of  powers  to  be  found  nowhere  else,  except  in  a 
state  of  revolution,  and  therefore  do  not  exist  in  this  peaceful  process 
of  amendment. 

The  absolute  necessity  of  the  convention  to  claim  the  protection  of 
the  Act  of  1872  is  seen  in  another  view.  Of  the  one  hundred  and 
thirty-three  members  of  this  body,  less  than  one  hundred  in  number 
were  elected  by  the  people.  Some  never  received  a  single  vote,  but 
sat  by  the  appointment  of  men  themselves  not  elected  b}-  the  people  at 


CHAP.  II.]  WELLS   V.    BAIN.  235 

large.  It  is  not  meant  to  discuss  the  wisdom  or  the  merits  of  the  so- 
called  limited  system  of  voting,  by  which  a  majority  of  the  electors  are 
prevented  from  voting  against  persons  seeking  to  represent  them ;  but 
the  purpose  now  is  to  show  that  without  the  authority  of  this  very  Act 
of  1872,  more  than  thirty-three  members  of  the  body  had  no  warrant 
whatever  to  represent  the  people.  On  what  principle  of  right,  domin- 
ion, or  power,  had  these  persons  any  claim  to  exercise  the  power  of  the 
people,  and  by  their  votes,  perhaps,  to  fix  upon  a  people  they  do  not 
represent  the  most  odious  features  of  a  proposed  constitution?  Is  it 
not  clear  that  their  whole  delegated  power  to  speak  and  to  vote  for  the 
people  comes  from  the  force  and  eflbrt  of  the  statute?  They  have  that, 
and  none  other. 

In  considering  this  question  of  delegated  power  some  are  apt  to  for- 
get that  the  people  are  already  under  a  constitution  and  an  existing 
frame  of  government  instituted  by  themselves,  which  stand  as  barriers 
to  the  exercise  of  the  original  powers  of  the  people,  unless  in  an  author- 
ized form.  They  glide  insensibly  into  the  domain  of  abstract  rights, 
and  clothe  mere  agents  with  primordial  power.  But  delegated  author- 
ity is  derived,  and  those  who  claim  it  must  show  whence  and  how  they 
derived  it.  Three  and  a  half  or  four  millions  of  people  cannot  assem- 
ble themselves  together  in  their  primary  capacity,  —  they  can  act  only 
through  constituted  agencies.  No  one  is  entitled  to  represent  them 
unless  he  can  show  their  warrant,  how  and  when  he  was  constituted  their 
agent.  The  great  error  of  the  argument  of  those  who  claim  to  be  the 
people  or  the  delegates  of  the  people,  is  in  the  use  of  the  word  "  people." 
Who  are  the  people?  Not  so  many  as  choose  to  assemble  in  a  county, 
or  a  city,  or  a  district,  of  their  own  mere  will,  and  to  say,  We,  the  people. 
Who  gave  them  power  to  represent  all  others  who  stay  away  ?  Not  even 
the  press,  that  wide-spread  and  most  powerful  of  all  subordinate  agen- 
cies, can  speak  for  them  by  authority.  The  voice  of  the  people  can  be 
heard  only  through  an  authorized  form,  for,  as  we  have  seen,  without  this 
authority  a  part  cannot  speak  for  the  whole,  and  this  brings  us  back  to 
a  law  as  the  only  authority  by  which  the  will  of  the  whole  people  —  the 
body  politic  called  the  State  — can  be  collected  under  an  existing  lawful 
government.  To  wander  outside  of  this  channel  is  to  run  in  search  of 
original  powers,  which,  though  possessed  by  the  people,  they  have  con- 
ferred in  no  other  form.  If  the  power  be  delegated,  it  must  be  seen  in 
the  derivation,  otherwise  it  does  not  exist.  If,  then,  the  delegates  elected 
by  the  people  themselves,  under  the  Act  of  1872,  have  greater  powers 
than  are  contained  in  it,  when,  where,  and  how  did  they  obtain  them? 
It  is  not  in  the  Act  of  1871,  for  that,  as  we  have  shown,  decided  but 
one  question  and  conferred  but  one  power,  to  wit,  that  a  convention 
might  be  called,  and  that  the  legislature  might  call  it.  There  is  no 
other  source  to  which  this  convention  can  appeal,  and  not  being  found 
there  it  is  found  nowhere. 

This  brings  us  to  an  examination  of  the  powers  conferred  by  the  Act 
of  1872,  as  the  dernier  resort.     The  power  claimed  for  the  convention 


236  WELLS   V.   BALV.  [CHAP.  IL 

is,  by  ordinance,  to  raise  a  commission  to  direct  the  election  upon  the 
amended  constitution  in  the  city  of  Philadelphia,  and  to  confer  power 
on  this  commission  to  make  a  registration  of  voters,  and  furnish  the 
lists  so  made  to  the  election  officers  of  each  precinct ;  to  appoint  a 
judge  and  two  inspectors  for  each  division,  by  whom  the  election 
therein  shall  be  conducted.  This  ordinance  further  claims  the  power 
to  regulate  the  qualifications  of  the  officers  thus  appointed  to  hold  the 
election  and  to  control  the  general  returns  of  the  election.  It  is  clear, 
therefore,  that  the  ordinance  assumes  a  present  power  to  displace  the 
election  officers  now  in  office  under  the  election  laws  for  the  city,  to 
substitute  officers  appointed  under  the  authority  of  the  convention,  and 
to  set  aside  these  election  laws  so  far  as  relates  to  the  qualification  of 
the  ofllcers  and  the  manner  in  which  the  general  returns  shall  be  made, 
and  in  other  respects  not  necessary  to  be  noticed.  The  authority  to  do 
this  is  claimed  under  the  fifth  section  of  the  Act  of  1872.   .   .   . 

Now  we  come  to  the  sixth  section,  which  begins  a  different  subject. 
"  The  election  to  decide  for  or  against  the  adoption  of  the  new  Consti- 
tution, or  specific  amendments,  shall  be  conducted  as  the  general  elec- 
tions of  this  Commonwealth  are  now  by  law  conducted."    Thus  the 
legislature  said  to  the  convention  in  these  three  sections  —  You  shall 
have  power  to  propose  your  work  in  three  forms ;  you  shall  have  power 
to  determine  the  time  and  the  manner  in  which  these  propositions  shall 
be  submitted ;  but  the  election  by  the  citizens  shall  be  conducted  as  the 
law  itself  directs  as  to  general  elections.     The  sixth  section,  as  to  how 
the  election  on  the  propositions  submitted  shall  be  conducted,  is  man- 
datory, and  is  so  for  the  best  of  reasons,—  it  is  the  only  legally  author- 
ized  means  of  taking  the   sense  of  the  people  upon  adoption  of  the 
amendments  which  can  bind  the  whole  people.     In  this  way  only  can  a 
majority  of  voters,  who  are  not  a  majority  of  the  people,  bind  them  as 
the  body  politic  or  State.     The  legislature  intended  that  the  election 
should  be  conducted  by  known  officers  legally  elected,  and  should  be 
governed  by  a  known  system  of  laws  with  which  the  people  are  familiar, 
and  thereby  that  they   should   both  know   and   respect  the  authority 
under  which  the  election  should  be  held.     No  implication  can  be  drawn 
from  the  word  "  manner"  to  contradict  the  plain  and  positive  enact- 
ment that  the  election  shall  be  conducted  according  to  the  laws  govern- 
ing  general   elections.     It   would   violate   the   plainest   rules   for  the 
interpretation  of  statutes  to  make  the  merest  inference  stand  higlier 
than  an  intent  expressed  in  distinct  language.    It  is,  therefore,  clear  to 
our  minds  that  the  ordinance  relating  to  the  election  in  the  city   of 
Philadelphia  is  flatly  opposed  to  the  Act  of  1872,  and  is  therefore  illegal 
and  void.    The  prospective  validation  in  the  32d  section  of  the  schedule 
only  betrays  the  doubt  the  convention  itself  had  of  the  validity  of  the 
ordinance  in  this  respect. 

The  next  question  is  one  of  great  importance,  but  stands  on  a  very 
different  footing  from  that  upon  the  ordinance,  —  I  mean  the  alleged 
refusal  of  the  convention  to  submit  the  judiciary  article  separately  to  a 


CHAP.  II.]  WELLS   V.    BAIN.  237 

vote  of  the  people.  The  convention  was  clothed  with  express  power  to 
act  upon  tlie  question  of  submitting  the  amendments  in  whole  or  in  part. 
It  is  a  deliberative  bod}',  having  all  the  necessary  authority  to  make 
rules  for  its  own  procedure,  and  to  decide  upon  all  questions  falling 
within  the  scope  of  its  authority.  The  power  over  the  manner  of  sub- 
mitting amendments  is  expressly  conferred  in  the  fifth  section.  It  is 
true  the  law  gives  to  one  third  of  all  the  members  a  right  to  require  a 
separate  submission  of  any  amendment.  But  while  this  right  is  awarded 
to  a  min'ority  of  the  bod}',  it  is  one  upon  which  the  convention  itself 
must  act,  and  it  must  act  according  to  its  own  rules  of  procedure.  The 
question  of  a  separate  submission  being  one  committed  to  the  whole 
body,  of  which  the  requiring  third  is  itself  a  part,  it  must  be  presumed 
that  the  decision  of  the  body  as  a  whole  was  rightly  made,  and  either 
that  the  request  was  not  made  by  a  full  one  third  of  all  the  members, 
or,  if  made  by  one  third,  it  was  not  in  a  regular  or  orderly  way.  It 
would  be  a  violent  presumption  to  suppose  that  the  body  would  wilfully 
disregard  their  own  oaths  as  well  as  a  full  and  orderly  request.  And  if 
they  did  this  wrong,  no  appeal  is  given  to  the  judiciary,  and  the  error 
can  be  corrected  only  by  the  people  themselves,  by  rejecting  the  work 
of  the  convention.  If  the  people,  notwithstanding,  choose  to  ratify 
their  work,  with  them  lies  the  consequence.  Mere  errors  of  procedure 
will  then  be  of  no  avail.  The  convention  having  in  that  matter  acted 
within  the  scope  of  its  undoubted  power,  we  must  take  its  decisions  as 
final,  and  leave  correction  to  the  power  to  which  it  belongs. 

Not  to  omit  to  notice  the  arguments  drawn  from  precedents,  we  think 
none  referred  to  throw  much  light  on  the  general  question  in  these 
cases,  —  this  power  of  the  convention  to  pass  the  ordinance  setting 
aside  the  election  laws  governing  the  city  of  Philadelphia  and  substi- 
tuting provisions  of  its  own.  Even  the  proceedings  in  1789  in  our  own  , 
State  furnish  a  precedent  of  but  little  service.  There  the  legislature 
not  only  invited  the  action  of  the  people  in  primary  assemblies,  but  in 
advance  committed  to  their  hands  all  the  authority  legislation  can  confer 
to  act  in  those  assemblies.  The  convention  was  summoned  without  re- 
striction, and  acted  without  trammel,  while  the  people  reserved  no 
power  of  ratification,  and  subsequently  disposed  of  all  questions  of 
power  by  living  under  and  acting  upon  the  Constitution,  thereby  ratif}'- 
ing  the  work  of  the  convention  in  the  most  eflficacious  manner.  The 
question  before  us  is,  can  the  convention,  before  they  either  proclaim  a 
constitution  themselves,  if  they  have  the  power,  or  before  any  ratifica- 
tion, if  they  have  not,  pass  an  ordinance  to  repeal  an  existing  system 
of  law  on  a  particular  subject?  This  is  a  question  of  power,  not  of 
wisdom.  However  wise  the  substitution  of  their  own  election  ma- 
chinery for  that  provided  by  law  for  this  city  may  be,  the  question  is 
not  for  us.  We  can  decide  only  the  question  of  power.  At  last,  there- 
fore, we  must  come  to  the  decision  on  principle,  and  in  the  light  of 
reason,  having  a  due  regard  to  the  rights,  interests,  welfare,  and  peace 
of  a  people  living  under  a  recognized  government  of  their  own  choice, 


238  WELLS   V.    BAIN.  [cHAP.  U. 

and  seeking  to  amend  it  in  a  peaceful  way,  and  to  such  extent  as  they 
may  deem  salulary  and  wise. 

Tile  question  of  jurisdiction  has  been  reserved  for  the  conclusion. 
Tlie  first  remark  to  be  made  is,  that  all  the  departments  of  government 
are  yet  in  full  life  and  vigor,  not  being  displaced  by  any  authorized  act 
of  the  people.  As  a  court  we  are  still  bound  to  administer  justice  as 
heretofore.  If  the  acts  complained  of  in  these  bills  are  invasions  of 
rights  without  authority,  we  must  exercise  our  lawful  jurisdiction  to  re- 
strain them.  One  of  our  equity  powers  is  the  prevention  or  restraint 
of  the  commission  or  continuance  of  acts  contrary  to  law,  and  preju- 
dicial to  the  interests  of  the  community  or  the  rights  of  individuals. 
Page  v.  AHen,  8  P.  F.  Smith,  338,  and  the  authorities  cited  by  counsel,  are 
precedents  sufficient  to  justify  the  exercise  in  this  case.  Here  the  court 
is  asked  to  restrain  a  body  of  men  attempting  to  proceed  contrary  to 
law,  —  to  set  aside  the  lawful  election  system  of  the  city,  and  substitute 
an  unlawful  system  in  its  place.  Their  acts  are  not  only  contrary  to 
law,  but  are  prejudicial  to  the  interests  of  tlie  community,  by  endanger- 
ing the  rights  of  all  the  electors,  through  means  of  an  illegal  election 
held  by  unauthorized  officers.  In  Patterson  v.  Barlow,  10  P.  F.  Smith, 
54,  the  aid  of  the  court  was  asked,  not  to  prevent  acts  contrary  to  law, 
but  to  strike  down  the  only  lawful  system  of  election  in  the  city,  and 
thereby  to  disfranchise  all  its  citizens,  for  all  other  election  laws  had 
been  actually  repealed.  We  said  then  it  was  more  thaa  doubtful  how 
far  private  citizens  can  call  for  an  injunction  beyond  their  own  invaded 
rights,  or  ask  to  restrain  a  great  system  of  law  in  its  pubUc  aspects. 
In  this  case  we  are  called  upon,  not  to  strike  down,  but  to  protect  a 
lawful  system,  and  to  prevent  intrusion  by  unlawful  authorit}-.  If  this 
ordinance  is  invalid,  as  we  have  seen  it  is  as  to  the  city  elections,  the 
,  taxes  of  the  citizens  will  be  diverted  to  unlawful  uses,  the  electors  will 
be  endangered  in  the  exercise  of  their  lawful  franchise,  and  an  officer 
necessary  to  tlie  lawful  execution  of  the  election  law  ousted  by  unlawful 
usurpation  of  his  functions. 

The  convention  is  not  a  co-ordinate  branch  of  the  government.  It 
exercises  no  governmental  power,  but  is  a  body  raised  by  law,  in  aid  of 
the  popular  desire  to  discuss  and  propose  amendments,  which  have  no 
governing  force  so  long  as  they  remain  propositions.  While  it  acts  within 
the  scope  of  its  delegated  powers,  it  is  not  amenable  for  its  acts,  but 
when  it  assumes  to  legislate,  to  repeal  and  displace  existing  institutions 
before  they  are  displaced  by  the  adoption  of  its  propositions,  it  acts 
without  authorit}',  and  the  citizens  injured  thereby  are  entitled,  under 
the  Declaration  of  Rights,  to  an  open  court  and  to  redress  at  our 
hands. 

In  conclusion,  we  regret  that  the  nature  of  the  case  requires  prompt, 
instant  action,  and  that  the  circumstances  under  which  we  act  demand  a 
written  expression  of  our  views.  We  gladly  would  have  had  more  time 
for  discussion  among  ourselves,  and  for  the  preparation  of  the  opinion. 
As  it  is,  we  have  given  to  the  subject  all  our  most  anxious  thoughts  and 


CHAP.  II.]  WOODS'S   APPEAL.  239 

labor,  and  have  arrived  at  the  best  conclusions  honest  convictions  can 
reach. 
[Injunctions  were  issued  Dec.  5,  1873.7  * 


WOODS'S  APPEAL. 
Supreme  Court  of  Pennsylvania.     1874. 

[75  Pa.  St.  59.]  2 

October  9th,  1874.  (At  Pittsburg.)  Before  Agnew,  C.  J.,  Shars- 
wooD,  Williams,  Mercur,  and  Gordon,  JJ.  Appeal  from  the  Court 
of  Common  Pleas  of  Alleghen}'  County:  In  Equit}' :  No.  37,  to  Oc- 
tober and  November  Term,  1874. 

On  the  2d  of  December,  1873,  Robert  Woods  and  Reese  Owens  filed 
a  bill  against  Matthew  S.  Quay,  Secretary  of  the  Commonwealth  of 
Pennsylvania,  John  H.  Hare,  sheriff  of  Alleghen}^  County,  James  G. 
Murray,  and  others,  commissioners  of  Allegheny  Count}'. 

The  bill  set  forth  that  the  plaintiffs  were  citizens  and  tax-payers  of 
Allegheny  County,  and  of  the  Commonwealth  of  Pennsylvania  ;  it  also 
set  forth  the  Act  of  June  2d,  1871,  and  other  matters  relating  to  the 
convention,  which  are  found  in  the  case  of  Wells  v.  Bain. 

The  bill  charged  that  M.  S.  Quay,  Secretary  of  the  Commonwealth, 
declared  that  he  would  comply  with  the  provisions  of  the  aforemen- 
tioned "ordinance"  of  the  convention,  imposing  duties  upon  him  in 
relation  to  the  submission  of  the  amended  Constitution  to  a  popular  vote  ; 
that  John  H.  Hare,  sheriff  of  the  county  of  Allegheny,  has  published 
in  sundry  newspapers  his  proclamation  for  holding  an  election  on  the 
16th  of  Decemlier  next  to  pass  upon  the  amendments,  and  that  James 
G.  Murray  and  others,  commissioners  of  Allegheny  County,  had  declared 
that  they  would  perform  the  duties  imposed  on  them  by  the  aforesaid 
ordinance,  &c.  The  prayer  was  for  an  injunction  to  restrain  the  de- 
fendants from  acting  in  the  premises  as  above  set  forth  ;  that  the  Acts 
of  June  2d,  1871,  and  April  11th,  1872,  be  declared  unconstitutional 
and  void  ;  that  the  convention  convened  under  the  Act  of  1872  was  an 
illegal  body  and  its  acts  without  authority  of  law  ;  that  the  "  ordinance  " 
of  the  convention  was  unconstitutional  and  void.  .  .  . 

The  defendants  demurred  to  the  bill,  and  the  case  was  heard  on  bill 
and  demurrer. 

The  court  (Stowe,  J.)  dismissed  the  bill  in  the  following  opinion  :  — 

...  I  have  no  difficulty  in  concluding  that  if  the  Acts  of  Assembly 
in  question  are  unconstitutional  and  void,  the  convention  was  an  illegal 

1  See  comments  on  this  case  and  some  additional  facts  in  Jameson,  Const.  Conv. 
(4th  ed.)  88.  409  a-410,  and  ss.  520  a,  520  b.  —  Ed. 
*  The  statement  of  facts  is  condensed.  —  Ed. 


240  WOODS'S   APPEAL.  [cilAP.  II 

body,  and  its  acts  revolutionar}',  and  that  in  such  case  it  would  be  the 
dut}'  of  courts  to  exercise  all  their  authority  to  prevent  its  inundates 
being  carried  into  effect  to  the  injury  of  any  individual ;  that  the  legis- 
lature would  be  bound  to  enact  such  laws  as  might  be  necessary  to 
punish  any  attempt  to  force  upon  the  people  its  revolutionary  woik,  and 
the  executive  officers  of  the  State  to  use  all  their  power,  civil  and  mili- 
tar}-,  to  suppress  it. 

If,  however,  in  the  face  of  all  this,  such  force,  moral  or  physical,  was 
brought  to  bear  as  to  overawe  or  compel  the  submission  of  the  legal 
authorities  of  the  State,  then,  indeed,  the  arm  of  the  law  would  be  para- 
lyzed, and  the  proposed  constitution  would  become  effective,  not  by 
the  law,  but  1)3-  tliat  higher  right  of  revolution  which  is  above  all  law, 
but  is  nowhere  recognized  by  it.  Courts  can  know  nothing  by  antici- 
pation. They  are  bound  to  determine  the  law  as  it  is  previous  to  the 
successful  accomplishment  of  revolution,  as  though  such  a  fact  were 
impossil)le  ;  but  when  accomplished  and  duly  recognized  by  the  political 
powers  of  the  government,  the  courts  have  no  alternative  but  to  accept 
the  fact  without  question  and  act  accordingly. 

While,  then,  courts  must  recognize  the  powers  that  be,  though  the 
product  of  revolution,  they  are  bound  to  use  all  their  legitimate  author- 
ity to  suppress  acts  actually  or  ostensibl}'  revolutionar}^  as  though  they 
■were  sirapl}*  rebellious  and  could  never  become  legitimate. 

Coming,  then,  to  the  question  of  the  constitutionality  of  the  Act  to 
authorize  a  popular  vote  upon  the  question  of  calling  a  convention  ^o 
amend  the  Constitution,  approved  June  2d,  1871,  and  also  the  Act 
passed  subsequent  to  the  election,  held  in  pursuance  of  the  same,  en- 
titled "  An  Act  to  provide  for  calling  a  Convention  to  amend  the  Consti- 
tution," approved  April  11th,  1872,  raised  by  the  2d,  3d,  4th,  5th,  6th, 
and  7th  sections  of  complainants'  bill,  it  is  claimed  that  they  are  both 
unconstitutional  and  invalid,  because  :  — 

1.  There  is  no  power  given  by  the  present  Constitution  to  the  legis- 
lature authorizing  such  a  proceeding. 

2.  There  is  a  different  method  provided  b}^  the  Constitution,  by  which 
it  may  be  amended,  and,  therefore,  upon  well-recognized  principles  of 
law,  the  legal  conclusion  arises  that  no  other  exists. 

It  cannot  be  claimed  that  the  authority  for  the  legislation  and  pro- 
ceedings taken  in  reference  to  calling  this  convention  are  expressly-  set 
out  in  the  Constitution,  but  it  is  argued  that  the  power  arises  under  the 
second  section  of  the  Declaration  of  Rights,  which  declares  that  "  all 
power  is  inherent  in  the  people  and  all  free  governments  are  founded 
on  their  authorit}',  and  instituted  for  their  peace,  safet}-,  and  happiness. 
For  the  advancement  of  these  ends  they  have  at  all  times  an  inalienable 
and  indefeasible  right  to  alter,  reform,  or  abolish  their  government  in 
such  a  manner  as  they  may  think  proper,"  all  of  which  is,  inter  alia, 
excepted  out  of  the  general  powers  of  government,  and  is  "forever  to 
remain  inviolate." 

It  is  difficult  to  see  how  the  withholding  of  power  from  the  govern- 


CHAP.  II.]  WOODS'S   APPEAL.  241 

ment  can,  strictly  speaking,  create  a  riglit  in  the  legislature  from  which 
it  is  thus  withheld,  to  exercise  that  power  ;  but  if  it  should  appear  that 
such  power  exists  above  and  before  _the  Constitution  as  a  great  natural 
and  indefeasible  right,  and  has  been  so  recognized  and  acted  upon  fre- 
quently as  a  fundamental  principle  underlying  all  free  government, 
this  provision  will  sufficiently  appear  to  be  a  solemn  declaration  of  the 
existence  of  such  a  right,  and  may  in  ordinary  parlance  fairly  be  said, 
without  any  great  breach  of  legal  accuracy,  to  confer  a  power  under  the 
Constitution. 

Before,  however,  entering  into  a  consideration  of  this  question,  it 
will  be  necessary  to  examine  whether  there  is  anything  in  the  Constitu- 
tion, as  urged  in  the  second  proposition,  which  directly  or  by  necessary 
legal  implication  takes  away  such  a  fundamental  right  as  we  have  sug- 
gested, in  case  it  existed,  where  there  is  no  constitutional  restriction. 

It  is  urged,  and  with  much  apparent  force,  that  because  the  Constitu- 
tion in  the  tenth  article  "of  amendments"  provides  a  certain  and 
carefully  defined  way  for  amending  the  fundamental  law,  the  well- 
recognized  legal  maxim  ordinarily  applied  to  the  construction  of  deeds 
and  written  instruments,  as  well  as  Acts  of  legislation,  Expressio  unius 
est  exclusio  alterius,  leads  to  the  fixed  legal  presumption  that  no 
amendment  can,  under  the  Constitution,  be  made  to  it,  except  in  the 
way  thus  especially  provided. 

This  rule  enunciates  one  of  the  first  principles  to  the  construction  of 
any  ordinary  instruments  between  parties:  Lord  Denman,  C.  J.,  5 
Bing.  N.  C.  185  ;  but  great  caution  is  requisite  in  its  application  :  Price 
v.  The  Great  Western  Raihcay  Co.,  16  M.  &  W.  244;  Broom's  Legal 
Maxims,  595 ;  and  it  has  long  been  settled  in  commercial  transactions 
that  custom  and  usage  are  allowed  to  control  or  rebut  the  implication 
arising  under  the  rule,  .  .  . 

Mr.  Jameson,  in  his  work  on  Constitutional  Conventions,  p.  573, 
says,  with  great  force,  upon  this  question:  "Viewed  upon  principle, 
were  there  no  authority  upon  the  point,  it  would  be  doubtful  whether, 
dealing  in  great  questions  of  politics  and  government,  the  same  maxim 
ought  to  prevail  which  regulates  the  construction  of  contracts  between 
man  and  man.  As  a  matter  of  speculation  it  may  be  admitted  that  the 
rule  expresses  the  weight  of  probability  equally  in  cases  of  great  and 
small  magnitude.  But  there  is  always  a  doubt ;  and  between  the  cases 
indicated  there  is  the  wide  difference,  that  in  ordinary  contracts  it  is 
possible  to  enforce  the  construction  which  the  courts  shall  pronounce  the 
true  one,  whilst  in  the  case  of  constitutional  provisions  regulating  great 
organic  movements,  to  hold  such  a  maxim  applicable  would  be,  by  pre- 
senting barriers  to  the  attainment  of  what  the  people  generally  desire, 
to  make  that  revolutionary  which  perhaps  was  not  so.  Wliere  the  in- 
tention of  the  framers  of  a  constitution  is  doubtful,  the  people  assuming 
power  under  the  broader  construction  should  have  the  benefit  of  the 
doubt ;  and  that  all  the  more  because  in  opposition  to  them  our  courts 
are  comparatively  powerless.  It  is  infinitely  better  where  no  principle 
VOL.  I.  — 16  ^  ^ 


2-12  WUODS'S   APPEAL.  [ciIAP.  II. 

is  violated,  that  a  constitution  should  be  so  construed  as  to  luake  tUeir 
action  legal  rather  than  illegal." 

So  far  as  judicial  opinion  is  concerned,  it  has  been  said  by  the 
Supreme  Court  of  New  York  that  the  maxim  is  to  be  applied  to  or- 
dinary contracts  rather  than  constitutional  provisions :  JJarto  v. 
Jlirmrod,  4  Selden,  483  ;  while  the  judges  of  the  Supreme  Court  of 
Massachusetts  have  expressed  a  diflerent  opinion  (6  Gushing,  573), 
holding  that  under  the  Constitution  of  Massachusetts,  containing  a  pro- 
vision substantially  like  our  own,  no  power  existed  to  amend,  except 
as  provided  in  the  Article  of  Amendments.  As  a  matter  of  histor}', 
however,  a  convention  was  called  by  the  legislature  in  1853,  twenty 
years  after  this  opinion  was  given,  to  propose  a  constitution  ;  and  while 
the  question  was  raised  as  to  the  legality  of  such  convention,  it  was 
ably  vindicated  by  the  best  lawyers  in  the  State,  among  them  Choate, 
Parker,  and  Morton,  the  latter  one  of  the  judges  of  the  court  at  the 
time  the  opinion  was  given  ;  and  a  constitution  prepared  and  sub- 
mitted to  the  people. 

Turning  now  to  the  history  of  the  government  of  the  various  States,  for 
the  purpose  of  discovering  what  the  usage  in  such  cases  has  been,  we 
find  the  practice  has  been  so  frequent  and  uniform  as  clearly  to  indi- 
cate what  the  common  understanding  of  the  people,  lawyers  and  lay- 
men, has  been  in  regard  to  this  question. 

So  far  as  I  am  able  to  learn,  there  had  been,  in  1865  (throwing  out 
of  consideration  the  rebel  States  during  1861,  and  afterwards  while 
undergoing  reconstruction),  twenty-five  constitutional  conventions  called 
bv  the  legislatures  of  the  various  States,  without  any  special  authori- 
zation in  their  constitutions.  In  Georgia,  January  4tli,  1789,  May  4th, 
1789,  and  1838;  in  South  Carolina,  1790;  in  New  Hampshire,  1791; 
in  New  York,  1801,  1821,  and  1846;  in  Connecticut,  1818;  in  Massa- 
chusetts, 1829,  1853  ;  in  Rliode  Island,  1824,  1834,  1841,  and  1842  ;  in 
Virginia,  1829,  1854,  and  1864;  in  North  Carolina,  1835;  in  Pennsyl- 
vania, 1837  ;  in  New  Jersey,  1844  ;  in  Missouri,  1845,  1861,  and  1865  ; 
in  Indiana,  1850. 

Mr.  AVebster  stated  in  1848,  in  his  argument  before  the  Supreme 
Court  of  the  United  States,  in  the  case  of  LiUher  v.  Borden,  "  that  of 
the  old  thirteen  States,  their  constitution  with  but  one  exception  con- 
tained no  provision  for  their  own  amendment,  yet  there  is  hardl}'  one 
that  has  not  altered  its  constitution,  and  it  has  been  done  by  conven- 
tions called  by  the  legislature,  as  an  ordinary  exercise  of  power."  If 
this  is  true,  and  my  own  examination,  so  far  as,  with  the  limited  time 
and  opportunity  since  the  argument  of  this  case,  I  have  been  able  to 
make  it,  has  verified  it,  as  well  as  shown  the  continuation  of  the  same 
practice  to  the  present  day,  —  it  would  seem  as  though  the  question  as 
to  whether  the  calling  of  a  constitutional  convention  was  a  legal  exercise 
of  power  by  the  legislature,  should  now  be  considered  by  all  judicial 
tribunals  as  settled  so  firmly  as  a  part  of  the  common  law  of  our  gov- 
ernments, that  any  attempt  to  disturb  it  at  this  day  would  savor  more 


CHAP.  II.]  WOODb's   APPEAL.  243 

of  revolution  than  legitimacy.  He  would  be  bold,  indeed,  who  would 
now  assert  that  all  these  conventions  were  usurpations,  and  that  all 
the  constitutions  proposed  by  them  and  adopted  by  the  people  were 
revolutionary. 

The  conclusion  that  I  have  drawn  from  all  this  is,  that  there  is  un- 
derlying our  whole  S3stem  of  American  government  a  principle  of 
acknowledged  right  in  the  people  to  change  their  constitutions,  except 
where  especially  prohibited  in  a  constitution  itself,  in  all  cases  and  at 
all  times,  whether  there  is  a  way  provided  in  their  constitution  or  not, 
by  the  interposition  of  the  legislature,  and  the  calling  of  a  convention, 
as  was  done  in  the  case  in  hand. 

The  offspring  of  revolution  originally,  but  restrained  and  modified  by 
the  necessity  arising  out  of  the  new  principle  established  in  this  coun- 
try, by  the  accomi)lishment  of  our  national  independence,  that  the  peo- 
ple are  the  government,  and  not  the  king,  and  the  source  of  all  political 
power,  —it  has  become  legitimated,  and  without  mention  in  our  consti- 
tutions, is  as  much  the  law  of  the  land  as  if  specifically  set  out  in  them  ; 
and  that  as  a  solemn  recognition  of  this,  and  not  as  a  revolutionary 
right,  the  section  of  the  Declaration  of  Rights  in  our  own,  and  similar 
clauses  in  other  State  constitutions,  were  inserted. 

The  somewhat  similar  expression  contained  in  the  Declaration  of 
Independence  was  clearly  revolutionary  and  so  intended  to  be  ;  but 
that  was  a  paper  puljlished  to  the  world  to  justify  our  refusal  to  submit 
longer  to  governmental  authority,  and  spoke  of  the  rights  of  the  people, 
as  against  the  oppression  of  constituted  authorities;  but  in  all  instru- 
ments established  by  the  people  themselves  for  their  own  government, 
the  only  rational  view  is  to  consider  it  as  above  stated,  —  the  introduc- 
tion of  a  constitutional  and  legal  revolution,  by  the  consent  of  the  con- 
stituted authorities  of  the  State.  This  last  is  absolutely  indispensable, 
as  is  now  admitted  by  all.  To  give  the  force  and  effect  of  the  law  to 
the  proceeding,  it  must  emanate  from  the  legislative  authority,  and  be 
the  result  of  its  permission  or  direction.  The  only  way  the  people  can 
legally  act  under  a  constitution  such  as  ours,  is  through  their  repre- 
sentatives, and  therefore,  no  matter  how  many  may  favor  a  convention 
to  change  the  Constitution,  if  one  should  be  called,  and  convene  with- 
out proper  authority  from  the  existing  government,  its  action  would  be 
clearly  illegal,  and  the  result  of  illegitimate  power.  It  follows,  then, 
that  the  action  of  the  legislature  in  authorizing  a  vote  of  the  people  on 
the  question  of  the  amendment  of  their  constitution,  and  subsequently 
by  another  Act  authorizing  the  election  of  delegates,  was  a  legal  exer- 
cise of  legislative  power,  and  constitutional,  unless  something  in  the 
Acts  themselves  is  in  conflict  with  some  constitutional  provision.  ,  .  . 

The  8th,  9th,  and  10th  paragraphs  of  the  bill  complain  of  illegal  acts 
done  by  the  convention  :  first,  in  refusing  a  separate  submission  to  a 
popular  vote  of  the  fifth  article,  relating  to  the  judiciary,  the  contin- 
gency having  arisen,  under  which,  by  an  Act  of  the  Legislature,  they 
were  bound  to  do  so  ;  und  second,  in  altering  several  of  the  provisions 


244  WOODS'S   APPEAL.  [CIIAP.  IL 

of  the  Bill  of  Rights  contrary  to  the  limitations  imposed  in  the  fourth 
section  of  the  Act  of  April  Uth,  1872;  and  third,  in  disregarding  the 
Act  of  Asseinbl}',  under  which  the  convention  was  called,  in  regard  to 
submitting  the  amended  Constitution  to  a  vote  of  the  people,  and 
ordaining  a  different  method. 

These  objections  are  all  consistent  with  the  conclusions  already 
arrived  at,  and  if  valid  would  raise  further  questions  under  the  bill, 
notwithstanding  what  has  already  been  said,  and  should  therefore  be 
considered. 

In  examining  these  questions,  the  first  and  second  ma}'  be  taken 
together. 

Looking  upon  general  principles  at  the  real  question  involved,  which 
is  how  far,  if  at  all,  a  constitutional  convention  regularly  called  may 
legally  disregard  limitations  imposed  upon  its  actions  by  the  legislature, 
I  have  no  difhculty  in  arriving  at  what  seems  to  me  to  be  the  correct 
rule.  A  convention  to  amend  the  Constitution,  without  there  is  an 
express  limitation  as  to  the  extent  of  their  power,  passed  upon  by  the 
people  in  determining  the  question  of  amendment,  has  inhorenth-,  by  the 
ver3"  nature  of  the  case  under  the  great  principle  peculiarly  American, 
and  quasi  revolutionar}'  in  its  character  heretofore  mentioned,  absolute 
power,  so  far  as  may  be  necessary  to  carr^-  out  the  purpose  for  wliich 
they  were  called  into  existence,  by  the  popular  will.  Unless  prohibited 
or  restricted  in  the  manner  specified  by  the  people,  the  convention  has 
a  right,  untrammelled  b}-  mere  legislative  limitations,  to  propose  to  the 
people  for  their  consideration  and  adoption  an}'  plan  they  ma}'  see  fit. 
In  saying  this,  we  are  not  to  be  understood  as  saying  that  tlie  conven- 
tion is  in  any  respect  the  supreme  power  of  the  State.  We  take  it  to 
be  simply  the  attorney  for  the  people,  with  plenary  power  to  do  what  is 
required  of  it,  but  nothing  beyond. 

Subject  to  the  limitation  just  mentioned,  a  constitutional  convention, 
in  the  language  of  Mr.  "Wilson,  in  the  Federal  Convention  of  1787,  has 
the  power  to  conclude  nothing,  but  to  propose  anything. 

Such,  too,  is  the  inevitable  result  of  the  views  already  expressed  as 
to  the  purpose  and  effect  of  the  second  section  of  the  Declaration  of 
Rights.  If  it  be  taken  as  a  constitutional  recognition  of  the  principle 
of  legal  revolution  (so  to  speak),  and  of  a  popular  power  as  we  believe, 
the  obvious  result  follows,  that  when  once  called  into  operation  by 
proper  authority,  it  cannot  be  subverted  nor  restrained  by  the  legislature. 

If  this  is  correct,  the  convention  w-as  right  in  disregarding  the  limita- 
tions sought  to  be  imposed  upon  its  power,  both  as  to  what  it  should 
propose  to  change  in  the  present  Constitution,  and  how  the  proposal 
should  be  submitted  to  the  people  for  their  adoption  or  rejection. 

The  third  point,  raising  the  question  of  the  right  of  the  convention  to 
provide  a  way  by  ordinance,  different  from  and  substantially  repealing 
the  Act  of  the  Legislature,  presents  a  very  different  question  from  the 
one  just  considered.  It  is,  however,  immaterial  to  the  determination 
of  the  real  issue  in  this  case.     Assuming  it  to  be  an  excess  of  power, 


CHAP.  II.]  WOODS'S   APPEAL.  245 

the  complainants  can  be  in  no  wise  affected  b}'  it  as  tax-payers.  It  is  en- 
tirely immaterial  to  them  in  that  respect,  whether  the  ordinance  is  legal 
or  illegal.  Their  only  interest  is  that  of  knowing  whether  the  conven- 
tion had  such  a  power  or  not,  as  a  mere  abstract  question,  which  gives 
them  no  standing  in  court.  So  far  as  this  county  is  concerned,  there 
was  no  attempt  by  the  convention  to  change  the  law  made  by  the  legis- 
lature. The  election  which  will  be  held  within  our  jurisdiction,  and  for 
which  the  complainants  as  tax-payers  may  be  called  upon  to  pay,  will 
be  held  under  what  the  complainants  themselves  say  is  the  law,  unless 
the  submission  of  the  proposed  new  Constitution  is  itself,  as  it  stands 
to-day,  illegal  and  unconstitutional. 

There  are  other  questions  involved  in  the  case,  as  to  the  standing 
and  equity  of  the  plaintiffs  under  this  bill,  in  view  of  the  relief  praj'ed 
for,  but  the  conclusions  already  expressed  render  it  unnecessary  to 
examine  them. 

The  result  is,  the  demurrer  must  be  sustained  and  plaintiffs'  bill 
dismissed. 

The  plaintiffs  appealed  to  the  Supreme  Court,  and  assigned  for  error 
the  decree  sustaining  the  demurrer  and  dismissing  the  bill. 

Ji.  Woods,  for  appellants. 

E.  B.  Carnahan,  for  appellees. 

The  opinion  of  the  court  was  delivered,  November  2d,  1874,  by 

Agnew,  C.  J.  The  change  made  by  the  people  in  their  political  in- 
stitutions, by  the  adoption  of  the  proposed  Constitution  since  this 
decree,  forbids  an  inquiry  into  the  merits  of  this  case.  The  question  is 
no  longer  judicial,  but  in  affirming  the  decree  we  must  not  seem  to 
sanction  any  doctrine  in  the  opinion,  dangerous  to  the  liberties  of  the 
people.  The  claim  for  absolute  sovereignty  in  the  convention,  appar- 
ently sustained  in  the  opinion,  is  of  such  magnitude  and  overwhelming 
importance  to  the  people  themselves,  it  cannot  be  passed  unnoticed. 
In  defence  of  their  just  rights,  we  are  bound  to  show  that  it  is  unsound 
and  dangerous.  Their  liberties  would  be  suspended  by  a  thread 
more  slender  than  the  hair  which  held  the  tyrant's  sword  over  the  head 
of  Damocles,  if  they  could  not,  while  yet  their  existing  government 
remained  unchanged,  obtain  from  the  courts  protection  against  the 
usurpation  of  power  by  their  servants  in  the  convention.  When  they 
become  complainants,  the  convention  must  defend  and  show  their 
authority. 

It  was  contended  in  the  case  of  Francis  Wells  et  al.  v.  James  Bain 
et  al.,  involving  the  legality  of  an  ordinance  of  the  convention,  argued 
at  Philadelphia  in  December  last  {antea,  p.  39),  that  the  convention 
had  the  power  to  ordain  ordinances  having  the  present  force  of  law ; 
and  the  instant  power  to  proclaim  a  constitution,  binding  without  rati- 
fication, irrespective  of  the  matter  adopted  by  the  people  to  exercise 
their  right  to  alter  or  amend  their  frame  of  government.  This  imputed 
sovereignty  \w  a  convention  called  and  organized  under  a  law,  as  the 
very  means  adopted  by  the  people  to  exercise  their  reserved  right  of 


246  WOODS'S   APPEAL.  [CIIAP.  II. 

amendment,  owing  to  the  briefness  of  the  time,  was  not  discussed  in 
that  case  with  the  fulness  the  importance  of  the  question  to  the  people 
demanded. 

There  is  no  subject  more  momentous  or  deeply  interesting  to  the  peo- 
ple of  this  State  than  an  assumption  of  absolute  power  by  their  servants. 
The  claim  of  a  body  of  mere  deputies  to  exercise  all  their  sovereignty, 
absolutely,  instantly,  and  without  ratification,  is  so  full  of  peril  to  a  free 
people,  living  under  their  own  instituted  government,  and  a  well-matured 
Bill  of  Rights,  the  bulwark  and  security  of  their  liberties,  that  they  will 
pause  before  they  allow  the  claim  and  inquire  how  they  delegated  this 
fearful  power,  and  how  they  are  thus  absolutely  bound  and  can  be  con- 
trolled by  persons  appointed  to  a  special  service.  Struck  by  the  dan- 
ger, and  "prompted  by  self-interest,  they  will  at  once  distinguish  between 
their  own  rights  and  the  powers  they  commit  to  others.  These  rights 
it  is,  the  judiciary  is  called  in  to  maintain.  The  very  rights  of  the 
people  and  freedom  itself  demand,  therefore,  that  no  such  absolute 
power  shall  be  imputed  to  the  mere  delegates  of  the  people  to  perform 
the  special  service  of  amendment,  unless  it  is  clearly  expressed,  or  as 
clearly  implied,  in  the  manner  chosen  by  the  people  to  communicate 
their  authority. 

A  convention  has  no  inherent  rights  ;  it  exercises  powers  only.    Del- 
egated power  defines  itself.     To  be  delegated  it  must  come  in  some 
adopted  manner  to  convey  it  by  some  defined  means.     This  adopted 
manner,  therefore,  becomes  the  measure  of  the  power  conferred.     The 
right  of  the  people  is  absolute,  in  the  language  of  the  Bill  of  Rights, 
"to  alter,  reform,  or  abolish  their  government  in  such  manner  as  they 
may  think  proper."     This  right  being  theirs,  they  may  impart  so  much 
or  so  little  of  it  as  they  shall  deem  expedient.     It  is  only  when  they 
exercise  this  right,  and  not  before,  they  determine,  by  the  mode  they 
choose  to  adopt,  the  extent  of  the  powers  they  intend  to  delegate. 
Hence  the  argument  which  imputes  sovereignty  to  a  convention,  because 
of  the  reservation  in  the  Bill  of  Rights,  is  utterly  illogical  and  unsound. 
The  Bill  of  Rights  is  a  reservation  of  rights  out  of  the  general  powers 
of  government  to  themselves,  but  is  no  delegation  of  power  to  a  conven- 
tion.    It  defines  no  manner  or  mode  in  which  the  people  shall  proceed 
to  exercise  their  right,  but  leaves  that  to  their  after  choice.    Until  then 
it  is  unknown  how  they  will  proceed,  or  what  powers  they  will  confer  on 
their  delegates.     Hence  we  must  look  beyond  the  Bill  of  Rights  to  the 
mode  adopted  by  the  people,  to  find  the  extent  of  the  power  they  intend 
to  delegate.     These  modes  were  stated  and  discussed  in  the  opinion  in 
Wells  et  al.  v.  Bain  et  al,  supra.     If,  by  a  mere  determination  of  the 
people  to  call  a  convention,  whether  it  be  by  a  vote  or  otherwise,  the 
entire  sovereignty  of  the  people  passes  ipso  facto  into  a  body  of  depu- 
ties or  attorneys,  so  that  these  deputies  can,  without  ratification,  alter  a 
government  and  abolish  its  Bill  of  Rights  at  pleasure,  and  impose  at 
will   a  new  government  upon  the  people  without  restraints  upon  the 
governing  power,  no  true  liberty  remains.     Then  the  servants  sit 


CHAP.  II.]  WOODS'S   APPEAL.  247 

above  their  masters  by  the  merest  imputation,  and  a  people's  welfare 
must  always  rest  upon  the  transient  circumstances  of  the  hour,  which 
produce  the  convention  and  the  accidental  character  of  the  majority 
which  controls  it.  Such  a  doctrine,  however  suited  to  revolutionary 
times,  when  new  governments  must  be  formed,  as  best  the  people  can, 
is  wholly  unfitted  when  applied  to  a  state  of  peace  and  to  an  existing 
government,  instituted  by  the  people  themselves  and  guarded  by  a  well- 
matured  Bill  of  Rights.  .  .  . 

The  people  have  the  same  right  to  limit  the  powers  of  their  delegates 
that  they  have  to  bound  the  power  of  their  representatives.  Each  are 
representatives,  but  only  in  a  different  sphere.  It  is  simply  evasive  to 
affirm  that  the  legislature  cannot  limit  the  right  of  the  people  to  alter  or 
reform  their  government.  Certainly  it  cannot.  The  question  is,  not 
upon  the  power  of  the  legislature  to  restrain  the  people,  but  upon  the 
right  of  the  people,  by  the  instrumentality  of  the  law,  to  limit  their  dele- 
gates. Law  is  the  highest  form  of  a  people's  will  in  a  state  of  peace- 
ful government.  When  a  people  act  through  a  law  the  act  is  theirs, 
and  the  fact  that  they  used  the  legislature  as  their  instrument  to  confer 
their  powers  makes  them  the  superiors  and  not  the  legislature.  The 
idea  which  lies  at  the  root  of  the  fallacy,  that  a  convention  cannot  be 
controlled  by  law  is,  that  the  convention  and  the  people  are  identical. 
But  when  the  question  to  be  determined  is  between  the  people  and  the 
convention,  the  fallacy  is  obvious.  Such  a  meton3my  may  do  for  a 
flourish  of  rhetoric,  but  not  for  grave  argument.  The  parties  to  the 
question  are  the  people  on  the  one  hand  and  the  convention  on  the 
other.  The  people  allege  an  usurpation  of  power  in  this,  that  the  con- 
vention seeks  to  bind  them  without  their  ratification.  The  question  then 
is,  what  power  was  conferred  ?  The  judiciary-  sits  to  decide  between  them. 
The  people  having  challenged  their  power  to  set  a  government  over 
them  at  will,  the  agents  must  show  their  authority  to  do  this.  The 
latter  put  in  evidence  the  Act  of  1871  as  their  authority.  Then  the 
issue  is,  does  the  Act  of  1871,  simply  ordering  a  convention  to  be  called, 
confer  this  absolute,  extraordinary,  and  dangerous  power  upon  a  body 
of  men  not  yet  called  into  being,  and  which  can  have  neither  being  nor 
power  except  by  the  further  act  of  the  people  through  the  instrumental- 
ity of  a  law?  To  make  the  law  odious,  it  is  assumed  that  the  legis- 
lature is  or  may  be  corrupt.  But  this  is  aside  from  the  true  question  or 
power.  In  a  governmental  and  proper  sense,  law  is  the  highest  act  of  a 
people's  sovereignty-,  while  their  government  and  constitution  remain 
unchanged.  It  is  the  supreme  will  of  the  people  expressed  in  the 
forms  and  by  the  authority  of  their  constitution.  It  is  their  own  ap- 
pointed mode  through  which  they  govern  themselves,  and  by  which  they 
bind  themselves.  So  long  as  their  frame  of  government  is  unchanged 
in  its  grant  of  all  legislative  power,  these  laws  are  supreme  over  all 
subjects  unforbidden  b}-  the  instrument  itself.  The  calUng  of  a  con- 
vention, and  regulating  its  action  by  law,  is  not  forbidden  in  the  Con- 
stitution.    It  is  a  conceded  manner,  through  which  the   people   may 


248  WOODS'S   APPEAL.  [ciIAP.  II. 

exercise  the  right  reserved  in  the  Bill  of  Rights.  It  falls,  therefore, 
within  the  protection  of  the  Bill  of  Riglits  as  a  very  manner  in  which 
the  people  may  proceed  to  amend  their  constitution,  and  delegate  the 
onh'  powers  they  intend  to  confer,  and  as  the  means  whereby  they  ma}-, 
by  limitation,  defend  themselves  against  those  who  are  called  in  to 
exercise  their  powers.  The  legislature  may  not  confer  powers  by  law 
inconsistent  with  the  rights,  safet}',  and  liberties  of  the  people,  because 
no  consent  to  do  this  can  be  implied,  but  Ihey  ma}'  pass  limitations  in 
favor  of  the  essential  rights  of  the  people.  The  right  of  the  peoi)le  to 
restrain  their  delegates  by  law  cannot  be  denied,  unless  the  power  to 
call  a  convention  hy  law,  and  the  right  of  self-protection  be  also  denied. 
It  is,  therefore,  the  right  of  the  people  and  not  of  the  legislature  to  be 
put  by  law  above  the  convention,  and  to  require  the  delegates  to  sub- 
mit their  work  for  ratification  or  disapproval.  .  .  . 

Decree  afflrmecl} 

^  Another  American  principle  growing  out  of  this,  and  just  as  important  and  well 
settled  as  is  the  truth  that  the  people  are  the  source  of  power,  is  tliat,  when  in  the 
course  of  events  it  becomes  necessary  to  ascertain  the  will  of  the  people  on  a  new 
exigency,  or  a  new  state  of  things  or  of  opinion,  the  legislative  power  provides  for  that 
ascertainment  by  an  ordinary  act  of  legislation.  Has  not  that  been  our  whole  history? 
It  would  take  me  from  now  till  the  suu  sliall  go  down  to  advert  to  all  the  instances  of 
it,  and  I  shall  only  refer  to  the  most  prominent,  and  especially  to  the  establishment  of 
the  Constitution  under  which  you  sit.  The  old  Congress,  upon  the  suggestion  of  the 
delegates  who  assembled  at  Annapolis  in  May,  1786,  recommended  to  the  States  that 
they  should  send  delegates  to  a  convention  to  be  holden  at  Philadelphia  to  form  a 
constitution.  No  article  of  the  old  Confederation  gave  them  power  to  do  this ;  but 
they  did  it,  and  the  States  did  appoint  delegates,  who  assembled  at  Philadeli)hia  and 
formed  the  Constitution.  It  was  communicated  to  the  old  Congress,  and  that  body 
recommended  to  the  States  to  make  provision  for  calling  the  people  together  to  act 
upon  its  adoption.  Was  not  that  exactly  the  case  of  passing  a  law  to  ascertain  the 
will  of  the  people  in  a  new  exigency?  And  this  method  was  adopted  without  opposi- 
tion, nobody  suggesting  that  there  could  be  any  other  mode  of  ascertaining  the  will  of 
the  people. 

My  learned  friend  went  through  the  constitutions  of  several  of  the  States.  It  is 
enough  to  say  that,  of  the  old  thirteen  States,  the  constitutions,  with  but  one  excep- 
tion, contained  no  provision  for  their  own  amendment.  In  New  Hampshire  there 
was  a  provision  for  taking  the  sense  of  the  people  once  in  seven  years.  Yet  there  is 
hardly  one  that  has  not  altered  its  Constitution,  and  it  has  been  done  by  conventions 
called  by  the  legislature,  as  an  ordinary  exercise  of  legislative  power.  Now,  what 
State  ever  altered  its  constitution  in  any  other  mode?  What  alteration  has  ever  been 
brought  in,  put  in,  forced  in,  or  got  in  anyhow,  by  resolutions  of  mass  meetings,  and 
then  by  applying  force?  In  what  State  has  an  assembly,  calling  itself  the  people,  con- 
vened without  law,  without  authority,  without  qualifications,  without  certain  officers, 
v.'ith  no  oaths,  securities,  or  sanctions  of  any  kind,  met  and  made  a  constitution,  and 
called  it  the  Constitution  of  the  State  ?  There  must  be  some  authentic  mode  of  ascer- 
taining the  will  of  the  people,  else  all  is  anarchy.  It  resolves  itself  into  the  law  of 
the  strongest,  or,  what  is  the  same  thing,  of  the  most  numerous  for  the  moment,  and 
all  constitutions  and  all  legislative  rights  are  prostrated  and  disregarded. 

But  my  learned  adversary  says,  that  if  we  maintain  that  the  people  (for  he  speaks 
in  the  name  and  on  behalf  of  the  people,  to  which  I  do  not  object)  cannot  commence 
changes  in  their  government  but  by  some  previous  Act  of  legislation,  and  if  the  legis- 
lature will  not  grant  such  an  Act,  we  do  in  fact  follow  the  example  of  the  Holy 
Alliance,  "  the  doctors  of  Laybach,"  where  the  assembled  sovereigns  said   that  all 


CHAP.  II.]  WOODS'S   APPEAL.  249 

changes  of  governmeut  must  proceed  from  sovereigns ;  and  it  is  said  that  we  mark  out 
the  same  rule  fijr  the  people  of  Rhode  Island. 

Now,  will  any  man,  will  my  adversary  here,  on  a  moment's  reflection,  undertake  to 
show  the  least  resemblance  on  earth  between  what  I  have  called  the  American  doc- 
trine and  the  doctrine  of  the  sovereigns  at  Laybach?  What  do  I  contend  for  ?  I  say 
that  the  will  of  the  people  nmst  prevail,  when  it  is  ascertained ;  but  there  must  be 
some  legal  aiid  authentic  mode  of  ascertaining  that  will ;  and  then  the  people  may 
make  what  governmeut  they  please.  Was  that  the  doctrine  of  Laybach  ?  Was  not 
the  doctrine  there  held  this,  that  the  sovereigns  should  say  what  changes  shall  be 
made  1  Changes  must  proceed  from  them  ;  new  constitutions  and  new  laws  emanate 
from  them  ;  and  all  the  peojjle  had  to  do  was  to  submit.  That  is  what  they  main- 
tained. All  changes  began  with  the  sovereigns,  and  ended  with  the  sovereigns.  Pray, 
at  about  the  time  that  the  Congress  of  Laybach  was  in  session  did  the  allied  powers 
put  it  to  the  people  of  Italy  to  say  what  sort  of  change  they  would  have  ?  And  at  a 
more  recent  date,  did  they  ask  the  citizens  of  Cracow  what  change  they  would  have  in 
their  constitution  t  Or  did  they  take  away  their  constitution,  laws,  and  liberties  by 
their  own  sovereign  act  ?  All  that  is  necessary  here  is,  that  the  will  of  the  people 
should  be  ascertained,  by  some  regular  rule  of  proceeding,  prescribed  by  previous  law. 
But  when  ascertained,  that  will  is  as  sovereign  as  the  will  of  a  despotic  prince,  of  the 
Czar  of  Muscovy,  or  the  Emperor  of  Austria  himself,  though  not  quite  so  easily  made 
known.  A  ukase  or  an  edict  signifies  at  once  the  will  of  a  despotic  prince;  but  that 
will  of  the  people,  which  is  here  as  sovereign  as  the  will  of  such  a  prince,  is  not  so 
quickly  ascertained  or  known ;  and  thence  arises  the  necessity  for  suffrage,  which  is 
tlie  mode  whereby  each  man's  power  is  made  to  tell  upon  the  Constitution  of  the  gov- 
ernment, and  in  the  enactment  of  laws. 

One  of  the  most  recent  laws  for  taking  the  will  of  the  people  in  any  State  is  the 
law  of  1 843,  of  the  State  of  New  York.^  It  begins  by  recommending  to  the  people  to 
assemble  in  their  several  election  districts,  and  proceed  to  vote  for  delegates  to  a  con- 
vention. If  you  will  take  the  pains  to  read  that  Act,  it  will  be  seen  that  New  York 
regarded  it  as  an  ordinary  exercise  of  legislative  power.  It  applies  all  the  penalties  for 
fraudulent  voting,  as  in  other  elections.  It  punishes  false  oaths,  as  in  other  cases. 
Certificates  of  the  proper  officers  were  to  be  held  conclusive,  and  the  will  of  the  people 
was,  in  this  respect,  collected  essentially  in  the  same  manner,  supervised  by  the  same 
officers,  under  the  same  guards  against  force  and  fraud,  collusion  and  misrepresentation, 
as  are  usual  in  voting  for  State  or  United  States  officers. 

We  see,  therefore,  from  the  commencement  of  the  government  under  which  we 
live,  down  to  this  late  Act  of  the  State  of  New  York,  one  uniform  current  of  law,  of 
precedent,  and  of  practice,  all  going  to  establish  the  point  that  changes  in  government 
are  to  be  brought  about  by  the  will  of  the  people,  assembled  under  such  legislative 
provisions  as  may  be  necessary  to  ascertain  that  will,  truly  and  authentically. — 
Mr.  Webster's  Arr/ument  in  Luther  v.  Borden  et  al.,  Jan.  27,  1848.  Works  of  Daniel 
Webster,  vi.  227-229. 


1  The  Constitution  of  New  York  then  existing  (that  of  1821,  art.  8)  provided  for 
Its  own  amendment  by  legislative  proposal,  in  substantially  the  same  way  as  the  con- 
stitutions of  Pennsylvania,  Rhode  Island,  and  Massachusetts  above  considered.  The 
Massachusetts  provision  (Amendment  IX.)  was  introduced  by  Mr.  Webster  himself. 
Debates  of  Mass.  Conv.  of  1820,  124.  —  Ed. 


250  SPROULE  V.   FREDERICKS.  [CHAP.  IL 


SPEOULE   V.   FREDERICKS. 
Supreme  Court  of  Mississippi.     1892. 

[69  Miss.  898.]  i 

L.  TV.  Magruder,  unci  Gibson^  Henry,  &  JBien,  for  appellant.   Miller, 
Smith,  c6  Hirsh,  for  appellee. 
Woods,  J.,  delivered  the  opinion  of  the  court. 

The  validity  of  the  Constitution  of  1890  is  called  in  question  by 
counsel  for  appellee,  in  a  supplemental  brief  filed  recently,  by  con- 
sent of  the  court ;  and,  as  the  challenge  meets  us  on  the  threshold 
of  the  case,  we  proceed  at  once  to  its  consideration,  briefly.  In  sup- 
port of  this  view  of  the  invalidity  of  the  Constitution,  two  propositions 
are  asserted:  1.  That  a  constitutional  convention  has  power  only  to 
prepare  or  frame  the  body  of  a  constitution,  and  that  when  prepared 
or  framed  the  instrument  is  of  no  force  or  effect  until  ratified  by  a 
popular  vote  of  the  people;  and  the  Constitution  of  1890,  having 
never  been  submitted  to  or  ratified  by  the  people,  is  invalid  ;  and 
2.  That  the  changes  made  by  the  Constitution  in  the  basis  of  suf- 
frage are  violative  of  the  Act  of  Congress  readmitting  the  State  of 
Mississippi  into  the  Union  in  the  year  1870,  and  invalidate  that 
instrument. 

With  confidence,  we  reject  both  propositions  as  unsound.  It  will  be 
remembered  that  the  case  at  bar  is  free  from  the  difficulties  which  are 
supposed  by  some  writers  to  arise  out  of  a  failure  or  refusal  of  a  consti- 
tutional convention  to  yield  to  the  direction  of  the  legislature  which 
summoned  it  that  the  Constitution  framed  shall  be  submitted  to  the 
people  for  ratification.  The  Act  of  the  Legislature  which  provided  for 
the  assembling  of  the  constitutional  convention  of  1890  declared  that 
the  end  sought  to  be  attained,  the  work  to  be  done,  was  tlie  revision 
and  amendment  of  the  Constitution  of  1869,  or  the  enactment  of  a  new 
constitution  ;  and  it  did  not  attempt  to  limit  the  powers  of  the  conven- 
tion by  imposing,  or  seeking  to  impose,  upon  that  sovereign  tribunal 
tlie  mere  legislative  will  that  the  Constitution  enacted  should  be  sub- 
mitted to  the  people  for  ratification.  We  have  simply  the  case  of  a  con- 
stitutional convention  enacting  a  new  constitution,  and  putting  it  into 
effect  without  an  appeal  to  the  people,  in  strict  conformity  to  the  legis- 
lative call  which  assembled. 

We  have  spoken  of  the  constitutional  convention  as  a  sovereign  body, 
and  that  characterization  perfectly  defines  the  cornfect  view,  in  our  opin- 
ion, of  the  real  nature  of  that  august  assembly,   ^t  is  the  highest  legis-^ 
lative  body  known  tc)  frPPinPn   in   a.  rpprpsentative  o^overnment. — lLia_ 
supreme  in  its  sj^here.     It  wields  the  powers  of  sovprpjo-nty.  spppinlly 
delegated  to  it,  for  the  purpose  and  the  occasion,  by  the  whole  electoral 

1  The  statement  of  facts  is  omitted.  —  Ed. 


CHAP.  II.]  SPROULE  V.   FREDERICKS.  251 

body,  for  the  good  of  the  whole  Commonwealth.  The  sole  limitation 
upon  its  powers  is  that  no  change  in  tiie  form  of  government  shall  be 
done  or  attempted.  The  spirit  of  republicanism  must  breathe  through 
ever}-  part  of  the  framework,  but  the  particular  fashioning  of  the  parts 
of  this  framework  is  confided  to  the  wisdom,  the  faithfulness,  and  the 
patriotism  of  this  great  convocation,  representing  the  people  in  their 
sovereignty.  The  theorizing  of  the  political  essayist  and  tlie  legal  doc- 
trinaire, by  which  it  is  sought  to  be  established  that  the  expression  of 
the  will  of  the  legislature  shall  fetter  and  control  the  constitution- 
making  body,  or,  in  the  absence  of  such  attempted  legislative  direction, 
which  seeks  to  teach  that  the  constitutional  convention  can  only  prepare 
the  frame  of  a  constitution  and  recommend  it  to  the  people  for  adop- 
tion, will  be  found  to  degrade  this  sovereign  body  below  the  level  of 
the  lowest  tribunal  clothed  with  ordinary  legislative  powers.  This 
theorizing  will  reduce  that  great  body,  which,  in  our  State,  at  least, 
since  the  beginning  of  its  existeng^f^xcept  for  a  single  brief  interval, 
in  an  exceptional  period,  by^erTstom  and  the  universal  consent  of  the 
people,  has  been  regsmjedas  the  repository  and  executor  of  the  powers 
ol"  sovereignty,  tr)_fl<fnere  commission,  stripyjed  of  all  power,  and  author- 
ized only  to  makea  recommendation. 

Wliatever  may  be  tlie  safer  and  wiser  course,  as  to  putting  into  oper- 
ation the  completed  work  of  the  constitutional  convention,  the  opinions 
of  the  political  theorists,  wliieh  we  are  considering,  will  be  found  to 
rest  upon  grounds  largely  imaginary  and  fanciful.  The  constitutional 
convention  itself,  according  to  tliis  theory,  is  looked  upon  with  sus- 
picion and  distrust,  as  being  the  introduction  into  our  governmental 
system  of  a  revolutionary  device ;  the  chosen  representatives  of  the 
sovereign  people  are  dreaded,  as  likely  to  prove  unfaitliful  to  their 
raigiity  trust ;  and  the  liberties  of  the  people  are  in  danger  of  subver- 
sion. Tliis  succinct  statement  of  the  grounds  of  these  political  theo- 
rists will  demonstrate  the  unreal  foundation  upon  which  tlieir  teachings 
rest.  The  general  judgment  of  the  people  of  our  own  State  has  practi- 
cally and  strikingly  repudiated  the  theory,  from  the  foundation  of  the 
government.  The  usage  in  Mississippi,  with  a  solitary  exception  in  an 
extraordinary  conjuncture  of  public  affairs,  gives  it  no  support.  That 
the  government  has  lived  from  its  birth  to  this  hour  with  no  valid  funda- 
mental law  on  which  to  rest,  except  for  a  brief  interval,  cannot  be  true. 

2.  There  is  as  little  ground  for  the  second  branch  of  the  conten- 
tion. .  .  .  Reversed  and  remanded} 

1  As  to  the  previous  constitutions  of  Mississippi,  see  the  tables  in  Jameson's  Const. 
Conv.  (4th  ed.)  Appendix,  651.  It  appears  there  that  three  out  of  five,  in  all,  were,  in 
fact,  submitted  to  the  people.  —  Ed. 


252  KOEHLER   AND   LANGE   V.   HILL.  [CHAP.  IL 

KOEFILER  AND   LANGE  v.   HILL. 

Supreme  Court  of  Iowa.     1883. 

[60  Iowa,  543.] 

Appeal  from  Scott  District  Court.  Saturdaj',  April  21.  Action  to 
recover  for  beer  sold  and  delivered  b}'  the  plaintiffs  to  the  defendant. 
Trial  to  the  court,  judgment  for  the  plaintiffs,  and  the  defendant 
appeals. 

Smith  McPherson,  Attorne^'-General,  Peter  A.  Boyle^  WiUiarh  E. 
Miller^  J.  A.  Harvey^  James  F.  Wilson,  C.  C.  Nourse,  John  F.  Dun- 
comhe,  and  Listen  McMillan,  for  appellant. 

Bills  &  Block  and  Wright,  Cvm?7iins  &  Wright,  for  appellees. 

Seevers,  J.  At  a  special  election  held  on  the  27th  day  of  June, 
1882,  the  electors  of  the  State,  b}-  a  majorit}-  of  about  thirty  thousand, 
ratified  an  amendment  to  the  Constitution,  which,  it  is  claimed,  had 
been  previously  agreed  to  by  the  Eighteenth  and  Nineteenth  General 
Assemblies,  prohibiting  the  manufacture  and  use  of  intoxicating  liquors 
as  a  beverage,  including  ale,  wine,  and  beer,  as  therein  provided. 

The  question  is  fairly  presented  in  the  record  in  this  case,  whether  or 
not  the  amendment  aforesaid  has  been  constitutional!}-  agreed  to  and 
adopted,  and  this  is  the  question  discussed  by  counsel,  and  the  only 
question  we  are  called  on  to  determine.  The  validity  of  the  amend- 
ment, and  whether  the  same  now  constitutes  a  part  of  the  Constitution, 
depend  upon  the  question  whether  the  Eighteenth  General  Assembly 
agreed  to  the  amendment  which  was  ratified  and  adopted  by  the  elec- 
tors, and  whether  the  amendment  was  agreed  to  by  the  Eighteenth  Gen- 
eral Assembl}-  in  the  form  and  manner  required  by  the  Constitution. 

When  the  Constitution  was  adopted  it  was  wisely  therein  provided,  or 
at  least  it  must  be  so  presumed,  that  "  any  amendment  or  amendments 
to  this  Constitution  may  be  proposed  in  either  House  of  the  General 
Assembly  ;  and  if  the  same  shall  be  agreed  to  by  a  majority  of  the  mem- 
bers elected  to  each  of  the  two  Houses,  such  proposed  amendment  shall 
be  entered  on  their  journals,  with  the  3'eas  and  na3-s  taken  thereon,  and 
referred  to  the  legislature  to  be  chosen  at  the  next  general  election,  and 
shall  be  published  as  provided  by  law  for  three  months  previous  to  the 
time  of  making  such  choice ;  and  if,  in  the  General  Assembl}'  so  next 
chosen  as  aforesaid,  such  proposed  amendment  or  amendments  shall  be 
agreed  to  by  a  majority  of  all  the  members  elected  to  each  House,  then 
it  shall  be  the  duty  of  the  General  Assembh'  to  submit  such  proposed 
amendment  to  the  people,  in  such  manner  and  at  such  time  as  the  Gen- 
eral Assembly  shall  provide ;  and  if  the  people  shall  approve  and  ratify 
such  amendment  or  amendments  by  a  majority  of  the  electors  qualified 
to  vote  for  members  of  the  General  Assembly,  voting  thereon,  such 
amendment  or  amendments  shall  become  a  part  of  the  Constitution  of 
this  State."— Art.  10,  §  1. 


CHAP.  II.]  KOEHLER   AND   LANGE   V.   HILL.  233 

This  is  the  only  wa}'  the  Constitution  can  be  amended  or  cliangetl 
except  by  a  convention  called  for  that  purpose. 

In  compliance  with  the  foregoing  provision,  there  was  introduced  into 
the  House  of  Representatives  of  the  Eighteenth  General  Assembly  a 
joint  resolution.  .  .  .  Thereupon,  such  enrolled  resolution  was  signed 
by  the  Speaker  of  the  House  and  President  of  the  Senate,  and  approved 
by  the  Governor.  The  joint  resolution  thus  signed  and  approved  was 
as  follows :  "  No  person  shall  manufacture  for  sale,  or  sell,  or  keep  for 
sale,  as  a  beverage,  any  intoxicating  liquor  whatever,  including  ale, 
wine,  and  beer."  This  proposed  amendment  to  the  Constitution  was 
agreed  to  by  the  Nineteenth  General  Assembly,  and  ratified  by  the  elec- 
tors at  a  special  election,  held  on  the  27th  day  of  June,  1882.  Counsel 
for  the  plaintiff"  insist  that  the  joint  resolution,  at  the  time  it  was  agreed 
to  by  the  Senate  [of  the  Eighteenth  General  Assembly],  contained  the 
words  "  or  to  be  used."  Their  contention  is  that  it  then  reads  as  fol- 
lows :  "No  person  shall  manufacture  for  sale,  or  sell,  or  keep  for  sale, 
as  a  beverage,  or  to  be  used,  any  intoxicating  liquor  whatever,  includ- 
ing ale,  wine,  and  beer."  The  resolution  claimed  to  have  been  agreed 
to  by  the  Senate  is  materially  different  in  substance  from  the  one  rati- 
fied by  the  electors.  Counsel  for  the  appellant  do  not  claim  this  is  not 
so  as  shown  by  the  journals,  but  their  contention  is  that  the  enrolled 
resolution,  signed  by  the  Speaker  of  the  House  and  President  of  the 
Senate,  and  approved  by  the  Governor,  is  a  verity,  and  is  conclusive 
evidence  that  the  resolution  as  enrolled  was  agreed  to  by  both  Houses 
of  the  Eighteenth  General  Assembly,  or,  if  this  is  not  so,  that  the  pre- 
ponderance of  the  evidence  is  in  favor  of  the  proposition  that  the  reso- 
lution which  was  agreed  to  was  correctly  enrolled.  The  plaintiff  contends 
that  it  is  made  clear  and  certain  by  an  examination  of  the  Senate  jour- 
nal that  the  words  "  or  to  be  used"  were  in  the  resolution  when  it  passed 
the  Senate,  and  that  the  journal  is  the  best  evidence  of  such  fact.  .  .  . 
[The  Court  (Beck,  J.  dissenting)  held  that  it  might  examine  the 
journals  of  the  Eighteenth  General  Assembly  ;  and,  as  a  result  of  the 
examination,  that  the  amendment  agreed  to  by  the  Senate  was  different 
from  that  which  was  agreed  to  and  submitted  to  the  people  by  the  Nine- 
teenth General  Assembly,  and  therefore,  although  ratified  by  the  people, 
had  not  legally  become  a  part  of  the  Constitution.] 

Om  Rehearing.  Day,  Ch.  J.  —  A  petition  for  rehearing  was  pre- 
sented in  this  cause,  and  the  whole  case  has  been  re-argued  by  eminent 
counsel  with  much  ability  and  research.  In  view  of  the  great  interest 
which  has  attached  to  this  question,  and  of  its  public  importance,  we 
deem  it  not  only  proper,  but  necessary,  to  examine  with  considerable 
fulness  the  leading  points  relied  upon  as  necessitating  a  conclusion 
different  from  the  one  reached  in  the  foregoing  opinion. 

I.  It  is  asserted  in  the  petition  for  rehearing  that  "  the  judicial  de- 
partment of  the  State  has  no  jurisdiction  over  political  questions,  and 
cannot  review  the  action  of  the  Nineteenth  General  Assembly,  and  of 
the  people,  in  the  matter  of  the  adoption  or  amendment  of  the  Consti- 


254  KOEHLEU   AND   LANGE   V.    HILL.  [CHAP.  IL 

tiUion  of  the  State."  This  position  practically  amounts  to  this  :  that 
the  provisions  of  the  Constitution  for  its  own  amendment  are  simply 
directory,  and  may  be  disregarded  vvitli  impunity  ;  for  it  is  idle  to  sa}* 
tliat  these  requirements  of  the  Constitution  must  be  observed,  if  the 
departments  charged  with  their  observance  are  the  sole  judges  as  to 
whether  or  not  they  have  been  complied  with.  This  proposition  was 
advanced  for  the  first  time  upon  the  petition  for  rehearing,  and,  if  cor- 
rect, it  is  of  course  an  end  of  the  controversy.  Upon  this  branch  of  the 
case  counsel  cite  Luther  v.  Jiorden,  7  How.  1.  As  this  ease  has  prin- 
cipally been  relied  upon  by  the  advocates  of  the  theorv  now  under  con- 
sideration, and  has  been  given  great  prominence  in  the  discussions 
■which  have  taken  place,  we  desire  to  present  its  facts  with  a  degree  of 
fulness  which,  under  ordinary  circumstances,  would  perhaps  be  consid- 
ered unnecessary,  to  the  end  that  the  degree  of  its  applicability  to  the 
present  case  may  be  fully  understood. 

In  1841,  the  State  of  Rhode  Island  was  acting  under  tlie  form  of  gov- 
ernment established  b}'  the  charter  of  Charles  II.  in  1GG3.  In  this  form 
of  government  no  mode  of  proceeding  was  pointed  out  by  which  amend- 
ments could  be  made.  It  authorized  the  legislature  to  prescribe  the 
qualification  of  voters,  and  in  the  exercise  of  this  power  the  right  of 
suffrage  was  confined  to  freeholders.  In  1841,  meetings  were  held  and 
associations  were  formed  by  those  who  were  in  favor  of  a  more  extended 
right  of  suffrage,  Avhich  finally  resulted  in  the  election  of  a  convention 
to  form  a  new  Constitution,  to  be  submitted  to  the  people  for  their 
adoption  or  rejection.  The  persons  chosen  came  together  and  framed 
a  Constitution  by  which  the  right  of  suffrage  was  extended  to  ever}' 
male  citizen  of  twent^'-one  years  of  age  who  had  resided  in  the  State 
for  one  year.  Upon  a  return  of  the  votes,  the  convention  declared  tliat 
the  Constitution  was  adopted  and  ratified  by  a  majorit}'  of  the  people 
of  the  State,  and  was  the  paramount  law  and  Constitution  of  Rhode 
Island.  The  charter  government  did  not  admit  the  validity  of  the  pro- 
ceedings, nor  acquiesce  in  them.  On  the  contrar}',  in  Januar}',  1842, 
when  this  new  Constitution  was  communicated  to  the  Governor  and  b}' 
him  laid  before  the  legislature,  it  passed  resolutions  declaring  all  acts 
done  for  the  purpose  of  imposing  that  Constitution  upon  the  State,  to 
be  an  assumption  of  the  powers  of  government,  in  violation  of  the  rights 
of  the  existing  government  and  of  the  people  at  lai'ge,  and  that  it  would 
maintain  its  authorit}'  and  defend  the  legal  and  constitutional  rights  of 
the  people.  Thomas  W.  Dorr,  who  had  been  elected  Governor  under 
the  new  Constitution,  prepared  to  assert  the  authority'  of  that  govern- 
ment by  force,  and  many  citizens  assembled  in  arms  to  support  him. 
The  charter  government  thereupon  passed  an  Act  declaring  the  State 
under  martial  law,  and  at  the  same  time  proceeded  to  call  out  the  mili- 
tia to  repel  the  threatened  attack,  and  to  subdue  those  who  were  en- 
gaged in  it.  The  plaintiff,  Luther,  was  engaged  in  supporting  the  new 
government,  and,  in  order  to  arrest  him,  his  house  was  broken  and  en- 
tered by  the  defendants,  who  were  enrolled  in  the  military  force  of  the 


CHAP.  II.]  KOEHLER  AND   LANGE   V.    HILL.  255 

old  government,  and  in  arms  to  support  its  authority.  The  government 
under  the  new  Constitution  liad  but  a  short  and  ignoble  existence.  In 
May,  1842,  Dorr  made  an  unsuccessful  attempt,  at  the  head  of  a  mili- 
tary force,  to  get  possession  of  the  State  arsenal  at  Providence,  which 
was  repulsed.  In  June  following,  an  assemblage  of  some  hundreds  of 
armed  men,  under  his  command  at  Chepatchet,  dispersed,  upon  the  ap- 
proach of  the  troops  of  the  old  government,  and  no  further  efTort  was 
made  to  establish  the  new  government.  In  January,  184*2,  the  charter 
government  took  measures  to  call  a  convention  to  revise  the  existing 
form  of  government,  and  a  new  Constitution  was  formed,  which  was 
ratified  by  the  people,  and  went  into  operation  in  May,  1843,  at  which 
time  the  old  government  formally  surrendered  all  its  powers.  Under 
this  government  Dorr  was  tried  for  treason,  and  in  June,  1844,  was 
sentenced  to  imprisonment  for  life.  In  October,  1842,  Luther  brought 
an  action  in  the  Circuit  Court  of  the  United  States,  against  Borden  and 
others,  to  recover  damages  for  the  breaking  and  entering  of  his  house 
in  June,  1842.  The  defendants  justified,  alleging  that  there  was  an 
insurrection  to  overthrow  the  government,  that  martial  law  was  declared, 
that  plaintiff  was  aiding  and  abetting  the  insurrection,  that  defendants 
were  enrolled  in  the  militia  force  of  the  State  and  were  ordered  to  arrest 
the  plaintitf.  The  plaintiff  relied  upon  the  fact  that  the  Dorr  govern- 
ment, to  which  he  adhered,  was  the  legal  government  of  the  State,  and, 
as  the  new  Constitution  had  never  been  recognized  by  any  department 
of  the  old  government,  he  offered  to  prove  at  the  trial,  by  the  produc- 
tion of  the  original  ballots,  and  the  original  registers  of  the  persons 
voting,  and  by  the  testimony  of  the  persons  voting,  and  by  the  Consti- 
tution itself,  and  by  the  census  of  the  United  States  for  the  year  1840, 
that  the  Dorr  Constitution  was  ratified  by  a  large  majority  of  the  male 
people  of  the  State,  of  the  age  of  twenty-one  and  upwards,  and  also  by 
a  majority  of  those  who  were  entitled  to  vote  for  general  officers  under 
the  then  existing  laws  of  the  State.  The  Circuit  Court  rejected  the 
evidence,  and  instructed  the  jury  that  the  charter  government,  and  laws 
under  which  the  defendants  acted,  were,  at  the  time  the  trespass  was 
alleged  to  have  been  committed,  in  full  force  and  effect,  and  constituted 
a  justification  of  the  acts  of  the  defendants.  The  correctness  of  this 
ruling  involved  the  onh'  question,  which  was  taken  to  the  Supreme 
Court  of  the  United  States  for  review.  The  Supreme  Court  held  that 
the  evidence  was  properly  rejected.  Of  the  correctness  of  that  decision 
no  one  can  entertain  the  shadow  of  a  doubt.  But  the  differences  be- 
tween that  case  and  this  are  so  many  and  so  evident,  as  to  deprive  it 
of  all  force  as  an  authority  in  the  present  controvers}'.  In  that  case 
an  entire  change  in  the  form  of  government  was  undertaken ;  in  this, 
simply  an  amendment,  in  no  manner  affecting  the  judicial  authority  of 
those  acting  under  the  existing  government,  is  sought  to  be  incorporated 
into  the  existing  Constitution.  In  that  case  the  charter  provided  no 
means  for  its  amendment ;  in  this,  the  mode  of  an  amendment  is  spe- 
cifically provided.     In  that  case  the  authority  of  the  court  was  invoked 


256  KOEHLER   AND   LANGE  V.   HILL.  [cHAP.  IL 

for  the  admission  of  oral  evidence  to  overthrow  the  existing  government 
and  establish  a  new  one  in  its  place;  in  this,  that  authorit}-  is  invoked 
simply  to  preserve  the  existing  Constitution  intact. 

It  is  evident,  from  an  examination  of  the  entire  case  of  Luther  v. 
Borden,  that  the  question  which  the  court  was  considering  pertained 
to  the  power  of  the  Federal  courts  to  determine  between  rival  constitu- 
tions in  the  States.  The  power  is  not  denied  to  the  State  courts, 
unless  one  of  the  constitutions  involved  in  the  controversy  be  the  one 
under  which  the  court  is  organized.  This  is  fully  apparent  from  the 
whole  opinion.  Referring  to  the  trial  of  Thomas  W.  Dorr  for  treason, 
in  the  Supreme  Court  of  Rhode  Island,  the  court  say :  "  It  is  worthy 
of  remark,  however,  when  we  are  referring  to  the  authority  of  State 
decisions,  that  the  trial  of  Thomas  W.  Dorr  took  place  after  the  Con- 
stitution of  1843  went  into  operation.  The  judges  who  decided  that 
case  held  their  authority  under  that  Constitution  ;  and  it  is  admitted 
on  all  hands  that  it  was  adopted  by  the  people  of  the  State,  and  is 
the  lawful  and  established  government.  It  is  the  decision,  therefore, 
of  a  State  court,  whose  judicial  authority  to  decide  upon  the  Consti- 
tution and  laws  of  Rhode  Island  is  not  questioned  by  either  party  to 
this  controversy,  although  the  government  under  which  it  acted  was 
framed  and  adopted  under  the  sanction  and  laws  of  the  charter  govern- 
ment. The  point,  then,  raised  here  has  already  been  decided  by  the 
courts  of  Rhode  Island.  The  question  relates  altogether  to  the  Con- 
stitution and  laws  of  that  State  ;  and  the  well-settled  rule  in  this  court 
is,  that  the  courts  of  the  United  States  adopt  and  follow  the  decisions 
of  the  State  courts  in  questions  which  concern  merely  the  Constitution 
and  laws  of  the  State.  Upon  what  ground  could  the  Circuit  Court  of 
the  United  States,  which  tried  this  case,  have  departed  from  this  rule, 
and  disregarded  and  overruled  the  decisions  of  the  courts  of  Rhode 
Island?"  It  seems  from  the  foregoing  quotation,  which  is  really  the 
fact,  that  the  courts  of  Rhode  Island  had  determined  the  question 
involved  in  Luther  v.  Borden.,  and  that  the  courts  of  the  United  States 
were  bound  by  and  followed  that  adjudication. 

The  language  of  the  court  which,  it  is  claimed,  asserts  the  doctrine 
that  the  question  of  a  change  of  constitutions  is  a  political  one,  with 
which  courts  have  nothing  to  do,  was  clearly  employed  with  reference 
to  the  peculiar  facts  of  the  case.  This  is  apparent  from  the  following 
language  of  the  opinion,  which  is  found  upon  pages  39,  40.  "  Indeed, 
we  do  not  see  how  the  question  could  be  tried  and  judicially  decided 
in  the  State  court.  Judicial  power  presupposes  an  established  govern- 
ment, capable  of  enacting  laws  and  enforcing  their  execution,  and  of 
appointing  judges  to  expound  and  administer  them.  The  acceptance 
of  the  judicial  office  is  a  recognition  of  the  authorit}'  of  the  government 
from  which  it  is  derived,  and  if  the  authority  of  that  government  is 
annulled  and  overthrown,  the  power  of  its  courts  and  other  officers  is 
annulled  with  it,  and  if  a  State  court  should  enter  upon  the  inquiry 
proposed   in  this  case,  and  should  come  to  the  conclusion  that  the 


CHAP.  II.]  KOEHLER   AND   LANGE   V.    HILL.  257 

government  under  which  it  acted  had  been  put  aside  and  displaced  by 
un  opposing  government,  it  would  cease  to  be  a  court,  and  be  incapable 
of  pronouncing  a  judicial  decision  upon  tlie  question  it  undertook  to  tr}'. 
If  it  decides  at  all  as  a  court,  it  necessarily  affirms  the  existence  and 
the  authority'  of  the  government  under  which  it  is  exercising  judicial 
power."  That  this  reasoning  is  eminentl}'  sound  no  one  can  doubt. 
A  court  which,  under  the  circumstances  named,  should  enter  upon  an 
inquiry  as  to  the  existence  of  the  Constitution  under  which  it  was  acting^ 
would  be  like  a  man  trying  to  prove  his  personal  existence,  and  would 
be  obliged  to  assume  the  ver}"  point  in  dispute,  before  taking  the  first 
step  in  the  argument.  It  is  apparent  that  the  reasoning  emplo3'ed  in 
that  case  can  have  no  application  whatever  to  an  amendment  to  a 
constitution,  which  does  not  affect  the  form  of  government,  or  the  judi- 
cial powers  of  existing  courts.  The  case  of  Luther  v.  Borden  gives 
no  countenance  whatever  to  the  doctrine  that  the  sovereignty  of  the 
people  extends  rightfully'  to  the  overturning  of  constitutions  and  the 
adoption  of  new  ones,  without  regard  to  the  forms  of  existing  pro- 
visions. It  is  true  that  right,  under  our  form  of  government,  exists, 
but  it  is  a  revolutionary  and  not  a  constitutional  right.  When  that 
right  is  invoked,  a  question  arises  which  is  above  the  Constitution,  and 
above  the  courts,  and  which  contending  factions  can  alone  determine 
by  appeal  to  the  dernier  resort.  In  such  a  case  as  that,  might  makes 
right.  That  there  are  questions  of  such  a  character  as  to  admit  of  no. 
adjustment  but  through  an  appeal  to  arms,  we  freely  admit.  This 
arises  out  of  the  imperfections  of  human  government.  A  government 
which  could  provide  for  the  peaceful  adjustment  of  all  questions  would 
be  more  than  human.  But  surel}'  no  sagacious  statesman  or  wise  jurist 
will  seek,  b}'  a  narrow  construction  of  judicial  power,  to  extend  the 
questions  which  are  bej'ond  the  domain  of  the  courts,  and  capable  of 
solution  onl}'  b}'  an  appeal  to  arms.  Happil}'  for  the  permanency  and 
security  of  our  institutions,  the  present  case,  as  we  believe,  involves  no 
such  question. 

It  has  been  said  that  changes  in  the  Constitution  may  be  introduced 
in  disregard  of  its  provisions  ;  that,  if  the  majorit}'  of  the  people  desire 
a  change,  the  majority  must  be  respected,  no  matter  how  the  change 
may  be  effected,  and  tliat  the  change,  if  revolution,  is  peaceful  revolu- 
tion. But  the  revolution  is  peaceful  onl}-  upon  the  assumption  that  the 
party  opposed  surrenders  its  opposition  and  voluntarily  acquiesces. 
If  it  objects  to  the  change,  then  a  question  arises  which  can  be  deter- 
mined onl}'  in  one  of  two  methods,  by  the  arbitrament  of  the  courts,  or 
by  the  arbitrament  of  the  sword.  .  .  .  The  contest  between  the  rival 
governments  in  the  State  of  Rhode  Island  raised  a  question  which  was 
above  the  power  of  the  existing  courts :  and  it  is  a  matter  of  history 
that  it  was  not  determined  until  the  adherents  of  the  Dorr  Constitution 
fled  at  the  point  of  the  bayonet.  We  have  read  history  to  little  pur- 
pose, if  we  refuse  to  learn  from  its  examples  or  profit  by  its  teachings. 
The  public  dangers  which  threatened  the  republic  from  the  rival  claims 

VOL.  I.  — 17 


258  KOEIILEU   AND   LANGE   V.   HILL.  [CHAP.  IL 

for  the  Presidency,  so  graphically  and  so  beautifully  described  by 
appellant's  attorney,  were  averted  only  through  a  commission  created 
by  Congress,  intrusted  with  judicial  powers,  which  judicially  deter- 
mined the  questions  involved,  and  to  whose  decisions  the  people 
yielded  voluntary  obedience.  That  judicial  decision  averted  the  hor- 
rors of  a  civil  war.  The  political  department  of  the  government,  to 
which  so  much  reference  has  been  made  in  this  case,  stood  appalled 
and  impotent  in  the  face  of  the  great  danger,  and  yet  we  are  asked  to 
abdicate  our  functions,  to  deny  our  jurisdiction,  and  to  leave  the 
question  of  an  amendment  to  the  Constitution,  unless  voluntarily  acqui- 
esced in,  to  be  determined  b}-  a  resort  to  arms.  "We  ought  to  ponder 
long  before  we  adopt  a  doctrine  so  fraught  with  danger  to  republican 
institutions.  All  the  danger  lies  in  the  line  of  the  argument  of  appel- 
lant's attorneys.  The  courts  can  never  overturn  our  institutions  or 
subvert  our  liberties.  Thov  command  neither  the  purse  nor  the  sword 
of_the  State.  But  a  people  which  is  educated  to  disrespect  the  de- 
c^ions  and  disregard  the  adjudications  of  the  courts,  is  prepared  for 
anarchy,  with  all  its  attendant  <'v'l^  ■'>"d  di-pndful  f^nnsegnenoes.  We 
ma}',  perhaps,  be  excused,  if  in  the  interest  of  social  order  and  public 
securit}",  and  the  permanency  of  republican  institutions,  we  enter  a 
most  earnest  protest  against  the  heresies  which  have  been  advanced  in 
this  case. 

The  appellant  further  cites  and  relies  upon  Williams  v.  Suffolk  In- 
surance Company  1  13  Pet.  414.  The  only  point  determined  in  this  is, 
that  where  the  President,  in  a  message  to  Congress,  and  in  correspond- 
ence carried  on  with  the  government  of  Buenos  A^res,  denied  the 
jurisdiction  of  that  country'  over  the  Falkland  Islands,  the  courts  must 
take  the  facts  to  be  so. 

The  determining  of  the  territorial  jurisdiction  of  a  foreign  countr}-, 
from  the  very  nature  of  the  subject,  cannot  reside  in  the  courts  of  this 
country,  but  must  be  intrusted  to  the  treaty-making  power,  which 
rests  in  the  President  b}-  and  with  the  advice  and  consent  of  the  Sen- 
ate. When,  therefore,  the  President,  in  his  official  communications, 
has  denied  the  jurisdiction  of  a  foreign  country  over  specified  territor}-, 
it  may  well  be  conceded  that  it  would  not  be  within  the  jurisdiction  of 
the  courts  to  determine  the  fact  to  be  otherwise.  We  are,  however, 
unable  to  see  that  this  case  has  any  bearing  upon  the  question  now 
under  consideration. 

The  case  of  United  States  v.  Baker  et  al.,  5  Blatchford,  12,  is  also 
cited  and  relied  upon  by  appellant.  This  is  a  nisi  prius  case.  The 
defendants  were  indicted  for  piracy,  and  were  tried  in  1861.  They 
were  acting  as  privateers,  under  a  commission  from  Jefferson  Davis, 
President  of  the  Confederate  States,  which  thej'  claimed  was,  at  least, 
a  government  de  facto ^  and  entitled  to  the  rights  and  privileges  that 
belong  to  a  sovereign  and  independent  nation.  Nelson,  J.,  upon  this 
branch  of  the  case,  charged  the  jurj-  as  follows :  "  The  court  do  not 
deem  it  pertinent  or  material  to  enter  into  this  wide  field  of  inquiry. 


CHAP.  II.]  KOEHLER   AND   LANGE   V.    HILL.  259 

This  branch  of  the  defence  involves  considerations  that  do  not  belong 
-to  the  courts  of  the  country'.  It  involves  the  determination  of  great 
public  and  political  questions,  which  belong  to  the  departments  of  our 
government  that  have  charge  of  our  foreign  relations  —  the  legislative 
and  executive  departments.  When  those  questions  are  decided  b}' 
those  departments,  the  coui'ts  follow  the  decisions,  and,  until  those 
departments  have  recognized  the  existence  of  tlie  new  government,  the 
courts  of  the  nation  cannot.  Until  this  recognition  of  the  new  govern- 
ment, the  courts  are  obliged  to  regard  the  ancient  state  of  things  as 
remaining  unchanged."  This  case  falls  under  the  same  principle  as 
the  preceding  case. 

The  case  of  White  v.  Hart,  13  Wallace,  646,  which  is  the  only 
remaining  case  cited  by  the  appellant  upon  this  branch  of  the  case, 
originated  as  follows:  In  Januar}-,  1866,  the  plaintiff  instituted  a  suit 
in  the  Supreme  Court  of  Chattooga  Count}',  Georgia,  upon  a  prorais- 
sor}'  note.  The  defendant  pleaded  in  abatement  that  the  consideration 
of  the  note  was  a  slave,  and  that,  by  the  present  Constitution  of  the 
State  of  Georgia,  the  court  is  prohibited  to  take  and  exercise  juris- 
diction or  render  judgment  thereon.  To  this  plea  the  plaintiff  de- 
murred. The  court  overruled  the  demurrer,  and  gave  judgment  for 
the  defendants,  thus  enforcing  the  constitutional  provision.  The  plain- 
tiff excepted,  and  removed  the  case  to  the  Supreme  Court  of  the  State, 
where  the  judgment  was  affirmed,  and  the  plaintiff  thereupon  prose- 
cuted a  writ  of  error  in  the  Supreme  Court  of  the  United  States.  The 
Constitution  of  Georgia  of  1868  contains  the  following  clause  : 

"  Provided,  that  no  court  or  officer  shall  have,  nor  shall  the  General 
Assembly  give,  jurisdiction  to  try,  or  give  judgment  on,  or  enforce  any 
debt,  the  consideration  of  which  was  a  slave  or  the  hire  thereof."  Tlie 
plaintiff  insisted  that  this  provision  was  in  conflict  with  the  Constitution 
of  the  United  States,  in  that  it  impaired  the  obligation  of  contracts. 
The  defendant  sought  to  maintain  the  judgment  in  his  favor,  upon  the 
ground,  amongst  others,  that  the  Constitution  of  Georgia  was  adopted 
under  the  dictation  and  coercion  of  Congress,  and  is  the  act  of  Con- 
gress rather  than  of  the  State,  and  that,  though  a  State  cannot  pass  a 
law  impairing  the  validity  of  contracts,  Congress  can,  and  that  for  this 
reason  the  inhibition  in  the  Constitution  of  tlie  United  States  has  no 
effect  in  this  case.  In  passing  upon  this  question  the  court  says : 
"  Congress  autliorized  the  State  to  frame  a  new  constitution,  and  she 
elected  to  proceed  within  the  scope  of  the  authority  conferred.  The 
result  was  submitted  to  Congress  as  a  voluntary  and  valid  offering,  and 
was  so  received,  and  so  recognized  in  the  subsequent  action  of  that 
body.  The  State  is  estopped  to  assail  it  upon  such  an  assumption. 
Upon  the  same  ground  slie  might  deny  the  validity-  of  her  ratification 
of  the  constitutional  amendments.  The  action  of  Congress  upon  the 
subject  cannot  be  inquired  into.  The  case  is  clearly  one  in  which  the 
judicial  is  bound  to  follow  the  action  of  the  political  department  ol 
the  government,  and  is  concluded  by  it." 


260  KOEHLER   AND   LANGE   V.    HILL.  [CHAI*.  IL 

This  case  is  a  very  peculiar  oue,  from  the  fact  that  the  defendant  did 
not  claim  that  the  Constitution  was  not  in  force  on  account  of  its  being 
adopted  under  coercion,  but  he  claimed  the  benefit  of  its  provisions 
because  it  was  adopted  under  coercion.  We  most  heartily  approve  the 
decision  of  the  court  in  this  case.  The  court  might  even  have  gone 
further,  if  the  question  had  been  in  the  case,  and  decided  that,  if  a 
question  had  been  raised  in  the  courts  of  Georgia  as  to  the  validity  of 
the  Constitution,  on  the  ground  that  its  adoption  had  been  coerced 
by  Congress,  the  courts  of  that  State  could  not  entertain  jurisdic- 
tion of  the  question.  But  even  such  a  decision  as  that  would  not 
have  been  at  all  in  conflict  with  our  right  to  entertain  jurisdiction  in 
this  case.  These  are  all  the  authorities  relied  upon  by  appellant  upon 
this  branch  of  the  case.  We  think  it  is  apparent  that  they  do  not,  even 
by  implication,  sustain  the  doctrine  contended  for,  that  the  judicial  de- 
partment of  the  State  cannot  review  the  action  of  the  General  Assembly 
in  the  matter  of  the  amendment  of  the  Constitution  of  the  State.  Coun- 
sel have  drawn  an  appalling  picture  of  the  wreck  in  which  our  political 
institutions  would  be  involved,  if  the  courts  should  conclude  to  decide 
that  the  Constitution  of  1857,  under  which  they  are  organized,  had  not 
been  properly  adopted.  The  courts  of  this  State  possess  no  such  power, 
and  they  could  not  assume  such  a  jurisdiction.  The  reason  why  a  court 
could  not  enter  upon  the  determination  as  to  the  validity  of  a  constitu- 
tion under  which  it  is  itself  organized,  is  forcibly  set  forth  in  the  case 
of  Luther  v.  Borden^  supra,  upon  which  appellant  relies.  The  dis- 
tinction between  such  a  case  and  one  involving  merely  an  amendment, 
not  in  any  manner  pertaining  to  the  judicial  authority,  must  at  once  be 
apparent  to  the  legal  mind.  The  authorities  recognize  the  distinc- 
tion. We  are  at  a  loss  to  know  why  appellant's  counsel  ignore  and 
disregard  it. 

Appellant's  counsel  cite  and  rely  upon  section  2,  Article  1,  of  the 
Constitution  of  the  State.  This  section  is  a  portion  of  the  Bill  of 
Bights,  and  is  as  follows:  "All  political  power  is  inherent  in  the 
people.  Government  is  instituted  for  the  protection,  security,  and 
benefit  of  the  people,  and  they  have  the  right,  at  all  times,  to  alter 
or  reform  the  same,  whenever  the  public  good  may  require."  Ab- 
stractly considered,  there  can  be  no  doubt  of  the  correctness  Df  the 
propositions  embraced  in  this  section.  These  principles  are  older  than 
constitutions,  and  older  than  governments.  The  people  did  not  derive 
the  rights  referred  to  from  the  Constitution,  and,  in  their  nature,  they 
are  such  that  the  people  cannot  surrender  them.  The  people  would 
have  retained  them  if  they  had  not  been  specifically  recognized  in  the 
Constitution.  But  let  us  consider  how  these  rights  are  to  be  recognized 
in  an  organized  government.  The  people  of  this  State  have  adopted  a 
constitution  which  specifically  designates  the  modes  for  its  own  amend- 
ment. But  this  section  declares  the  people  to  have  the  right  at  all  times 
to  alter  or  reform  the  government,  whenever  the  public  good  may  re- 
quire it.     If  the  people  unanimously  agree  respecting  an  alteration  iu 


CHAP.  II.]  KOEHLER   AND   LANGE   V.   HILL.  261 

the  government,  there  could  be  no  trouble,  for  there  would  be  no  one 
to  ol)ject.  Suppose,  however,  a  part  of  the  people  conclude  that  the 
public  good  requires  an  alteration  or  reformation  in  the  government,  and 
they  set  about  the  adoption  of  a  new  constitution,  in  a  manner  not 
authorized  in  the  old  one.  Suppose,  also,  as  would  most  likely-  prove 
to  be  the  case,  that  a  part  of  the  people  are  content  with  the  existing 
government,  and  will  not  consent  to  the  change,  and  that  the  Governor, 
who,  under  the  Constitution,  is  the  "  Commander-in-chief  of  the  militia, 
the  army  and  navy  of  the  State,"  determines  to  maintain  the  existing 
government  b}'  force.  It  is  evident  that  the  people  who  think  the  pub- 
lic good  requires  a  change,  can  establish  these  changes  only  b}-  superior 
force.  If  they  are  powerful  enough  to  succeed,  well.  The}'  will  have 
altered  or  reformed  the  government.  But  if  they  are  not  powerful 
enough  to  succeed,  their  attempt  to  overthrow  the  government  is 
treason,  and  they  are  liable  to  punishment  as  traitors.  They  have 
tiie  right  to  alter  their  government,  in  a  manner  not  recognized  in  the 
Constitution,  only  when  they  can  maintain  that  right  by  su perior  force. 
It  follows,  tnen,  after  all,  that  the  much  boasted  jjght_claimed_under 
this  action,  is  simply  the  ri^ht  to  alter  the  government  in  the  manner 
prescribed  in  the  existing  Constitution,  or  the  right  of  revolution,  winch 
is  g  right  to  be  exercised,  not  under  the  Constitution,  but  in  disregard 
and  independently  of  it. 

For  a  very  valuable  case  upon  this  subject,  see  Wells  v.  J^ain,  75 
Pa.  St.  39.  .  .  .  That  eminent  jurist  and  law-writer,  Justice  Coole}',  in 
his  work  upon  Constitutional  Limitations,  p.  598,  says:  "Although  by 
their  constitutions  the  people  have  delegated  the  exercise  of  sovereign 
powers  to  the  several  departments,  they  have  not  thereby  divested  them- 
selves of  the  sovereignty.  The  government  which  they  create  they  re- 
tain in  their  own  hands  a  power  to  control,  so  far  as  they  have  thought 
needful,  and  the  three  departments  are  responsible  to  and  subject  to  be 
ordered,  directed,  changed,  or  abolished  by  them.  But  this  control  and 
direction  must  be  exercised  in  the  legitimate  mode  previously  agreed 
upon.  The  voice  of  the  people  can  only  be  of  legal  force  when  ex- 
pressed in  the  times  and  under  the  conditions  which  they  themselves 
have  prescribed  and  pointed  out  by  the  Constitution  ;  and  if  any  attempt 
should  be  made  by  an}'  portion  of  the  people,  however  large,  to  inter- 
fere with  the  regular  workings  of  the  agencies  of  government,  at  any 
other  time,  or  in  any  other  mode,  than  as  allowed  b}-  existing  law, 
either  constitutional  or  statutory,  it  would  be  revolutionary  in  char- 
acter, and  must  be  resisted  and  repressed  by  the  officers  who  for  the 
time  being  represent  legitimate  government."  The  author  cites  Gibson 
.V.  Mason^  5  Nevada,  291,  in  which  Chief  Justice  Lewis  emplo3-s  the 
following  language  :  "  The  maxim  which  lies  at  the  foundation  of  our 
government  is  that  all  political  power  originates  with  the  people.  But 
since  the  organization  of  government,  it  cannot  be  claimed  that  either 
the  legislative,  executive,  or  judicial  powers,  either  wholly  or  in  part, 
can  be  exercised  by  them.    By  the  institution  of  government  the  people 


262  KOEHLER   AND   LANGE   V.    HILL.  [CHAI'.  II. 

surrender  the  exercise  of  all  these  sovereign  functions  of  government 
to  agents  chosen  by  themselves,  who,  at  least  theoretically,  represent 
the  supreme  will  of  their  constituents." 

On  page  30,  Judge  Cooley  further  says  :  "  In  the  original  States,  and 
all  others  subsequently  admitted  to  the  Union,  the  power  to  amend  or 
revise  their  constitutions  resides  in  the  great  body  of  the  people  as  an 
organized  body  politic,  who,  being  vested  with  ultimate  sovereignty,  and 
the  source  of  all  State  authority,  have  power  to  control  and  alter  the  law 
which  they  have  made  at  their  will.  But  the  people  in  the  legal  sense 
must  be  understood  to  be  those  who,  by  the  existing  Constitution,  are 
clothed  with  political  rights,  and  who,  while  that  instrument  remains, 
will  be  the  sole  organs  through  which  the  will  of  the  body  politic  can 
be  expressed.  But  tlic  will_o£  ti.p  ppr>p]^  tn  tliig  pnri  can-Only  be  ex- 
pressed in  the  legitimate^  modes  by  which  such  a  botl^yjiolitJll  can  act, 
and  which  must  eiTEer  be  prescribed  by  the  Constitution  whose  revision 
or  amendment  is  sought^)r  by  an  Act  of  the  legislative  department^ 
the  State,  which  alone  would  be  authorized  tosjjeak  for  the  people  upon 
this  subject,  and  to  pomLout  n  mndf  f^^j-  t)ip  expression" of  their  will,  in 
the  flbsenoft  of  any  provision  for  amendment  or  revision  contained  in 
the  Constitution  itself."  .  .  .  In  Colliery.  Frierson,  24  Ala.  108,  it 
appears  that  the  legislature  had  proposed  eight  different  amendments 
to  be  submitted  to  the  people  at  the  same  time.  The  people  had  ap- 
proved them,  and  all  the  requisite  proceedings  to  make  them  a  part  of 
the  Constitution  had  been  had,  except  that  in  the  subsequent  legislature 
the  resolution  for  their  ratification  had  by  mistake  omitted  to  recite  one 
of  them.  On  the  question  whether  this  one  had  been  adopted,  the  court 
say:  "  The  Constitution  can  be  amended  in  but  two  ways  ;  either  by 
the  people  who  originally  framed  it,  or  in  the  mode  prescribed  in  the 
instrument  itself.  If  the  last  mode  is  pursued,  the  amendments  must 
be  proposed  by  two  thirds  of  each  House  of  the  General  Assembly  ; 
they  must  be  published  in  print  at  least  three  months  before  the  next 
general  election  for  representatives ;  it  must  appear  from  the  returns 
made  to  the  Secretary  of  State  that  a  majority  of  those  voting  for  repre- 
sentatives have  voted  in  favor  of  the  proposed  amendments,  and  they 
must  be  ratified  by  two  thirds  of  each  House  of  the  next  General  As- 
sembly, after  such  election,  voting  by  yeas  and  nays,  the  proposed 
amendments  having  been  read  at  each  session  three  times  on  three 
several  days  in  each  House.  We  entertain  no  doubt  that  to  change  the 
Constitution  in  any  other  mode  than  by  a  convention,  every  requisition 
which  is  demanded  by  the  instrument  itself  must  be  observed,  and  the 
omission  of  any  one  is  fatal  to  the  amendment.  AVe  scarcely  deem 
any  argument  necessary  to  enforce  this  proposition.  The  Constitution. 
is  the  supreme  and  paramount  law.  The  mode  by  which. amendments 
are  to  be  made  under  it  is  clearly  defined.  It  has  been  said__tlmt, ££ir 
tain  acts  are  to  be  done,  certain  requisites  are  to  be  observed,  before^ 
change  can  be  effected.  But  to  what  purpose  are  those  acts  required 
or  those  requisitions  enjoined,  if  the  legislature,  or  any  dcgMtment  of 


CHAP.  II.]  KOEHLER   AND   LANGE   V.   HILL.  263 


the  government^ can  dispense  with  them?  To  do  so  would  be  to  violate 
tlie  instrument  which  they  are  sworn  to  support ;  and  ever}'  principle  of 
public  law  and  sound  constitutional  policy  requires  the  court  to  pro- 
nounce against  an^'  amendment  which  is  not  shown  to  have  been  made 
in  accordance  with  the  rules  prescribed  b^-  the  fundamental  law."  In 
this  case  counsel  distinctl}'  made  the  point  that,  "  when  the  legislature 
has  declared  an  act  done,  which  it  alone  has  the  power  to  do,  it  does 
not  become  the  judiciar}'  to  gainsay  it."  The  court  repudiated  this 
doctrine  and  asserted  its  jurisdiction  in  the  following  terse  and  unam- 
biguous language  :  "  Every  principle  of  public  law  and  sound  constitu- 
tional policy  requires  the  courts  to  pronounce  against  every  amendment 
which  is  shown  not  to  have  been  made  in  accordance  with  the  rules 
Ijrescribed  by  the  fundninpntnl  1n.w," 

The  case  of  State  v.  He  Bride,  4  Mo.  303,  involved  a  question  as  to 
the  proper  adoption  of  an  amendment  to  the  Constitution  of  the  State 
of  Missouri.  The  counsel  on  behalf  of  the  State  contended  almost  in 
the  language  of  appellant's  counsel  in  this  case,  "  that  this  amendment 
having  been  passed  and  promulgated  by  the  Eighth  General  Assembl}', 
as  a  part  of  the  Constitution,  this  court  is  bound  to  receive  and  give  it 
the  effect  of  a  constitutional  provision  ;  it  being  an  act  done  by  the 
General  Assembly,  not  in  their  capacity  of  ordinary  legislation,  but 
the  exercise  of  sovereign  authority  in  a  conventional  capacit}'."  The 
language  of  the  court  in  passing  upon  this  position  of  counsel  is  so 
applicable  to,  and  so  entirely  decisive  of,  the  question  now  under  con- 
sideration, that  we  quote  in  full.  The  court  says  :  "  The  Constitution 
of  this  State  requires  that  each  officer,  whether  civil  or  militarj',  shall, 
before  entering  on  the  duties  of  his  office,  take  an  oath  or  affirmation 
to  support  the  Constitution  of  the  United  States  and  of  this  State,  and 
to  demean  himself  faithful!}-  in  office.  In  pursuance  of  the  duty  im- 
posed I)}-  this  oath,  it  has  become  quite  a  common  business  of  the 
courts  to  examine  the  Acts  of  the  legislative  bod}',  to  see  whether  any 
of  them  infringe  the  Constitution,  and  to  declare  that  such  Acts,  or 
parts  of  Acts,  as  are  repugnant  to  the  Constitution,  are  not  the  law  of 
the  land,  and  are,  therefore,  of  no  force.  No  educated  man  at  this 
day  denies  this  right  to  the  courts.  On  the  contrary  it  is  considered  a 
base  abandonment  of  duty  for  a  judge  to  hesitate,  when  it  becomes  his 
duty  to  examine  the  acts  of  the  more  powerful  branches  of  the  govern- 
ment. If,  then,  the  Constitution  be  the  supreme  law  of  the  land,  it 
becomes  the  duty  of  the  judge  to  look  into  and  understand  well  this 
first  law  of  the  land.  The  General  Assembly,  acting  itself  under  a 
power  granted  by  the  convention,  can  only  change  the  Constitution  in 
the  manner  presented  to  it.  Is,  then,  this  court,  each  member  of  which 
is  sworn  to  support  the  Constitution,  that  first  law  of  the  land,  to  be 
told  that  they  are  not  to  inquire  what  that  Constitution  is?  We  are 
told  that  this  is  a  matter  which  the  people  have  confided  to  two  succes- 
sive General  Assemblies,  and  that  their  declaration  of  what  is  done  is 
to  be  to  us  evidence  that  the  thing  is  done,  they  being  sworn,  as  well 


264  KOEHLEll   AND   LANGE   V.    HILL.  [CHAP.  IL 

as  ourselves,  to  support  the  Constitution.  Yet  we  look  into  the  Acts  of 
each  General  Assembly,  and  if  we  find  an}'  of  its  Acts  violating  the 
Constitution,  we  declare  such  Act  null  and  void.  The  General  As- 
sembly, or  two  General  Assemblies  in  succession,  are  but  public 
servants,  and  it  is  disrespectful  to  them  to  say  that  their  acts  will  not 
bear  inspection.  If,  then,  they  will  bear  inspection,  and  if,  as  we 
believe,  they  have  left  behind  them  evidence  of  what  they  have  done, 
why  need  we,  whose  duty  it  is  to  observe  the  Constitution  as  the  su- 
preme law  of  the  land,  hesitate  respectfully  to  approach  and  examine 
those  proofs,  and  see  if  indeed  the  Constitution  of  1820  has  been 
changed,  or  if  by  neglecting  to  pursue  the  course  pointed  out  by  the 
12th  section  of  the  Constitution,  they  have  failed  to  give  to  their  acts 
the  validity  of  constitutional  acts.  To  tell  us  that  the  people  have  re- 
served to  themselves  the  sole  right  of  looking  into  the  matter,  is  to  tell 
us  that  we  are  sworn  to  support  a  constitution  which  we  are  not  per- 
mitted to  know."  Those  two  cases  contain  the  calm  adjudications  of 
respectable  courts,  in  times  when  there  was  no  popular  excitement, 
and  upon  constitutional  amendments  not  arousing  popular  interest. 
They  are,  therefore,  entitled  to  the  highest  consideration,  as  they  were 
entirely  uninfluenced  by  popular  clamor. 

It  is  not  at  all  material  that  in  State  v.  McBride,  siqjra,  the  court 
finally  concluded  that  the  amendment  under  consideration  had  been 
properl}'  adopted.  The  court  had  to  determine  its  power  to  decide, 
before  it  could  decide  in  favor  of  the  amendment.  As  was  well  said  by 
one  of  appellant's  attorneys  upon  the  argument :  "  The  power  to  decide, 
involves  the  power  to  decide  either  way."  In  the  State  v.  Sic{ft,  G9 
Ind.  505,  the  jurisdiction  of  the  court  was  exercised,  and  an  amend- 
ment to  the  Constitution  of  the  State  of  Indiana  was  held  not  to  have 
been  properly  adopted.  In  the  opinion  the  court  say  :  "  The  people  of 
a  State  may  form  an  original  constitution,  or  abrogate  an  old  one  or 
form  a  new  one,  at  an}'  time,  without  any  political  restriction  except 
the  Constitution  of  the  United  States  ;  but  if  they  undertake  to  add  an 
amendment,  by  the  authority  of  legislation,  to  a  constitution  already  in 
existence,  they  can  do  it  only  l)y  the  method  pointed  out  by  the  consti- 
tution to  which  the  amendment  is  to  be  added.  The  power  to  amend  a 
constitution  by  leg-islative  action  does  not  confer  the  power  to  break  \t^ 
any  more  than  it  confprs  the  power  to  legislate  on  any  other  subject 
contrary  to  its  pinjiil^itinng  " 

In  Westinghausen  v.  The  PeoiHe^  44  Mich.  265,  the  Supreme  Court 
of  Michigan  entertained  jurisdiction  of  a  question  as  to  the  adoption  of 
an  amendment  to  the  Constitution  of  that  State.  The  Prohibitory 
Amendment  Cases,  24  Kans.  700,  in  so  far  as  they  assume  jurisdiction 
over  the  question  involved,  are  in  harmony  with  all  the  cases  upon  the 
subject.  In  State  v.  Timme,  UN.  W.  Rep.  785,  the  Supreme  Court 
of  Wisconsin  assumed  jurisdiction  of  a  question  involving  the  validity 
of  an  amendment  to  the  Constitution  of  that  State.  The  same  thing 
was  done  in  Trustees  University  of  North  Carolina  v.  JSIcIver^  72 
N.  C.  76. 


CHAP.  II.]  KOEHLER   AND   LANGE   V.   HILL.  265 

It  is  true  that  in  the  last  five  cases  the  question  of  jurisdiction  was 
not  raised  by  counsel.  But  the  courts  could  not  have  entered  upon  an 
examination  of  the  cases  without  first  determining  in  favor  of  their 
jurisdiction.  If  they  entertained  doubts  respecting  their  jurisdiction, 
it  was  the  duty  of  the  courts  to  raise  the  question  themselves.  We 
have  then  seven  States,  Alabama,  Missouri,  Kansas,  Michigan,  North 
Carolina,  Wisconsin,  and  Indiana,  in  which  the  jurisdiction  of  the 
courts  over  the  adoption  of  an  amendment  to  a  constitution  has  been 
recognized  and  asserted.  In  no  decision,  either  State  or  Federal,  has 
tliis  jurisdiction  been  denied.  We  may  securely  rest  our  jurisdiction 
upon  the  authorit}-  of  these  cases.  He  would  be  a  bold  jurist,  indeed, 
wiio  would  ride  rough-shod  over  such  an  unbroken  current  of  judicial 
authority,  so  fortified  in  principle,  sustained  by  reason,  and  so  neces- 
sary to  the  peaceful  administration  of  the  government.  .  .  .  Abidingly 
and  firmly  convinced  of  the  correctness  of  our  former  conclusion,  recog- 
nizing no  su[)erior  higher  than  the  Constitution,  acknowledging  no 
fealty  greater  than  loyalty  to  its  principles,  and  fearing  no  consequences 
except  those  which  would  flow  from  a  dereliction  in  duty,  we  adhere  to 
and  reaffirm  the  doctrines  alread}'  announced. 

The  petition  for  rehearing  is  overruled.   .  .   . 

[The  dissenting  opinion  of  Beck,  J.,  is  omitted.]^ 

^  Compare  Const.  Prohil).  Amend.  24  Kans.  700;  Jameson,  Const.  Conv.  (4th  ed.), 
§§  561,  574 f,  574/,  and  ch.  viii.  passiin.  As  regards  the  proper  evidence  of  the  factuiii 
of  a  statute,  the  right  to  consult  the  legislative  journals,  and  the  fiflh,lly  authentic 
quality  of  the  enrolment,  see  Y.  B.  H.  VI.,  17,  8  (1455)  ;  King  v.  Countess  Dowager  of 
Arundel,  Hob.  110  (1616),  and  the  carefully  considered  case  of  Field  v.  Clark,  143 
U.  S.  649,  with  a  note,  Ih.  661,  referring  to  the  cases  in  the  several  States.  —  Ed. 


266  LIVINGSTON  V.   VAN   INGEN.  [CHAP.  IIL 


CHAPTER  IIL 

THE  JURISDICTION  OF  THE  UNITED  STATES. 

In  Livingston  and  Fulton  v.  Van  Ingen^  et  al.  9  Johns.  507, 
(1812),  it  was  held  that  statutes  of  New  York  granting  to  the  plain- 
tiffs the  exclusive  right  of  navigating  the  waters  of  that  State  in  vessels 
propelled  by  steam,  were  not  in  violation  of  the  Constitution  of  the 
United  States  ;  ^  and  the  same  doctrine  w'as  afterwards  held  in  Gibbons 
V.  Ogdeji^  17  Johns.  488  (1820).  This  doctrine  was  overruled  bv  the 
Supreme  Court  of  the  United  States,  on  error,  in  Gibbons  v.  Ogden,  9 
Wheat.  1  (1824),  so  far  as  concerned  vessels  licensed  under  the  statutes 
of  the  United  States  for  regulating  the  coasting  trade,  and  navigating 
between  New  York  and  other  States  ;  and  in  North  River  Steainb.  Co. 
V.  Licingston,  3  Cow.  713  (1825),  as  regards  vessels  similarly  licensed 
and  navigating  merely  the  waters  of  New  York. 

In  Livingston  v.  Van  Imjen^  iibi  supra,  p.  573,  Kent,  C.  J.,  said  : 
"  The  legislative  power,  in  a  single,  independent  government,  extends  to 
every  proper  object  of  power,  and  is  limited  only  1)3'  its  own  consti- 
tutional provisions,  or  by  the  fundamental  principles  of  all  government, 
and  the  unalienable  rights  of  mankind.  In  the  present  case,  the  grant 
to  the  appellants  took  awa\'  no  vested  right.  It  interfered  with  no 
man's  propert}'.  It  left  ever}'  citizen  to  enjoy  all  the  rights  of  naviga- 
tion, and  all  the  use  of  the  waters  of  this  State  which  he  before  enjoyed. 
There  was,  then,  no  injustice,  no  violation  of  first  principles,  in  a  grant 
to  the  appellants,  for  a  limited  time,  of  the  exclusive  benefit  of  their 
own  hazardous  and  expensive  experiments.  The  first  impression  upon 
every  unprejudiced  mind  would  be,  that  there  was  justice  and  policy  in 
the  grant.  Clearly-,  then,  it  is  valid,  unless  the  power  to  make  it  be 
taken  away  by  the  Constitution  of  the  United  States. 

"We  are  not  called  upon  to  saj-  affirmatively  what  powers  have  been 
granted  to  the  general  government,  or  to  what  extent.  Those  powers, 
whether  express  or  implied,  may  be  plenary  and  sovereign,  in  refer- 
ence to  the  specified  objects  of  them.  They  may  even  be  liberally 
construed  in  furtherance  of  the  great  and  essential  ends  of  the  govern- 
ment. To  this  doctrine  I  willingly  accede.  But  the  question  here  is, 
not  what  powers  are  granted  to  that  government,  but  what  powers  are 
retained  by  this,  and,  particularly,  whether  the  States  have  absolutel}' 
parted  with  their  original  power  of  granting  such  an  exclusive  privilege 
as  the  one  now  before  us.     It  does  not  follow,  that  because  a  given 

^  In  1811,  it  had  been  held  in  the  same  case  that  the  Circuit  Court  of  the  United 
States  (1  Paine,  45)  had  no  jurisdiction. —  Ed. 


CHAP.  III.]  LIVINGSTON   V.   VAN    INGEN.  267 

power  is  granted  to  Congress,  the  States  cannot  exercise  a  similar 
power.  We  ought  to  bear  in  mind  certain  great  rules  or  principles  of 
construction  peculiar  to  the  case  of  a  confederated  government,  and  by 
attending  to  them  in  the  examination  of  the  subject,  all  our  seeming 
difficulties  will  vanish. 

"  When  the  people  create  a  single,  entire  government,  they  grant  at 
once  all  the  rights  of  sovereignty.  The  powers  granted  are  indefinite, 
and  incapable  of  enumeration.  Everything  is  granted  that  is  not  ex- 
pressly reserved  in  the  constitutional  charter,  or  necessarily  retained 
as  inherent  in  the  people.  But  when  a  Federal  government  is  erected 
with  only  a  portion  of  the  sovereign  power,  the  rule  of  construction  is 
directly  the  reverse,  and  every  power  is  reserved  to  the  members  that  is 
not,  either  in  express  terms,  or  by  necessary  implication,  taken  away 
from  them,  and  vested  exclusively  in  the  Federal  head.  This  rule  has 
not  only  been  acknowledged  by  the  most  intelHgent  friends  to  the 
Constitution,  but  is  plainly  declared  by  the  instrument  itself.  Congress 
have  power  to  lay  and  collect  taxes,  duties,  and  excises,  but  as  these 
powers  are  not  given  exclusivel}-,  the  States  have  a  concurrent  juris- 
diction, and  retain  the  same  absolute  powers  of  taxation  which  they 
possessed  before  the  adoption  of  the  Constitution,  except  the  power  of 
laying  an  impost,  which  is  expressly  taken  away.  This  very  exception 
proves  that,  without  it,  the  States  would  have  retained  the  power  of 
laying  an  imi)Ost;  and  it  further  implies,  that  in  cases  not  excepted, 
the  authority  of  the  States  remains  unimpaired. 

"  This  principle  might  be  illustrated  by  other  instances  of  grants  of 
power  to  Congress  with  a  prohibition  to  the  States  from  exercising  the 
like  powers  ;  but  it  becomes  unnecessary  to  enlarge  upon  so  plain  a 
proposition,  as  it  is  removed  beyond  all  doubt  by  the  tenth  article  of 
the  amendments  to  the  Constitution.  That  article  declares  that  '  the 
powers  not  delegated  to  the  United  States  b}'  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  people.'  The  ratification  of  the  Constitution  by  the  conven- 
tion of  this  State,  was  made  with  the  explanation  and  understanding, 
that  '  every  power,  jurisdiction,  and  right,  which  was  not  clearlj'  dele- 
gated to  the  general  government,  remained  to  the  people  of  the  several 
States,  or  to  their  respective  State  governments.'  There  was  a  similar 
provision  in  the  Articles  of  Confederation,^  and  the  principle  results 
from  the  very  nature  of  the  Federal  Government,  which  consists  only 
of  a  defined  portion  of  the  undefined  mass  of  sovereign  power  origi- 
nally vested  in  the  several  members  of  the  Union.  There  maj'  be 
inconveniences,  but  generall}'  there  will  be  no  serious  difficulty,  and 
there  cannot  well  be  any  interruption  of  the  public  peace,  in  the  con- 
current exercise  of  those  powers.  The  powers  of  the  two  governments 
are  each  supreme  within  their  respective  constitutional  spheres.     They 

1  The  Articles  (Art.  II.)  read  :  "Each  State  retains  .  .  .  every  power  .  .  .  Avhich 
13  not  hy  this  confederation  expressly  (Telegated."  .  .  .  The  Tenth  Amendment  omits 
the  word  "  expressly."  —  Ed. 


268  STURGES   V.   CKOWNINSIIIELD.  [CHAP.  III. 

ma}'  each  operate  with  full  effect  upon  different  subjects,  or  they  ma}', 
as  in  the  case  of  taxation,  operate  upon  different  parts  of  the  same 
object.  The  powers  of  the  two  governments  cannot  indeed  be  supreme 
over  each  other,  for  that  would  involve  a  contradiction.  When  those 
powers,  therefore,  come  directly  in  contact,  as  when  they  are  aimed  at 
each  other,  or  at  one  indivisible  object,  the  power  of  the  State  is  sub- 
ordinate, and  must  yield.  The  legitimate  exercise  of  the  constitutional 
powers  of  the  general  government  becomes  the  supreme  law  of  the 
land,  and  the  national  judiciary  is  specially  charged  with  the  mainte- 
nance of  that  law,  and  this  is  the  true  and  efficient  power  to  preserve 
order,  dependence,  and  harmon\'  in  our  complicated  system  of  govern- 
ment. "We  have,  then,  nothing  to  do  in  the  ordinary  course  of  legis- 
lation, witli  the  possible  contingency  of  a  collision,  nor  are  we  to  em- 
barrass ourselves  in  the  anticipation  of  theoretical  difficulties,  than  which 
nothing  could,  in  general,  be  more  fallacious.  Such  a  doctrine  would 
be  constant!}'  taxing  our  sagacity,  to  see  whether  the  law  might  not 
contravene  some  future  regulation  of  commerce,  or  some  moneyed  or 
some  military  operation  of  the  United  States.  Our  most  simple  muni- 
cipal provisions  would  be  enacted  with  diffidence,  for  fear  we  might 
involve  ourselves,  our  citizens  and  our  consciences,  in  some  case  of 
usurpation.  Fortunately  for  the  peace  and  happiness  of  this  country, 
we  have  a  plainer  path  to  follow.  We  do  not  handle  a  work  of  such 
hazardous  consequence.  We  are  not  always  walking  per  ignes  suppo- 
sitos  cineri  doloso.  Our  safe  rule  of  construction  and  of  action  is  this, 
that  if  any  given  power  was  originally  vested  in  this  State,  if  it  has  not 
been  exclusively  ceded  to  Congress,  or  if  the  exercise  of  it  has  not  been 
prohibited  to  the  States,  we  may  then  go  on  in  the  exercise  of  the 
power  until  it  comes  practically  in  collision  with  the  actual  exercise  of 
some  congressional  power.  When  that  happens  to  be  the  case,  the 
State  authority  will  so  far  be  controlled,  but  it  will  still  be  good  in  all 
those  respects  in  which  it  does  not  absolutely  contravene  the  provision 
of  the  paramount  law."  ^ 

Previous  to  the  formation  of  the  new  Constitution,  we  were  divided 
into  independent  States,  united  for  some  purposes,  but,  in  most  respects, 
sovereign.  These  States  could  exercise  almost  every  legislative  power, 
and,  among  others,  that  of  passing  bankrupt  laws.  When  the  Ameri- 
can people  created  a  national  legislature,  with  certain  enumerated  pow- 
ers, it  was  neither  necessary  nor  proper  to  define  the  powers  retained 
by  the  States.  These  powers  proceed,  not  from  the  people  of  America, 
but  from  the  people  of  the  several  States ;  and  remain,  after  the  adop- 
tion of  the  Constitution,  what  they  were  before,  except  so  far  as  tliey 
may  be  abridged  by  that  instrument.  In  some  instances,  as  in  making 
treaties,  we  find  an  express  prohibition ;  and  this  shows  the  sense  of 
the  convention  to  have  been,  that  the  mere  grant  of  a  power  to  Con- 

1  See  1  Kent  Com.  (12th  ed.)  391,  432,  et  seq.  —  ^i>. 


CHAP.  III.]  GIBBONS   V.    OGDEN.  269 

gress  did  not  impl}'  a  prohibition  on  the  States  to  exercise  the  same 
power.  But  it  has  never  been  supposed,  that  this  concurrent  power  of 
legislation  extended  to  every  possible  case  in  which  its  exercise  by  the 
States  has  not  been  expressly  prohibited.  The  confusion  resulting  from 
such  a  practice  would  be  endless.  The  principle  laid  down  by  the 
counsel  for  the  plaintiff,  in  this  respect,  is  undoubtedly  correct.  When- 
ever the  terms  in  which  a  power  is  granted  to  Congress,  or  the  jiature 
^njip  pnrypv  vpqnii-P  tlinfr.  if,  should  be_exercised  exclusively  by  Con- 
gress the  snbjpnt,  i'g  ns  rr>n>pletely  taken  from  the  State  legislatures,  as  _ 

if  tlmy  h-nd  bppn  pvprpggly  fnrhirldpn  t.n  m>t  on  it_ 

Is  the  power  to  establish  uniform  laws  on  the  subject  of  bankrupt- 
cies, throughout  the  United  States,  of  this  description?  .  .  .  Marshall, 
C.  J.  (for  the  court),  in  Sturges  v.  Croiminshield,  4  "Wheat.  192- 
193  (1819). 

As  preliminary  to  the  very  able  discussions  of  the  Constitution  which 
we  have  heard  from  the  Bar,  and  as  having  some  influence  on  its  con- 
struction, reference  has  been  made  to  the  political  situation  of  these 
States,  anterior  to  its  formation.  It  has  been  said  that  they  were 
sovereign,  were  completely  independent,  and  were  connected  with  each 
other  only  by  a  league.  This  is  true.  But,  when  these  allied  sov- 
ereigns converted  their  league  into  a  government,  when  they  converted 
their  congress  of  ambassadors,  deputed  to  deliberate  On  their  common 
concerns,  and  to  recommend  measures  of  general  utility,  into  a  legis- 
lature, empowered  to  enact  laws  on  the  most  interesting  subjects,  the 
whole  character  in  which  the  States  appear  underwent  a  change,  the 
extent  of  which  must  be  determined  by  a  fair  consideration  of  the 
instrument  b}'  which  that  change  was  effected. 

This  instrument  contains  an  enumeration  of  powers  expressly  granted 
by  the  i)cople  to  their  governaaent.^  It  has  been  said  that  these  powers 
nncrjit  to  he.  rnnsti'iipd  stiictlj'.  But  why  ought  they  to  be  so  construed? 
Is  there  one  sentence  in  the  Constitution  which  gives  countenance  to 
this  rulej— In  the  last  of  the  enumerated  powers,  that  which  grants, 
expressly,  the  means  for  carrying  all  others  into  execution.  Congress 
is  authorized  "  to  make  all  laws  which  shall  be  necessary*  and  proper" 
for  the  purpose.  But  this  limitation  on  the  means  which  ma}'  be  used, 
is  not  extended  to  the  powers  which  are  conferred  ;  nor  is  there  one 
sentence  in  the  Constitution,  which  has  been  pointed  out  by  the  gentle- 
men of  the  Bar,  or  which  we  have  been  able  to  discern,  that  prescribes 
this  rule.  "We  do  not,  therefore,  think  ourselves  justified  in  adopting 
it.  What  do  gentlemen  mean  by  a  strict  construction  ?  If  they  contend 
onl}'  against  that  enlarged  construction  which  would  extend  words 
beyond  their  natural  and  obvious  import,  we  might  question  the  appli- 
cation of  the  term,  but  should  not  controvert  the  principle.  If  the}- 
contend  for  that  narrow  construction  which,  in  support  of  some  theory 
not  to  be  found  in  the  Constitution,  would  deny  to  the  government 
those  powers  which  the  words  of  the  grant,  as  usually  understood,  im- 


270  GIBBONS   V.    OGDEN.  [CHAP.  III. 

port,  and  which  are  consistent  with  the  general  views  and  objects  of 
the  instrument;  for  that  narrow  construction,  which  would  cripple  the 
government,  and  render  it  unequal  to  the  objects  for  which  it  is  de- 
clared to  be  instituted,  and  to  which  the  powers  given,  as  fairly  under- 
stood, render  it  competent ;  then  we  cannot  perceive  the  propriety  of 
this  strict  construction,  nor  adopt  it  as  the  rule  b}'  which  the  Consti- 
tution is  to  be  expounded.  As  men  whose  intentions  require  no  con- 
cealment, generally  employ  the  words  which  most  directly  and  aptly 
express  the  ideas  the}^  intend  to  convey,  the  enlightened  patriots  who 
framed  our  Constitution,  and  the  people  who  adopted  jt,  must  be  under- 
stood to  have  employed  words  in  their  natural  sense,  and  to  have  intended 
what  the}'  have  said.  If,  from  the  imperfection  of  human  lan^uagej 
there  should  be  sgrions  doubts  respecting  the  extent  of  anv  gn'cn  power, 
it  is  a  well-settled  rule  that  the  objects  for  which _it  was  given,  espe- 
cially when  thoseobjects  are  expressed  in  the  instrument  ijself,  should 
have  great  influence  in  the  construction.  "We  know  of  no  reason  for 
excluding  tliis  rule  from  the  present  case.  The  grant  does  not  convey 
power  which  might  be  beneficial  to  the  grantor,  if  retained  by  himself, 
or  which  can  enure  soleh"  to  the  benefit  of  the  grantee ;  but  is  an 
investment  of  power  for  the  general  advantage,  in  the  hands  of  agents 
selected  for  that  purpose ;  which  power  can  never  be  exercised  b}'  the 
people  themselves,  but  must  be  placed  in  the  hands  of  agents,  or  lie 
dormant.  "We  know  of  no  rule  for  construing  the  extent  of  such 
powers,  other  than  is  given  by  the  language  of  the  instrument  which 
confers  them,  taken  in  connection  with  the  purposes  for  which  they 
were  conferred.  .  .   . 

If,  as  has  always  been  understood,  the  sovereignty  of  Congress, 
though  limited  to  specified  objects,  is  plenary  as  to  those  objects,  the 
power  over  commerce  with  foreign  nations,  and  among  the  several 
States,  is  vested  in  Congress  as  absolutely  as  it  would  be  in  a  single 
government,  having  in  its  constitution  the  same  restrictions  on  the 
exercise  of  the  power  as  are  found  in  the  Constitution  of  the  United  State^ 
The  wisdom  and  the  discretion  of  (^onglTf"]  ^^^<^h'  ^rlontity  with  the 
people,  and  the  influence  which  their  constituents  possess  at  elections, 
are,  in  this,  as  in  many  other  Instances,  as  mat,  lor  example,  of  de-~ 
clarinp;  war,'*  the  sole  restraints  on  wnicn  tney  nave  reiiea,  to  securo. 
them  from  its  abuse.  They  are  the  restraints  on  which  the  people  must 
often  rel}'  solely,  in  all  representative  governments.  .  .  .  Marshall, 
C.  J.  (for  the  court),  in  Gibbojis  v.  Ogclen,  9  Wheat.  187-189  (1824).i 

1  In  1789,  the  Constitution  of  the  United  States,  having  been  adopted  by  the 
required  number  of  States  .  .  .  went  into  operation,  and  became  the  law  of  the  land. 
This  system  was  founded  upon  an  entirely  different  principle  from  that  of  the  confed- 
eration. Instead  of  a  league  among  sovereign  States,  it  was  a  government  formed 
by  the  people,  and  to  the  extent  of  the  enumerated  subjects,  the  jurisdiction  of  which 
was  confided  to  and  vested  in  the  general  government,  acting  directly  upon  the  people. 
"  We  the  people,"  are  the  authors  and  constituents ;  and  "  in  order  to  form  a  more 
perfect  union  "  was  the  declared  purpose  of  the  constitution  of  a  general  government. 

It  was  a  boH,  wise,  and  successful  attempt  to  place  the  people  under  two  distinct 


CHAP.  III.]        M'CULLOCH   V.   STATE   OF   MARYLAND   ET   AL.  271 


M'CULLOCH  V.  THE  STATE  OF  MARYLAND  et  al. 
Supreme  Court  of  the  United  States.     1819. 

[4  Wheat.  316;  4  Curtis's  Decisions,  415.]  l 

Error  to  the  Court  of  Appeals  of  the  State  of  Maryland. 

This  was  an  action  of  debt,  brought  by  the  defendant  in  error,  John 
James,  who  sued  as  well  for  himself  as  for  the  State  of  Maryland,  in 
the  County  Court  of  Baltimore  County,  in  the  said  State,  against  the 
plaintiff  in  error,  M'CuUoch,  to  recover  certain  penalties  under  the  Act 
of  the  Legislature  of  Maryland,  hereafter  mentioned.  Judgment  being 
rendered  against  the  plaintiff  in  error,  upon  the  following  statement  of 
facts,  agreed  and  submitted  to  the  court  by  the  parties,  was  affirmed  by 
the  Court  of  Appeals  of  the  State  of  Maryland,  the  highest  court  of 
law  of  said  State,  and  the  cause  was  brought,  by  writ  of  error,  to  this 
court. 

In  April,  1816,  the  Bank  of  the  United  States  was  incorporated  by 
an  Act  of  Congress,  and  in  1817  a  branch  of  this  bank  was  established 

governments,  each  sovereign  and  independent  within  its  own  sphere  of  action,  and 
dividing  the  jurisdiction  between  them,  not  by  territorial  limits,  and  not  by  the  rela- 
tion of  superior  and  subordinate,  but  classifying  the  subjects  of  government  and 
designating  tho.se  over  which  each  has  entire  and  independent  jurisdiction.  This  object 
the  Constitution  of  the  United  States  propo.sed_toaccomplish  by  a  specific  enumeration 
oTthose  subjects  of  general  concern,  in  which  all  hnxo.  a  general  interest,  aTnd  to  tbft . 
defence  and  protection  of  which  the  undivided  force  of  all  the  States  could  be  brouo-ht 

promptly  and  directly  to  bear.  ° — 

Some  of  these  were  our/relations  with  foreign  powers  —  war  and  peace,  treaties, 
foreign  commerce  and  coniffnerce  amongst  the  several  States,  with  others  specifically 
enumerated;  leaving  to  tVie  several  States  their  full  jurisdicti-on  over  rights  of  person 
and  property,  and,  in  fact,  over  all  other  subjects  of  legislation,  not  thus  vested  in  the 
general  government,  /ll  powers  of  government,  therefore,  legislative,  executive  and 
judicial,  necessary  to  THe  full  and  entire  administraf.ion  nf_gYWArn^nf  over  these 
enumerated  subjects,  and  all  powers  necessarily  incident  thereto.  are_vgsted  in  The 
general  government;  and  all  other  powers,  expressly  as  well  as  by  implication~"i7i 
reserved  to  the  Stntfts.  ■  *^ ' 

This  brief  and  comprehensive  view  of  the  nature  and  character  of  the  government 
of  the  United  States,  we  think,  is  not  inappropriate  to  this  discussion,  because  it  fol- 
lows as  a  necessary  consequence  that,  so  far  as  the  government  of  the  United  States 
has  jurisdiction  over  any  subject,  and  acts  thereon  within  the  scope  of  its  authority 
It  must  necessarily  be  paramount,  and  must  render  nugatory  all  legislation  by  any 
State,  which  IS  repugnant  to  and  inconsistent  with  it.  There  mav  perhaps  in  some 
few  cases  be  a  concurrent  jurisdiction,  as  in  case  of  direct  taxation  of  the  same  person 
and  property ;  but  until  it  shall  practically  extend  to  a  case  where  there  may  be  an 
actual  interference,  by  seizing  the  same  property  at  the  same  time,  the  exercise  of  the 
powers  by  the  one  is  not,  in  its  necessary  effect,  exclusive  of  the  exercise  of  a  like 
power  by  the  other ;  but  in  such  case  they  are  not  repugnar-t.  That  one  must  be  so 
paramount,  to  prevent  constant  collision,  is  obvious;  and,  accordingly,  the  Constitu- 
tion expressly  provides  that  the  Constitution  and  all  laws  and  treaties,  made  in  pur- 
suance of  Its  authority,  shall  be  the  supreme  law  of  the  land.  -  Opinion  of  (he  Justices, 

It  tt'^^'  Vi~^^^-    C<^'"P^''«  ^^A"E,  C.  J.  (for  the  court),  in  U.  S.  v.  Cruikshank  et  al. 
vl  U.  b.  549-5.51. 

^  The  statement  of  facts  is  shortened.  —  Ed. 


272  m'culloch  v.  state  of  Maryland  et  al,      [chap.  hi. 

at  Baltimore  in  Maryland.  In  1818,  the  Legislature  of  Maryland 
passed  an  Act  to  tax  "  all  banks  or  branches  thereof  in  the  State  of 
Maryland,  not  chartered  by  the  legislature,"  by  requiring  that  notes 
issued  by  them  should  be  upon  stamped  paper.  M'Culloch,  the  cashier, 
had  violated  this  Act,  by  issuing  notes  upon  unstamped  paper.  The 
facts  were  agreed. 

The  question  submitted  to  the  court  for  their  decision  in  this  case, 
is  as  to  the  validity'  of  the  said  Act  of  the  General  Assembly  of  Mar\-- 
land,  on  the  ground  of  its  being  repugnant  to  the  Constitution  of  the 
United  States,  and  the  Act  of  Congress  aforesaid,  or  to  one  of  then>. 
Upon  the  foregoing  statement  of  facts,  and  the  pleadings  in  this  cause 
(all  errors  in  which  are  hereby  agreed  to  be  mutually  released),  if  the 
court  should  be  of  opinion  that  the  plaintiffs  are  entitled  to  recover, 
then  judgment,  it  is  agreed,  shall  be  entered  for  the  plaintiffs,  for 
twenty-five  hundred  dollars,  and  costs  of  suit.  But  if  the  court  should 
be  of  opinion  that  the  plaintiffs  are  not  entitled  to  recover  upon  the 
statement  and  pleadings  aforesaid,  then  judgment  of  no  a  pros  shall  be 
entered,  with  costs,  to  the  defendant. 

It  is  agreed  that  either  party  ma}-  appeal  from  the  decision  of  the 
County  Court  to  the  Court  of  Appeals,  and  from  the  decision  of  the 
Court  of  Appeals  to  the  Supreme  Court  of  the  United  States,  according 
to  the  modes  and  usages  of  law,  and  have  the  same  benefit  of  this 
statement  of  facts,  in  the  same  manner  as  could  be  had  if  a  ^xxvy  had 
been  sworn  and  impanelled  in  this  cause,  and  a  special  verdict  had 
been  found,  or  these  facts  had  appeared  and  been  stated  in  an  excep- 
tion taken  to  the  opinion  of  the  court,  and  the  court's  direction  to  the 
jury  thereon.  .  .  . 

Webster  and  Pmkney,  for  the  plaintiff  in  error. 

Hopkinson,  Jones^  and  Martin^  for  the  defendant. 

The  Attorney-General  was  also  heard  for  the  plaintiff,  by  reason  of 
the  interest  of  the  United  States. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

In  the  c?se  now  to  be  determined,  the  defendant,  a  sovereign  State, 
denies  the  ol^'^atio'^  of  z.  law  enacted  by  the  legislature  of  the  Union  ; 
and  the  plaintiff,  on  his  part,  contests  the  validity  of  an  Act  which  has 
been  passed  b}'  the  legislature  of  that  State.  The  Constitution  of  our 
country,  in  its  most  interesting  and  vital  parts,  is  to  be  considered ;  the 
conflicting  powers  of  the  government  of  the  Union  and  of  its  members, 
as  marked  in  that  Constitution,  are  to  be  discussed  ;  and  an  opinion 
given,  which  may  essentially  influence  the  great  operations  of  the 
government.  No  tribunal  can  approach  such  a  question  without  a  deep 
sense  of  its  importance,  and  of  the  awful  responsibility  involved  in  its 
decision.  But  it  must  be  decided  peacefullj-,  or  remain  a  source  of 
hostile  legislation,  perhaps  of  hostility  of  a  still  more  serious  nature; 
and  if  it  is  to  be  so  decided,  by  this  tribunal  alone  can  the  decision  be 
made.  On  the  Supreme  Court  of  the  United  States  has  the  Constitu- 
tion of  our  country  devolved  this  important  duty. 


CHAP.  III.]        M'CULLOCH   V.   STATE   OF   MARYLAND   ET  AL.  273 

The  first  question  made  in  the  cause  is,  has  Congress  power  to 
incorporate  a  bank? 

It  has  been  truly  said,  that  this  can  scarcely  be  considered  as  an  open 
question,  entirely  unprejudiced  by  the  former  proceedings  of  the  nation 
respecting  it.  The  principle  now  contested  was  introduced  at  a  very 
early  period  of  our  history,  has  been  recognized  by  many  successive 
legislatures,  and  has  been  acted  upon  by  the  judicial  department,  in 
cases  of  peculiar  delicac}',  as  a  law  of  undoubted  obligation. 

It  will  not  be  denied,  that  a  bold  and  daring  usurpation  might  be 
resisted,  after  an  acquiescence  still  longer  and  more  complete  than  this. 
But  it  is  conceived  that  a  doubtful  question,  one  on  which  human 
reason  may  pause,  and  the  human  judgment  be  suspended,  in  the  deci- 
sion of  which  the  great  principles  of  liberty  are  not  concerned,  but  the 
respective  powers  of  those  who  are  equally  the  representatives  of 
the  people,  are  to  be  adjusted,  if  not  put  at  rest  by  the  practice  of  the 
government,  ought  to  receive  a  considerable  impression  from  that  prac- 
tice. An  exposition  of  the  Constitution,  deliberately  established  by 
legislative  Acts,  on  the  faith  of  which  an  immense  property  has  been 
advanced,  ought  not  to  be  lightly  disregarded. 

The  power  now  contested  was  exercised  by  the  first  Congress  elected 
under  the  present  Constitution.  The  bill  for  incorporating  the  Bank  of 
the  United  States  did  not  steal  upon  an  unsuspecting  legislature,  and 
pass  unobserved.  Its  principle  was  completely  understood,  and  was 
opposed  with  equal  zeal  and  ability.  After  being  resisted,  first  in  the 
fair  and  open  field  of  debate,  and  afterwards  in  the  executive  cabinet, 
with  as  much  persevering  talent  as  any  measure  has  ever  experienced, 
and  being  supported  by  arguments  which  convinced  minds  as  pure  and 
as  intelligent  as  this  country  can  boast,  it  became  a  law.  The  oi'iginal 
Act  was  permitted  to  expire  ;  but  a  short  experience  of  the  embarrass- 
ments to  which  the  refusal  to  revive  it  exposed  the  government,  con- 
vinced those  who  were  most  prejudiced  against  the  measure  of  its 
necessity,  and  induced  the  passage  of  the  present  law.  It  would  re- 
quire no  ordinary  share  of  intrepidity  to  assert,  that  a  measure  adopted 
under  these  circumstances,  was  a  bold  and  plain  usurpation,  to  which 
the  Constitution  gave  no  countenance. 

These  observations  belong  to  the  cause;  but  they  are  not  made 
under  the  impression  that,  were  the  question  entirely  new,  the  law 
would  be  found  irreconcilable  with  the  Constitution. 

In  discussing  this  question,  the  counsel  for  the  State  of  Maryland 
have  deemed  it  of  some  importance,  in  the  construction  of  the  Con- 
stitution, to  consider  that  instrument  not  as  emanating  from  the  people, 
but  as  the  act  of  sovereign  and  independent  States.  The  powers  of 
the  general  government,  it  has  been  said,  are  delegated  by  the  States, 
who  alone  are  truly  sovereign ;  and  must  be  exercised  in  subordina- 
tion to  tlie  States,  who  alone  possess  supreme  dominion. 

Tt  would  be  difficult  to  sustain  this  proposition.     The  convention 
which  framed  the  Constitution  was,  indeed,  elected  bv  the  State  legis- 
\0L.  I. —  18 


274  m'cullocii  v.  state  of  Maryland  et  al.      [chap.  hi. 

latures.  But  the  instrument,  when  it  came  from  their  hands,  was  a 
mere  proposal,  without  obligation,  or  pretensions  to  it.  It  was  reported 
to  the  then  existing  Congress  of  the  United  States,  with  a  request  that 
it  might  "  be  submitted  to  a  convention  of  delegates,  chosen  in  each 
State,  by  the  people  thereof,  under  the  recommendation  of  its  legisla- 
ture, for  their  assent  and  ratification."  This  mode  of  proceeding  was 
adopted ;  and  by  the  convention,  by  Congress,  and  by  the  State  legis- 
latures, the  instrument  was  submitted  to  the  people.  They  acted 
upon  it,  in  the  only  manner  in  which  they  can  act  safely,  effectively, 
and  wisely,  on  such  a  subject,  by  assembling  in  convention.  It  is  true, 
they  assembled  in  their  several  States  ;  and  where  else  should  they 
have  assembled?  No  political  dreamer  was  ever  wild  enough  to  think 
of  breaking  down  tlie  lines  which  separate  the  States,  and  of  com- 
pounding the  American  people  into  one  common  mass.  Of  consequence, 
when  they  act,  they  act  in  their  States.  But  the  measures  they  adopt 
do  not,  on  that  account,  cease  to  be  the  measures  of  the  people  them- 
selves, or  become  the  measures  of  the  State  governments. 

From  these  conventions  the  Constitution  derives  its  whole  authority. 
The  government  proceeds  directly  from  the  people  ;  is  ''  ordained  and 
established  "  in  the  name  of  the  people  ;  and  is  declared  to  be  ordained, 
"  in  order  to  form  a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  and  secure  tlie  blessings  of  liberty  to  themselves  and  to 
their  posterity."  The  assent  of  the  States,  in  their  sovereign  capacity, 
is  implied  in  calling  a  convention,  and  thus  submitting  that  instrument 
to  the  people.  But  the  people  were  at  perfect  liberty  to  accept  or  reject 
it ;  and  their  act  was  final.  It  required  not  the  affirmance,  and  could 
not  be  negatived,  by  the  State  governments.  The  Constitution,  when 
thus  adopted,  was  of  complete  obligation,  and  bound  the  State  sover- 
eignties. 

It  has  been  said,  that  the  people  had  already  surrendered  all  their 
powers  to  the  State  sovereignties,  and  had  nothing  more  to  give.  But, 
surely,  the  question  whether  they  may  resume  and  modify  the  powers 
granted  to  government,  does  not  remain  to  be  settled  in  this  country. 
Much  more  might  the  legitimacy  of  the  general  government  be  doubted, 
had  it  been  created  by  the  States.  The  powers  delegated  to  the  State 
sovereignties  were  to  be  exercised  by  themselves,  not  by  a  distinct  and 
independent  sovereignty,  created  by  themselves.  To  the  formation  of 
a  league,  such  as  was  the  Confederation,  the  State  sovereignties  were 
certainly  competent.  But  when,  "  in  order  to  form  a  more  perfect 
union,"  it  was  deemed  necessary  to  change  this  alliance  into  an  effec- 
tive government,  possessing  great  and  sovereign  powers,  and  acting 
directly  on  the  people,  the  necessity  of  referring  it  to  the  people,  and 
of  deriving  its  powers  directly  from  them,  was  felt  and  acknowledged 
by  all. 

The  government  of  the  Union,  then  (whatever  maj'  be  the  influence 
of  tliis  fact  on  the  case),_is^fimpl«rtlcally  and  truly  a  government  of  the 
people.    In  form  and  in  substancejt  emanates  from  them,  its  poM-ers 


CHAP.  III.]        M'CULLOCil   V.   STATE   OF   MAIIYLAND   ET   AL.  275 

are  granted  by  them,  and  are  to  be  exercised  directl:tL,oa  them,_and  for 
their  benefijj. 

This  government  is  acknowledged  by  all  to  be  one  of  enumerated 
powers.  Tiie  principle,  that  it  can  exercise  only  the  powers  granted  to 
it,  would  seem  too  apparent  to  have  required  to  be  enforced  by  all  those 
arguments  which  its  enlightened  friends,  while  it  was  depending  before 
the  people,  found  it  necessary  to  urge.  That  principle  is  now  uuiver- 
sally  admitted.  But  the  question  respecting  the  extent  of  the  powers 
actually  granted,  is  perpetually  arising,  and  will  probably  continue  to 
arise,  as  long  as  our  system  shall  exist. 

In  discussing  these  questions,  the  conflicting  powers  of  the  general 
and  State  governments  must  be  brought  into  view,  and  the  supremacy 
of  their  respective  laws,  when  they  are  in  opposition,  must  be  settled. 

If  any  one  proposition  could  command  the  universal  assent  of  man- 
kind, we  might  expect  it  would  be  this:  that  the  government  of  thg. 
Union,  though  limited  in  its  powers,  is  supreme  within  its  sphere  of 
action..  This  would  seem  to  result  necessarily  from  its  nature.  It  is 
the  government  of  all ;  its  powers  are  delegated  by  all ;  it  represents 
all,  and  acts  for  all.  Though  any  one  State  may  be  willing  to  control 
its  operations,  no  State  is  willing  to  allow  others  to  control  them.  The 
nation,  on  those  subjects  on  which  it  can  act,  must  necessarily  bind  its 
component  parts.  But  this  question  is  not  left  to  mere  reason:  the 
people  have,  in  express  terms,  decided  it,  by  saying,  "  this  Constitu- 
tion, and  the  laws  of  the  United  States,  which  shall  be  made  in  pursu- 
ance thereof,"  ''shall  be  the  supreme  law  of  the  land,"  and  by  requir- 
ing that  the  members  of  the  State  legislatures,  and  the  officers  of  the 
executive  and  judicial  departments  of  the  States,  shall  take  the  oath  of 
fidelit}'  to  it. 

The  government  of  the  United  States,  then,  though  limited  in  its 
powers,  is  supreme  ;  and  its  laws,  when  ma^e  in  pursuance  of  the  CoiT' 
stitution.  form  the  supreme  law  of  the  land,  '^anything  in  the  Consti- 
tution or  laws  of  any  State,  to  the  contrary  nntwithstandinor." 

Among  the  enumerated  powers,  we  do  not  find  that  of  establishing 
a  bank  or  creating  a  corporation.  But  there  is  no  phrase  in  the 
instrument  which,  like  the  Articles  of  Confederation,  excludes  inciden- 
tal or  implied  powers ;  and  which  requires  that  everything  granted 
shall  be  expressly  and  minutely  described.  Even  the  10th  Amendment, 
which  was  framed  for  the  purpose  of  quieting  the  excessive  jealousies 
which  had  been  excited,  omits  the  word  "  expressl}*,"  and  declares 
onl}'  that  the  powers  "not  delegated  to  the  United  States,  nor  pro- 
hibited to  the  States,  are  reserved  to  the  States  or  to  the  people ; " 
thus  leaving  the  question,  whether  the  particular  power  which  may 
become  the  subject  of  contest,  has  been  delegated  to  the  one  govern- 
ment, or  prohibited  to  the  other,  to  depend  on  a  fair  construction  of 
the  whole  instrument.  The  men  who  drew  and  adopted  this  amend- 
ment, had  experienced  the  embarrassments  resulting  from  the  insertion 
of  this  word  in  the  Articles  of  Confederation,  and  probably  omitted  it  to 


276  M'CULLOCII   v.   state   of   MARYLAIs'D   ET   AL.        [chap.  III. 

avoid  those  embarrassments.  A  constitution,  to  contain  an  accurate 
detail  of  all  the  subdivisions  of  which  its  great  powers  wi'l  admit,  and 
of  all  the  means  b}- which  they  ma^' be  carried  into  execution,  would 
partake  of  the  prolixit}'  of  a  legal  code,  and  could  scarcely  be  embraced 
by  the  human  mind.  It  would  probably  never  be  understood  by  the 
l)ublic.  Its  nature,  therefore,  requires,  that  onlv  its  great  outlines  should 
bejmarked,  its  important  objects  dasignatf^d,  and  tlifi  minor  ingrpilifuts 
which  com|)os_e  those  objects  be  deduced  from  the  nature  of  the  objects 
themselves.  That  this  Idea  was  entertained  by  the  framers  of  the 
American  Constitution,  is  not  only  to  be  inferred  from  the  nature  of 
the  instrument,  but  from  the  language.  Why  else  were  some  of  the 
limitations,  found  in  the  9th  section  of  the  1st  article,  introduced?  It 
is  also,  in  some  degree,  warranted  b}'  their  having  omitted  to  use  any 
restrictive  term  which  might  prevent  its  receiving  a  fair  and  just  inter- 
I)retation.  In  considering  this  question,  then,  we  must  never  forget, 
that  it  is  a  constitution  we  are  expounding. 

Although,  among  the  enumerated  powers  of  government,  we  do  not  find 
the  word  "  bank,"  or  ''  incorporation,"  we  find  the  great  powers  to  lay 
and  collect  taxes  ;  to  borrow  money  ;  to  regulate  commerce  ;  to  declare 
and  conduct  a  war  ;  and  to  raise  and  support  armies  and  navies.  The 
sword  and  the  purse,  all  the  external  relations,  and  no  inconsiderable 
portion  of  the  industry  of  the  nation,  are  intrusted  to  its  government. 
It  can  never  be  pretended  that  these  vast  powers  draw  after  them  others 
of  inferior  ir^portance.  merely  because  they  are  mferior.  !Such  an  idea 
can  never  be  advanced.  But  it  mny,  w^-gpeftfrnieagoir, l)e  contended, 
that  a^_government.  intrusted  with^uch_  ample  powers,  on  the  due  exe- 
cution of  which  the  happiness  and  prosperitv  of  the  nation  so  vitally 
dejjends,  must  also  be  intrusted  with  ample  means  for  their  execution. 
Xhe~power  being  given,  it  is  the  interest  of  the  nation  to  facilitate  its 
execution.  It  can  never  be  their  interest,  and  cannot  be  presumed  to 
have  be*3n  their  intention,  to  clog  and  embarrass  its  execution  by  with- 
holding the  most  appropriate  means.  Throughout  this  vast  republic, 
fiom  the  St.  Croix  to  the  Gulf  of  Mexico,  from  the  Atlantic  to  the 
Pacific,  revenue  is  to  be  collected  and  expended,  armies  are  to  be 
marched  and  supported.  The .  exigencies  of  the  nation  may  require, 
that  the  treasure  raised  in  the  North  should  be  transported  to  the  South, 
that  raised  in  the  East  conveyed  to  the  "West,  or  that  this  order  should 
be  reversed.  Is  that  construction  of  the  Constitution  to  be  preferred 
which  would  render  these  operations  difficult,  hazardous,  and  expensive? 
Can  we  adopt  that  construction  (unless  the  words  imperiousl};^  require 
it)  which  would  impute  to  the  framers  of  that  instrument,  when  grant- 
ing these  powers  for  the  public  good,  the  intention  of  impeding  their 
exercise  by  withholding  a  choice  of  means?  If,  indeed,  such  be  the 
mandate  of  the  Constitution,  we  have  only  to  obev  ;  but  that  instrum^at. 

docsnot  piTtfpss    ir^  nniimpi-qtp    thp  mpnnc;   hy  wliir-lx-tlip    powprs  it-coH^ 

f[T^;__maj'  bp  pv^nntfd  ;  n"**  ^'^^g  't.  prnhil^it.  t.hn  nrefltion  of  a  corporation. 
if  the  existence  of  such  a  being  be  essential  to 


CHAP.  III.]        m'CULLOCH   V.   STATE   OF   MARYLAND   ET   AL.  277 

those  powers.  It  is,  then,  the  subject  of  fair  inquiry,  how  far  such 
means  ma}'  be  employed. 

It  is  not  denied,  that  the  powers  given  to  the  government  miply  the 
ordinary  means  of  execution.  That,  for  example,  of  raising  revenue,^ 
and  applying  it  to  national  purposes,  is  admitted  to  imply  the  power  of 
conveying  money  from  place  to  place,  as  the  exigencies  of  the  nation 
may  require,  and  of  employing  the  usual  means  of  conveyance.  But  it 
is  denied  that  the  government  has  its  choice  of  means  ;  or,  that  it  may 
employ  the  most  convenient  means,  if,  to  employ  them,  it  be  necessary 
to  erect  a  corporation. 

On  what  foundation  does  this  argument  rest?  On  this  alone:  The 
power  of  creating  a  corporation,  is  one  appertaining  to  sovereignty,  and 
is  not  expressly  conferred  on  Congress.  This  is  true.  But  all  legisla- 
tive powers  appertain  to  sovereignty.  The  original  power  of  giving  the 
law  on  any  subject  whatever,  is  a  sovereign  power ;  and  if  the  govern- 
ment of  the  Union  is  restrained  from  creating  a  corporation,  as  a  means 
for  performing  its  functions,  on  the  single  reason  that  the  creation  of  a 
corporation  is  an  act  of  sovereignty  ;  if  the  sufficiency  of  this  reason  be 
acknowledged,  there  would  be  some  difficulty  in  sustaining  the  author- 
ity of  Congress  to  pass  other  laws  for  the  accomplishment  of  the  same 

objects. 

The  government  which  has  a  right  to  do  an  act,  and  has  imposed  on 
it  the  duty  of  performing  that  act,  must,  according  to  the  dictates  of 
reason,  be  allowed  to  select  the  means ;  and  those  who  contend  that  it 
may  not  select  any  appropriate  means,  that  one  particular  mode  of 
effecting  the  object  is  excepted,  take  upon  themselves  the  burden  of 
establishing  that  exception. 

The  creation  of  a  corporation,  it  is  said,  appertains  to  sovereignty. 
This  is  admitted.  But  to  what  portion  of  sovereignty  does  it  appertain  ? 
Does  it  belong  to  one  more  than  to  another?  In  America,  the  power?.  Sf 
sovereignty  are  divided  between  the  government  of  the  Union,  a;  .1  those 
of  the  "states.  They  are  each  sovereign,  with  respect  to  *'Ae  objects 
committed  to  it,  andneither  sovereign  with  respect  to  th'.  objects  com- 
mitted to  the  other.  We  cannot  comprehend  that  train  of  reasoning 
which  would  maintain,  that  the  extent  of  power  granted  by  the  people 
is  to  be  ascertained,  not  by  the  nature  and  terms  of  the  grant,  but  by 
its  date.  Some  State  constitutions  were  formed  before,  some  since 
that  of  the  United  States.  We  cannot  believe  that  their  relation  to 
each  other  is  in  any  degree  dependent  'upon  this  circumstance.  Their 
respective  powers  must,  we  think,  be  precisely  the  same  as  if  they  had 
been  formed  at  the  same  time.  Had  they  been  formed  at  the  same 
time,  and  had  the  people  conferred  on  the  general  government  the 
power  contained  in  the  Constitution,  and  on  the  States  the  whole 
residuum  of  power,  would  it  have  been  asserted  that  the  government  of 
the  Union  was  not  sovereign  with  respect  to  those  objects  which  were 
intrusted  to  it,  in  relation  to  which  its  laws  were  declared  to  be  supreme? 
If  this  could  not  have  been  asserted,  we  cannot  well  comprehend  the 


278  m'culloch  v.  state  of  Maryland  et  al.      [chap,  iil 

process  of  reasoning  which  maintains,  that  a  power  appertaining  to 
feovereignty  cannot  be  connected  with  that  vast  portion  of  it  which  is 
granted  to  the  general  government,  so  far  as  it  is  calculated  to  subserve 
the  legitimate  objects  of  that  government.  The  power  of  creating  a 
corporation,  though  appertaining  to  sovereignty-,  is  not,  like  the  power 
of  making  war,  or  levying  taxes,  or  of  regulating  commerce,  a  great 
substantive  and  independent  power,  which  cannot  be  implied  as  inci- 
dental to  other  powers,  or  used  as  a  means  of  executing  them.  It  is 
never  the  end  for  which  other  powers  are  exercised,  but  a  means  by 
which  other  objects  are  accomplished.  No  contributions  are  made  to 
charity  for  the  sake  of  an  incorporation,  but  a  corporation  is  created  to 
administer  the  charity ;  no  seminary  of  learning  is  instituted  in  order 
to  be  incorporated,  but  the  corporate  character  is  conferred  to  subserve 
the  purposes  of  education.  No  city  was  ever  built  with  the  sole  object 
of  being  incorporated,  but  is  incorporated  as  affording  the  best  means 
of  being  well  governed.  The  power  of  crediting  a  corporation  is  never 
used  forits  own  sake,  but  for  the  purpose  of  effecting  something  else. 
No^sufficienl^ reason  is,  therefm'e»_jperceived,  whv  it  mnv  not  pass  as 
incidental  to_tliose  powers  which^are  expressly  given,  if  it  be  a  direct 
mode  of  execiitin^jLheaL- 

'But  the  Constitution  of  the  United  States  has  not  left  the  right  of 
Congress  to  employ  the  necessary  means,  for  the  execution  of  the  powers 
conferred  on  the  government,  to  general  reasoning.  To  its  enumera- 
tion of  powers  is  added  that  of  making  "  all  laws  which  shall  be  neces- 
sary and  proper,  for  carrying  into  execution  the  foregoing  powers,  and 
all  other  powers  vested  by  this  Constitution,  in  the  government  of  the 
United  States,  or  in  any  department  thereof." 

The  counsel  for  the  State  of  Maryland  have  urged  various  arguments, 
Jo  prove  that  this  clause,  though  in  terms  a  grant  of  power,  is  not  so 
in  -effect ;  but  is  really   restrictive  of  the  general  right,  which  might 
otherwbe  be  implied,  of  selecting  means  for  executing  the  enumer- 
ated powers. 

In  support  of  this  proposition,  they  have  found  it  necessary  to  con- 
tend, that  this  clause  was  inserted  for  the  purpose  of  conferring  on 
Congress  the  power  of  m^tking  laws.  That,  without  it,  doubts  might  be 
entertained,  whether  Congress  c  luld  exercise  its  powers  in  the  form  of 
legislation.  ■-.-. 

But  could  this  be  the  object  for  which-  it  was  inserted  ?  A  govern- 
ment is  created  by  the  people,  having  legislaiive,  executive,  and  judi- 
cial powers.  Its  legislative  powers  are  vested  in  a  Congress,  which  is 
to  consist  of  a  Senate  and  House  of  Representatives.  Each  House 
may  determine  the  rule  of  its  proceedings ;  and  it  is  declared  that 
every  bill  which  shall  have  passed  both  Houses,  shall,  before  it  becomes 
a  law,  be  presented  to  the  President  of  the  United  States.  The  7th 
section  describes  the  course  of  proceedings,  by  which  a  bill  shall  become 
a  law ;  and,  then,  the  8th  section  enumerates  the  powers  of  Congress. 
Could  it  be  necessary  to  say,  that  a  legislature  should  exercise  legisla' 


CHAP.  III.]     m'culloch  v.  state  of  Maryland  et  al.  279 

tive  powers,  in  the  shape  of  legislation?  After  allowing  each  House  to 
prescribe  its  own  course  of  proceeding,  after  describing  the  manner  in 
which  a  bill  should  become  a  law,  would  it  have  entered  into  the  mmd 
of  a  sintrle  member  of  the  convention,  that  an  express  power  to  make 
laws  was°  necessarv  to  enable  the  legislature  to  make  them?  That_^ 
legislature,  endowed  with  legislative  powers,  can  legislate,  is  a  proposi- 
ti^too  self-evident  to  have  been  questioned.  '       ^ 

~B^t  the  argument  on  which  most  reliance  is  placed,  is  drawn  from  the 
peculiar  language  of  this  clause.  Congress  is  not  empowered  by  it  to 
make  all  laws,  which  may  have  relation  to  the  powers  conferred  on  the 
government,  but  such  only  as  may  be  "necessary  and  proper"  for 
carrying  them  into  execution.  The  word  "necessary  "  is  considered 
as  controlling  the  whole  sentence,  and  as  limiting  the  right  to  pass  laws 
for  the  execution  of  the  granted  powers,  to  such  as  are  indispensable, 
and  without  which  the  power  would  be  nugatory.  That  it  excludes  the 
choice  of  means,  and  leaves  to  Congress,  in  each  case,  that  only  which 
is  most_dii.ectJind  simple. 

Is  it  true,  that  this  is  the  sense  in  which  the  word  "  necessary      is 
always  used?     Does  it  always  import  an  absolute  physical  necessity, 
so  strong,  that  one  thing,  to  which  another  may  be  termed  necessary, 
cannot  exist  without  that  other?     We  think  it  does  not.     If  reference 
be  had  to  its  use,  in  the  common  affairs  of  the  world,  or  in  approved 
authors,  we  find  that  it  frequently  imports  no  more  than  that  one  thing 
is  convenient,  or  useful,  or  essential  to  another.     To  employ  the  means 
iTPTPssarv  to  an  end,  is  generally  understood  as  employing_anj._meari3 
c^HlSt^o  produce  the  end,  ajiiLlIQias_beUip;  con  fined  to  those  sinole 
means,  ^^\\hc^nt  whir-h  the  end  would  be  entirely  unattainable-     Such  is 
the  character  of  human  language,  that  no  word  conveys  to  the  mind,  in 
all  situations,  one  single  definite  i<lea ;  and  nothing  is  more  common 
than  to  use  words  in  a  figurative  sense.     Almost  all  compositions  con- 
tain words,  which,  taken  in  their  rigorous  sense,  would  convey  a  r:.ean- 
ing  different  from  that  which  is  obviously  intended.     It  is  essential  to 
just  construction,  that  many  words  which  import  something  excessive, 
should  be  understood  in  a  more  mitigated  sense  — in  tb^  sense  which 
common  usage  justifies.     The  word  "  necessary  "  is  of  this  description. 
It  has  not  a  fixed  character  peculiar  to  itcJif.     It  admits  of  all  degrees 
of  comparison  ;  and  is  often  connected  with  other  words,  which  increase 
or  diminish  the  impression  the  mind  receives  of  the  urgency  it  imports. 
A  thing  may  be  necessary,  very  necessary,  absolutely  or  indispensably 
necessa°ry.     To  no  mind  would  the  same  idea  be  conveyed,  by  these 
several  phrases.     This  comment  on  the  word  is  well  illustrated,  by  the 
passage  cited  at  the  Bar,  from  the  10th  section  of  the  1st  article  of  the 
Constitution.      It  is,  we  think,   impossible   to  compare  the  sentence 
which  prohibits  a  State  from  laying  "  imposts,  or  duties  on  imports  or 
exports,  except  what  may  be  absolutely  necessary  for  executing  its 
inspection  laws,"  with  that  which  authorizes  Congress  "to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into  execution  " 


2 so  m'CULLOCH   v.   state    of   MARYLAND    ET   AL.        [CHAP.  IIL 

the  powers  of  the  general  government,  without  feeling  a  conviction  that 
the  convention  understood  itself  to  change  materially  the  meaning  of  the 
word  "necessary"  by  prefixing  the  word  "absolutely."  This^word, 
theJi,  like  others,  isur'^f^d  in  various  sen^s  j_ and.,  in  its  construcition,  the 
subject,  the  context,  the  intention  of  the  pprsnn  ns'"S  t.hpm,  ^r^  all  to 
Ijje  taken  into  view. 

Let  this  be  done  in  the  case  under  consideration.  The  subject  is 
the  execution  of  those  great  powers  on  which  the  welfare  of  a  nation 
essentially  depends.  It  must  have  been  the  intention  of  those  who  gave 
these  powers,  to  insure,  as  far  as  human  prudence  could  insure,  their 
beneficial  execution.  This  could  not  be  done  by  confining  the  choice  of 
means  to  such  narrow  limits  as  not  to  leave  it  in  the  power  of  Con- 
gress to  adopt  any  which  might  be  appropriate,  and  which  were  con- 
ducive to  the  end.  This  provision  is  made  in  a  constitution  intended 
to  endure  for  ages  to  come,  and,  consequenth*,  to  be  adapted  to  the 
various  crises  of  human  affairs.  To  have  prescribed  the  means  by 
which  government  should,  in  all  future  time,  execute  its  powers,  would 
have  been  to  change,  entirely,  the  character  of  the  instrument,  and 
give  it  the  properties  of  a  legal  code.  It  would  have  been  an  unwise 
attempt  to  provide,  by  immutable  rules,  for  exigencies  which,  if  foreseen 
at  all,  must  have  been  seen  dimly,  and  which  can  be  best  provided  for 
as  they  occur.  To  have  declared  that  the  best  means  shall  not  be  used, 
but  those  alone  without  which  the  power  given  would  be  nugatory. 
woukTEave  been  to  deprive  the  legislature  of  the  capacity  to  avail  itself 
of  experience,  to  exercise  its  reason,  and  to  accommodate  its  legislation 
to  circumstances.  If  we  applj'  this  [irinciple  of  construction  to  any  of 
the  powers  of  the  government,  we  shall  find  it  so  pernicious  in  its 
operation  that  we  shall  be  compelled  to  discard  it.  The  powers  vested 
in  Congress  may  certainly  be  carried  into  execution,  without  prescrib- 
"isfij^  an  oath  of  office.  The  power  to  exact  this  security  for  the  faith- 
ful pcri'ormance  of  duty,  is  not  given,  nor  is  it  indispensably  necessary. 
The  different  departments  may  be  established  ;  taxes  may  be  imposed 
and  collected i  armies  and  navies  may  be  raised  and  maintained;  and 
money  may  be  borrowed,  without  requiring  an  oath  of  office.  It  might 
be  argued,  with  as  much  plausibility  as  other  incidental  powers  have 
been  assailed,  that  the  convenMon  was  not  unmindful  of  this  subject. 
The  oath  which  might  be  exacted  —  that  of  fidelity  to  the  Constitution 
—  is  prescribed,  and  no  other  can  be  required.  Yet,  he  would  be 
charged  with  insanity  who  should  contend,  that  the  legislature  might 
not  superadd  to  the  oath  directed  by  the  Constitution,  such  other  oath 
of  office  as  its  wisdom   might  suggest. 

So,  with  respect  to  the  whole  penal  code  of  the  United  States. 
"Whence  arises  the  power  to  punish  in  cases  not  prescribed  by  the  Con- 
stitution? All  admit  that  the  government  may,  legitimately,  punish 
any  violation  of  its  laws ;  and  yet,  this  is  not  among  the  enumerated 
powers  of  Congress.  The  right  to  enforce  the  observance  of  law,  by 
punishing  its  infraction,  might  be  denied  with  the  more  plausibility, 


CHAP.  III.]        m'CULLOCH   V.    STATE   OF   MARYLAND   ET  AL.  281 

because  it  is  expressly  given  in  some  cases.  Congress  is  empowered 
''  to  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States,"  and  "  to  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  offences  against  the  law 
of  nations."  The  several  powers  of  Congress  maj-  exist,  in  a  ver}'  im- 
perfect state  to  be  sure,  but  they  may  exist  and  be  carried  into  execu- 
tion, although  no  punishment  should  be  inflicted  in  cases  where  the  right 
to  punish  is  not  expressly  given. 

Take,  for  example,  the  power  "  to  establish  post-offices  and  post-roads." 
This  power  is  executed  by  the  single  act  of  making  the  establishment. 
But  from  this  has  been  inferred  the  power  and  duty  of  carrying  the 
mail  along  the  post-road,  from  one  post-office  to  another.  And,  from 
this  implied  power,  has  again  been  inferred  the  right  to  punish  tliose 
who  steal  letters  from  the  post-office,  or  rob  the  mail.  It  may  be  said, 
with  some  plausibility,  that  the  right  to  carry  the  mail,  and  to  punish 
those  who  rob  it,  is  not  indispensably  necessary  to  the  establishment 
of  a  post-office  and  post-road.  This  right  is,  indeed,  essential  to  tlie 
beneficial  exercise  of  the  power,  but  not  indispensably  necessary  to  its 
existence.  So,  of  the  punishment  of  the  crimes  of  stealing  or  falsifying 
a  record  or  process  of  a  court  of  the  United  States,  or  of  perjur}'  in  such 
court.  To  punish  these  offences  is  certainly  conducive  to  the  due  ad- 
ministration of  justice.  But  courts  may  exist,  and  may  decide  the 
causes  brought  before  them,  though  such  crimes  escape  punishment. 

The  baneful  influence  of  this  narrow  construction  on  all  the  opera- 
tions of  the  government,  and  the  absolute  impracticability  of  .avain- 
taining  it  without  rendering  the  government  incompetent  to  its  great 
objects,  might  be  illustrated  by  numerous  examples  drawn  from  the 
Constitution,  and  from  our  laws.  The  good  sense  of  the  public  has 
pronounced,  without  hesitation,  that  the  power  of  punishment  apper- 
tains to  sovereignt}',  and  may  be  exercised  whenever  the  sovereign  has 
a  right  to  act,  as  incidental  to  his  constitutional  powers.  It  is  a  means 
for  carrying  into  execution  all  sovereign  powers,  and  may  be  used, 
although  not  indispensably  necessary.  It  is  a  right  incidental  to  the 
power,  and  conducive  to  its  beneficial  exercise. 

If  this  limited  construction  of  the  word  "necessary"  must  be  aban- 
doned in  order  to  punish,  whence  is  derived  the  rule  which  would 
reinstate  it,  when  the  government  would  carr}'  its  powers  into  execution 
by  means  not  vindictive  in  their  nature?  If  the  word  "necessary'" 
means  "  needful,"  "  requisite,"  "  essential,"  "  conducive  to,"  in  order 
to  let  in  the  power  of  punishment  for  the  infraction  of  law,  why  is  it  not 
equally  comprehensive  when  required  to  authorize  the  use  of  means 
which  facilitate  the  execution  of  the  powers  of  government  without  the 
infliction  of  punishment? 

In  ascertaining  the  sense  in  which  the  word  "  necessary  "  is  used  in 
this  clause  of  the  Constitution,  we  may  derive  some  aid  from  that  with 
which  it  is  associated.  Congress  shall  have  power  "  to  make  all  laws 
which  shall  be  necessary  and  proper  to  carry  into  execution  "  the  pow- 


282  m'culloch  v.  state  of  Maryland  et  al.      [chap.  hi. 

ers  of  the  government.  If  the  word  "necessar}-"  was  used  in  that 
strict  and  rigorous  sense  for  which  the  counsel  for  the  State  of  Mar}'- 
land  contend,  it  would  be  an  extraordinary'  departure  from  the  usual 
course  of  the  human  mind,  as  exhibited  in  composition,  to  add  a  word, 
the  onl}'  possible  effect  of  which  is  to  qualify  that  strict  and  rigorous 
meaning ;  to  present  to  the  mind  the  idea  of  some  choice  of  means  of 
legislation  not  straitened  and  compressed  within  the  narrow  limits  for 
which  gentlemen  contend. 

But  the  argument  which  most  conclusively  demonstrates  the  error  of 
the  construction  contended  for  b}'  the  counsel  for  the  State  of  Mary- 
land, is  founded  on  the  intention  of  the  convention,  as  manifested  in  the 
whole  clause.  To  waste  time  and  argument  in  proving  that,  without 
it,  Congress  might  cany  its  powers  into  execution,  would  be  not  much 
less  idle  than  to  hold  a  lighted  taper  to  the  sun.  As  little  can  it  be 
required  to  prove,  that  in  the  absence  of  this  clause,  Congress  would 
have  some  choice  of  means.  That  it  might  employ  those  which,  in  its 
judgment,  would  most  advantageously  effect  the  object  to  be  accom- 
plished. That  any  means  adapted  to  the  end,  any  means  which  tended 
directly  to  the  execution  of  the  constitutional  powers  of  the  government, 
were  in  themselves  constitutional.  This  clause,  as  construed  by  the 
State  of  Maryland,  would  abridge  and  almost  anniiiilate  this  useful  and 
necessary  right  of  the  legislature  to  select  its  means.  That  this  could 
not  be  intended,  is,  we  should  think,  had  it  not  been  already  contro- 
verted, too  apparent  for  controvers}'.  We  think  so  for  the  following 
re4i|pns :  — 

Q.  ;The  clause  is  placed  among  the  powers  of  Congress,  not  among 
thglunitntiona-on-tliose  powoi^- 

C2 J  Its  terms  purport  to  enlarge,  not  to  diminish  the  powers  vested 
in  the  government.  It  purports  to  be  an  additional  power,  not  a 
restriction  on  Those  already  granted.  No  reason  has  been  or  can  be 
assigned,  for  thus  concealing  an  intention  to  narrow  the  discretion  of 
th?  national  legislature,  under  words  which  purport  to  enlarge  it.  The 
framci's  of  the  Constitution  wished  its  adoption,  and  well  knew  that  it 
would  be  endangered  b}-  its  strength,  not  by  its  weakness.  Had  they 
been  capable  of  using  language  which  would  conve}'  to  the  eye  one 
idea,  and  after  deep  reflection,  impress  on  the  mind  another,  the}"  would 
rather  have  disguised  the  grant  of  power,  than  its  limitation.  If  then, 
their  intention  had  been,  b}'  this  clause,  to  restrain  the  free  use  of 
means  which  might  otherwise  have  been  implied,  that  intention  M-ould 
have  been  inserted  in  another  place,  and  would  have  been  expressed  in 
terms  resembling  these:  "In  carrying  into  execution  the  foregoing 
powers,  and  all  others,"  &c.,  "  no  laws  shall  be  passed  but  such  as  are 
necessarj'  and  proper."  Had  the  intention  been  to  make  this  clause 
restrictive,  it  would  unquestionabl}'  have  been  so  in  form  as  well  as  in 
effect. 

The  result  of  the  most  careful  and  attentive  consideration  bestowed 
upon  this  clause  is,  that  if  it  does  not  enlarge,  it  cannot  be  construed 


CHAP.  III.]        M'CULLOCH   V.   STATE   OF   JIARYLAND   ET  AL.  283 

to  restrain  the  powers  of  Congress,  or  to  impair  the  right  of  the  legis- 
lature to  exercise  its  best  judgment  in  the  selection  of  measures,  to 
carr}'  into  execution  the  constitutional  powers  of  the  government.  If 
no  otlier  motive  for  its  insertion  can  be  suggested,  a  sufficient  one  is 
found  in  the  desire  to  remove  all  doubts  respecting  the  right  to  legislate 
on  that  vast  mass  of  incidental  powers  which  must  be  involved  in  the 
Constitution,  if  that  instrument  be  not  a  splendid  bawble. 

We  admit,  as  all  must  admit,  that  the  powers  of  the  government  are 
limited,  and  that  its  limits  are  not  to  be  transcended.  But  we  think 
the  sound  construction  of  the  Constitution  must  allow  to  the  national 
legislature  that  discretion,  with  respect  to  the  means  by  which  the  pow- 
ers  it  confers  are  to  be  carried  into  execution,  which  will  enable  that 
body  to  perform  the  high  duties  assigned  to  it,  in  tbe_mlnner  most 
beneficial  to  the  people.  Let  the  end  be  legitimate,  let  it  be  withm'the 
scope  of  the  Constitution,  and  all  means  which  are  appropriate,  which 
are  plainly  adapted  to  that  end,  which  are  not  prohibited,  but  consist 
with  the  letter  and  spirit  of  the  Constitution,  are  constitutional. 

That  a  corporation  must  be  considered  as  a  means  not  less  usual,  not 
of  higher  dignity,  not  more  requiring  a  particular  specification  than  other 
means,  has  been  sufficiently  proved.  If  we  look  to  the  origin  of  cor- 
porations, to  the  manner  in  which  they  have  been  framed  in  that  gov- 
ernment, from  which  we  have  derived  most  of  our  legal  principles  and 
ideas,  or  to  the  uses  to  which  they  have  been  applied,  we  find  no  reason 
to  suppose  that  a  constitution,  omitting,  and  wisely  omitting,  to  enu- 
merate all  the  means  for  carrying  into  execution  the  great  powers 
vested  in  government,  ought  to  have  specified  this.  Had  it  been  in- 
tended to  grant  this  power  as  one  which  should  be  distinct  and  inde- 
pendent, to  be  exercised  in  any  case  whatever,  it  would  have  found 
a  place  among  the  enumerated  powers  of  the  government.  But  being 
considered  merely  as  a  means,  to  be  employed  only  for  the  purpose  of 
carrying  into  execution  the  given  powers,  there  could  be  no  motive  for 
particularly  mentioning  it. 

The  propriety  of  this  remark  would  seem  to  be  generally  acknowl- 
edged by  the  universal  acquiescence  in  the  construction  which  has  been 
uniformly  put  on  the  3d  section  of  the  4th  article  of  the  Constitution. 
The  power  to  "  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States,"  is  not°more 
comprehensive,  than  the  power  "  to  make  all  laws  which  shall  be  neces- 
sary and  proper  for  carrying  into  execution  "  the  powers  of  the  govern- 
ment. Yet  all  admit  the  constitutionality  of  a  territorial  government, 
which  is  a  corporate  body. 

If  a  corporation  may  be  employed  indiscriminately  with  other  means 
to  carry  into  execution  the  powers  of  the  government,  no  particular 
reason  can  be  assigned  for  excluding  the  use  of  a  bank,  if  required  for 
its  fiscal  operations.  To  use  one,  must  be  within  the  discretion  of 
Congress,  if  it  be  an  appropriate  mode  of  executing  the  powers  of  gov- 
ernment.    That  it  is  a  convenient,  a  useful,  and  essential  instrument  in 


284  m'culloch  v.  state  of  Maryland  et  al.     [chap.  in. 

the  prosecution  of  its  fiscal  operations,  is  not  now  a  subject  of  contro- 
vers}'.  All  those  who  have  been  concerned  in  the  administration  of 
our  finances,  have  concurred  in  representing  its  importance  and  neces- 
sity ;  and  so  strongl}-  have  they  been  felt,  that  statesmen  of  the  first 
class,  whose  previous  opinions  against  it  had  been  confirmed  by  every 
circumstance  which  can  fix  the  human  judgment,  have  yielded  those 
opinions  to  the  exigencies  of  the  nation.  Under  the  confederation. 
Congress  justifying  the  measure  by  its  necessity,  transcended,  perhaps, 
its  powers  to  obtain  the  advantage  of  a  bank  ;  and  our  own  legislation 
attests  the  universal  conviction  of  the  utility  of  this  measure.  The  time 
has  passed  away  when  it  can  be  necessary  to  enter  into  any  discussion 
in  order  to  prove  the  importance  of  this  instrument,  as  a  means  to  effect 
the  legitimate  objects  of  the  government. 

But  were  its  necessity  less  apparent,  none  can  deny  its  being  an  ap- 
propriate measure  ;  and  if  it  is,  the  degree  of  its  necessity,  as  has  been 
very  justly  observed,  is  to  be  discussed  in  another  place.  Should  Con- 
gress, in  the  execution  of  its  powers,  adopt  measures  which  are  pro- 
hibited by  the  Constitution :  or  should  Congress,  under  the  pretext  of 
executing  its  powers,  pass  laws  for  the  accomplishment  of  objects  not 
intrusted  to  tlie  government,  it  would  become  the  painful  duty  of  this 
tribunal,  should  a  case  requiring  such  a  decision  come  before  it,  to  say 
that  such  an  Act  was  not  the  law  of  the  land.  But  where  the  law  is 
n^t  prnhihitpd,  ^nd  is  really  calculated  to  effect^aiiX-Ql-tbe  objects  in- 
trusted to  the  government,  to  undertake  hei'e  to  inquire  into  the  degree 
ofjts  necessity,  would  be  to~pass  the  line  which  circumscribes  the  judi- 
cial de^^artment.  and  to  tread  on  legislative  ground^  This  court  dis- 
claims all  pretensions  to  such  a  power. 

After  this  declaration,  it  can  scarcely  be  necessary  to  sa}-,  that  the 
existence  of  State  banks  can  have  no  possible  influence  on  the  ques- 
tion. No  trace  is  to  be  found  in  the  Constitution  of  an  intention  to 
create  a  dependence  of  the  government  of  the  Union  on  those  of  the 
States,  for  the  execution  of  the  great  powers  assigned  to  it.  Its  means 
are  adequate  to  its  ends ;  and  on  those  means  alone  was  it  expected  to 
rely  for  the  accomplishment  of  its  ends.  To  impose  on  it  the  necessity 
of  resorting  to  means  which  it  cannot  control,  which  another  government 
may  furnish  or  withhold,  would  render  its  course  precarious,  the  result 
of  its  measures  uncertain,  and  create  a  dependence  on  other  govern- 
ments, which  might  disappoint  its  most  important  designs,  and  is  incom- 
patible with  the  language  of  the  Constitution.  But  were  it  otherwise, 
the  choice  of  means  implies  a  right  to  choose  a  national  bank  in  prefer- 
ence to  State  banks,  and  Congress  alone  can  make  the  election. 

After  the  most  deliberate  consideration,  it  is  the  unanimous  and  decided 
opinion  of  this  court,  that  the  Act  to  incorporate  the  Bank  of  the 
United  States  is  a  law  made  in  pursuance  of  the  Constitution,  and  is  a 
part  of  the  supreme  law  of  the  land. 

The  branches,  proceeding  from  the  same  stock,  and  being  conducive  to 
the  complete  accomplishment  of  the  object;  are  equally  constitutional.    It 


CHAP.  III.]  COHENS   V.   VIRGINIA.  285 

would  have  been  unwise  to  locate  them  in  the  charter,  and  it  would  be  un- 
necessarily inconvenient  to  employ  the  legislative  power  in  making  those 
subordinate  arrangements.  The  great  duties  of  the  bank  are  prescribed  ; 
those  duties  require  branches,  and  the  bank  itself  may,  we  think,  be 
safely  trusted  with  the  selection  of  places  where  those  branches  shall 
be  fixed  ;  reserving  always  to  the  government  the  right  to  require  that 
a  branch  shall  be  located  where  it  may  be  deemed  necessary. 

It  being  the  opinion  of  the  court  that  the  act  incorporating  the 
bank  is  co°nstitutional ;  and  that  the  power  of  establishing  a  branch  in 
the  State  of  Maryland  might  be  properly  exercised  by  the  bank  itself, 
we  proceed  to  inquire  :  — 

2.  Whether  the  State  of  Maryland  may,  without  violating  the  Con- 
stitution, tax  that  branch?  ... 

We  are  unanimously  of  opinion,  that  the  law  passed  by  the  Legisla- 
ture of  Maryland,  imposing  a  tax  on  the  Bank  of  the  United  States,  is 
unconstitutional  and  void.  ...  / 


COHENS   V.   THE   STATE  OF  VIRGINIA. 

* 
Supreme  Court  of  the  United  States.     1821. 

[6  Wheat.  264  ;    5  Curtis's  Decisions,  82.] 

Barbour  and  Smyth,  for  defendant  in  error;    D.  B.  Ogden  and 
Pinkney,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 
This  is  a  writ  of  error  to  a  judgment  rendered  in  the  Court  of  Hus- 
tings, for  the  borough  of  Norfolk,  on  an  information  for  selling  lottery 
tickets,  contrary  to  an  Act  of  the  Legislature  of  Virginia.     In  the  State 
court,  the  defendant  claimed  the  protection  of  an  Act  of  Congress.     A 
case  was  agreed  between  the  parties,  which  states  the  Act  of  Assembly 
on  which  the  prosecution  was  founded,  and  the  Act  of  Congress  on 
1  which  the  defendant  relied,  and  concludes  in  these  words:  "If  upon 
this  case  the  court  shall  be  of  opinion  that  the  Acts  of  Congress  before 
mentioned  were  valid,  and,  on  the  true  construction  of  those  Acts,  the 
1  lottery  tickets  sold  by  the  defendants  as  aforesaid,  might  lawfully  be 
,  sold  within  the  State  of  Virginia,  notwithstanding  the  Act  or  statute 
lof  the  General  Assembly  of  Virginia  prohibiting  such  sale,  then  judg- 
ment to  be  entered  for  the  defendants.     And  if  the  court  should  be  of 
opinion  that  the  statute  or  Act  of  the  General  Assembly  of  the  State  of 
Virginia,  prohibiting  such  sale,  is  valid,  notwithstanding  the  said  Acts 
of  Congress,  then  judgment  to  be  entered  that  the  defendants  are  guilty, 
and  that  the  Commonwealth  recover  against  them  one  hundred  dollars 
and  costs." 


286  COHENS  V.   VIRGINIA.  [CHAP.  IIL 

Judgment  was  rendered  against  the  defendants ;  and  the  court  in 
which  it  was  rendered  being  the  highest  court  of  the  State  in  which  the 
cause  was  cognizable,  the  record  has  been  brought  into  this  court  by 
writ  of  error. 

The  defendant  in  error  moves  to  dismiss  this  writ,  for  want  of 
jurisdiction. 

In  support  of  this  motion,  three  points  have  been  made,  and  argued 
with  the  ability  which  the  importance  of  the  question  merits.  These 
points  are : — 

CH)  That^no  writ  of  error  lifs  from  this  foiirt,  to  fi  Stnt.p  nniirf. 

(^  The  third  point  has  be^n__pres£nled  in  different  forms  b}'  the  gen- 
tlemen who  have  argued  it.  The  counsel  who  opened  the  cause  said  that 
the  want  of  jurisdiction  was  shown  by  the  subject-matter  of  the  case. 
The  counsel  who  followed  him  said  that  jurisdiction  was  not  given  by 
the  Judiciar}'  Act.  The  court  has  bestowed  all  its  attention  on  the  ar- 
guments of  both  gentlemen,  and  supposes  that  their  tendencj-  is  to  show 
that  this  court  has  no  jurisdiction  of  the  case,  or,  in  other  words^  has 
no  right  to  review  the  judgment  of  ^the^iatfi  CQUil^_li£cimse-iieitlic*-Uic 
Constitution  nor  any  law  of  the  United  States  has  been  violated  by  that 
judgment. 

The  questions  presented  to  the  court  by  the  first  two  points  made  at 
the  Bar  are  of  great  magnitude,  and  mav  be  truly  said  vitally  to  affect 
the  Union.  The}-  exclude  the  inquiry  whether  the  Constitution  and 
laws  of  the  United  States  have  been  violated  by  the  judgment  which 
the  plaintiffs  in  error  seek  to  review  ;  and  maintain  that,  admitting  such 
violation,  it  is  not  in  the  power  of  the  government  to  apply  a  corrective. 
They  maintain  that  the  nation  does  not  possess  a  department  capable 
of  restraining  peaceabl},  and  b}'  authority  of  law,  any  attempts  which 
ma}'  be  made,  by  a  part,  against  the  legitimate  powers  of  the  whole ; 
and  that  the  government  is  reduced  to  the  alternative  of  submitting  to 
such  attempts,  or  of  resisting  them  b}'  force.  The}"  maintain  that  the 
Constitution  of  the  United  States  has  provided  no  tribunal  for  the  final 
construction  of  itself,  or  of  the  laws  or  treaties  of  the  nation  ;  but  that 
this  power  may  be  exercised  in  the  last  resort  by  the  courts  of  every 
State  in  the  Union.  That  the  Constitution,  laws,  and  treaties,  may  re- 
ceive as  many  constructions  as  there  are  States  ;  and  that  this  is  not 
a  mischief,  or,  if  a  mischief,  is  irremediable.  These  abstract  proposi- 
tions are  to  be  determined  ;  for  he  who  demands  decision  without  per- 
mitting inquiry,  affirms  that  the  decision  he  asks  does  not  depend  on 
inquiry. 

If  such  be  the  Constitution,  it  is  the  duty  of  the  court  to  bow  with 
respectful  submission  to  its  provisions.  If  such  be  not  the  Constitu- 
tion, it  is  equally  the  duty  of  this  court  to  say  so ;  and  to  perform 
that  task  which  the  American  people  have  assigned  to  the  judicial 
department. 

1.  The  first  question  to  be  considered  is,  whether  the  jurisdiction  of 


CHAP.  III.]  COHENS   V.   VIRGINIA.  287 

this  court  is  excluded  by  the  character  of  the  parties,  one  of  them  being 
a  State,  and  the  other  a  citizen  of  that  State? 

The  second  section  of  the  third  article  of  the  Constitution  defines  the 
extent  of  the  judicial  power  of  the  United  States.  Jurisdiction  is  given 
to  the  courts  of  the  Union  in  two  classes  of  cases.  In  tiie  first,  their 
jurisdiction  depends  on  the  character  of  the  cause,  whoever  ma}'  be  the 
parties.  This  class  comprehends  ^^all  cases  in  law  and  equity  arising^ 
under  this  Constitution,  the  laws  of  the  United  States,  and  trea 
made,  or  wliich  shall  be  made^  under  their^  authority^"  This  clause_ 
extends  the  jurisdiction  of  the  court  to  all  the  cases  described,  without 
making  in  its  terms  any  exception  whatever,  and  without  any  reganLto 
the  condition  of  the  party^  If  there  be  fi«y  exception,  it4s  to  be  im- 
plied against  the  express  wi)rds_of  the  article^ 

In  the  second  class,  the  jurisdiction  depends  entirely  on  the  character 
of  the  parties.  In  this  are  comprehended  ^' ggntroxersies  between  two 
or  more  States,  between  a-State  and  citizens  of  another  State^_i.^  and 
between  a  State  and  foreign  States,  citizens,  or  subjects.^  J_f_the§£_b^ 
the  parties,  it  is  entirely  unimportant  what  majbe  tli£_siily££l-ailcQn*_ 
trovers^  Be  it  what  it  may,  these  parties  have,  a_£mistituliQUiiLxigkt- 
to  come  into  the  courts  of_the  Union.^ 

The  counsel  for  the  defendant  in  error  have  stated  that  the  cases  which 
arise  under  the  Constitution  must  grow  out  of  tliose  provisions  which 
are  capable  of  self-execution  ;  examples  of  which  are  to  be  found  in  the 
second  section  of  tlie  fourth  article,  and  in  the  tenth  section  of  the  first 
article. 

A  case  which  arises  under  a  law  of  the  United  States  must,  we  are 
likewise  told,  be  a  right  given  by  some  Act  which  becomes  necessary  to 
execute  the  powers  given  in  the  Constitution,  of  which  the  law  of  natu- 
ralization is  mentioned  as  an  example. 

The  use  intended  to  be  made  of  this  exposition  of  the  first  part  of  the 
section,  defining  the  extent  of  the  judicial  power,  is  not  clearly  under- 
stood. If  the  intention  be  merely  to  distinguish  cases  arising  under  the 
Constitution,  from  tliose  arising  under  a  law,  for  the  sake  of  precision 
in  the  application  of  this  argument,  these  propositions  will  not  be  con- 
troverted. If  it  be  to  maintain  that  a  case  arising  under  the  Constitu- 
tion, or  a  law,  must  be  one  in  which  a  party  comes  into  court  to  demand 
something  conferred  on  him  by  the  Constitution  or  a  law,  we  think  the 
construction  too  narrow.  A  case  in  law  or  equity  consists  of  the  right 
of  the  one  part}',  as  well  as  of  the  other,  and  may  trul}'  be  said  to  arise 
under  the  Constitution  or  a  law  of  the  United  States,  whenever  its  cor- 
rect decision  depends  on  the  construction  of  either.  Congress  seems 
to  have  intended  to  give  its  own  construction  of  this  part  of  the  Consti- 
tution, in  the  twenty-fifth  section  of  the  Judiciary  Act ;  and  we  perceive 
no  reason  to  depart  from  that  construction. 

The  jurisdiction  of  the  court,  then,  being  extended  by  the  letter  of 
the  Constitution  to  all  cases  arising  under  it,  or  under  the  laws  of  the 
United  States,  it  follows  that  those  who  would  withdraw  an}'  case  of 


(D 


288  COHENS  V.   \aRGINIA.  [cHAP.  III. 

this  description  from  that  jurisdiction,  must  sustain  the  exemption  thej' 
claim  on  the  spirit  and  true  meaning  of  tlie  Constitution,  which  spirit 
and  true  meaning  must  be  so  apparent  as  to  overrule  the  words  which 
its  framers  have  employed. 

The  counsel  for  the  defendant  in  error  have  undertaken  to  do  this  ; 
and  have  laid  down  the  general  proposition,  that  a  sovereign  indepen- 
dent State  is  not  suable,  except  by  its  own  consent. 

This  general  proposition  will  not  be  controverted.  But  its  consent 
is  not  requisite  in  each  particular  case.  It  may  be  given  in  a  general 
law.  And  if  a  State  has  surrendered  an}'  portion  of  its  sovereignty, 
the  question  whether  a  liability  to  suit  be  a  part  of  this  portion,  depends 
on  the  instrument  by  which  the  surrender  is  made.  If  upon  a  just  con- 
struction ofthat  instrument,  it  shall  appear  that  tlj^r^ffffffty^ub- 
mitted  to  be  sued,  then  it  has  parted  with  this  sovereign  right  of  judgingr 
in  every  case  on  the  justice  of  its  own  pretensions,  and  has  intrusted 
that  power  to  a  tribunal  in  whose  impartiality  it  r^nnfidos. 

The  American  States,  as  well  as  the  American  people,  have  believed 
a  close  and  firm  Union  to  be  essential  to  their  liberty  and  to  their  hap- 
piness. They  have  been  taught  by  experience,  that  this  Union  cannot 
exist  without  a  government  for  the  whole  ;  and  they  have  been  taught 
by  the  same  experience  that  this  government  would  be  a  mere  shadow, 
that  must  disappoint  all  their  hopes,  unless  invested  with  large  portions 
of  that  sovereignty  which  belongs  to  independent  States.  Under  the 
influence  of  this  opinion,  and  thus  instructed  by  experience,  the  Ameri- 
can people,  in  the  conventions  of  their  respective  States,  adopted  the 
present  Constitution. 

If  it  could  be  doubted  whether,  from  its  nature,  it  were  not  supreme 
in  all  cases  where  it  is  empowered  to  act,  that  doubt  would  be  removed 
by  the  declaration  that  "  this  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land  ;  and  the  judges  in  ever}-  State  shall  be 
bound  thereb}-,  anything  in  the  Constitution  or  laws  of  any  State  to  the 
contrar}^  notwithstanding." 

This  is  the  authoritative  language  of  the  American  people  ;  and,  if 
gentlemen  please,  of  the  American  States.  It  marks  witli  lines  too 
strong  to  be  mistaken,  the  characteristic  distinction  between  the  gov- 
ernment of  the  Union  and  those  of  the  States.  The  general  government, 
though  limited  as  to  its  objects,  is  supreme  with  respect  to  those  objects. 
This  principle  is  a  part  of  the  Constitution  ;  and  if  there  be  anj-  who 
deny  its  necessity',  none  can  den}'  its  authority. 

To  this  supreme  government  ample  powers  are  confided  ;  and  if  it 
were  possible  to  doubt  the  great  purposes  for  which  they  were  so  con- 
fided, the  people  of  the  United  States  have  declared  that  they  are  given 
"  in  order  to  form  a  more  perfect  union,  establish  justice,  insure  do- 
mestic tranquillity,  provide  for  the  common  defence,  promote  the  gen- 
eral welfare,  and  secure  the  blessings  of  liberty  to  themselves  and  their 
posterity." 


CHAP,  til]  COHENS  V.   VIRGINIA.  289 

With  the  ample  powers  confided  to  this  supreme  government,  for 
these  interesting  purposes,  are  connected  many  express  and  important 
limitations  on  the  sovereignty  of  the  States,  which  are  made  for  the  same 
purposes.  The  powers  of  the  Union  on  the  great  subjects  of  war,  peace, 
and  commerce,  and  on  many  others,  are  in  themselves  limitations  of 
the  sovereignty  of  the  States ;  but  in  addition  to  these,  the  sovereignty 
of  the  States  is  surrendered  in  many  instances  where  the  surrender  can 
only  operate  to  tlie  benefit  of  the  people,  and  wliere,  perhaps,  no  other 
power  is  conferred  on  Congress  than  a  conservative  power  to  maintain 
the  principles  established  in  the  Constitution.  The  maintenance  OLf 
these  principlosjn  their  pni'i^y  i«  pprtniiily  amon,cr  the  great  duties^of 
the' goVernrHentT  One  of  the^instJJimfent^  by  wlmrh-this  chrty-^ftayJifi 
peaceablyperformed  Js  the  judicinl  deimitment.  It  is  authoriiied  te_ 
decide  all  cases,  of~everv  description,  arising  iinder-theX^ouatitution  or 
laws  of  the  United  States.  From  this  general  grantof  jurisdiction,  jio 
exception  is  made  "oTThosecases  in  which-XL  State  may  be  a  party. 
When" we  considerHie  situation  of  the  government  of  the  Union  and  of 
a  State,  in  relation  to  each  other;  the  nature  of  our  Constitution,  the 
subordination  of  the  State  governments  to  that  Constitution  ;  the  great 
purpose  for  which  jurisdiction  over  all  cases  arising  under  the  Constitu- 
tion and  laws  of  the  United  States,  is  confided  to  the  judicial  depart- 
ment, are  we  at  liberty  to  insert  in  this  general  grant,  an  exception  of 
those  cases  in  which  a  State  may  be  a  party?  Will  the  spirit  of  the 
Constitution  justify  this  attempt  to  control  its  words?  We  think  it  will 
not.  We  think  a  case  arising  under  the  Constitution  or  laws  of  the 
United  States,  is  cognizable  in  the  courts  of  the  Union,  whoever  ma}' 
be  the  parties  to  that  case.   .   .   . 

We  think,  then,  that  as  the  Constitution  originally  stood,  the  appel- 
late jurisdiction  of  this  court,  in  all  cases  arising  under  the  Constitution, 
laws,  or  treaties  of  the  United  States,  was  not  arrested  by  the  circum- 
stance that  a  State  was  a  party. 

This  leads  to  a  consideration  of  the  Eleventh  Amendment. 

It  is  in  these  words  :  "  The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit  in  law  or  equit}'  commenced  or 
prosecuted  against  one  of  the  United  States,  by  citizens  of  another 
State,  or  by  citizens  or  subjects  of  any  foreign  State." 

It  is  a  part  of  our  history,  that,  at  the  adoption  of  the  Constitution, 
all  the  States  were  greatly  indebted  ;  and  the  apprehension  that  these 
debts  might  be  prosecuted  in  the  Federal  courts,  formed  a  very  serious 
objection  to  that  instrument.  Suits  w^ere  instituted  ;  and  the  court 
maintained  its  jurisdiction.  The  alarm  was  general;  and,  to  quiet  the 
apprehensions  that  were  so  extensivel}^  entertained,  this  amendment 
was  proposed  in  Congress,  and  adopted  bj'  the  State  legislatures.  That 
its  motive  was  not  to  maintain  the  sovereignty  of  a  State  from  the  degra- 
dation supposed  to  attend  a  compulsory*  appearance  before  the  tribunal 
of  the  nation,  may  be  inferred  from  the  terms  of  the  amendment.  It 
does  not  comprehend  controversies  between  two  or  more  States,  or  be- 
VOL.  I.  — 19 


290  COHENS   V.   VIRGINIA.  [CIIAP.  Ill 

tween  a  State  and  a  foreign  State.  The  jurisdiction  of  the  court  still 
extends  to  these  cases;  and  in  these  a  State  may  still  be  sued.  "NVe 
must  ascribe  the  amendment,  then,  to  some  other  cause  than  the  dignity 
of  a  State.  There  is  no  difficulty  in  finding  this  cause.  Those  who 
were  inhibited  from  commencing  a  suit  against  a  State,  or  from  prose- 
cuting one  which  might  be  commenced  before  the  adoption  of  the  amend- 
ment, were  persons  who  might  probably  be  its  creditors.  There  was 
not  much  reason  to  fear  that  foreign  or  sister  States  would  be  creditors 
to  any  considerable  amount,  and  there  was  reason  to  retain  the  juris- 
diction of  the  court  in  those  cases,  because  it  might  be  essential  to  the 
preservation  of  peace.  ""Flie  amendment,  therefore,  extended  to  suits 
Q)  commenced  or  prosecuted  bv  individuals,  but  not  to  those  broughtl)V 
^latesT 

Thelirst  impression  made  on  the  mind  by  this  amendment  is,  that 
it  was  intended  for  those  cases,  and  for  those  only,  in  which  some  de- 
mand against  a  State  is  made  by  an  individual  in  the  courts  of  the 
Union.  If  we  consider  the  causes  to  which  it  is  to  be  traced,  we  are 
conducted  to  the  same  conclusion.  A  general  interest  might  well  be 
felt  in  leaving  to  a  State  the  full  power  of  consulting  its  convenience 
in  the  adjustment  of  its  debts,  or  of  other  claims  upon  it ;  but  no  in- 
terest could  be  felt  in  so  changing  the  relations  between  the  whole  and 
its  parts,  as  to  strip  the  government  of  the  means  of  protecting,  by  tlie 
instrumentality  of  its  courts,  the  Constitution  and  laws  from  active  viola- 
tion. .  .  .  Where,  then,  a  State  obtains  ajudgment  against  an  individual, 
and  tViP  ^Qiii  t  v^ndf  ring  siu^b  judgment  overrules  a  defenc_ejetjijLund£r 
thTn^pcj^itpti^n  ^v  ifiws  of  the  T^nited  States,  the  transfer  of  this  record 
/^  into  the  Supreme  Court  for  tlie  sole  purpose  of  inmiiring  whelher^the 
^  judgment  violntos  th'^  Con^^'^"^''^"  ^f  ^^p  T^nitprl  Stnt.ps,  rnn.  with  no 
j^>r2pr]pj-,y^  tv(^    think-,    hp  ^]^^^^p^\untol^  n   suit  pommpnopd  or  pi:esecuted 

agaijiaLJiic  State  whoeo  judgmtnt  \a  oo  far  re-pxamined.  Nothing  is 
demanded  from  the  State.  No  claim  against  it  of  any  description  is 
■  asserted  or  prosecuted.  The  party  is  not  to  be  restored  to  tlie  posses- 
sion of  anything.  ...  He  only  asserts  the  constitutional  right  to  have 
his  defence  examined  by  that  tribunal  whose  province  it  is  to  construe 
the  Constitution  and  laws  of  the  Union.  ...  The  point  of  view  in 
which  this  writ  of  error,  with  its  citation,  has  been  considered  uniformly 
in  the  courts  of  the  Union,  has  been  well  illustrated  by  a  reference  to 
the  course  of  this  court  in  suits  instituted  by  the  United  States.  The 
universally  received  opinion  is  that  no  suit  can  be  commenced  or 
prosecuted  against  the  United  States  ;  that  the  Judiciary  Act  does  not 
authorize  such  suits.  Yet  writs  of  error,  accompanied  with  citations, 
have  uniformly  issued  for  the  removal  of  judgments  in  favor  of  the 
United  States  into  a  superior  court.  ...  It  has  never  been  suggested 
that  such  writ  of  error  was  a  suit  against  the  United  States,  and, 
therefore,  not  within  the  jurisdiction  of  the  appellate  court.  .   .   . 

2.  The  second  objection  to  the  jurisdiction  of  the  court  is,  that  its 
appellate  power  cannot  be  exercised,  in  any  case,  over  the  judgment  of 
a  State  court. 


CHAP.  III.]  COHENS   V.   VIRGINIA.  291 

This  objection  is  sustained  cliiefl}-  b}'  arguments  drawn  from  the  sup- 
posed total  separation  of  the  judiciary'  of  a  State  from  that  of  the  Union, 
and  their  entire  independence  of  eacli  other.  The  argument  considers 
the  Federal  judiciary  as  completely  foreign  to  that  of  a  State  ;  and  as 
being  no  more  connected  with  it,  in  awy  respect  whatever,  than  the 
court  of  a  foreign  State.  If  this  hypothesis  be  just,  the  argument 
founded  on  it  is  equally  so ;  but  if  the  hypothesis  be  not  supported  bj' 
the  Constitution,  the  argument  fails  with  it. 

This  hypothesis  is  not  founded  on  an}'  words  in  the  Constitution, 
which  might  seem  to  countenance  it,  but  on  the  unreasonableness  of 
giving  a  contrary  construction  to  words  which  seem  to  require  it ;  and 
on  the  incompatibility  of  the  api)lication  of  the  appellate  jurisdiction  to 
the  judgments  of  State  courts,  with  that  constitutional  relation  which 
subsists  between  the  government  of  the  Union  and  the  governments  of 
those  States  which  compose  it. 

Let  this  unreasonableness,  this  total  incompatibilit}',  be  examined. 

That  the  United  States  form,  for  man}',  and  for  most  important  pur- 
poses, a  single  nation,  has  not  yet  been  denied.  In  war,  we  are  one 
people.  In  making  peace,  we  are  one  people.  In  all  commercial  regu- 
lations, we  are  one  and  the  same  people.  In  many  other  respects,  the 
American  people  are  one  ;  and  the  government  which  is  alone  capable 
of  controlling  and  managing  their  interests,  in  all  these  respects,  is  the 
government  of  the  Union.  It  is  their  government,  and  in  that  charac- 
ter the}'  have  no  other.  America  has  chosen  to  be,  in  many  respects, 
and  to  many  purposes,  a  nation  ;  and  for  all  these  purposes  her  govern- 
ment is  complete  ;  to  all  these  objects,  it  is  competent.  The  people 
have  declared,  that  in  the  exercise  of  all  powers  given  for  these  objects, 
it  is  supreme.  It  can,  then,  in  effecting  these  objects,  legitimately  con- 
trol all  individuals  or  governments  within  the  American  territory.  The__ 
Constitution  and  laws  of  a  State,  so  fnt-  ns  flipy  m-P  vq;>iiorrmn t _to^ the 
(^nstitution^and  Ijlws  of  the  Uaited  States.  arc-iLbsojutely  void.  These 
States  are  constituent  parts  of  the  United  States.  Thev>r^members 
of  one  great  empire,  —  for  some  purposes  sovereigji<^(5r  some  purposes 
subordinate. 

In  a  government  so  constitutedj,.i*-tr^nreasonable  that  the  judicial 
power  should  be  competetvt,ie--gTve  efficacy  to  the  constitutional  laws  of 
the  legislature?  Thafdepartment  can  decide  on  the  validity  of  th^- 
Constitution  or  law  of  a  State ^f  it  be  repugnant  to  thf^  Constit"^''^^^^-^^ 
to  a  law  of  the  United  States,  is  it  unreasonable  that  it  should  also  ho. 
empowFTud  lo  declttFon  the  judgment  of  a  State  tribunal  pnfnminor  gnnli 
unconstitutional  law .''  Is  it  soj-ery  unreasonable  ff'  <^<^  fnmi'cli  o  jncit; 
ficatTSll  for  (;6ntr6lllhg  the  word3  of  the  Constitution? 

We  think  it  is  not!  We  think  that  in  a  government  acknowledgedly 
supreme,  with  respect  to  objects  of  vital  interest  to  the  nation,  there  is 
nothing  inconsistent  with  sound  reason,  nothing  incompatible  with  the 
nature  of  government,  in  making  all  its  departments  supreme,  so  far  as 
respects  those  objects,  and  so  far  as  is  necessary  to  their  attainment. 


!® 


292  COHENS   V.    VIRGINIA.  [CHAP.  III. 

The  exercise  of  the  appellate  power  over  those  judgments  of  the  State 
tribunals  which  ma}'  contravene  the  Constitution  or  laws  of  the  United 
States,  is,  we  believe,  essential  to  the  attainment  of  those  objects. 

The  propriet\'  of  intrusting  the  construction  of  the  Constitution,  and 
laws  made  in  pursuance  thereof,  to  the  judiciarj-  of  the  Union,  has  not, 
we  believe,  as  yet,  been  drawn  into  question.  It  seems  to  be  a  corol- 
lar}'  from  this  political  axiom,  that  the  Federal  courts  should  eitlier 
possess  exclusive  jurisdiction  in  such  cases,  or  a  power  to  revise  the 
judgment  rendered  in  them  b}'  the  State  tribunals.  If  the  Federal  and 
State  courts  have  concurrent  jurisd iction  in  all  cases  nrising  under  the 
Constitution,  laws,  ami  trpntip>;  of  thp  TTnit.od  Stntos  ;  and  if  a  case  of 
(^  this  description  brought  in  a  State  court  cannot  be  removed  before  judg- 

ment, nor  revised  after  judgment,  then  iue  construction  of  tlie  Consti- 
tutioii:ul-'^"''i  ""d  t.renties  of  the  United  ^States  is  not  conticled  pajitjcujarly 
to  their  judicial  department,  but  is  confided  equally'  to  that  department 
and  to  the  State  courts,  howevc  <*'^y  '"^j"  bo  (constituted.  J  "  Thirteen 
independent  courts,"  says  a  ver}-  celebrated  statesman  (and  we  have 
now  more  than  twent}-  such  courts),  "  of  final  jurisdiction  over  the  same 
causes,  arising  upon  the  same  laws,  is  a  hydra  in  government,  from 
which  nothing  but  contradiction  and  confusion  can  proceed." 

Dismissing  the  unpleasant  suggestion,  that  any  motives  which  ma}' 
not  be  fairl}'  avowed,  or  which  ought  not  to  exist,  can  ever  influence  a 
State  or  its  courts,  the  necessity  of  uniformit}',  as  well  as  correctness  in 
expounding  the  Constitution  and  laws  of  the  United  States,  would  itself 
suggest  the  propriety  of  vesting  in  some  single  tribunal  the  power  of 
deciding,  in  the  last  resort,  all  cases  in  which  they  are  involved. 

We  are  not  restrained,  then,  b}'  the  political  relations  between  the 
general  and  State  governments,  from  construing  the  words  of  the  Con- 
stitution, defining  the  judicial  power,  in  their  true  sense.  "SVe  are  not 
bound  to  construe  them  more  restrictiveh*  than  the}-  naturally  import. 

They  give  to  the  Supreme  Court  appellate  jurisdiction  in  all  cases 
arising  under  the  Constitution,  laws,  and  treaties  of  the  United  States. 
The  words  are  broad  enough  to  comprehend  all  cases  of  this  description, 
in  whatever  court  they  may  be  decided.   .  .   .  Motion  denied. 

The  cause  was  thereupon  argued  on  the  merits.  D.  B.  Ogden.,  for 
the  plaintiffs  in  error.  Webster.,  contra.  The  Attorney- General,  for 
the  plaintiffs  in  error,  in  reply.     [The  judgment  below  was  affirmed.] 


CHAP.  UI.]  HANS  V.  LOUISIANA.  293 

HANS   V.   LOUISIANA. 

Supreme  Court  of  the  United  States.     1889. 

[134  U.  S.  1.] 

This  was  an  action  brought  in  the  Circuit  Court  of  the  United  States, 
in  December,  1884,  against  the  State  of  Louisiana  by  Hans,  a  citizen 
of  that  State,  to  recover  the  amount  of  certain  coupons  annexed  to 
bonds  of  the  State,  issued  under  the  provisions  of  an  Act  of  tlie  Legis- 
lature approved  January  24,  1874.  ,'  .   . 

A  citation  being  issued,  directed  to  the  State,  and  served  upon  the 
Governor  tliereof ,  the  Attorney-General  of  the  State  filed  an  exception, 
of  which  the  following  is  a  copy,  to  wit: 

"  Now  comes  defendant,  by  the  Attorney-General,  and  excepts  to 
plaintiff's  suit  on  the  ground  that  this  court  is  without  jurisdiction 
ratione  personce.  Plaintiff  cannot  sue  the  State  without  its  permission  ; 
the  Constitution  and  laws  do  not  give  this  honorable  court  jurisdic- 
tion of  a  suit  against  the  State,  and  its  jurisdiction  is  respectfully 
declined. 

"  Wherefore,  respondent  prays  to  be  hence  dismissed,  with  costs 
and  for  general  relief." 

By  the  judgment  of  the  court  this  exception  was  sustained,  and  the 
suit  was  dismissed.  See  Hans  v.  Louisiana,  24  Fed.  Rep.  55.  To 
this  judgment  the  present  writ  of  error  was  brought. 

Mr.  J.  D.  Rouse  {3Ir.  William  Grant  was  also  on  the  brief)  for 
plaintiff  in  error. 

Mr.  Walter  H.  Rogers,  Attorney-General  of  the  State  of  Louisiana, 
Mr.  M.  J.  Cunningham,  Mr.  B.  J.  Sage,  and  Mr.  Alexander  Porter 
Morse,  for  defendant  in  error,  submitted  on  their  briefs. 

Mr.  Justice  Bradley,  after  stating  the  case  as  above,  delivered  the 
opinion  of  the  court. 

The  question  is  presented,  whether  a  State  can  be  sued  in  a  Circuit 
Court  of  the  United  States  by  one  of  its  own  citizens  upon  a  sugges- 
tion that  the  case  is  one  that  arises  under  the  Constitution  or  laws  of 
the  United  States. 

The  ground  taken  is,  that  under  the  Constitution,  as  well  as  under 
the  Act  of  Congress  passed  to  carry  it  into  effect,  a  case  is  within  the 
jui-isdiction  of  the  Federal  courts,  without  regard  to  the  character  of 
the  parties,  if  it  arises  under  the  Constitution  or  laws  of  the  United 
States,  or,  which  is  the  same  thing,  if  it  necessarily  involves  a  ques- 
tion under  said  Constitution  or  laws.  The  language  relied  on  is  that 
clause  of  the  3d  article  of  the  Constitution,  which  declares  that  "  the 
judicial  power  of  the  United  States  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority ;  " 
and  the  corresponding  clause  of  the  Act  conferring  jurisdiction  upou 


294  HANS   V.    LOUISIANA.  [CHAP.  III. 

the  Circuit  Court,  which,  as  found  in  the  Act  of  March  3,  1875, 
18  Stat.  470,  c.  137,  §  1,  is  as  follows,  to  wit:  "That  the  Circuit 
Courts  of  the  United  States  shall  have  original  cognizance,  concurrent 
with  the  courts  of  the  several  States,  of  all  suits  of  a  civil  nature  at 
common  law  or  in  equity,  .  .  .  arising  under  the  Constitution  or  laws 
of  the  United  States,  or  treaties  made,  or  which  shall  be  made,  under 
their  authority."  It  is  said  that  these  jurisdictional  clauses  make  no 
exception  arising  from  the  character  of  the  parties,  and,  therefore, 
that  a  State  can  claim  no  exemption  from  suit,  if  the  case  is  really 
one  arising  under  the  Constitution,  laws,  or  treaties  of  the  United 
States.  It  is  conceded  that  where  the  jurisdiction  depends  alone  upon 
the  character  of  the  parties,  a  controversy  between  a  State  and  its 
own  citizens  is  not  embraced  within  it ;  but  it  is  contended  that  though 
jurisdiction  does  not  exist  on  that  ground,  it  nevertheless  does  exist  if 
the  case  itself  is  one  which  necessarily  involves  a  Federal  question  ; 
and  with  regard  to  ordinary  parties  this  is  undoubtedly  true.  The 
question  now  to  be  decided  is,  whether  it  is  true  where  one  of  the 
parties  is  a  State,  and  is  sued  as  a  defendant  by  one  of  its  own 
citizens. 

That  a  State  cannot  be  sued  b}-  a  citizen  of  another  State,  or  of  a 
foreign  State,  on  the  mere  ground  that  the  case  is  one  arising  under 
the  Constitution  or  laws  of  the  United  States,  is  clearly  established  by 
the  decisions  of  this  court  in  several  recent  cases.  Louisiana  v. 
Jumel^  107  U.  S.  711;  ILKjood  v.  Southern,  117  U.  >S.  52;  Lire 
Ayers,  123  U.  S.  443.  Those  were  cases  arising  under  the  Consti- 
tution of  the  United  States,  upon  laws  complained  of  as  impairing 
the  obligation  of  contracts,  one  of  which  was  the  constitutional  amend- 
ment of  Louisiana  complained  of  in  the  present  case.  Relief  was 
sought  against  State  officers  who  professed  to  act  in  obedience  to  those 
laws.  This  court  held  that  the  suits  were  virtually  against  the  States 
themselves  and  were  consequently  violative  of  the  P^leventh  Amend- 
ment of  the  Constitution,  and  could  not  be  maintained.  It  was  not 
denied  that  they  presented  cases  arising  under  the  Constitution  ;  but, 
notwithstanding  that,  they  were  held  to  be  prohibited  by  the  amend- 
ment referred  to. 

In  the  present  case  the  plaintifif  in  error  contends  that  he,  being  a 
citizen  of  Louisiana,  is  not  embarrassed  by  the  obstacle  of  the  Eleventh 
Amendment,  inasmuch  as  that  amendment  only  prohibits  suits  against 
a  State  which  are  brought  by  the  citizens  of  another  State,  or  by  citi- 
zens or  subjects  of  a  foreign  State. /It  is  true,  the  amendment  does  so 
read :  and  if  there  were  no  other  reason  or  ground  for  abating  liis 
suit,  it  might  be  maintainable  ;  and  then  we  should  have  this  anoma- 
lous result,  that  in  cases  arising  under  the  Constitution  or  laws  of  the 
United  States,  a  State  may  be  sued  in  tlie  Federal  courts  by  its  own 
citizens,  though  it  cannot  be  sued  for  a  like  cause  of  action  by  the 
citizens  of  other  States,  or  of  a  foreign  State  ;  and  may  be  thus  sued 
in  the  Federal  courts,  although  not  allowing  itself  to  be  sued  in  its 


CHAP.  III.]  HANS   V.   LOUISIANA.  295 

own  courts.  /If  this  is  the  necessary  consequence  of  the  language  of 
the  Constitution  and  the  law,  the  result  is  no  less  startling  and  unex- 
pected than  was  the  original  decision  of  this  court,  that  under  the 
language  of  the  Constitution  aud  of  the  Judiciary  Act  of  1789,  a 
State  was  liable  to  be  sued  by  a  citizen  of  another  State,  or  of  a 
foreign  country.  That  decision  was  made  in  the  case  of  Chisholm  v. 
Georgia,  2  Dall.  419,  and  created  such  a  shock  of  surprise  throughout 
the  country  that,  at  the  first  meeting  of  Congress  thereafter,  the 
Eleventh  Amendment  to  the  Constitution  was  almost  unanimously  pro- 
posed, and  was  in  due  course  adopted  by  the  legislatures  of  the  States. 
This  amendment,  expressing  the  will  of  the  ultimate  sovereignty  of 
the  whole  country,  superior  to  all  legislatures  and  all  courts,  actually 
reversed  the  decision  of  the  Supreme  Court.  It  did  not  in  terms  pro- 
hibit suits  by  individuals  against  the  States,  but  declared  that  the 
Constitution  should  not  be  construed  to  import  any  power  to  authorize 
the  bringing  of  such  suits.  The  language  of  the  amendment  is  that 
"  the  judicial  power  of  the  United  States  shall  not  be  construed  to  ex- 
tend to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  State  or  by  citizens 
or  subjects  of  any  foreign  State."  The  Supreme  Court  had  construed 
the  judicial  power  as  extending  to  such  a  suit,  aud  its  decision  was 
thus  overruled.  The  court  itself  so  understood  the  effect  of  the  amend- 
ment, for,  after  its  adoption,  Attorney-General  Lee,  in  the  case  of 
Hollingsivorth  v.  Virginia,  3  Dall.  378,  submitted  this  question  to  the 
court,  "  whether  the  amendment  did,  or  did  not,  supersede  all  suits 
depending,  as  well  as  prevent  the  institution  of  new  suits,  against  any 
one  of  the  United  States,  by  citizens  of  another  State  ? "  Tilghman 
and  Raivle  argued  in  the  negative,  contending  that  the  jurisdiction  of 
the  court  was  unimpaired  in  relation  to  all  suits  instituted  previously 
to  the  adoption  of  the  amendment.  But,  on  the  succeeding  day,  the 
court  delivered  a  unanimous  opinion,  "  that  the  amendment  being 
constitutionally  adopted,  there  could  not  be  exercised  any  jurisdiction, 
in  any  case,  past  or  future,  in  which  a  State  was  sued  by  the  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign  State." 

This  view  of  the  force  and  meaning  of  the  amendment  is  important. 
It  shows  that,  on  this  question  of  the  suability  of  the  States  by  indi- 
viduals, the  highest  authority  of  this  couuti-y  was  in  accord  ratlier  with 
the  minority  than  with  the  majority  of  the  court  in  the  decision  of  the 
case  of  Chisholm  v.  Georgia;  and  this  fact  lends  additional  interest 
to  the  able  opinion  of  Mr.  Justice  Iredell  on  that  occasion.  The  other 
justices  were  more  swayed  by  a  close  observance  of  the  letter  of  the 
Constitution,  without  regard  to  former  experience  and  usage;  and  be- 
cause the  letter  said  that  the  judicial  power  shall  extend  to  controversies 
"between  a  State  and  citizens  of  another  State;"  and  "between  a 
State  and  foreign  States,  citizens,  or  subjects,"  they  felt  constrained 
to  see  in  this  language  a  power  to  enable  the  individual  citizens  of  one 
State,  or  of  a  foreign  State,  to  sue  another  State  of  the  Union  in  tlie 


296  HANS   V.   LOUISIANA.  [cHAP.  lU. 

Federal  courts.  Justice  Iredell,  on  the  contrary,  contended  that  it 
was  not  the  intention  to  create  new  and  unheard  of  remedies,  by  sub- 
jecting sovereign  States  to  actions  at  the  suit  of  individuals  (which 
he  conclusively  showed  was  never  done  before),  but  only,  by  proper 
legislation,  to  invest  the  Federal  courts  with  jurisdiction  to  hear  and 
determine  controversies  and  cases,  between  the  parties  designated, 
that  were  properly  susceptible  of  litigation  in  courts. 

Looking  back  from  our  present  standpoint  at  the  decision  in  Chis- 
holm  V.  Georgia,  we  do  not  greatly  wonder  at  the  effect  which  it  had 
upon  the  country.  Any  such  power  as  that  of  authorizing  the  Federal 
judiciary  to  entertain  suits  by  individuals  against  the  States  had  been 
expressly  disclaimed,  and  even  resented,  by  the  great  defenders  of  the 
Constitution  whilst  it  was  on  its  trial  before  the  American  people.  As 
some  of  their  utterances  are  directly  pertinent  to  th^  question  now 
under  consideration,  we  deem  it  proper  to  quote  them. 

The  eighty-first  number  of  the  Federalist,  written  by  Hamilton,  has 
the  following  pi'ofound  remarks  : 

"  It  has  been  suggested  that  an  assignment  of  the  public  securities 
of  one  State  to  the  citizens  of  another,  would  enable  them  to  prose- 
cute that  State  in  the  Federal  courts  for  the  amount  of  those  securi- 
ties ;  a  suggestion  which  the  following  considerations  prove  to  be 
without  foundation  : 

"  It  is  inherent  in  the  nature  of  sovereignty  not  to  be  amenable  to 
the  suit  of  an  individual  without  its  consent.  This  is  the  general  sense 
and  the  general  practice  of  mankind  ;  and  the  exemption,  as  one  of  the 
attributes  of  sovereignty,  is  now  enjoyed  by  the  government  of  ever}' 
State  in  the  Union.  Unless,  therefore,  there  is  a  surrender  of  this 
immunity  in  the  plan  of  the  convention,  it  will  remain  with  the  States, 
and  the  danger  intimated  must  be  merely  ideal.  The  circumstances 
which  are  necessary  to  produce  an  alienation  of  State  sovereignty  were 
discussed  in  considering  the  article  of  taxation,  and  need  not  be  re- 
peated here.  A  recurrence  to  the  principles  there  established  will 
satisfy  us,  that  there  is  no  color  to  pretend  that  the  State  governments 
would,  by  the  adoption  of  that  plan,  be  divested  of  the  privilege  of 
paying  their  own  debts  in  their  own  way,  free  from  every  constraint 
but  that  which  flows  from  the  obligations  of  good  faith.  The  con- 
tracts between  a  nation  and  individuals  are  only  binding  on  the 
conscience  of  the  sovereign,  and  have  no  pretension  to  a  compulsive 
force.  They  confer  no  right  of  action  independent  of  the  sovereign 
will.  To  what  purpose  would  it  be  to  authorize  suits  against  States 
for  the  debts  they  owe?  How  could  recoveries  be  enforced?  It  is 
evident  that  it  could  not  be  done  without  waging  war  against  the 
contracting  State  ;  and  to  ascribe  to  the  Federal  courts  by  mere  im- 
plication, and  in  destruction  of  a  pre-existing  right  of  the  State  gov- 
ernments, a  power  which  would  involve  such  a  consequence,  would  be 
altogether  forced  and  unwarrantable." 

The  obnoxious  clause  to  which  Hamilton's  argument  was  directed, 


CIIAF.  Ill  }  HANS   V.    LOUISIANA.  297 

and  which  was  the  ground  of  the  objections  which  he  so  forcibly  met, 
was  that  which  declared  that  "the  judicial  power  shall  extend  to 
all  .  .  .  controversies  between  a  State  and  citizens  of  another  State, 
.  .  ,  and  between  a  State  and  foreign  States,  citizens,  or  subjects." 
It  was  argued  by  the  opponents  of  the  Constitution  that  this  clause 
would  authorize  jurisdiction  to  be  given  to  the  Federal  courts  to  enter- 
tain suits  against  a  State,  brought  by  the  citizens  of  another  State,  or 
of  a  foreign  State.  Adhering  to  the  mere  letter,  it  might  be  so  ;  and 
so,  in  fact,  the  Supreme  Court  held  in  Chisholm  v.  Georgia ;  but  look- 
ing at  the  subject  as  Hamilton  did,  and  as  Mr.  Justice  Iredell  did,  in 
the  light  of  history  and  experience  and  the  established  order  of  things, 
tlie  views  of  the  latter  were  clearly  right,  —  as  the  people  of  the 
United  States  in  their  sovereign  capacity  subsequently  decided. 

Hut  Hamilton  was  not  alone  in  protesting  against  the  construction 
put  upon  the  Constitution  by  its  opponents.  In  the  Virginia  Conven- 
tion the  same  objections  were  raised  by  George  Mason  and  Patrick 
Henry,  and  were  met  by  Madison  and  Marshall  as  follows.  Madison 
said :  "  Its  jurisdiction  [the  Federal  jurisdiction]  in  controversies 
between  a  State  and  citizens  of  another  State  is  much  objected  to,  and 
perhaps  without  reason.  It  is  not  in  the  power  of  individuals  to  call  any 
State  into  court.  The  only  operation  it  can  have  is  that,  if  a  State 
should  wish  to  bring  a  suit  against  a  citizen,  it  must  be  brought  before 
the  Federal  Court.  This  will  give  satisfaction  to  individuals,  as  it  will 
prevent  citizens  on  whom  a  State  may  have  a  claim  being  dissatisfied 
with  the  State  courts.  ...  It  appears  to  me  that  this  [clause]  can  have 
no  operation  but  this  - —  to  give  a  citizen  a  right  to  be  heard  in  the 
Federal  courts  ;  and  if  a  State  should  condescend  to  be  a  party,  this 
court  may  take  cognizance  of  it."  3  Elliott's  Debates,  2d  ed.  533. 
Marshall,  in  answer  to  the  same  objection,  said:  "With  respect  to 
disputes  between  a  State  and  the  citizens  of  another  State,  its  juris- 
diction has  been  decried  with  unusual  vehemence.  I  hope  that  no 
gentleman  will  think  that  a  State  will  be  called  at  the  Bar  of  the 
Federal  court.  .  .  .  It  is  not  rational  to  suppose  that  the  sovereign 
power  should  be  dragged  before  a  court.  The  intent  is  to  enable 
States  to  recover  claims  of  individuals  residing  in  other  States.  .  .  . 
But,  say  they,  there  will  be  partiality  in  it  if  a  State  cannot  be  de- 
fendant—  if  an  individual  cannot  proceed  to  obtain  judgment  against 
a  State,  though  he  may  be  sued  by  a  State.  It  is  necessary  to  be  so, 
and  cannot  be  avoided.  I  see  a  difficulty  in  making  a  State  defendant 
which  does  not  prevent  its  being  plaintiff."     lb.  555. 

It  seems  to  us  that  these  views  of  those  great  advocates  and  de- 
fenders of  the  Constitution  were  most  sensible  and  just ;  and  they 
apply  equally  to  the  present  case  as  to  that  then  under  discussion.  The 
letter  is  appealed  to  now,  as  it  was  then,  as  a  ground  for  sustaining  a 
suit  brought  by  an  individual  against  a  State.  The  reason  against  it 
is  as  strong  in  this  case  as  it  was  in  that.  It  is  an  attempt  to  strain 
the    Constitution    and  the   law  to  a  construction  never  imagined  or 


298  HANS   V.   LOUISIANA.  [CHAP.  III. 

dreamed  of.  Can  we  suppose  that,  when  the  Eleventh^  Ampn(1m<>nt. 
was  adopted^  it  was  understooct  to  be  left  oi^en  for  citizens  of  a  Statg 
to  sue  their  own  State  in  the  Federal  courts,  whilst  the  idea  of  suitsjjy 
citizens  of  othei\  gtates,  or  of~7oreign~Slates,  was  indignantly  j:e.- 
pelled?  Suppose  that  Congress,  when  proposing  the  Eleventh  Amend- 
ment, had  appended  to  it  a  proviso  that  nothing  therein  contained 
should  prevent  a  State  from  being  sued  by  its  own  citizens  in  cases 
arising  under  the  Constitution  or  laws  of  the  United  States :  can  we 
imagine  that  it  would  have  been  adopted  by  the  States?  The  sup- 
position that  it  would  is  almost  an  absurdity  on  its  face. 

The  truth  is^  that  the  cognizance  of  suits  and  actions  unknown  to 
the  law,  and  forbidden  by  the,la\su_was_iiQt  fmyhginplntfrl  hy  ttie  Con- 
stitution when  establishing  the  Judicial^  power^oOlie-JJjiLted  States. 
Some  things,  undoubtedly,  were  made  justiciable  which  were  not 
known  as  such  at  the  common  law  ;  such,  for  example,  as  controversies 
between  States  as  to  boundary  lines,  and  other  questions  admitting  of 
judicial  solution.  And  yet  the  case  of  Penn  v.  Lord  Baltimore,  1  Ves. 
Sen.  444,  shows  that  some  of  these  unusual  subjects  of  litigation 
were  not  unknown  to  the  courts  even  in  colonial  times ;  and  several 
cases  of  the  same  general  character  arose  under  the  Articles  of  Con- 
federation, and  were  brought  before  the  tribunal  provided  for  that 
purpose  in  those  articles.  131  U.  S.  App.  1.  The  establishment  of 
this  new  branch  of  jurisdiction  seemed  to  be  necessary  from  the  ex- 
tinguishment of  diplomatic  relations  between  the  States.  Of  other 
controversies  between  a  State  and  another  State  or  its  citizens,  which, 
on  the  settled  principles  of  public  law,  are  not  subjects  of  judicial 
cognizance,  this  court  has  often  declined  to  take  jurisdiction.  See 
Wisconsin  v.  Pelican  Lis.  Co.,  127  U.  S.  2G5,  288,  289,  and  cases 
there  cited. 

The  suability  of  a  State  without  its  consent  was  a  thing  unknown 
to  the  law.  This  has  been  so  often  laid  down  and  acknowledged  by 
courts  and  jurists  that  it  is  hardly  necessary  to  be  formally  asserted. 
It  was  fully  shown  by  an  exhaustive  examination  of  the  old  law  by 
Mr.  Justice  Iredell  in  his  opinion  in  Chisholm  v.  Georgia  ;  and  it  has 
been  conceded  in  every  case  since,  where  the  question  has,  in  any  way, 
been  presented,  even  in  the  cases  which  have  gone  farthest  in  sustain- 
ing suits  against  the  officers  or  agents  of  States.  Osborn  v.  Bank  of 
United  States,  9  Wheat.  738  ;  Davis  v.  Gray,  16  Wall.  203  ;  Hoard  of 
Liquidation  v.  McComh,  92  U.  S.  531  ;  United  States  v.  Lee,  106  U.  S. 
196;  Poindexter  v.  Greenhoic,  109  U.  S.  63;  Virginia  Coupon  Cases, 
114  U.  S.  269.  In  all  these  cases  the  effort  was  to  show,  and  the 
court  held,  that  the  suits  were  not  against  the  State  or  the  United 
States,  but  against  the  individuals  ;  conceding  that  if  they  had  been 
against  either  the  State  or  the  United  States,  they  could  not  be 
maintained. 

Mr.  Webster  stated  the  law  with  precision  in  his  letter  to  Baring 
Brothers  &  Co.,  of  October   16,    1839.     Works,  vol.  vi.,  537,  539, 


CHAP.  III.]  HANS   V.   LOUISIANA.  299 

"  The  security  for  State  loans,"  he  said,  "  is  the  plighted  faith  of  the 
State  as  a  political  commimity.  It  rests  on  the  same  basis  as  otlier 
contracts  with  established  governments,  the  same  basis,  for  example, 
as  loans  made  by  the  United  States  under  the  authority  of  Congress ; 
that  is  to  say,  the  good  faith  of  the  government  making  the  loan,  and 
its  ability  to  fulfil  its  engagements." 

In  Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257,  321,  Mr.  Justice  Me-. 
Lean,  delivering  the  opinion  of  the  court,  said:  "What  means  of 
enforcing  payment  from  the  State  had  the  holder  of  a  bill  of  credit? 
It  is  said  by  the  counsel  for  the  plaintiffs,  that  he  could  have  sued  the 
State.  But  was  a  State  liable  to  be  sued?  ...  No  sovereign  State  is 
liable  to  be  sued  without  her  consent.  Under  the  Articles  of  Con- 
federation, a  State  could  be  sued  only  in  cases  of  boundary.  It  is 
believed  that  there  is  no  case  where  a  suit  has  been  brought,  at  any 
time,  on  bills  of  credit  against  a  State  ;  and  it  is  certain  that  no  suit 
could  have  been  maintained  on  this  ground  prior  to  the  Constitution." 

"  It  may  be  accepted  as  a  point  of  departure  unquestioned,"  said 
Mr.  Justice  Miller,  in  Cunningham  v.  JIacon  &  Brunswick  Railroad, 
109  U.  S.  446,  451,  "  that  neither  a  State  nor  the  United  States  can 
be  sued  as  defendant  in  any  court  in  this  country  without  their  consent, 
except  in  the  limited  class  of  cases  in  which  a  State  may  be  made  a 
party  in  the  Supreme  Court  of  the  United  States  by  virtue  of  the 
original  jurisdiction  conferred  on  this  court  by  the  Constitution." 

Undoubtedly  a  State  may  be  sued  by  its  own  consent,  as  was  the 
case  in  Curran  v.  Arkansas,  et  al,  15  How.  304,  309,  and  in  Clark 
v.  Barnard,  108  U.  S.  436,  447.  The  suit  in  the  former  case  was 
prosecuted  by  virtue  of  a  State  law  which  the  legislature  passed  in 
conformity  to  the  Constitution  of  that  State.  But  this  court  decided, 
in  Beers  et  cd.  v.  Arkansas,  20  How.  527,  529,  that  the  State  could 
repeal  that  law  at  any  time  ;  that  it  was  not  a  contract  within  the 
terms  of  the  Constitution  prohibiting  the  passage  of  State  laws  im- 
pairing the  obligation  of  a  contract.  In  that  case  the  law  allowing 
the  State  to  be  sued  was  modified,  pending  certain  suits  against  the 
State  on  its  bonds,  so  as  to  require  the  bonds  to  be  filed  in  court, 
which  was  objected  to  as  an  unconstitutional  change  of  the  law. 
Chief  Justice  Taney,  delivering  the  opinion  of  the  court,  said:  "  It  is 
an  established  principle  of  jurisprudence  in  all  civilized  nations  that  the 
sovereign  cannot  be  sued  in  its  own  courts,  or  in  any  other,  without 
its  consent  and  permission  ;  but  it  may,  if  it  thinks  proper,  waive  this 
privilege  and  permit  itself  to  be  made  a  defendant  in  a  suit  by  indi- 
viduals or  by  another  State.  And  as  this  permission  is  altogether 
voluntary  on  the  part  of  the  sovereignty,  it  follows  that  it  may  pre- 
scribe the  terms  and  conditions  on  which  it  consents  to  be  sued,  and 
the  manner  in  which  the  suit  shall  be  conducted,  and  may  withdraw 
its  consent  whenever  it  may  suppose  that  justice  to  the  public  re- 
quires it.  .  .  .  The  prior  law  was  not  a  contract.  It  was  an  ordinary 
Act  of  legislation,  prescribing  the  conditions  upon  which  the  State 


300  HANS   V.    LOUISIANA.  [CHAP.  III. 

consented  to  waive  the  privilege  of  sovereignty.  It  contained  no 
stipulation  that  these  regulations  should  not  be  modified  afterwards 
if,  upon  experience,  it  was  found  that  further  provisions  were  neces- 
sary to  protect  the  public  interest ;  and  no  such  contract  can  be  im- 
plied from  the  law,  nor  can  this  court  inquire  whether  the  law  operated 
baldly  or  unjustly  upon  the  parties  whose  suits  were  then  pending. 
Tliat  was  a  question  for  the  consideration  of  the  legislature.  They 
might  have  repealed  the  prior  law  altogether,  and  put  an  end  to  the 
jurisdiction  of  their  courts  in  suits  against  the  State,  if  they  had 
thought  proper  to  do  so,  or  prescribe  new  conditions  upon  which  the 
suits  might  still  be  allowed  to  proceed.  In  exercising  this  power  the 
State  violated  no  contract  with  the  parties."  The  same  doctrine  was 
held  iu  Railroad  Company  v.  Tennessee,  101  U.  S.  337,  339  ;  Railroad 
Company  v.  Alabama,  101  U.  S.  832;  and  In  re  Ayers,  123  U.  S. 
443,  505. 

But  besides  the  presumption  that  no  anomalous  and  unheard  of  pro- 
ceedings or  suits  were  intended  to  be  raised  up  by  the  Constitution  — 
anomalous  and  unheard  of  when  the  Constitution  was  adopted  —  an 
additional  reason  why  the  jurisdiction  claimed  for  the  Circuit  Court 
does  not  exist,  is  the  language  of  the  Act  of  Congress  by  which  its 
jurisdiction  is  conferred.  The  words  are  these:  "  The  Circuit  Courts 
of  the  United  States  shall  have  original  cognizance,  concurrent  with 
the  courts  of  the  several  States,  of  all  suits  of  a  civil  nature  at  common 
law  or  in  equity,  .  .  .  arising  under  the  Constitution  or  laws  of  the 
United  States,  or  treaties,"  etc.  —  "  Concii''''p"t  with  thp  pnm-fs  of  the 
several  States.''  Does  not  this  qualification_shovvjthat  X'ongress,  in 
legislating  to  carry  the  Constitution  mto  effect,  did  not  intend  to  invest 
i"ts^ourts  with  auyliew  and  strangejuriscljctioga.?  The  State  courts  have 
no  power  to  entertain  suits  by  individuals  against  a  State  without  its 
consent.  Then  how  does  the  Circuit  Court,  having  only  concurrent 
jurisdiction,  acquire  any  such  power?  It  is  true  that  the  same  qualifi- 
cation existed  in  the  Judiciary  Act  of  1789,  which  was  before  the 
court  in  Chishoiru  v.  Georgia,  and  the  majority  of  the  court  did  not 
think  that  it  was  sufficient  to  limit  the  jurisdiction  of  the  Circuit  Court. 
Justice  Iredell  thought  differently.  In  view  of  the  manner  in  which 
that  decision  was  received  by  the  country,  the  adoption^<^f  tjip  h.lpvpnt'' 
Amendment,  the  ligbt  ot  history  and  the  reason  of  the  thing,  we  think 

wp  nrp  at  Jihprty  tO  Prefer  Justice  Iredeirs  views  in  this  rpgnrri 

Some  reliance  is  placed  by  the  plaintiff  upon  the  observations  of 
Chief  Justice  Marshall,  in  Cohens  v.  Virginia,  6  Wheat.  264,  410. 
The  Chief  Justice  was  there  considering  the  power  of  review  exercisable 
by  this  court  over  the  judgments  of  a  State  court,  wherein  it  might  be 
necessary  to  make  the  State  itself  a  defendant  in  error.  He  showed 
that  this  power  was  absolutely  necessary  in  order  to  enable  the  judici- 
ary of  the  United  States  to  take  cognizance  of  all  cases  arising  under 
the  Constitution  and  laws  of  the  United  States.  He  also  showed  that 
making  a  State  a  defendant  in  error  was  entirely  different  from  suing 


CHAP.  III.]  HANS   V.    LOnSIANA.  301 

la  State  in  an  original  action  in  prosecution  of  a  demand  against  it,  and 
was  not  within  the  meaning  of  the  Eleventh  Amendment ;( that  the 
prosecution  of  a  writ  of  error  against  a  State  was  not  the  prosecution 
of  a  suit  in  the  sense  of  that  amendment,  which  had  reference  to  the 
prosecution,  by  suit,  of  claims  against  a  State.  Here  follows  a  quo- 
tation from  the  opinion  in  Cohens  x.  Virginia,  which  is  found  on  p.  290, 
ante,  beginning  "  Where,  then,  a  State,"  &c.] 

After  thus  showing  by  incontestable  argument  that  a  writ  of  error  to 
a  judgment  recovered  by  a  State,  in  which  the  State  is  necessarily  the 
defendant  in  error,  is  not  a  suit  commenced  or  prosecuted  against  a 
State  in  the  sense  of  the  amendment,  he  added,  that  if  the  court  were 
mistaken  in  this,  its  error  did  not  affect  that  case,  because  the  writ  of 
error  therein  was  not  prosecuted  by  "a  citizen  of  another  State"  or 
"  of  any  foreign  State,"  and  so  was  not  affected  by  the  amendment ;  but 
was  governed  by  the  general  grant  of  judicial  power,  as  extending  "  to 
all  cases  arising  under  the  Constitution  or  laws  of  the  United  States, 
without  respect  to  parties."     p.  412. 

It  must  be  conceded  that  the  last  observation  of  the  Chief  Justice 
does  favor  the  argument  of  the  plaintiff.  But  the  observation  was 
unnecessary  to  the  decision,  and  in  that  sense  extra-judicial,  and  though 
made  bj^  one  who  seldom  used  words  without  due  reflection,  ought  not 
to  outweigh  the  important  considerations  referred  to  which  lead  to  a 
different  conclusion.  "With  regard  to  the  question  then  before  the 
court,  it  may  be  observed,  that  writs  of  error  to  judgments  in  favor  of 
the  Crown,  or  of  the  State,  had  been  known  to  the  law  from  time  im- 
memorial ;  and  had  never  been  considered  as  exceptions  to  the  rule, 
that  an  action  does  not  lie  against  the  sovereign. 

To  avoid  misapprehension  it  may  be  proper  to  add  that,  although 
the  obligations  of  a  State  rest  for  their  performance  upon  its  honor 
and  good  taitli,  and  cannot  be  made  the  subjects  of  judicial  cognizance 
unless  the  estate  consents  to  be  sued,  or  comes  itself  inlcT court;  yet 
where  property  or  rights  are  enjoyed  under  a  grant  or  contract  made 
by  a  State,  thev  cannot  wantonly  be  invadedT  U  hiist  the  State  ca^- 
not  be  compelled  by  suit  to  perform  its  contracts,  any  attempt  on  its 
part  to  violate  property  or  rights  acquired  under  its  contracts,  may  be 
judicially  resisted  ;  and  any  law  impairing  the  obligation  of  contracts 
under  wliich  such  property  or  rights  are  held  is  void  and  powerless  to 
affect  their  enjoyment. 

It  is  not  necessary  that  we  should  enter  upon  an  examination  of  the 
reason  or  expediency  of  the  rule  which  exempts  a  sovereign  .State  from 
prosecution  in  a  court  of  justice  at  the  suit  of  individuals.  This  is 
fully  discussed  by  writers  on  public  law.  It  is  enough  for  us  to  declare 
its  existence.  The  legislative  department  of  a  State  represents  its 
polity  and  its  will ;  and  is  called  upon  by  the  highest  demands  of 
natural  and  political  law  to  preserve  justice  and  judgment,  and  to  hold 
inviolate  the  public  obligations.  Any  departure  from  this  rule,  except 
for  reasons  most  cogent  (of  which  the  legislature,  and  not  the  courts, 


302  TEXAS    V.    WHITE.  [CHAP.  Ill 

is  the  judge),  never  fails  in  the  end  to  incur  the  odium  of  the  world, 
and  to  bring  lasting  injury  upon  the  State  itself.  But  to  deprive  the 
legislature  of  the  power  of  judging  what  the  honor  and  safety  of  the 
State  ma}'  require,  even  at  the  expense  of  a  temporary  failure  to  dis- 
cliarge  the  public  debts,  would  be  attended  with  greater  evils  than 
such  failure  can  cause. 

The  judgment  of  the  Circuit  Court  is  Affirmed. 

Mr.  Justice  Harlax  concurring.  I  concur  with  the  court  in  holding 
that  a  suit  directly  against  a  State  by  one  of  its  own  citizens  is  not  one 
to  which  the  judicial  power  of  the  United  States  extends,  unless  the 
State  itself  consents  to  be  sued.  Upon  this  ground  alone  I  assent  to 
the  judgment.  But  I  cannot  give  my  assent  to  many  things  said  in 
the  opinion.  The  comments  made  upon  the  decision  in  ChishoJm  v. 
Georgia  do  not  meet  my  approval.  The}'  are  not  necessary  to  the 
determination  of  the  present  case.  Besides,  I  am  of  opinion  tliat 
the  decision  in  that  case  was  based  upon  a  sound  interpretation  of 
the  Constitution  as  that  instrument  then  was.^ 


STATE   OF   TEXAS   v.   WHITE. 
Supreme  Court  of  the  United  States.     1868. 

[7  Wall,  TOO.] 

.  .  .  The  case  was  argued  by  Messrs.  Paschal  and  Merrick,  in  behalf 
of  Texas  ;  and  contra.,  by  Mr.  Phillij^s,  for  White  ;  3Ir.  Pike,  for 
Chiles ;  Mr.  Carlisle,  for  Hardenberg ;  and  Mr.  Moore,  for  Birch, 
Murray,  &  Co. 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

This  is  an  original  suit  in  this  court,  in  which  the  State  of  Texas, 
claiming  certain  bonds  of  the  United  States  as  her  property,  asks  an 
injunction  to  restrain  the  defendants  from  receiving  payment  from  the 
National  Government,  and  to  compel  the  surrender  of  the  bonds  to  the 
State. 

It  appears  from  the  bill,  answers,  and  proofs,  that  the  United  States, 
by  Act  of  September  9.  1850,  offered  to  the  State  of  Texas,  in  com- 
pensation for  her  claims  connected  with  the  settlement  of  her  boundary, 
810,000.000  in  five  per  cent  bonds,  each  for  the  sum  of  61,000;  and 
that  this  offer  was  accepted  by  Texas.  One  half  of  these  bonds  were 
retained  for  certnin  purposes  in  the  National  Treasury,  and  the  other 
half  were  delivered  to  the  State.  The  bonds  thus  delivered  were  dated 
January  1,  1851,  and  were  all  made  payable  to  the  State  of  Texas,  or 

1  See  N.  H.  v.  La.  et  ah,  108  U.  S.  76 ;  and  with  that  compare  2  Life  B.  R.  Curtii 
93,  146,  aud  12  Am.  Law  Rev.  625.  — Ed. 


CHAP.  III.]  TEXAS   V.    WHITE.  303 

bearer,  and  redeemable  after  the  31st  day  of  December,  18C4.  They 
were  received  in  behalf  of  the  State  by  the  comptroller  of ^oublic  ac- 
counts, under  authority  of  an  Act  of  the  Legislature,  which,  besides 
giving  that  authority,  provided  that  no  bond  should  be  available  in  the 
hands  of  any  holder  until  after  indorsement  by  the  Governor  of  the 
State. 

After  the  breaking  out  of  the  rebellion,  the  insurgent  Legislature  of 
Texas,  on  the  11th  of  January,  1862,  repealed_  the  Act  requiring  the 
indorsement  of  the  Governor  (Acts  of  Texas,  i8'62,  45),  and  on  the 
same  day  provided  for  the  organization  of  a  militai-y  board,  composed 
of  the  Governor,  comptroller,  and  treasurer  ;  a^xTautliioiMzed  a  majority 
of^that  board  tojjrovide  for  the  defence  of  the  State  by  means  of  any 
bqndsjTi  the  treasury,  upon  any  account,  to  the  extent  of  §1,000,000. 
Texas  Laws,  5.5.  The  defence  contemplated  by  the  Act  was  to  be 
made  against  the  United  States  by  war.  Under  this  authority  the 
military  board  entered  into  an  agreement  with  George  W.  White  and 
John  Chiles,  two  of  the  defendants,  for  the  sale  to  them  of  one  hun- 
dred and  thirty-five  of  these  bonds,  then  in  the  treasury  of  the  State, 
and  seventy-six  more,  then  deposited  with  Droege  &  Co.,  in  England ; 
in  payment  for  which  they  engaged  to  deliver  to  the  board  a  large 
quantity  of  cotton  cards  and  medicines.  This  agreement  was  made  on 
the  12th  of  January,  1865.  On  the  12th  of  March,  1865,  White  and 
Chiles  received  from  the  military  board  one  hundred  and  thirty-five  of 
these  bonds,  none  of  which  were  indorsed  by  any  governor  of  Texas. 
Afterward,  in  the  course  of  the  years  1865  and  1866,  some  of  the 
same  bonds  came  into  the  possession  of  others  of  the  defendants,  by 
purchase,  or  as  security  for  advances  of  money. 

Such  is  a  brief  outline  of  the  case.  It  will  be  necessary  hereafter  to 
refer  more  in  detail  to  some  particular  circumstances  of  it. 

The  first  inquiries  to  which  our  attention  was  directed  by  counsel, 
arose  upon  the  allegations  of  the  answer  of  Chiles  (1)  that  no  suflScient 
authority  is  shown  for  the  prosecution  of  the  suit  in  the  name  and  on 
the  behalf  of  the  State  of  Texas  ;  and  (2)  that  the  State,  having  severed 
her  relations  with  a  majority  of  the  States  of  the  Union,  and  having 
by  her  ordinance  of  secession  attempted  to  throw  off  her  allegiance 
to  the  Constitution  and  government  of  the  United  States,  has  so  far 
changed  her  status  as  to  be  disabled  from  prosecuting  suits  in  the 
national  courts. 

The  first  of  these  allegations  is  disproved  by  the  evidence.  A  letter 
of  authority,  the  authenticity  of  which  is  not  disputed,  has  been  pro- 
duced, in  which  J.  W.  Throckmorton,  elected  governor  under  the  Con- 
stitution adopted  in  1866,  and  proceeding  under  an  Act  of  the  State 
Legislature  relating  to  these  bonds,  expressly  ratifies  and  confirms  the 
action  of  the  solicitors  who  filed  the  bill,  and  empowers  them  to  prose-  i 
cute  this  suit;  and  it  is  further  proved  by  the  affidavit  of  Mr.  Paschal, 
counsel  for  the  complainant,  that  he  was  duly  appointed  by  Andrew  J. 
Hamilton,  while  provisional  governor  of  Texas,  to  represent  the  State 


304  TEXAS   V.   WHITE.  [CHAP.  IIL 

of  Texas  in  reference  to  the  bonds  in  controvers}',  and  that  bis  appoint- 
ment has  been  renewed  b}-  E.  M.  Pease,  the  actual  Governor.  If  Texas 
was  a  State  of  the  Union  at  tlie  time  of  tliese  Acts,  and  these  persons, 
or  either  of  them,  were  competent  to  represent  the  State,  this  proof 
leaves  no  doubt  upon  the  question  of  authorit}'. 

Tlie  other  allegation  presents  a  question  of  jurisdiction.  .  .  . 
The  Constitution,  in  all  its  provisions,  looks  to  an  indestructible 
Union,  composed  of  indestructible  States.  When,  therefore,  Texas 
became  one  of  the  United  States,  she  entered  into  an  indissoluble  , 
relation.  All  the  obligations  of  perpetual  union  and  all  the  guaran- 
tees of  republican  government  in  the  Union,  attached  at  once  to 
the  State.  The  Act  which  consummated  her  admission  into  the  Union 
was  something  more  than  a  compact ;  it  was  the  incorporation  of  a 
new  member  into  the  political  body.  And  it  was  final.  The  union 
between  Texas  and  the  other  States  was  as  complete,  as  perpetual,  and 
as  indissoluble  as  the  union  between  the  original  States.  There  was 
no  place  for  reconsideration,  or  revocation,  except  through  revolution, 
or  through  consent  of  the  States. 

Considered  therefore  as  transactions  under  the  Constitution,  the  ordi- 
nance of  secession,  adopted  by  ine  convention  and  ratified  by  a  majority 
of  the  citizens  of  Texas,  and  all  the  Acts  of  her  Legislature  intended 
to   give    effect   to  that   ordinanee.   were    absolutely  null.     They  were 
u^erly  without  operation  in  law.     The  obligations  of  the  St^^*^,  »^g  ^ 
•  member  of  the  Union,  and  of  every  ritizpn  nf  thp  St.nt.Pj  ns  a,  nitizfn 
ioT~the  United   Stntps,  rpmninpd    pfyrfof   onrl    nnimpnjrpd.      It   certainly 
■  follows  that  the  State  did  not  cease  to  be  a  State,  nor  her  citizens  to  be 
citizens  of  the  Union.     If  this  were  otherwise,  the  State  nmst  have  be- 
come foreign,  and  her  citizens  foreigners.     The  war  must  have  ceased 
to  be  a  war  for  the  suppression  of  rebellion,  and  must  have  become  a 
war  for  conquest  and  subjugation. 

Our  conclusion  therefore  is,  that  Texas  continued  to  be  a  State,  and 
a  State  of  the  Union,  notwithstanding  the  transactions  to  which  we 
have  referred.  And  this  conclusion,  in  our  judgment,  is  not  in  conflict 
with  any  Act  or  declaration  of  any  department  of  the  national  govern- 
ment, but  entirely  in  accordance  with  the  whole  series  of  such  Acts  and 
declarations  since  the  first  outbreak  of  the  rebellion. 

But  in  order  to  the  exercise,  b}-  a  State,  of  the  right  to  sue  in  this 
court,  there  needs  to  be  a  State  government,  competent  to  represent  the 
State  in  its  relations  with  the  national  government,  so  far  at  least  as  the 
institution  and  prosecution  of  a  suit  is  concerned. 

And  it  is  b}'  no  means  a  logical  conclusion,  from  the  premises  which 
we  have  endeavored  to  establish,  that  the  governmental  relations  of 
Texas  to  the  Union  remained  unaltered.  Obligations  often  remain 
unimpaired,  while  relations  are  greatly  changed.  The  obligations  of 
allegiance  to  the  State,  and  of  obedience  to  her  laws,  subject  to  the 
Constitution  of  the  United  States,  are  binding  upon  all  citizens, 
whether  faithful  or  unfaithful  to  them  :  but  the  relations  which  subsist 


CHAP.  III.]  TEXAS   V.    WHITE.  305 

while  these  obligations  are  performed,  are  essentially  different  from 
tliose  which  arise  when  tlicy  are  disregarded  and  set  at  nought.  And 
the  same  must  necessaril}-  be  true  of  the  obligations  and  relations  of 
States  and  citizens  to  the  Union.  No  one  has  been  bold  enough  to 
contend  that,  while  Texas  was  controlled  by  a  government  hostile  to 
the  United  States,  and  in  affiliation  with  a  hostile  confederation,  waging 
war  upon  the  United  States,  senators  chosen  by  her  legislature,  or 
representatives  elected  by  her  citizens,  were  entitled  to  seats  in  Con- 
gress ;  or  that  an}'  suit,  instituted  in  her  name,  could  be  entertained  iu 
this  court.  All  admit  that,  during  this  condition  of  civil  war,  the 
riglits  of  the  State  as  a  memVjer,  and  of  her  people  as  citizens  of  the 
Union,  were  suspended.  The  governmeiit  and  the  citizens  of  the  State, 
refusing  to  recognize  their  constitutional  obligations,  assumed  the  char- 
acter of  enemies,  and  incurred  the  consequences  of  rebellion. 

These  new  relations  imposed  new  duties  upon  the  United  States.  The 
first  was  that  of  suppressing  the  rebellion.  The  next  was  that  of  re- 
establishing the  broken  relations  of  tlie  St^te  with  thp  linian.  The 
first  of  these  duties  having  been  performed,  the  next  necessarily  en- 
gaged the  attention  of  the  national  government. 

The  authority  for  tlie  perfonn.once  of  the  first  bad  been  found  in  thft 
power  to  suppress  insurrection  j.nd  carry  on  war  :  for-lkejjerformance  of 

the  second,  authnrify  wna  rJPi-ivPf]  frr>m  fhn  nlilinrn,t,inn  nf  thp  T'nitt'd 
States  to  guarantee  to  evpiy  .'Nfofp  in  Mip  TTnion  n  i-ppiihhV-nn  form  of 
governments  The  latter,  indeed,  in  the  case  of  a  rebellion  which 
involves  the  government  of  a  State,  and  for  the  time  excludes  the 
national  authority  fi'om  its  limits,  seems  to  be  a  necessary'  complement 
to  the  former. 

Of  this,  the  case  of  Texas  furnishes  a  striking  illustration.  When 
the  war  closed  there  was  no  government  in  the  State  except  that  which 
had  been  organized  for  the  purpose  of  waging  war  against  the  United 
States.  That  government  immediateh*  disappeared.  The  chief  func- 
tionaries left  the  State.  Many  of  the  subordinate  officials  followed 
their  example.  Legal  responsibilities  were  annulled  or  greatly  im- 
paired. It  was  inevitable  that  great  confusion  should  prevail.  If  order 
was  maintained,  it  was  where  the  good  sense  and  virtue  of  the  citizens 
gave  su[)port  to  local  acting  magistrates,  or  supplied  more  directly  the 
needful  restraints. 

A  great  social  change  increased  the  difficulty  of  the  situation.  Slaves, 
in  the  insurgent  States,  with  certain  local  exceptions,  had  been  declared 
free  by  the  Proclamation  of  Emancipation ;  and  whatever  questions 
might  be  made  as  to  the  effect  of  that  act,  under  the  Constitution,  it  was 
clear,  from  the  beginning,  that  its  practical  operation,  in  connection 
with  legislative  Acts  of  like  tendency',  must  be  complete  enfranchise- 
ment. Wherever  the  national  forces  obtained  control,  the  slaves  became 
freemen.  Support  to  the  Acts  of  Congress  and  the  proclamation  of 
the  President,  concerning  slaves,  was  made  a  condition  of  amnesty 
(13  Stat,  at  Large,  737)  by  President  Lincoln,  in  December,  18G3,  and 
VOL.  I. —  20 


306  TEXAS    V.    WHITE.  [CIIAP.  IIL 

b}'  President  Johnson,  in  Ma}',  18G5.  lb.  758.  And  emancipation 
was  confirmed,  rather  than  ordained,  in  the  insurgent  States,  by  the 
amendment  to  the  Constitution  prohibiting  slaveiy  throughout  the 
Union,  which  was  proposed  by  Congress  in  February,  1865,  and  rati- 
fied, before  the  close  of  the  following  autumn,  by  the  requisite  three 
fourths  of  the  States.     lb.  lH-llo. 

The  new  freemen  necessarily  became  part  of  the  people,  and  the 
people  still  constituted  the  State  ;  for  States,  like  individuals,  retain 
their  identity,  though  changed  to  some  extent  in  their  constituent 
elements.  And  it  was  the  State,  thus  constituted,  which  was  now 
entitled  to  the  benefit  of  the  constitutional  guarantee. 

There  being  then  no  government  in  Texas  in  constitutional  relations 
with  the  Union,  it  became  the  duty  of  the  United  States  to  provide  for 
the  restoration  of  such  a  government.  But  the  restoration  of  the 
government  which  existed  before  the  rebellion,  without  a  new  election 
of  officers,  was  obviousl}'  impossible ;  and  before  an}'  such  election 
could  be  properly  held,  it  was  necessary  that  the  old  Constitution 
should  receive  such  amendments  as  would  conform  its  provisions  to  the 
new  conditions  created  by  emancipation,  and  afford  adequate  security  to 
the  people  of  the  State. 

In  the  exercise  of  the  power  conferred  by  the  guarantee  clause,  as 
in  the  exercise  of  every  other  constitutional  power,  a  discretion  in. 
the  choice  of  means  is  necessarily  allowed.  It  is  essential  only  that  the 
means  must  be  necessary  and  proper  for  carrying  into  execution  the 
power  conferred,  through  the  restoration  of  the  State  to  its  constitutional 
relations,  under  a  republican  form  of  government,  and  that  no  acts  be 
done,  and  no  authorit\'  exerted,  which  is  either  prohibited  or  unsanc- 
tioned b}-  the  Constitution. 

It  is  not  important  to  review,  at  length,  the  measures  which  have 
been  taken,  under  this  power,  by  the  executive  and  legislative  depart- 
ments of  the  national  government.  It  is  proper,  however,  to  observe 
that  almost  immediately  after  the  cessation  of  organized  hostilities,  and 
while  the  war  yet  smouldered  in  Texas,  the  President  of  the  United 
States  issued  his  proclamation  appointing  a  provisional  governor  for 
the  State,  and  providing  for  the  assembling  of  a  convention,  with  a  view 
to  the  re-establishment  of  a  republican  government,  under  an  amended 
constitution,  and  to  the  restoration  of  the  State  to  her  proper  Constitu- 
tional relations.  A  convention  was  accordingly  assembled,  the  Consti- 
tution amended,  elections  held,  and  a  State  government,  acknowledging 
its  obligations  to  the  Union,  established. 

Whether  the  action  then  taken  was,  in  all  respects,  warranted  by  the 
Constitution,  it  is  not  now  necessaiy  to  determine.  The  power  exer- 
cised by  the  President  was  supposed,  douI)tless,  to  be  derived  from  his 
constitutional  functions,  as  commander-in-chief;  and,  so  long  as  the 
war  continued,  it  cannot  be  denied  that  he  might  institute  temporary 
government  within  insurgent  districts,  occupied  b}'  the  national  forces, 
or  take  measures,  in  any  State,  for  the  restoration  of  State  government 


CHAP.  III.]  TEXAS   V.    WHITE.  307 

faithful  to  the  Union,   emplo3-ing,  however,  in  such  efforts,  only  such 
means  and  agents  as  were  authorized  b}'  constitutional  laws. 

But  the  power  to  carry  into  effect  the  clause  of  guarantee  is  primaril}' 
a  legislative  power,  and  resides  in  Congress.  "  Under  the  fourth  article 
of  the  Constitution,  it  rests  with  Congress  to  decide  what  government 
is  the  established  one  in  a  State.  For,  as  the  United  States  guarantee 
to  each  State  a  republican  government,  Congress  must  necessarily  de- 
cide what  government  is  established  in  the  State,  before  it  can  deter- 
mine whether  it  is  republican  or  not." 

This  is  the  language  of  the  late  Chief  Justice,  speaking  for  this 
court,  in  a  case  from  Rhode  Island  {Luther  v.  Borden^  7  Howard,  42), 
arising  from  the  organization  of  opposing  governments  in  that  State. 
And  we  think  that  the  principle  sanctioned  by  it  may  be  applied,  with 
even  more  propriety,  to  the  case  of  a  State  deprived  of  all  rightful  gov- 
ernment, by  revolutionar}-  violence  ;  though  necessarily  limited  to  cases 
where  the  rightful  government  is  thus  subverted,  or  in  imminent  dan- 
ger of  being  overthrown  by  an  opposing  government,  set  up  by  force 
within  the  State. 

The  action  of  the  President  must,  therefore,  be  considered  as  pro- 
visional, and,  in  that  light,  it  seems  to  have  been  regarded  b\'  Congress. 
It  was  taken  after  the  term  of  the  38th  Congress  had  expired.  The 
39th  Congress,  which  assembled  in  December,  1865,  followed  b}'  the 
40th  Congress,  which  met  in  March,  1867,  proceeded,  after  long  deliber- 
ation, to  adopt  various  measures  for  reorganization  and  restoration. 
These  measin-es  were  embodied  in  proposed  amendments  to  the  Con- 
stitution, and  in  the  Acts  known  as  the  Reconstruction  Acts,  which 
have  been  so  far  carried  into  effect,  that  a  majority  of  the  States  which 
were  engaged  in  tiie  rebellion  have  been  restored  to  their  constitutional 
relations,  under  forms  of  government,  adjudged  to  be  republican  by 
Congress,  through  the  admission  of  their  '•  Senators  and  Representa- 
tives into  the  councils  of  the  Union." 

Nothing  in  the  case  before  us  requires  the  court  to  pronounce  judg- 
ment upon  the  constitutionality  of  an}-  particular  provision  of  these 
Acts. 

But  it  is  miportant  to  observe  that  these  Acts  themselves  show  that 
the  governments,  whichhad  been  established  and  had  been  in  actual 
operation  under  executive  direction,  were  recognized  by  Cono-ress  ^^ 
provisional,  as  existing,  and  as  capable  of  continuance. 

By  the  Act  of  March  2,  1867  (14  Stat,  at  Large,  428),  the  first  of 
the  series,  these  governments  were,  indeed,  pronounced  illegal  and  were 
subjected  to  military  control,  and  were  declared  to  be  provisional  onl}- ; 
and  by  the  supplementary  Act  of  July  19,  1867,  the  third  of  the  series, 
it  was  further  declared  that  it  was  the  true  intent  and  meaning  of  the 
Act  of  March  2,  that  the  governments  then  existing  were  not  legal 
State  governments,  and  if  continued,  were  to  be  continued  subject  to 
the  military  commanders  of  the  respective  districts  and  to  the  para- 
mount authority  of  Congress.     We  do  not  inquire  here  into  the  consti- 


308  TEXAS   V.    WHITE.  [CHAP.  IIL 

tutionalil}'  of  this  legislation  so  far  as  it  relates  to  militar}'  authority,  ot 
10  the  paramount  authority'  of  Congress.  It  suffices  to  say,  that  the 
terms  of  the  Acts  necessarily  impl^y  recognition  of  actually  existing 
governments  ;  and  that  in  point  offact,  the  governments  thus  recog- 
nized, in  some  important  respects,  still  exist. 

What  has  thus  been  said  generall}'  describes,  with  sufficient  accuracy, 
the  situation  of  Texas.  A  provisional  governor  of  the  State  was  ap- 
pointed by  the  President  in  1865  ;  in  1866  a  governor  was  elected  by  the 
people  under  the  Constitution  of  that  year ;  at  a  subsequent  date  a 
governor  was  appointed  by  the  commander  of  the  district.  Each  of 
the  three  exercised  executive  functions  and  actuall}'  represented  the 
State  in  the  executive  department. 

In  the  case  before  us  each  has  given  his  sanction  to  the  prosecution 
of  tlie  suit,  and  we  find  no  difficulty,  without  investigating  the  legal 
title  of  either  to  the  executive  office,  in  holding  that  the  sanction  thus 
given  sufficiently  warranted  the  action  of  the  solicitor  and  counsel  in 
behalf  of  the  State.  The  uecessar}'  conclusion  is  that  the  suit  was 
instituted  and  is  prosecuted  by  competent  authority. 

The  question  of  jurisdiction  being  thus  disposed  of,  we  proceed  to 
the  consideration  of  the  merits  as  presented  b}-  the  pleadings  and 
the  evidence.  .  .  . 

On  the  whole  case,  therefore,  our  conclusion  is  that  the  State  of  Texas 
is  entitled  to  the  relief  sought  by  her  bill,  and  a  decree  must  be  made 
accordingly;. 


\Mr.  Justice  Grier.  dissentingT\  I  regret  that  I  am  compelled  to  dis- 
sent from  the  opinion  of  the  majority  of  the  court  on  all  the  points  raised 
and  decided  in  this  case. 

The  first  question  in  order  is  the  jurisdiction  of  the  court  to  entertain 
this  bill  in  behalf  of  the  State  of  Texas. 

The  original  jurisdiction  of  this  court  can  be  invoked  only  by  one  of 
tli€  United  i^nrteir:  The  Territories  have~no  such  right  conferred  on 
them  by  the  Constitution,  nor  have  the  Indian  tribes  who  are  under  the 
protection  of  the  military  authorities  of  the  government. 

Is  Texas  one  of  these  United  States?  Or  was  she  such  at  the  time 
this  bill  was  filed,  or  since  ? 

This  is  to  be  decided  as  a  political  fact,  not  as  a  legal  fiction.  This 
court  is  bound  to  know  and  notice  the  public  historj'  of  the  nation. 

IfJ^reg.ird  the  truth  of  l)igtr>ry  fm-  tha  Uct  f^ijlif  yonrs,  T  fnnnftt  di'ji 
cover  tlie  State  of  Tpvn<;p.c^  one  of  these  United  States.  I  do  not  think 
it  necessary  to  notice  an}'  of  the  ver}'  astute  arguments  which  have 
been  advanced  by  the  learned  counsel  in  this  case,  to  find  the  definition 
of  a  State,  when  we  have  the  subject  treated  in  a  clear  and  common- 
sense  manner  by  Chief  Justice  Marshall,  in  the  case  of  Hephum  & 
JDundass  v.  Ellzey,  2  Cranch,  452.  As  the  case  is  short,  I  hope  to  be 
excused  for  a  full  report  of  it,  as  stated  and  decided  by  the  court.* 

1  For  this  case,  see  post,  p.  348.  —  Ed. 


CHAP.  III.]  TEXAS   V.   WHITE.  309 

He  says:  .  .  .  "These  clauses  show  that  the  word  '  State'  is  used  in 
the  Constitution  as  designating  a  member  of  tlie  Union,  and  excludes 
from  the  term  the  signification  attached  to  it  bj'  writers  on  the  law  of 
nations." 

Now  we  have  here  a  clear  and  well-defined  test  by  which  we  may 
arrive  at  a  conclusion  with  regard  to  the  questions  of  fact  now  to  be 
decided. 

Is  Texas  a  State,  now  represented  bj'  members  chosen  by  the  people 
of  that  State  and  received  on  the  floor  of  Congress?  Has  she  two 
senators  to  represent  her  as  a  State  in  the  Senate  of  the  United  States? 
Has  her  voice  been  heard  in  the  late  election  of  President?  Is  slie  not 
now  held  and  governed  as  a  conquered  province  by  military  force?  The 
Act  of  Congress  of^Iarcb  2d,  186Z>-ii£cLares  Tp-srns  to  ho  n  '■'■  rpl^pl 
State,"  and  provides  for  its  government  until  a  legal  and  republican 
State  government  could  be  legally  established.  It  constituted  Louisi- 
ana  and  Texas "tne  nitn  military  district,  and  made  U  subject,  not  to* 
Hie  civil  authority,  but  to  the  "~military  authorities  of  the  United 
States."  ^  '       ~" 

It  is  true  that  no  organized  rebellion  now  exists  there,  and  the  courts 
of  the  United  States  now  exercise  jurisdiction  over  the  people  of  that 
province.  But  this  is  no  test  of  the  State's  being  in  the  Union ; 
Dakota  is  no  State,  and  yet  the  United  States  administer  justice  there 
as  the}"  do  in  Texas.  The  Indian  tribes,  who  are  governed  by  military 
force,  cannot  claim  to  be  States  of  the  Union.  Wherein  does  the  con- 
dition of  Texas  difl["er  from  theirs? 

Now,  by  assuming  or  admitting  as  a  fact  the  present  status  of  Texas 
as  a  State  not  in  the  Union  politically,  I  beg  leave  to  protest  against 
any  charge  of  inconsistenc}'  as  to  judicial  opinions  heretofore  expressed 
as  a  member  of  this  court,  or  silently  assented  to.  I  do  not  consider 
myself  bound  to  express  any  opinion  judicially  as  to  the  constitutional 
right  of  Texas  to  exercise  the  rights  and  privileges  of  a  State  of  this 
Union,  or  the  power  of  Congress  to  govern  her  as  a  conquered  prov- 
ince, to  subject  her  to  military  domination,  and  keep  her  in  pupilage. 
I  can  only  submit  to  the  fact  as  decided  by  the  political  position  of  the 
government ;  and  I  am  not  disposed  to  join  in  any  essay  to  prove 
Texas  to  be  a  State  of  the  Union,  when  Congress  have  decided  that 
she  is  not.  It  is  a  question  of  fact,  I  repeat,  and  of  fact  only.  Politi- 
cally, Texas  is  not  a  State  in  this  Union.  Whether  rightfully  out  of  it 
or  not  is  a  question  not  before  thecourt.  ... 

Mr.  Justice  Swayne  :  I  concur  with  my  brother  Grier  as  to  the 
incapacity  of  the  State  of  Texas,  in  her  present  condition,  to  maintain 
an  original  suit  in  this  court.  The  question,  in  m}-  judgment,  is  one 
in  relation  to  which  this  court  is  bound  by  the  action  of  the  legislative 
department  of  the  government. 

Upon  the  merits  of  the  case,  I  agree  with  the  majorit}'  of  my 
brethren. 

I  am  authorized  to  say  that  my  brother  Miller  unites  with  me  in 
these  views. 


310  UNITED   STATES   V.   TEXAS.  [ciIAP.  IIL 


UNITED   STATES  v.  THE   STATE   OF   TEXAS. 

Supreme  Court  of  the  United  States.     1891. 

[143    U.  5.  621.]i 

Mr.  A.  H.  Garland  for  the  State  of  Texas,  in  support  of  the  de- 
murrer. Mr.  John  Hancock^  Mr.  George  Clark,  Mr.  C.  A.  Culher- 
son.,  and  3Ir.  H.  J.  May  were  with  him  on  the  brief. 

Mr.  Edgar  Allan  (with  whom  was  Mr.  Attorney- General  on  the 
brief)  for  the  United  States,  opposing. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

Tiiis  suit  was  brought  b}'  original  bill  in  this  court  pursuant  to  the 
Act  of  May  2,  1890,  providing  a  temporary  government  for  the  Terri- 
tor}'  of  Oklahoma.  Tlie  25th  section  recites  the  existence  of  a  con- 
troversy between  the  United  States  and  the  State  of  Texas  as  to  the 
ownership  of  what  is  designated  on  the  map  of  Texas  as  Greer  County, 
and  provides  that  the  Act  shall  not  be  construed  to  appl}-  to  that 
county  until  the  title  to  the  same  has  been  adjudicated  and  determined 
to  be  in  the  United  States.  In  order  that  there  might  be  a  speedy  and 
final  judicial  determination  of  this  controversy  the  Attorney-General  of 
the  United  States  was  authorized  and  directed  to  commence  and  prose- 
cute on  behalf  of  the  United  States  a  proper  suit  in  equity  in  this  court 
against  the  State  of  Texas,  setting  forth  the  title  of  the  United  States 
to  the  country  lying  between  the  North  and  South  Forks  of  the  Red 
River  where  the  Indian  Territory  and  the  State  of  Texas  adjoin,  east 
of  the  one  hundredth  degree  of  longitude,  and  claimed  b}-  the  State 
of  Texas  as  within  its  boundary.     26  Stat.  81,  92,  c.  182,  §  25. 

The  State  of  Texas  appeared  and  filed  a  demurrer,  and,  also,  an 
answer  denying  the  material  allegations  of  the  bill.  The  case  is  now 
before  the  court  only  u[)on  the  demurrer,  the  principal  grounds  of  which 
are  r^hat  the  question  presented  is  political  in  its  nature  and  char- 
acter, and  not  susceptible  of  judicial  determination  by  this  court  in  the 
exercise  of  its  juriadietion  as  conferred  by  the  Constitution  and  laws  of 
the  United  States  Pthat  it  is  not  competent  for  the  general  government 
to  bring  suit  against  a  State  of  the  Union  in  one  of  its  own  courts, 
especially  when  the  right  to  be  maintained  is  mutually  asserted  by  the 
United  States  and  tke  State,  namely,  the  ownership  of  certain  desig- 
nated territory  ;  anattliat  the  plaintiflTs  cause  of  action,  being  a  suit  to 
recover  real  property,  is  legal  and  not  equitable,  and,  consequently,  so 
much  of  the  Act  of  May  2,  1890,  as  authorizes  and  directs  the  prose- 
cution of  a  suit  in  equity  to  determine  the  rights  of  the  United  States 
to  the  territory  in  question  is  unconstitutional  and  void.  .  .  . 

The  bill  alleges  that  the  State  of  Texas,  without  right,  claims,  has 
taken  possession  of,  and  endeavors  to  extend  its  laws  and  jurisdiction 

1  The  statement  of  facts  is  omitted.  —  Ed.  , 


CHAP.  III.]  UNITED    STATES    V.    TEXAS,  311 

over,  the  disputed  territory,  in  violation  of  the  treaty  rights  of  the 
United  States  ;  that,  during  the  j'ear  1887,  it  gave  public  notice  of  its 
purpose  to  surve}'  and  place  upon  the  market  for  sale,  and  otherwise 
dispose  of,  that  territory  ;  and  that,  in  consequence  of  its  proceeding 
to  eject  bona  Jide  settleis  from  certain  portions  thereof,  President 
Cleveland,  b}'  proclamation  issued  December  30,  1887,  warned  all 
persons,  whether  claiming  to  act  as  officers  of  the  county  of  Greer,  or 
otherwise,  against  selling  or  disposing  of,  or  attempting  to  sell  or  dis- 
pose of,  any  of  said  lands,  or  from  exercising  or  attempting  to  exercise 
any  authority  over  them,  and  "against  purchasing  any  part  of  said 
territor}'  from  any  person  or  persons  whatever."     25  Stat.  1483. 

Tlie  relief  asked  is  a  decree  determining  the  true  line  between  the 
United  States  and  the  State  of  Texas,  and  whether  the  land  consti- 
tuting what  is  called  "Greer  County"  is  within  the  boundary  and 
jurisdiction  of  the  United  States  or  of  the  State  of  Texas.  The  gov- 
ernment prays  that  its  rights,  as  asserted  in  the  bill,  be  established, 
and  that  it  have  such  other  relief  as  the  nature  of  the  case  may  require. 

In  support  of  the  contention  that  the  ascertainment  of  the  boundary 
between  a  Territor}-  of  the  United  States  and  one  of  the  States  of  the 
Union  is  political  in  its  nature  and  character,  and  not  susceptible  of 
judicial  determination,  the  defendant  cites  Foster  v.  N'eilson,  2  Pet. 
2.53,  307,  309;  Cherokee  Nation  v.  Georgia,  5  Pet.  1,  21  ;  United 
States  V.  Arredomlo,  6  Pet.  G91,  711  ;  and  Garcia  v.  Lee,  12  Pet. 
511,  517.  ... 

These  authorities  do  not  control  the  present  case.  They  relate  to 
questions  of  boundary'  between  independent  nations,  and  have  no 
application  to  a  question  of  that  character  arising  between  tlie  general 
government  and  one  of  the  States  composing  the  Union,  or  between 
two  States  of  the  Union.  B}'  the  Articles  of  Confederation,  Congress 
was  made  "  the  last  resort  on  appeal  in  all  disputes  and  differences" 
then  subsisting  or  which  thereafter  might  arise  ""  between  two  or  more 
States  concerning  boundary,  jurisdiction,  or  any  other  cause  what- 
ever ;  "  the  authoritv  so  conferred  to  be  exercised  by  a  special  tribunal 
to  be  organized  in  the  mode  prescribed  in  those  Articles,  and  its  judg- 
ment to  be  final  and  conclusive.  Art.  9.  At  the  time  of  the  adoption 
of  the  Constitution,  there  existed,  as  this  court  said  in  Rhode  Island 
V.  Ifassac/msetts,  12  Pet.  657,  723,  724,  controversies  between  eleven 
States,  in  respect  to  boundaries,  which  had  continued  from  the  first 
settlement  of  the  colonies.  The  necessity  for  the  creation  of  some 
tribunal  for  the  settlement  of  these  and  like  controversies  that  might 
arise,  under  the  new  government  to  be  formed,  must,  therefore,  have 
been  perceived  b}-  the  fraraers  of  the  Constitution,  and,  consequently, 
among  the  controversies  to  which  the  judicial  power  of  the  United 
States  was  extended  by  the  Constitution,  we  find  those  between  two 
or  more  States.  And  that  a  controversy  between  two  or  more  States^ 
in  respect  to  boundary,  is  one  to  which,  under  the  Constitution,  such  Q) 
judicial  power  extends,  is  no  longer  an  open  question  in  this  court^ 


312  UNITED  STATES  V.    TEXAS.  [cHAP.  III. 

The  cases  of  Rhode  Island  v.  3fassachiisetts,  12  Pet.  657  ;  New  Jersey 
V.  Mw  York,  5  Pet.  284,  290 ;  3Iissouri  v.  Iowa,  7  How.  660  ;  I'lor- 
ida  V.  Georgia,  1 7  How.  478  ;  Alabama  v.  Georgia,  23  How.  505  ; 
Virginia  v.  West  Virginia,  11  Wall.  39,  55;  Missouri  v.  Kentucky, 
11  Wall.  395 ;  Indiana  v.  Kentucky,  136  U.  S.  479  ;  and  Nebraska  v. 
loica,  ante,  359,  were  all  original  suits,  in  this  court,  for  the  judicial  de- 
termination of  disputed  boundary  lines  between  States.  In  Neic  Jersey 
V.  New  York,  5  Pet.  284,  290,  Chief  Justice  Marshall  said  :  "  It  has 
then  been  settled  b}-  our  predecessors,  on  great  deliberation,  that  this 
court  may  exercise  its  original  jurisdiction  in  suits  against  a  State, 
under  the  authorit}-  conferred  b}'  the  Constitution  and  existing  Acts  of 
Congress."  And  in  Virginia  v.  West  Virginia,  it  was  said  b}-  JNIr. 
Justice  Miller  to  be  the  established  doctrine  of  this  court,  "that  it  has 
jurisdiction  of  questions  of  boundary-  between  two  States  of  this  Union, 
and  that  this  jurisdiction  is  not  defeated,  because  in  deciding  that 
question  it  becomes  necessar}'  to  examine  into  and  construe  compacts 
or  agreements  between  those  States,  or  because  the  decree  which  the 
court  ma}-  render,  affects  the  territorial  limits  of  the  political  jurisdiction 
and  sovereignty  of  the  States  which  are  parties  to  the  proceeding." 
So,  in  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265,  287,  288;  "By 
the  Constitution,  therefore,  this  court  has  original  jurisdiction  of  suits 
brought  b}'  a  State  against  citizens  of  another  State,  as  well  as  of  con^ 
troversies  between  two  States.  .  .  .  As  to  '  controversies  between  two 
or  more  States.'  The  most  numerous  class  of  which  this  court  has 
entertained  jurisdiction  is  that  of  controversies  between  two  States  as 
to  the  boundaries  of  their  territory',  such  as  were  determined  before 
the  revolution  by  the  king  in  council,  and  under  the  Articles  of  Con- 
federation (while  there  was  no  national  judiciar}')  b}'  committees  or 
commissioners  appointed  b}-  Congress." 

In  view  of  these  cases,  it  cannot,  with  proprietv,  be  said  that  a  question 
of  boundar}-  between  a  Territorj'  of  the  United  States  and  one  of  the 
States  of  the  Union  is  of  a  political  nature,  and  not  susceptible  of  judi- 
cial determination  by  a  court  having  jurisdiction  of  such  a  controversy. 
The  important  question  therefore  is,  whether  this  court  can ,  luider  the 
Constitution,  take  cognizance  of  an  original  suit  brought  by  the  United, 
States  against  a  State  to  determine  the  boundary  between  one  of  the 
Territories  and  such  State.  Texas  insists  that  no  such  jurisdiction 
has  been  conferred  upon  this  court,  and  that  the  only  mode  in  which 
the  present  dispute  can  be  peaceabl}'  settled  is  b}'  agreement,  in  some 
form,  between  the  United  States  and  that  State.  Of  course,  if  no  such 
agreement  can  be  reached  —  and  it  seems  that  one  is  not  probable  — 
and  if  neither  part}'  will  surrender  its  claim  of  authority  and  jurisdiction 
over  the  disputed  territory,  the  result,  according  to  the  defendant's 
theory  of  the  Constitution,  must  be  that  the  United  States,  in  order  to 
effect  a  settlement  of  this  vexed  question  of  boundary,  must  bring  its 
suit  in  one  of  the  courts  of  Texas  —  that  State  consenting  that  its 
courts  may  be  open  for  the  assertion  of  claims  against  it  by  the  United 


CHAP.  III.]  UNITED   STATES   V.   TEXAS.  313 

States  —  or  that,  in  the  end,  there  must  be  a  trial  of  physical  strength 
between  the  government  of  the  Union  and  Texas.  The  first  alternative 
is  unwarranted  both  by  the  letter  and  spirit  of  the  Constitution.  Mr. 
Justice  Story  has  well  said :  "  It  scarcely  seems  possible  to  raise  a 
reasonable  doubt  as  to  the  propriet}'  of  giving  to  the  national  courts  ju- 
risdiction of  cases  in  which  the  United  States  are  a  part}'.  It  would  be 
a  perfect  novelt}-  in  the  history  of  national  jurisprudence,  as  well  as  of 
public  law,  that  a  sovereign  had  no  authorit}'  to  sue  in  his  own  courts. 
Unless  this  power  were  given  to  the  United  States,  the  enforcement  of 
all  their  rights,  powers,  contracts  and  privileges  in  their  sovereign 
capacity  would  be  at  the  mercy  of  the  States.  They  must  be  enforced, 
if  at  all,  in  the  State  tribunals."  Story  Const.  §  1674.  The  second 
alternative,  above  mentioned,  has  no  place  in  our  constitutional  system, 
and  cannot  be  contemplated  by  any  patriot  except  with  feelings  of  deep 
concern. 

The  cases  in  this  court  show  that  the  framers  of  the  Constitution  did 
provide,  by  that  instrument,  for  the  judicial  determination  of  all  cases 
in  law  and  equity  between  two  or  more  States,  including  those  in- 
volving questions  of  boundarv.  Did  they  omit  to  provide  for  the 
judicial  determination  of  controversies  arising  between  the  United 
States  and  one  or  more  of  the  States  of  the  Union  ?  This  question  is 
in  effect  answered  by  United  Slates  v.  North  Carolina,  136  U.  S.  211. 
That  was  an  action  of  debt  brought  in  this  court  b}'  the  United  States 
against  the  State  of  North  Carolina,  upon  certain  bonds  issued  by  that 
State.  The  State  appeared,  the  case  was  determined  here  upon  its 
merits,  and  judgment  was  rendered  for  the  State.  It  is  true  that  no 
question  was  made  as  to  the  jurisdiction  of  this  court,  and  nothing 
was  therefore  said  in  the  opinion  upon  that  subject.  But  it  did  not 
escape  the  attention  of  the  court,  and  the  judgment  would  not  have 
been  rendered  except  upon  the  theory  that  this  court  has  original  juris- 
diction of  a  suit  by  the  United  States  against  a  State.  As,  however, 
the  question  of  jurisdiction  is  vital  in  this  case,  and  is  distinctly  raised, 
it  is  proper  to  consider  it  upon  its  merits.   .  .  . 

It  is  apparent  upon  the  face  of  these  clauses  [Const.  U.  S.  art.  3,  §  2, 
and  the  Eleventh  Amendment]  that  in  one  class  of  cases  the  jurisdiction 
of  the  courts  of  the  Union  depends  "on  the  character  of  the  cause, 
whoever  may  be  the  parties,"  and,  in  the  other,  on  the  character  of 
the  parties,  whatever  may  be  the  subject  of  controversy.  Cohens  v. 
Virginia,  6  Wheat.  264,  378,  393.  The  present  suit  falls  in  each 
class,  for  it  is,  plainly,  one  arising  under  the  Constitution,  laws  and 
treaties  of  the  United  States,  and,  also,  one  in  which  the  United  States 
is  a  party.  It  is,  therefore,  one  to  which,  by  the  express  words  of  the 
Constitution,  the  judicial  power  of  the  United  States  extends.  That  a 
Circuit  Court  of  the  United  States  has  not  jurisdiction,  under  existing 
statutes,  of  a  suit  by  the  United  States  against  a  State,  is  clear ;  for 
by  the  Revised  Statutes  it  is  declared  —  as  was  done  by  the  Judiciary 
Act  of  1789  —  that  "  the  Supreme  Court  shall  have  exclusive  jurisdic- 


314  UNITED    STATES   V.   TEXAS.  [CIIAP.  III. 

tion  of  all  controversies  of  a  civil  nature  where  a  State  is  a  part}-,  ex- 
cept between  a  State  and  its  citizens,  or  between  a  State  and  citizens 
of  other  States  or  aliens,  in  which  latter  cases  it  shall  have  original, 
but  not  exclusive,  jurisdiction.''  Rev.  Stat.  §  687  ;  Act  of  September 
24,  1789,  c.  20,  §  13  ;  1  Stat.  80.  Such  exclusive  jurisdiction  was 
given  to  this  court,  because  it  best  comported  with  the  dignitj-  of  a 
State,  that  a  case  in  which  it  was  a  part}'  should  be  determined  in  the 
highest,  rather  than  in  a  subordinate  judicial  tribunal  of  the  nation. 
Wh}'  then  may  not  this  court  take  original  cognizance  of  the  present 
suit  involving  a  question  of  boundar\'  between  a  Territor}-  of  the  United 
States  and  a  State? 

The  words,  in  the  Constitution,  "in  all  cases  ...  in  which  a  State 
shall  be  party,  the  Supreme  Court  shall  have  original  jurisdiction," 
necessaril}'  refer  to  all  cases  mentioned  in  the  preceding  clause  in 
which  a  State  may  be  made,  of  right,  a  party  defendant,  or  in  which  a 
State  ma}',  of  right,  be  a  party  plaintiff.  It  is  admitted  that  these 
words  do  not  refer  to  suits  brought  against  a  State  b}'  its  own  citizens 
or  by  citizens  of  other  States,  or  by  citizens  or  subjects  of  foreign 
States,  even  where  such  suits  arise  under  the  Constitution,  laws  and 
treaties  of  the  United  States,  because  the  judicial  power  of  the  United 
States  does  not  extend  to  suits  of  mdividuals  against  States.  Hans 
V.  Louisia7ia,  134  U.  S.  1,  and  authorities  there  cited  ;  North  Carolina 
v.  Temple,  134  U.  S.  22,  30.  It  is,  however,  said  that  the  words  last 
quoted  refer  only  to  suits  in  which  a  State  is  a  party,  and  in  which, 
also,  the  opposite  part}'  is  another  State  of  the  Union  or  a  foreign 
State.  This  cannot  be  correct,  for  it  must  be  conceded  that  a  State 
can  bring  an  original  suit  in  this  court  against  a  citizen  of  another 
State.  WisconHn  v.  Pelican  Ins.  Co.,  127  U.  S.  265,  287.  Besides, 
unless  a  State  is  exempt  altogether  from  suit  by  the  United  States,  we 
do  not  perceive  upon  what  sound  rule  of  construction  suits  brought  by 
the  United  States  in  this  court  —  especially  if  they  be  suits  the  cor- 
rect decision  of  which  depends  upon  the  Constitution,  laws  or  treaties 
of  the  United  States  —  are  to  be  excluded  from  its  original  jurisdiction 
as  defined  in  the  Constitution.  That  instrument  extends  the  judim_l 
power  of  the  United  Stamps  ^'^Q  <^ll  rases^"  in  law  i^nd  eqnitv,  arising 
under  the  Constitution,  laws  and  treaties  of  the  United  Statp.q.,  and  to 
controversies  in  which  the  United  States  shall  be  a  party,  and  confers 
V^  unon  this  court  original  jurisdiction  ''in  all  cases"  "in  which  a  State 
shall  be  party,"  that  is,  in  all  cases  mentioned  in  the  preceding  clause 
in  which  a  State  mav,  of  right,  be  mnde  a  party  defendant,  as  well  iis 
in  all  cases  in  which  a  Statft  may,  of  right,  institute  a  suit  in  a  court  of 
the  United  Statejs.  The  present  case  is  of  the  fm-mpr  o^nRfi.  We  can- 
not assume  that  the  framers  of  the  Constitution,  while  extending  the 
judicial  power  of  the  United  States  to  controversies  between  two  or 
more  States  of  the  Union,  and  between  a  State  of  the  Union  and  for- 
eign States,  intended  to  exempt  a  State  altogether  from  suit  by  the 
general  government.     They  could  not  have  overlooked  the  possibility 


CHAP.  III.]  UNITED    STATES   V.    TEXAS.  3l5 

that  controversies,  capable  of  judicial  solution,  might  arise  between  the 
United  States  and  some  of  the  States,  and  that  the  permanence  of 
the  Union  might  be  endangered  if  to  some  tribunal  was  not  intrusted 
the  power  to  determine  them  according  to  tlie  recognized  principles  of 
law.  And  to  what  tribunal  could  a  trust  so  momentous  be  more  ap- 
propriately committed  than  to  that  which  the  people  of  the  United 
States,  in"  order  to  form  a  more  perfect  Union,  establish  justice  and 
insure  domestic  tranquillity,  have  constituted  with  authority  to  speak 
for  all  the  people  and  all  the  States,  upon  questions  before  it  to  which 
the  judicial  power  of  the  nation  extends?  It  would  be  ditflcult  to  sug- 
o-est  any  reason  why  this  court  should  have  jurisdiction  to  determine 
questions  of  boundary  between  two  or  more  States,  but  not  jurisdiction 
of  controversies  of  like  character  between  the  United  States  and  a 
State.  .  .  . 

That  case  lITans  v.  i«.,  134  U.  S.  1]  and  others  in  this  court 
relating  to  the  suability  of  States,  proceeded  upon  the  broad  ground 
that  "It  is  inherent  in  the  nature  of  sovereignty  not  to  be  amenable  to 
the  suit  of  an  individual  without  its  consent." 

The  question  as  to  the  suability  of  one  government  by  another  gov- 
ernment rests  upon  wholly  different  grounds.  Texas  is  not  called  to 
the  bar  of  this  court  at  the  suit  of  an  individual,  but  at  the  suit  of  the 
trovernment  estalilished  for  the  common  and  equal  benefit  of  the  people 
of  all  the  States.  The  submissioiT  to  judicial  solution  of  controversies 
arising  between  these  two  governments,  "each  sovereign,  with  respect 
to  the  objects  committed  to  it.  and  neither  sovereign  with  respect  t^  ® 
the  objpr-fQ  pnmmitted  tl7  tho  ^-H^y  "  3TcCidloch  v.  State  of  3Iaryland, 
4  Wheat.  316,  400,  410,  b^ifc^oth  subject  to  the  supreme  law  o_f_the 
land,  docs  no  violence  to  the  inherent  nature  of  sovereignty.  The 
States  of  the  Union  have  agreed,  in  the  Constitution,  that  the  judicial 
power  of  the  United  States  shall  extend  to  all  cases  arising  under  the 
Constitution,  laws  and  treaties  of  the  United  States,  without  regard  to 
the  character  of  the  parties  (excluding,  of  course,  suits  against  a 
State  by  its  own  citizens  or  by  citizens  of  other  States,  or  by  citizens 
or  subjects  of  foreign  States),  and  equally  to  controversies  to  which 
the  United  States  shall  be  a  party,  without  regard  to  the  subject  of 
such  controversies,  and  that  this  court  may  exercise  original  juris- 
diction in  all  such  cases,  "  in  which  a  State  shall  be  party,"  without 
excluding  those  in  which  the  United  States  may  be  the  opposite  party. 
The  exercise,  therefore,  by  this  court,  of  such  original  jurisdiction  in 
a  suit  brought  by  one  State  against  another  to  determine  the  boundary 
line  between  them,  or  in  a  suit  brought  by  the  United  States  against  a 
State  to  determine  the  boundary  between  a  Territory  of  the  United 
States  and  that  State, -so  far  from  infringing,  in  either  case,  upon  the 
sovereignty,  is  with  the  consent  of  the  State  sued.  Such  consent  was 
given  b°  Texas  when  admitted  into  the  Union  upon  an  equaljboting 
in  all  respects  with  the  other  States"! 
""^TTe"  are  of  opinion   that   this   court  has  jurisdiction  to  determine 


CD 


316  TENNESSEE   V.    DAVIS.  [CHAP.  III. 

the   disputed   question   of  boundar}-  between   the  United  States  and 
Texas.  ... 

It  is  not  a  suit  siraph'  to  determine  the  legal  title  to,  and  the  owner- 
ship of,  the  lands  constituting  Greer  Count}-.  It  involves  the  larger 
question  of  governmental  authority  and  jurisdiction  over  that  territory. 
The  United  States,  in  effect,  asks  the  specific  execution  of  the  terms  of 
the  treaty  of  1819,  to  the  end  that  the  disorder  and  public  mischiefs 
that  will  ensue  from  a  continuance  of  the  present  condition  of  things 
may  be  prevented.  The  agreement,  embodied  in  the  treaty,  ^o  fix  the 
lincswith  precision,  and  to  place  landmarks  to  designate  the  limits  of 
the  two  cojilrnrting  nntiftn'^;  ^'^nld  not  well  be  enforced  by  an  actiotL_al 
law.  The  bill  and  amended  bill  make  a  case  for  the  interposition  of  a 
court  of  equity.  Demurrer  overruled. 

Mr.  Chief  Justice  Fuller,  with  whom  concurred  Mr.  Justice 
Lamar,  dissenting. 

Mr.  Justice  Lamar  and  myself  are  unable  to  concur  in  the  decision 
just  announced. 

This  court  has  original  jurisdiction  of  two  classes  of  cases  on!}',  those 
affecting  ambassadors,  other  public  ministers  and  consuls,  and  those  in 
which  a  State  shall  be  a  party. 

The  judicial  power  extends  to  "  controversies  between  two  or  more 
States;"  "between  a  State  and  citizens  of  another  State;"  and 
"  between  a  State  or  the  citizens  thereof,  and  foreign  States,  citizens 
or  subjects."  Our  original  jurisdiction,  which  depends  solel}'  upon  the 
character  of  the  parties,  is  confined  to  the  cases  enumerated,  Tn  which 
a  State  mav  be  a  ])arty.  and  this  is  not  onp  of  thptp. 

The  judicial  power  also  extends  to  controversies  to  which  the  United 
States  shall  be  a  party,  but  such  controversies  are  not  included  in  the 
grant  of  original  jurisdiction.  To  the  controversy  here  the  United 
States  is  a  part}'. 

We  are  of  opinion,  therefore,  that  this  case  is  not  within  the  original 
jurisdiction  of  the  court. 


THE  STATE  OF  TENNESSEE  v.  DAVIS. 

Supreme  Court  of  the  United  States.      1879. 

[100  U.  S.  257.] 

Certificate  of  division  in  opinion  between  the  judges  of  the  Circuit 
Court  of  the  United  States  for  the  Middle  District  of  Tennessee.  .  .  . 

The  record  having  been  returned,  in  compliance  with  the  writ,  a 
motion  was  made  to  remand  the  case  to  the  State  court ;  and,  on  the 
hearing  of  the  motion,  the  judges  were  divided  in  opinion  upon  the 
following  questions,  which  are  certified  here  :  — 


CHAP.  III.]  TENNESSEE  V.   DAVIS.  317 

(^^^ Whether  an  indictment  of  a  revenue  officer  (of  the  United 
States)  for  murder,  found  in  a  State  court,  under  the  facts  alleged  in 
the  petition  for  removal  in  this  case,  is  removable  to  the  Circuit  Court 
of  the  United  States,  under  sect.  643  of  the  Revised  Statutes. 

(gcoJi^Whether,  if  removable  from  the  State  court,  tliere  is  any 
mode  and  manner  of  procedure  in  the  trial  prescribed  by  the  Act  of 
Congress. 

^%£r^Whether,  if  not,  a  trial  of  the  guilt  or  innocence  of  the  de- 
fendant can  be  had  in  the  United  States  Circuit  Court. 

3L\  Benjamin  J.  Lea,  Attorney-General  of  Tennessee,  and  Mr. 
James  G.  Field,  for  the  plaintiff  in  error. 

Mr.  Attorney- General  Bevens  and  3Ir.  Assistaiii  Attorney- General 
Smith,  contra. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

The  first  of  the  questions  certified  is  one  of  great  importance,  bring- 
ing as  it  does  into  consideration  the  relation  of  the  general  government 
to  the  government  of  the  States,  and  bringing  also  into  view  not  merely 
the  construction  of  an  Act  of  Congress,  but  its  constitutionality.     That 
in  this  case  the  defendant's    petition    for  removal  of  the  cause   was 
in  the  form  prescribed  by  the  Act  of  Congress  admits  of  no  doubt.     It 
represented  that  he  had  been  indicted  for  murder  in  the  Circuit  Court 
of  Grundy  County,  and  that  the  indictment  and  criminal  prosecution 
were  still  pending.     It  represented  further,  that  no  murder  was  com- 
mitted, but  that,  on  the  other  hand,  the  killing  was  committed  in  the 
petitioner's  own  necessary  self-defence,  to  save  his  own  life ;  that  at 
the  time  when  the  alleged  act  for  which  he  was  indicted  was  committed 
he  was,  and  still  is,  an  officer  of  the  United  States,  to  wit,  a  deputy 
collector  of  internal  revenue,  and  that  the  act  for  which  he  was  indicted 
was  performed  in  his  own  necessary  self-defence  while  engaged  in  the 
discharge  of  his  duties  as  deputy  collector ;  that  he  was  acting  by  and 
under  tlie  authority  of  the  internal  revenue  laws  of  the  United  States  ; 
that  what  he  did  was  done  under  and  by  right  of  his  office,  to  wit,  as 
deputy  collector  of  internal  revenue  ;  that  it  was  his  duty  to  seize  illicit 
distilleries  and  the  apparatus  that  is  used  for  the  illicit  and  unlawful 
distillation  of  spirits;    and   that  while  so  attempting  to  enforce  the 
revenue  laws  of  the  United  States,  as  deputy  collector  as  aforesaid,  he 
was  assaulted  and  fired  upon  by  a  number  of  armed  men,  and  that  in 
defence  of  his  life  he  returned  the  fire.     The  petition  was  verified  by 
oath,  and  the  certificate  required  by  the  Act  of  Congress  to  be  given 
by  the  petitioner's  legal  counsel  was  appended  thereto.    There  is,  there- 
fore, no  room  for  reasonable  doubt  that  a  case  was  made  for  the  removal 
of  the  indictment  into  the  Circuit  Court  of  the  United  States,  if  sect. 
643  of  the  Revised  Statutes  embraces  criminal  prosecutions  in  a  State 
court,  and  makes  them  removable,  and  if  that  Act  of  Congress  was  not 
unauthorized  by  the  Constitution.     The  language  of  the  statute  (so  far 
as  it  is  necessary  at  present  to  refer  to  it)  is  as  follows  :  "  When^any 
civil  suit  or  criminal  prosecution  is  commenced  in  any  court  of  a,State 


318  TENNESSEE   V.    DAVIS.  [cilAP.  IIL 

against  any  officer  appointed  under,  or  acting  b}'  autliority  of,  an}' 
revenue  law  of  the  United  States,  now'orhereaftc'r  en acted^^^GFagamst 
-IH^  person  acting  by  or  under  authority  of^an^-  such  officeiyon  ng- 
count  of  any  act  done  under  color  of  his^  office,  or  of  any  audi 
]ayy,  or  on_accQimt-o£-au^L_iioLht^  title,  o^  authority  claimed  Jjysuiih 
f.ffln£iiiir  ot'^'^'-  pp'-son  und^r  any  gudi  lfiw_^^^j;hp^fngp  may  bej;emoved 
into  thejederfil  rinm-t.  Now,  certainly  the  petition  for  the  removal 
represented  that  the  act  for  which  the  defendant  was  indicted  was  done 
not  merely  under  color  of  his  office  as  a  revenue  collector,  or  under 
color  of  the  revenue  laws,  not  merely  while  he  was  engaged  in  perform- 
ing his  duties  as  a  revenue  officer,  but  that  it  was  done  under  and  b}- 
riglit  of  his  office,  and  while  he  was  resisted  by  an  armed  force  in  his 
attempts  to  discliarge  his  official  dut}'.  This  is  more  than  a  claim  of 
right  and  authority  under  the  law  of  the  United  States  for  the  act  for 
which  he  has  been  indicted.  It  is  a  positive  assertion  of  the  existence 
of  such  authority.  But  the  Act  of  Congress  authorizes  the  removal  of 
any  cause,  when  the  acts  of  the  defendant  complained  of  were  done,  or 
claimed  to  have  been  done,  in  the  discharge  of  his  duty  as  a  Federal 
officer.  It  malvcs  such  a  claim  a  basis  for  the  assumption  of  Federal 
jurisdiction  of  the  case,  and  for  retaining  it,  at  least  until  the  claim 
proves  unfounded. 

That  the  Act  of  Congress  docs  provide  for  the  removal  of  criminal 
prosecutions  for  offencps  .no-.ninst.  tho  St.nt.ft  laws,  when  thpvp.  nrisea  in 
them  the  claim  of  the  Federal  right  or  authority,  is  too  plain  to  admit 
of  denial  Such  is  its  positive  language,  and  it  is  not  to  be  argued 
away  by  presenting  the  supposed  incongruity  of  administering  State 
criminal  laws  by  other  courts  than  those  established  by  the  State.  It 
has  been  strenuously  urged  that  murder  within  a  State  is  not  made  a 
crime  by  any  Act  of  Congress,  and  that  it  is  an  offence  against  the 
peace  and  dignity  of  the  State  ^lone.  Hence  it  is  inferred  that  its 
trial  and  punishment  can  be  conducted  only  in  State  tribunals,  and  it 
is  argued  that  the  Act  of  Congress  cannot  mean  what  it  says,  but  that 
it  must  intend  onlj'  such  prosecutions  in  State  courts  as  are  for  offences 
against  the  United  States, —offences  against  the  revenue  laws.  But, 
there  can  be  no  criminal  prosecution  initiated  in  any  State  court  for 
that  which  is  merely  an  offence  against  the  general  government.  If, 
therefore,  the  gtnfntp  ^  |^  be  allowed  any  meaning,  when  it  speaks  of 
criminal  prosecutions  in  Stat.p  conrtSf  it  must  intend  those  that  are 
inaiKif^lfP(]  fov  i]}]|^a;pf^  violnt.inns  nf  StMt.e  laws,  in  which  defences  are  set 
up  or  claimed jin^^^''  TTnited  Ststps  laws  or  anthority- 

We  come,  then,  to  the  inquiry,  most  discussed  during  the  argument, 
whether  sect.  643  is  a  constitutional  exercise  of  the  power  vested  in 
Congress.  Has  the  Constitution  conferred  upon  Congress  the  poyg^ijQ 
authorize  the  removal  from  a  State  court  to  a  Federal  cou rt,  of_an  indjel; 
ment  against  a  revennn  officer  for  an  alleged  crime  against  the  State,  and, 
to  order  its  removal  bpfnro  tri.il,  wlipn  it  appears  that  a  Federal  question 
or  a  claim  to  a  Federal  right  is  raised  in  the  case,  and  must  be  decided 


CHAP.  III. J  TENNESSEE   V.   DAVIS.  319 

thereiflj'  A  more  important  question  can  hardi}'  be  imagined.  Upon 
its  answer  ma}'  depend  the  possibilit}-  of  the  general  government's 
preserving  its  own  existence.  As  was  said  in  Martin  v.  Hunter,  1 
Wheat.  363,  ''  The  general  government  must  cease  to  exist  whenever  it 
loses  the  power  of  protectingJteeiTln  the  exercise  of  its  constitutional 
powers."  It  cajuaetr-tTnTjT^hrough  its  officers  and  agents,  and  they 
iTuist  act  within  the^ates.  If,  when  thus  acting,  and  within  the  scope 
ofjUieixairthoritjijJhose  officers  can  be  arrested  and  brought  to  trial  in 
a  >State  court,  for  an  alleged  offence  again st_the_law  of  the  State,  yet 
warranted  by  the  Federarauthority  they  possess,  and  if  the,  general 
government  is  powerless  to  interfere  at  once  for  their  protection,  —  if 
their  protection  must  be'TeTFto  the~action  of  the  State  court. — the 
operations  of  the^nei'al_gQY6r"rnpnf.  m-Ax  .it  any  time  be  arrested  at 
the  will  of  one  of  its  members.  The  legislation  of  a  State  may  be  un- 
friendly. It  may  affix  penalties  to  acts  done  under  the  immediate  direc- 
tion of  the  national  government,  and  in  obedience  to  its  laws.  It  may 
deny  the  authority  conferred  by  tiiose  laws.  The  State  court  ma}'  ad- 
minister not  only  tlie  laws  of  the  State,  but  equall}'  Federal  law,  in 
such  a  manner  as  to  paralyze  the  operations  of  the  government.  And 
even  if,  after  trial  and  final  judgment  in  the  State  court,  the  case  can 
be  brought  into  the  United  States  Court  for  review,  the  officer  is  with- 
drawn from  the  discharge  of  his  dut}'  during  the  pendency  of  the  prose- 
cution, and  the  exercise  of  acknowledged  Federal  power  arrested. 

We  do  not  think  such  an  element  of  weakness  is  to  be  found  in  the 
Constitution.  The  United  States  is  a  government  with  authoritj'  ex- 
tending over  the  whole  territor}'  of  the  Union,  acting  upon  the  States 
and  upon  the  people  of  the  States.  While  it  is  limited  in  the  number 
of  its  powers,  so  far  as  its  sovereignty  extends  it  is  supreme.  No 
State  government  can  exclude  it  from  the  exercise  of  any  authority 
conferred  upon  it  b}'  the  Constitution,  obstruct  its  authorized  officers 
against  its  will,  or  withhold  from  it,  for  a  moment,  the  cognizance  of 
an}'  subject  whicli  that  instrument  has  committed  to  it. 

By  the  last  clause  of  the  eighth  section  of  the  first  article  of  the 
Constitution,  Congress  is  invested  with  power  to  make  all  laws  neces- 
sary and  proper  for  carrying  into  execution  not  only  all  the  powers 
previously  specified,  but  also  all  other  powers  vested  by  the  Constitu- 
tion in  the  government  of  the  United  States,  or  in  any  department 
or  officer  thereof.  Among  these  is  the  judicial  power  of  the  govern- 
ment. That  is  declared  by  the  second  section  of  tlie  third  article  to 
"  extend  to  all  cases  in  law  and  equity  arising  under  the  Constitution, 
the  laws  of  the  United  States,  and  treaties  made  or  which  shall  be  made 
under  their  authorit}',"  «fec.  This  provision  embraces  alike  civil  and 
criminal  cases  arising  under  the  Constitution  and  laws.  Cohens  v. 
Virginia,  6  Wheat.  264.  Both  are  equally  within  the  domain  of  the 
judicial  powers  of  the  United  States,  and  there  is  nothing  in  the  grant 
to  justif}'  an  assertion  that  whatever  power  ma}'  be  exerted  over  a 
civil  case  may  not    be  exerted  as  fully  over  a  criminal  one.     And  a_ 


320  TENNESSEE   V.   DAVIS.  [CHAP.  IIL 

nasft  arising  under  the  Constitution  and  laws  of  tUe  United  States  may 
qg  ^pll  nrig<>  in  g  '^'■'niiinl  jjrosecutjon  as  in  a  civil  suit.  What  consti- 
tutes a  case  thus  arising  was  earl}'  defined  in  the  case  cited  from  6 
Wheaton.  It  is  not  merel}-  one  where  a  part}'  comes  into  court  to  de- 
mand something  conferred  upon  him  by  the  Constitution  or  by  a  law  or 
treaty.  A  case  consists  of  the  right  of  one  party  as  well  as  the  other, 
and  may  trul\'  be  said  to  arise  under  the  Constitution  or  a  law  or  a 
treaty  of  the  United  States  whenever  its  correct  decision  depends  upon 
the  construction  of  either.  Cases  arising  under  the  laws  of  the  United 
States  are  such  as  grow  out  of  the  legislation  of  Congress,  whether 
the}'  constitute  the  right  or  privilege,  or  claim  or  protection,  or  defence 
of  the  party,  in  whole  or  in  part,  b}'  whom  the}'  are  asserted.  Story  on 
the  Constitution,  sect.  1647  ;  6  Wheat.  379.  It  was  said  in  Osborne  x. 
The  Banh  of  the  United  States,  9  Wheat.  738,  "When  a  question 
to  which  the  judicial  power  of  the  Union  is  extended  by  the  Constitu- 
tion forms  an  ingredient  of  the  original  cause,  it  is  in  the  power  of 
Congress  to  give  the  circuit  courts  jurisdiction  of  that  cause,  although 
other  questions  of  fact  or  of  law  may  be  involved  in  it."  And  a  case 
arises  under  the  laws  of  the_T"^nilfd  *<<^tifog  ^yh^n  it  "■•jeog  r.nf  a^  \\p. 
implication  of  the  law.  Mr.  Chief  Justice  Marshall  said,  in  the  case 
last  cited :  "  It  is  not  unusual  for  a  legislative  act  to  involve  conse- 
quences which  are  not  expressed.  An  officer,  for  example,  is  ordered 
to  arrest  an  individual.  It  is  not  necessary,  nor  is  it  usual,  to  say  that 
he  shall  not  be  punished  for  obeying  this  order.  His  security  is  implied 
in  the  order  itself.  It  is  no  unusual  thing  for  an  Act  of  Congress  to 
imply,  without  expressing,  this  very  exemption  from  State  control. 
.  .  .  The  collectors  of  the  revenue,  the  carriers  of  the  mail,  the 
mint  establishment,  and  all  those  institutions  which  are  public  in  their 
nature,  are  examples  in  point.  It  has  never  been  doubted  that  all  who 
are  employed  in  them  are  protected  while  in  the  line  of  their  duty  ;  and 
yet  this  protection  is  not  expressed  in  any  Act  of  Congress.  It  is  inci- 
dental to,  and  is  implied  in,  the  several  Acts  by  which  those  institutions 
are  created  ;  and  is  secured  to  the  individuals  employed  in  them  by  the 
judicial  power  alone  ;  that  is,  the  judicial  power  is  the  instrument  em- 
ployed by  the  government  in  administering  this  security." 

The  constitutional  right  of  Congress  to  authorize  the  removal  before 
trial  of  civil  cases  arising  under  the  laws  of  the  United  States  has  long 
since  passed  beyond  doubt.  It  was  exercised  almost  contemporaneously 
with  the  adoption  of  the  Constitution,  and  the  power  has  been  in  con- 
stant use  ever  since.  The  Judiciary  Act  of  Sept.  24,  1789,  was  passed 
by  the  first  Congress,  many  members  of  which  had  assisted  in  framing 
the  Constitution ;  and  though  some  doubts  were  soon  after  suggested 
whether  cases  could  be  removed  from  State  courts  before  trial,  those 
doubts  soon  disappeared.  Whether  removal  from  a  State  to  a  Federal 
court  is  an  exercise  of  appellate  jurisdiction,  as  laid  down  in  Story's 
Commentaries  on  the  Constitution,  sect.  1745,  or  an  indirect  mode  of 
exercising  original  jurisdiction,  as  intimated  in  Raihcay  Company  v. 


CHAP.  III.]  TENNESSEE  V.   DAVIS,  321 

Whitton^  13  Wall.  270,  we  need  not  now  inquire.  Be  it  one  or  the 
other,  it  was  ruled  in  the  case  last  cited  to  be  constitutional.  But  if 
there  is  power  in  Congress  to  direct  a  removal  before  trial  of  a  civil 
case  arising  under  the  Constitution  or  laws  of  the  United  States,  and 
direct  its  reuioval  because  such  a  case  has  arisen,  it  is  impossible  to 
see  why  the  same  power  ma}'  not  order  the  removal  of  a  criminal  prose- 
cution, when  a  similar  case  has  arisen  in  it.  The  judicial  power  is 
declared  to  extend  to  all  cases  of  the  character  described,  making  no 
distinction  between  civil  and  criminal,  and  the  reasons  for  conferring 
upon  the  courts  of  the  national  government  superior  jurisdiction  over 
cases  involving  authority-  and  rights  under  the  laws  of  the  United  States 
are  equally  applicable  to  both.  As  we  have  already  said,  such  a  juris- 
diction is  necessary  for  the  preservation  of  the  acknowledged  ^iowers 
of  the  government.  It  is  essential,  also,  to  a  uniform  and  consistent 
administration  of  national  laws.  It  is  required  for  the  preservation  of 
that  supremac}'  which  the  Constitution  gives  to  the  general  government 
by  declaring  that  the  Constitution  and  laws  of  the  United  States  made 
in  pursuance  thereof,  and  the  treaties  made  or  whicli  shall  be  made 
under  the  authorit}-  of  the  United  States,  shall  be  the  supreme  laws  of 
the  land,  and  the  judges  in  ever}'  State  shall  be  bound  thereby,  any- 
thing in  the  Constitution  or  laws  of  any  State  to  the  contrary  notwith- 
standing." The  founders  of  the  Constitution  could  never  have  intended 
to  leave  to  the  possibly  varying  decisions  of  the  State  courts  what  the 
laws  of  the  government  it  established  are,  what  rights  they  confer,  and 
what  protection  shall  be  extended  to  those  who  execute  them.  If  they 
did,  where  is  the  supremacy  over  those  questions  vested  in  the  govern- 
ment by  the  Constitution?  If^henever  and  wherever  a  case  arises 
under  the  Constitution  and  l.nws  o^-  freafips  of  «^i'o  ^Tnifo^]  j^|r^^no^jjho 
national  government  cannot  take  control  of  it^  wliether  it  be  civil  or 
criminal,  in  anv  stage  of  its  protrress.  its  judicial  power  is.  at  least. 
temporarily  silenced,  instead  of  bpintrgt  all  times  supreme.  In  criminal 
as  well  as  in  civil  proceedings  in  State  courts,  cases  under  the  Consti- 
tution and  laws  of  the  United  States  might  have  been  expected  to  arise, 
as,  in  fact,  they  do.  Indeed,  the  powers  of  the  general  government 
and  the  lawfulness  of  authority  exercised  or  claimed  under  it,  are  quite 
as  frequently  in  question  in  criminal  cases  in  State  courts  as  they  are 
in  civil  cases,  in  proportion  to  their  number. 

The  argument  so  much  pressed  upon  us,  that  it  is  an  invasion  of  the 
sovereignty  of  a  State  to  withdraw  from  its  courts  into  the  courts  of 
the  general  government  the  trial  of  prosecutions  for  alleged  offences 
against  the  criminal  laws  of  a  State,  even  though  the  defence  presents 
a  case  arising  out  of  an  Act  of  Congress,  ignores  entirely  the  dual 
character  of  our  government.  It  assumes  that  the  States  are  com- 
pletely and  in  all  respects  sovereign.  But  when  the  national  govern- 
ment was  formed,  some  of  the  attributes  of  State  sovereignty  were 
partially,  and  others  wholly,  surrendered  and  vested  in  the  United 
States.  Over  the  subjects  thus  surrendered  the  sovereignty  of  the 
VOL.  I. — 21 


322  TENNESSEE   V.   DAVIS.  [CHAP.  IIL 

States  ceased  to  extend.  Before  the  adoption  of  the  Constitution,  each 
•State  had  comi)lete  and  exchisive  authority  to  administer  by  its  courts 
all  the  law,  civil  and  criminal,  which  existed  within  its  borders.  Its 
judicial  power  extended  over  every  legal  question  that  could  arise.  But 
when  the  Constitution  was  adopted,  a  portion  of  that  judicial  power 
became  vested  in  the  new  government  created,  and  so  far  as  thus  vested 
it  was  withdrawn  from  the  sovereignty  of  the  State.  Now  the  execu- 
tion and  enforcement  of  the  laws  of  the  United  States,  and  the  judicial 
determination  of  questions  arising  under  them,  are  confided  to  another 
sovereign,  and  to  that  extent  tlie  sovereignty  of  the  State  is  restricted. 
The  removal  of  cases  arising  under  those  laws,  from  State  into  Federal 
courts,  is,  therefore,  no  invasion  of  State  domain.  On  the  contrary,  a^ 
denial  of  the  right  of  the  general  government  to  remove  tlicm,  to  take 
charge  of  and  try  any  c.ms^  .arising  niuhM-the  Constitution  or  laws  of  the 
United  States,  is  a  denial  of  the  conceded  sovereignty  of  that  govern- 
ment over  a  subject  expressly  committed  to  it. 

It  is  true,  the  Act  of  1780  authorized  the  removal  of  civil  cases  onl}-. 
It  did  not  attempt  to  confer  upon  the  Federal  courts  all  the  judicial 
power  vested  in  the  government.  Additional  grants  have  from  time  to 
time  been  made.  Congress  has  authorized  more  and  more  full}',  as 
occasion  has  required,  the  removal  of  civil  cases  from  State  courts  into 
the  circuit  courts  of  the  United  States,  and  the  constitutionality  of  such 
authorization  has  met  with  general  acquiescence.  It  has  been  sustained 
by  the  decisions  of  this  court. 

Nor  has  the  removal  of  civil  cases  alone  been  authorized.  On  the 
4th  of  February,  1815,  an  Act  was  passed  (3  Stat.  198)  providing  that 
if  any  suit  or  prosecution  should  be  commenced  in  an}-  State  court 
against  any  collector,  naval  officer,  surveyor,  inspector,  or  any  other 
officer,  civil  or  military,  or  an}'  other  person  aiding  or  assisting,  agree- 
ably to  the  provisions  of  the  Act,  or  under  color  thereof,  for  an}*  act 
done  or  omitted  to  be  done  as  an  officer  of  the  customs,  or  for  anything 
done  b}'  virtue  of  the  Act  or  under  color  tliereof,  it  might  be  removed 
before  trial  into  the  Circuit  Court  of  the  United  States,  provided  the 
Act  should  not  appl}'  to  an}-  offences  involving  corporal  punishment. 
This  Act  expressly  applied  to  a  criminal  action  or  prosecution.  It  was 
intended  to  be  of  short  duration,  but  it  was  extended  by  the  Act  of 
March  3,  1815  (3  Stat.  p.  233,  sect.  6),  and  re-enacted  in  1817  for  a 
period  of  four  years. 

So,  in  1833,  by  the  Act  of  March  2  (4  lb.  c.  57,  sect.  3),  it  was 
enacted  that  in  any  case  where  suit  or  prosecution  should  be  com- 
menced in  a  State  court  of  an}'  State,  against  any  officer  of  the  United 
States,  or  other  person,  for  or  on  account  of  any  act  done  under  the 
revenue  laws  of  the  United  States,  or  under  color  thereof,  or  for  or  on 
account  of  any  right,  authority,  or  title  set  up  or  claimed  by  such 
officer,  or  other  person,  under  any  such  law  of  the  United  States,  the 
suit  or  prosecution  might  be  removed,  before  trial,  into  the  Federal 
Circuit  Court  of  the  proper  district.     The  history  of  this  Act  is  well 


CHAP.  III.]  TENNESSEE   V.    DAVIS.  323 

known.  It  was  passed  in  consequence  of  an  attempt  b}'  one  of  the 
States  of  the  Union  to  make  penal  the  collection  by  United  States  offi- 
cers within  the  State  of  duties  under  the  tariff  laws.  It  was  recom- 
mended by  President  Jackson  in  a  special  message,  and  passed  in  the 
Senate  b}*  a  vote  of  32  to  1,  and  in  the  House  by  a  majority  of  92.  It 
undoubtedly  embraced  both  civil  and  criminal  cases.  It  was  so  under- 
stood and  intended  when  it  was  passed.  The  chairman  of  the  Judiciary 
Committee  which  introduced  the  bill  said :  "  It  gives  the  right  to  re- 
move at  any  time  before  trial,  but  not  after  judgment  has  been  given, 
and  thus  affects  in  no  way  the  dignity  of  the  State  tribunals.  Whether 
in  criminal  or  civil  cases,  it  gives  this  right  of  removal.  Has  Con- 
gress power  in  criminal  cases?  He  would  answer  the  question  in  the 
affirmative.  Congress  had  the  power  to  give  the  right  in  criminal  as 
well  as  in  civil  cases,  because  the  second  section  of  the  third  article  of 
the  Constitution  speaks  of  all  cases  in  law  and  equity,  and  these  com- 
prehensive terms  cover  all.  ...  It  was  more  necessar}'  that  this  juris- 
diction should  be  extended  over  criminal  than  over  civil  cases.  If  it 
were  not  admitted  that  the  Federal  judiciary  had  jurisdiction  of  criminal 
cases,  then  was  nullification  ratified  and  sealed  forever;  for  a  State 
would  have  nothing  more  to  do  than  to  declare  an  act  a  felony  or  mis- 
demeanor, to  nullify  all  the  laws  of  the  Union." 

The  provisions  of  the  Act  of  July  13,  18G6  (14  Stat.  171,  sect.  67), 
relative  to  the  removal  of  suits  or  prosecutions  in  State  courts  against 
internal  revenue  officers,  provisions  re-enacted  in  sect.  643  of  the  Re- 
vised Statutes,  are  almost  identical  with  those  of  the  Act  of  1833,  the 
only  noticeable  difference  being,  that  in  the  latter  Act  the  adjective 
"  criminal  "  is  inserted  before  the  word  "  prosecution."  This  made  no 
change  in  the  meaning.  The  well-understood  legal  signification  of  the 
word  ''prosecution"  is  a  criminal  proceeding  at  the  suit  of  the  govern- 
ment. Thus  it  appears  that  all  along  our  history  the  legislative  under- 
standing of  the  Constitution  has  been  that  it  authorizes  the  removal 
from  State  courts  to  the  circuit  courts  of  the  United  States,  alike  civil 
and  criminal  cases,  arising  under  the  laws,  the  Constitution,  or  treaties. 

The  subject  has  more  than  once  been  before  this  court,  and  it  has 
been  fully  considered.  In  Martin  v.  Hunter,  1  Wheat.  304.  it  was 
admitted  in  argument  by  Messrs.  Tucker  and  Dexter  that  there  might 
be  a  removal  before  judgment,  though  it  was  contended  there  could  not 
be  after ;  but  the  contention  was  overruled,  and  it  was  declared  that 
Congress  might  authorize  a  removal  either  before  or  after  judgment ; 
that  the  time,  the  process,  and  the  manner  must  be  subject  to  its  abso- 
lute legislative  control.  In  that  case,  also,  it  was  said  that  the  remedy 
of  the  removal  of  suits  would  be  utterly  inadequate  to  the  purposes  of 
the  Constitution,  if  it  could  act  only  upon  the  parties,  and  not  upon  the 
State  courts.  Judge  Story,  who  delivered  the  opinion,  adding :  "  In 
respect  to  criminal  prosecutions,  the  difficulty  seems  admitted  to  be 
insurmountable,  and,  in  respect  to  civil  suits,  there  would  in  many 
cMscs  be  rights  without  corresponding  remedies.  ...  In  respect  to 
criminal  prosecutions  there  would  at  once  be  an  end  of  all  control,  and 


324  TENNESSEE  V.   DAVIS.  [CTIAP.  IIL 

the  State  decisions  would  be  paramount  to  the  Constitution."  The  ex- 
pression that  the  difficult}'  in  the  way  of  the  removal  of  criminal  prose- 
cutions seems  admitted  to  be  insurmountable  has  been  laid  hold  of  here, 
in  argument,  as  a  declaration  of  the  court  that  criminal  prosecutions 
cannot  be  removed.  It  is  a  ver}-  shortsighted  and  unwarranted  infer- 
ence. What  the  court  said  was,  that  the  remedy  in  such  cases  seems 
to  be  insurmountable,  if  it  could  not  act  upon  State  courts  as  well  as 
parties ;  and  it  was  ruled  that  it  does  thus  act.  The  expression  must 
be  read  in  its  connection.  In  Martin  v.  Hunter  the  removal  was  by 
writ  of  error  after  final  judgment  in  the  State  court ;  which  certainly 
seems  more  an  invasion  of  State  jurisdiction  than  a  removal  before 
trial.  The  case  was  followed  by  Cohens  v.  Virginia,  6  lb.  264,  a  crimi- 
nal case,  in  which  the  defendant  set  up  against  a  criminal  prosecution 
an  authority  under  an  Act  of  Congress.  There  it  was  decided  that 
cases  might  be  removed  in  which  a  State  was  a  party.  This  also  was 
a  writ  of  error  after  a  final  judgment ;  but  it,  as  well  as  the  former  case, 
recognized  the  right  of  Congress  to  authorize  removals  either  before  or 
after  trial,  and  neither  case  made  an}'  distinction  between  civil  and 
criminal  proceedings. 

In  llie  Mayor  v.  Cooj)e)\  6  Wall.  247,  the  validity  of  the  removal 
Acts  of  1863,  March  3,  sect.  5  of  c.  81  (12  Stat.  756),  and  its  amend- 
ment of  May  11,  1866  (14  id.  1866),  which  embraced  not  only  civil 
cases  but  criminal  prosecutions,  and  authorized  their  removal  before 
trial,  came  under  consideration,  and  it  was  sustained.  This  court  then 
said  :  The  constitutional  power  is  given  in  general  terms.  "No  limita- 
tion is  imposed.  The  broadest  language  is  used.  'All  cases'  so 
arising  are  embraced.  How  jurisdiction  shall  be  acquired  by  the  in- 
ferior court"  (of  the  United  States),  "  whether  it  shall  be  original  or 
appellate,  or  original  in  part  and  appellate  in  part,  and  the  manner  of 
procedure  in  its  exercise  after  it  has  been  acquired,  is  not  prescribed. 
This  Constitution  is  silent  upon  these  subjects.  They  are  remitted 
witliont  check  or  limitation  to  the  wisdom  of  the  legislature."  "  Juris- 
diction, original  or  appellate,  alike  comprehensive  in  either  case,  may 
be  given.  The  constitutional  boundary  line  of  both  is  the  same.  Every 
variety  and  form  of  appellate  jurisdiction  within  the  sphere  of  the  power, 
extending  as  well  to  the  courts  of  the  States  as  to  those  of  the  nation, 
is  permitted.  There  is  no  distinction  in  this  respect  between  civil  and 
criminal  cases.  Both  are  within  its  scope.  Nor  is  it  any  objection 
that  questions  are  involved  which  are  not  at  all  of  a  Federal  character. 
If  one  of  the  latter  exist,  if  there  be  a  single  such  ingredient  in  the  mass, 
it  is  sufficient."  The  court  added:  "We  entertain  no  doubt  of  the 
constitutionality  of  the  jurisdiction  given  by  the  Act  under  which  this 
case  has  arisen."  See  also  Com.  v.  Ashmun,  3  Grant  Cas.  436 ; 
77>.  416-418;  State  v.  Hoskins,  11  N.  C.  530,  decided  in  1877,  where 
the  constitutionality  of  sect.  643  of  the  Revised  Statutes  was  affirmed 
after  a  full  and  instructive  discussion. 

It  ought,  therefore,  to  beconsidered  as  settled  thnt  thp  ('nngtitnfir>ng1 
powers  of  Congress  to  anthori/e  the  removnl   of  crimin.ql   f>fl.sps  for 


CHAP.  III.1  TENNESSEE   V.   DAVIS.  32o 

allesred  offences  againsti?t,ate  laws  from  State^couij^tojbe  ch-cujt 
c^ts  of  the  ul^jSTst^'H,  vdi£ELiMre_aiises,,a^,edei:al_question  m.  (1) 
thcmAzagjmyl^^^^  P'^wcr  to  authorize  the  removal  of  ^a  civa  case. 
JVI^i^^^^fthTcSes  referred  to,  and  others,  set  out  with  great  force  the 
indispensabiUty  of  such  a  power  to  the  enforcement  of  Federal  law. 

It  follows  that  the  first  question  certified  to  us  from  the  Circuit  Court 
of  Tennessee  must  be  answered  in  the  affirmative. 

The  second  question  is,  -  Whether,  if  the  case  be  removable  from 
the  State  court,  there  is  any  mode  and  manner  of  procedure  in  the  trial 
prescribed  by  the  Act  of  Congress." 

\\^ietheiiiherejs_^^  ^^ 

thp'r-nso.  is  remov^bk4  amfthis  question  can  hardly  have  arisen  on  the 
^tion  to  remand  the  ^se.   The  imaginary  difficulties  and  incongruities 
supposed  to  be  in  the  w.^  of  trying  in  the  Circuit  Court  an  indictment 
for  an  alleged  offence  agiO^ist  the  peace  and  dignity  of  a  State,  if  they 
were  real,  would  be  for  tli\  consideration  of  Congress.     But  they  are 
unreal.     While  it  is  true  thete  is  neither  in  sect.  643,  nor  in  the  Act  of 
which  it  is  a  re-enactment,  anX^ode  of  procedure  in  the  trial  of  a  re- 
moved case  prescribed,  except  thVt  it  is  ordered  the  cause  when  removed 
shall  proceed  as  a  cause  originally  commenced  in  that  court,  yet  the 
mode  of  trial  is  sufficiently  obvious.\  The  circuit, courts  of._the_United 
fttoto^  i.f^vp  nil  the  appliances  wliieh  are  needed  for  the  ti;ial  of  any 
criminal  case^  They  adopt  and  ai)ply  the  laws  of  the  State  in  civil 
cases,  and  there  is  no  more  ditficulty  in  administering  the  State's  crimi- 
nal law.     They  are  not  foreign   courts.     Tlie  Constitution  has  made 
them  courts  within  the  States  to  administer  the  laws  of  the  States  in 
certain  cases  ;  and,  so  long  as  they  keep  within  the  jurisdiction  assigned 
to  them,  their  general  powers  are  adequate  to  the  trial  of  any  case. 
The  supposed  anomaly  of  prosecuting  offenders  against  the  peace  and 
dignity  of  a  State,  in  tribunals  of  the  general  government,  grows  en- 
tirely out  of  the  division  of  powers  between  that  government  and  the 
government  of  a  State  ;  that  is,  a  division  of  sovereignty  over  certain 
matters.     When  this  is  understood  (and  it  is  time  it  should  be),  it  will 
not  appear  strange  that,  even  in  cases  of  criminal  prosecutions  for 
alleged  offences  against  a  State,  in  which  arises  a  defence  under  United 
Stages  law,  the  general  government  should  take  cognizance  of  the  case 
and  try  it  in  its  own  courts,  according  to  its  own  forms  of  proceeding. 

l^lie  third  question  certified  has  been_siifli(;iently  ajxaw-fircdin  what^(2) 
we  liave_said    respecting  the   SPfond-     It   must   be  answered^ULJLhe 
affirmative. 

The  first  question  will  be  answered  in  the  affirmative,  and  the  second 

is  answered  as  in  the  opinion. 

[The  dissenting  opinion  of  Mr.  Justice  Clifford,  with  whom  Mr. 
Justice  Field  concurred,  is  omitted.]  ^ 

1  Compare  U  S.  v.  Reese,  92  U.  S.  214;  Strauder  v.  West  Virginia,  100  U.  S.303; 
Virginia  v.  Reeves,  lb.  313.  —  Ed. 


326  EX  PARTE   SIEBOLD.  [CHAP.  UL 


Ex  Parte  SIEBOLD. 
Supreme  Court  of  the  United  States.     1879. 

[100  U.  S.  371.] 

Petition  for  writ  of  habeas  corpus. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Bradley  T.  Johnson,  for  the  petitioners. 

The  Attorney-  General,  contra. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  petitioners  in  this  case,  Albert  Siebold,  Walter  Tucker,  Martin 
C.  Burns,  Lewis  Coleman,  and  Henry  Bowers,  were  judges  of  election 
at  different  voting  precincts  in  the  city  of  Baltimore,  at  the  election 
held  in  that  city,  and  in  the  State  of  Maryland,  on  the  fifth  day  of 
November,  1878,  at  which  representatives  to  the  Forty-sixth  Congress 
were  voted  for. 

At  the  November  Term  of  the  Circuit  Court  of  the  United  States  for 
the  District  of  Maryland,  an  indictment  against  each  of  the  petitioners 
was  found  in  said  court,  for  offences  alleged  to  have  been  committed 
by  them  respectively  at  their  respective  precincts  whilst  being  such 
judges  of  election  ;  upon  which  indictments  they  were  severally  tried, 
convicted,  and  sentenced  by  said  court  to  fine  and  imprisonment. 
They  now  apply  to  this  court  for  a  writ  of  habeas  corpus  to  be  relieved 
from  imprisonment.   .    .  . 

These  indictments  were  framed  partly  under  sect.  .OS  15  and  partly 
under  sect.  5522  of  the  Revised  Statutes  of  the  United  States ;  and 
the  principal  questions  raised  by  the  application  are,  whether  those  sec- 
tions, and  certain  sections  of  the  title  of  the  Revised  Statutes  relating 
to  the  elective  franchise,  which  they  are  intended  to  enforce,  are  within 
the  constitutional  power  of  Congress  to  enact.  If  they  are  not,  then 
it  is  contended  that  the  Circuit  Court  has  no  jurisdiction  of  the  cases, 
and  that  the  convictions  and  sentences  of  imprisonment  of  the  several 
petitioners  were  illegal  and  void.   .   .  . 

The  State  may  make  regulations  on  the  subject ;  Congress  may 
make  regulations  on  the  same  subject,  or  may  alter  or  add  to  those 
already  made.  The  paramount  character  of  those  made  by  Congress 
has  the  effect  to  supersede  those  made  by  the  State,  so  far  as  the  two 
are  inconsistent,  and  no  farther.  There  is  no  such  conflict  between 
them  as  to  prevent  their  forming  a  harmonious  system  perfectly  cap- 
able of  being  administered  and  carried  out  as  such. 

As  to  the  supposed  conflict  that  may  arise  between  the  officers 
appointed  by  the  State  and  national  governments  for  superintending 
the  election,  no  more  insuperable  difficulty  need  arise  than  in  the  appli- 
cation of  the  regulations  adopted  by  each  respectively.  The  regu- 
lations of  Congress  being  constitutionally  paramount,  the  duties 
imposed  thereby  upon  the  officers  of  the  United  States,  so  far  as  they 


CHAP.  III.]  EX   PARTE   SIEBOLD.  327 

have  respect  to  the  same  matters,  must  necessarily  be  paramount  to 
tliose  to  be  performed  by  the  officers  of  the  State.  If  both  cannot  be 
performed,  the  hitter  are  irro  tanto  superseded  and  cease  to  be  duties. 
If  the  power  of  Congress  over  the  subject  is  supervisory  and  para- 
mount, as  we  have  seen  it  to  be,  and  if  officers  or  agents  are  created 
for  carrying  out  its  regulations,  it  follows  as  a  necessary  consequence 
that  such  officers  and  agents  must  have  the  requisite  authority  to  act 
without  obstruction  or  interference  from  the  officers  of  the  State.  No 
greater  subordination,  in  kind  or  degree,  exists  in  this  case  than  in 
any  other.  It  exists  to  the  same  extent  between  the  different  officers 
appointed  by  the  State,  when  the  State  alone  regulates  the  election. 
One  officer  cannot  interfere  with  the  duties  of  another,  or  obstruct  or 
hinder  him  in  the  performance  of  them.  Where  there  is  a  disposition 
to  act  harmoniously,  there  is  no  danger  of  disturbance  between  those 
who  have  different  duties  to  perform.  When  the  rightful  authority  of 
the  general  government  is  once  conceded  and  acquiesced  in,  the  appre- 
hended difiiculties  will  disappear.  Let  a  spirit  of  national  as  well  as 
local  patriotism  once  prevail,  let  unfounded  jealousies  cease,  and  we 
shall  hear  no  more  about  the  impossibility  of  harmonious  action  be- 
tween the  national  and  State  governments  in  a  matter  in  which  they 
have  a  mutual  interest. 

As  to  the  supposed  incompatibility  of  independent  sanctions  and 
punishments  imposed  by  the  two  governments,  for  the  enforcement  of 
the  duties  required  of  the  officers  of  election,  and  for  their  protection 
in  the  performance  of  those  duties,  the  same  considerations  apply. 
While  the  State  will  retain  the  power  of  enforcing  such  of  its  own 
regulations  as  are  not  superseded  by  those  adopted  by  CoiigressTlt 
cannot  be  disputed  that  if  Congress  has  power  to  make  regulations  it 
must  have_the  power  to  enforce  them,  not  only  by  ))unishin2: ihe  de- 
linquency  of  officers  appointed  by  the  United  States,  but  by  restraiu; 
jng  and  punishing  those  who  attempt  to  interfere  with  them  in  the 
performance  of  their  duties  ;  and  if,  as  we  have  shown,  Congress  may 
revise  existing  regulations,  au^i,^dd  to  or  alter  the  same  as  far  as  it 
deems  expedient,  there  can  be  a>4ittle  question  that  it  may  impose 
additional  penalties  for  the  preventiobs^f  frauds  committed  by  the 
State  officers  in  the  elections,  or  for  their  vibljjtion  of  any  duty  relating 
thereto,  whether  arising  from  the  common  law  cH:^rom  any  other  law, 
State  or  national.  Why  not?  Penalties  for  fraihsl  and  delinquency 
are  part  of  the  regulations  belonging  to  the  subject.  ^^  Congress,  by 
its  powerto^  make  or  ^^^f^'  ^^^^  rPt>ii1nfinng^  hnc  o   rrpnernl   supervisory 

powder  OVPV  t,hf>  wimlp  Rul^jpot,  whnt.  i«  t.horp  tr>  pvpoljirlp  if.  fi-nm  impnSg 
ing  additional  sanctions  and  ppnnltipis  t^  proypnf,  pjufh  frn^d  a^d 
delinquency? 

It  is  objected  that  Congress  has  no  power  to  enforce  State  laws  or 
to  punish  State  officers,  and  especially  has  no  power  to  punish  them 
for  violating  the  laws  of  their  own  State.  As  a  general  proposition, 
this  is  undoubtedly  true  ;  but  when,  in  the  performance  of  their  func- 


328  EX   PARTE   SIEBOLD.  [CHAP.  HI. 

tions,  State  officers  are  called  upon  to  fulfil  duties  which  they  owe  to 
the  United  States  as  well  as  to  the  State,  has  the  former  no  means  of 
compelling  such  fulfilment?  Yet  that  is  the  case  here.  It  is  the  duty 
of  the  States  to  elect  representatives  to  Congress.  The  due  and  fair 
election  of  these  representatives  is  of  vital  importance  to  the  United 
States.  The  government  of  the  United  States  is  no  less  concerned  in 
the  transaction  than  the  State  government  is.  It  certainly  is  not 
bound  to  stand  by  as  a  passive  spectator,  when  duties  are  violated  and 
outrageous  frauds  are  committed.  It  is  directly  interested  in  the 
faithful  performance,  by  the  officers  of  election,  of  their  respective 
duties.  Those  duties  are  owed  as  well  to  the  United  States  as  to  the 
State.  This  necessarily  follows  from  the  mixed  character  of  the 
transaction,  State  and  national.  A  violation  of  duty  is  an  offence 
against  the  United  States,  for  which  the  offender  is  justly  amenable  to 
that  government.  No  official  position  can  shelter  him  from  this  re- 
sponsibility. In  view  of  the  fact  that  Congress  has  jjlenary  and  para-_ 
mount  jujnsdiction  nv^i-  tlip  whofp  snbjppt,  if,  sfpms  f^bTmst^^  absurd^ to 
say  that  an  officer  who  receives  or  has  custody  of  the  baHotS-^y^n. 
for  a  representative  owes  no  duty  to  the  national  government  which 
Congress  can  enforce :  or  that  an  officer  who  stuffs  the  baIIot4)ox 
cannot  be  made  amenable  to  the  United  States.  If  Congress  has  not, 
prior  to  the  passage  of  the  present  laws,  imposed  any  penalties  to 
prevent  and  punish  frauds  and  violations  of  duty  committed  by  officers 
of  election,  it  has  been  because  the  exigency  has  not  been  deemed 
sufficient  to  require  it,  and  not  because  Congress  had  not  the  requisite 
power. 

The  objection  that  the  laws  and  regulations,  the  violation  of  which 
is  made  punishable  by  the  Acts  of  Congress,  are  State  laws,  and  have 
not  been  adopted  by  Congress,  is  no  sufficient  answer  to  the  power  of 
Congress  to  impose  punishment.  It  is  true  that  Congress  has  not 
deemed  it  necessary  to  interfere  with  the  duties  of  the  ordinary  officers 
of  election,  but  has  been  content  to  leave  them  as  prescribed  by  State 
laws.  It  has  only  created  additional  sanctions  for  their  performance, 
and  provided  means  of  supervision  in  order  more  effectually  to  secure 
such  performance.  The  imposition  of  punishment  implies  a  prohibition 
of  the  act  punished.  The  State  laws  which  Congress  sees  no  occasion 
to  alter,  but  which  it~'atk>wa....to  stand,  are  in  effect  adopted  by  Con- 
gress. It  simply  demands  tbeir"Tirtfilment^___Cont.ent  to  leave  the  laws 
as  they  are^  it  is  not,  ponfpnt,  with  t.hp  mpnns  provided  for  their  en; 
ff^rppnipnt-  It  provides  additional  means  for  that  purpose ;  and  we 
think  it  is  entirely  within  its  constitutional  power  to  do  so.  It  is 
simply  the  exercise  of  the  power  to  make  additional  regulations. 

That  the  duties  devolved  on  the  officers  of  election  are  duties  which 
they  owe  to  the  United  States  as  well  as  to  the  State,  is  further  evinced 
by  the  fact  that  they  have  always  been  so  regarded  by  the  House  of 
Representatives  itself.  In  most  cases  of  contested  elections,  the  con- 
duct of  these  officers  is  examined  and  scrutinized  by  that  body  as  a 


CHAP.  III.]  EX    PARTE   SIEBOLD.  329 

matter  of  right ;  and  their  failure  to  perform  their  duties  is  often  made 
the  ground  of  decision.  Their  conduct  is  justly  regarded  as  subject 
to  the  fullest  exposure  ;  and  the  right  to  examine  them  personally,  and 
to  inspect  all  their  proceedings  and  papers,  has  always  been  main- 
tained. This  could  not  be  done,  if  the  officers  were  amenable  only  to 
the  supervision  of  the  State  government  which  appointed  them. 

Another  objection  made  is,  that,  if  Congress  can  impose  penalties 
for  violation  of  State  laws,  the  officer  will  be  made  liable  to  double 
punishment  for  delinquency,  — at  the  suit  of  the  State,  and  at  the  suit 
of  the  United  States.  But  the  answer  to  this  is,  that  each  govern- 
ment punishes  for  violation  of  duty  to  itself  only.  Whsx£  a  person 
'owes  a  duty  to  two  sovereigns,  he  is  ameuabl£_to,botli  Jbi  lta-4)er-. 
formance:  and  eitlaer  may  call  him_io__accok'"t-  Whether  punish- 
ment inflicted  by  one  can  be  pleaded  in  bar  to  a  charge  by  the  other 
for  the  same  identical  act,  need  not  now  be  decided  ;  although  consid- 
erable discussion  bearing  upon  the  subject  has  taken  place  in  this 
court,  tending  to  the  conclusion  that  such  a  plea  cannot  be  sustained. 

In  reference  to  a  conviction  under  a  State  law  for  passing  counter- 
feit coin,  which  was  sought  to  be  reversed  on  the  ground  that  Congress 
had  jurisdiction  over  that  subject,  and  might  inflict  punishment  for  the 
same  offence,  Mr.  Justice  Daniel,  speaking  for  the  court,  said  :  "  It  is 
almost  certain  that,  in  the  benignant  spirit  in  which  the  institutions 
both  of  the  State  and  Federal  systems  are  administered,  an  offender 
who  should  have  suffered  the  penalties  denounced  by  the  one  would  not 
be  subjected  a  second  time  to  punishment  by  the  other  for  acts  essen- 
tially the  same,  —  unless,  indeed,  this  might  occur  in  instances  of  pecu- 
liar enormity,  or  where  the  public  safety  demanded  extraordinary  rigor. 
But,  were  a  contrary  course  of  policy  or  action  either  probable  or 
usual,  this  would  by  no  means  justify  the  conclusion  that  offences  fall- 
ing within  the  competency  of  different  authorities  to  restrain  or  punish 
them  would  not  properly  be  subjected  to  the  consequences  which  those 
authorities  might  ordain  and  affix  to  their  perpetration."  Fox  v.  The 
State  of  Ohio,  5  How.  410.  The  same  judge,  delivering  the  opinion  of 
the  court  in  the  case  of  United  States  v.  Marigold  (9  How.  569)  where 
a  conviction  was  had  under  an  Act  of  Congress  for  bringing  counter- 
feit coin  into  the  country,  said,  in  reference  to  Fox's  Case  :  "  With 
the  view  of  avoiding  conflict  between  the  State  and  Federal  juris- 
dictions, this  court,  in  the  case  of  Fox  v.  State  of  Ohio,  have  taken 
care  to  point  out  that  the  same  act  might,  as  to  its  character  and  ten- 
dencies, and  the  consequences  it  involved,  constitute  an  offence  against 
both  the  State  and  Federal  governments,  and  might  draw  to  its  com- 
mission the  penalties  denounced  by  either,  as  appropriate  to  its  char- 
acter in  reference  to  each.  We  hold  this  distinction  sound  ;  "  and  the 
conviction  was  sustained.  The  subject  came  up  again  for  discussion 
in  the  case  of  Moore  v.  State  of  Illinois  (14  lb.  13) ,  in  which  the  plain- 
tiff in  error  had  been  convicted  under  a  State  law  for  harboring  and 
secreting  a  negro  slave,  which  was  contended  to  be  properly  an  offence 


330  EX    PARTE    SIEBOLD.  [CHAP.  III. 

against  the  United  States  under  the  fugitive-slave  law  of  1793,  and  not 
an  offence  against  the  State.  The  objection  of  double  punishment  was 
again  raised.  Mr.  Justice  Grier,  for  the  court,  said:  "  Every  citizen 
of  the  United  States  is  also  a  citizen  of  a  State  or  Territory.  He  may 
be  said  to  owe  allegiance  to  two  sovereigns,  and  may  be  liable  to  pun- 
ishment for  an  infraction  of  the  laws  of  either.  The  same  act  may 
be  an  offence  or  transgression  of  the  laws  of  both."  Substantially 
the  same  views  are  expressed  in  United  States  v.  Cruikshank  (92 
U.  S.  542),  referring  to  these  cases;  and  we  do  not  well  see  how  the 
doctrine  they  contain  can  be  controverted.  A  variety  of  instances 
may  be  readily  suggested,  in  which  it  would  be  necessary  or  proper  to 
apply  it.  Suppose,  for  example,  a  State  judge  having  power  undei* 
the  naturalization  laws  to  admit  aliens  to  citizenship  should  utter  -false 
certificates  of  naturalization,  can  it  be  doubted  that  he  could  be  in- 
dicted under  the  Act  of  Congress  providing  penalties  for  that  offence, 
even  though  he  might  also,  under  the  State  laws,  be  indictable  for 
forgery,  as  well  as  liable  to  impeachment?  So,  if  Congress,  as  it 
might,  should  pass  a  law  fixing  the  standard  of  weights  and  measures, 
and  imposing  a  penalty  for  sealing  false  weights  and  false  measures, 
but  leaving  to  the  States  the  matter  of  inspecting  and  sealing  those 
used  by  the  people,  would  not  an  offender,  filling  the  office  of  sealer 
under  a  State  law,  be  amenable  to  the  United  States  as  well  as  to  the 
State  ? 

If  the  officers  of  election,  in  elections  for  representatives,  owe  a 
duty  to  the  United  States,  and  are  amenable  to  that  government  as 
well  as  to  the  State,  —  as  we  think  they  are,  —  then,  according  to  the 
cases  just  cited,  there  is  no  reason  why  each  should  not  establish  sanc- 
tions for  the  performance  of  the  duty  owed  to  itself,  though  referring 
to  the  same  act. 

To  maintain  the  contrary  proposition,  the  case  of  Commonwealth  of 
Kentucky  v.  Dennison  (24  How.  66)  is  confidently  relied  on  by  the 
petitioners'  counsel.  But  there.  Congress  had  imposed  a  duty  upon  the 
Governor  of  the  State  which  it  had  no  authority  to  impose.  The  en- 
forcement of  the  clause  in  the  Constitution  requiring  the  delivery  of 
fugitives  from  service  was  held  to  belong  to  the  government  of  the 
United  States,  to  be  effected  by  its  own  agents  ;  and  Congress  had  no 
authority  to  require  the  Governor  of  a  State  to  execute  this  duty. 

We  have  thus  gone  over  the  principal  reasons  of  a  special  character 
relied  on  by  the  petitioners  for  maintaining  the  general  proposition  for 
which  they  contend  ;  namely,  that  in  the  regulation  of  elections  for 
representatives  the  national  and  State  governments  cannot  co-operate, 
but  must  act  exclusively  of  each  other ;  so  that,  if  Congress  assumes 
to  regulate  the  subject  at  all,  it  must  assume  exclusive  control  of  the 
whole  subject.  The  more  general  reason  assigned,  to  wit,  that  the 
nature  of  sovereignty  is  such  as  to  preclude  the  joint  co-operation  of 
two  sovereigns,  even  in  a  matter  in  which  they  are  mutually  concerned, 
is  not,  in  our  judgment,  of   sufficient  force  to  prevent  concurrent  and 


CHAP.  III.]  EX   PAKTE   SIEBOLD.  331 

harmonious  action  on  the  part  of  the  national  and  State  governments  in 
the  election  of  representatives.  It  is  at  most  an  argument  ah  inconceni- 
ente.  There  is  nothing  in  the  Constitution  to  forbid  such  co-operation 
in  this  case.  On  the  contrary,  as  alread}'  said,  we  think  it  clear  that  the 
clause  of  the  Constitution  relating  to  the  regulation  of  such  elections 
contemplates  such  co-operation  whenever  Congress  deems  it  expedient 
to  interfere  merely  to  alter  or  add  to  existing  regulations  of  the  State. 
If  the  two  governments  had  an  entire  equality  of  jurisdiction,  there 
might  be  an  intrinsic  difficulty  in  such  co-operation.  Then  the  adop- 
tion by  the  State  government  of  a  system  of  regulations  might  ex- 
clude the  action  of  Congress.  By  first  taking  jurisdiction  of  the 
subject,  the  State  would  acquire  exclusive  jurisdiction  in  virtue  of  a 
well-known  principle  applicable  to  courts  having  co  ordinate  jurisdic- 
tion over  the  same  matter.  But  no  such  equalit}'  exists  in  the  present 
case.  The  power  of  Coug^''p^g)  "^  wp  Hqvp  gppp^  is  paramount,  and 
may  be  exercised  at  any  time,  and  to  any  extent  which  il-d.eems_ex- 
_pedient ;  and  so  far  as  itjs  exercised,  and  no  farther,  the  regulations 
effected  supersede  those  of  the  State  which  are  inconsistent  theremth. 

As  a  general  rule,  it  is  no  doubt  expedient  and  wise  that  the  opera- 
tions of  the  State  and  national  governments  should,  as  far  as  practi- 
cable, be  conducted  separately,  in  order  to  avoid  undue  jealousies  and 
jars  and  conflicts  of  jurisdiction  and  power.  But  there  is  no  reason 
for  laying  this  down  as  a  rule  of  universal  application.  It  should 
never  be  made  to  override  the  plain  and  manifest  dictates  of  the  Con- 
stitution itself.  We  cannot  yield  to  such  a  transcendental  view  of 
State  sovereignt}'.  The  Constitution  and  laws  of  the  United  States 
are  the  supreme  law  of  the  land,  and  to  these  every  citizen  of  every 
State  o.ves  obedience,  whether  in  his  individual  or  official  capacity. 
There  are  very  few  subjects,  it  is  true,  in  which  our  system  of  govern- 
ment, complicated  as  it  is,  requires  or  gives  room  for  conjoint  action 
between  the  State  and  national  sovereignties.  Genpr.ally,  the  powers 
given  by  the  Constitution  to  the  trovpnimpnt  of  thp  Tnited  States  are^ 
givenove  r  distinct  branches  of  sovereignty  from  which  the  .State  gov- 
ernments, either  expressly  or  by  necessary  implication,  are_excLud£iL 
But  in  this  case,  expressly,  and  in  some  others,  by  implicat i o n,^,  as  wg 
have  seen  in  the  case  of  pilotage,  a  concurrent  jurisdiction  is  contem- 
plated, that  of  the  State,  however^  being  subordinate  to  tlint  of  tlie 
United  States,  whereby  all  question  of  precedency  is  plimiiTotpd. 

In  what  we  have  said,  it  must  be  remembered  that  we  are  dealing 
only  with  the  subject  of  elections  of  representatives  to  Congress.  If 
for  its  own  convenience  a  State  sees  fit  to  elect  State  and  county 
officers  at  the  same  time  and  in  conjunction  with  the  election  of  repre- 
sentatives, Congress  will  not  be  thereby  deprived  of  the  right  to  make 
regulations  in  reference  to  the  latter.  "We  do  not  mean  to  say,  how- 
ever, that  for  any  acts  of  the  officers  of  election,  having  exclusive 
reference  to  the  election  of  State  or  county  officers,  they  will  be 
amenable   to  Federal  jurisdiction ;   nor   do  we  understand    that   the 


332  EX   PARTE   SIEBULD.  [CHAP.  III. 

enactments  of  Congress  now  under  consideration  have  any  application 
to  such  acts. 

T_t_nTjist  alsQ  hp  i-pmpmhprpfl  thnt,  wp  nrp  dpniinor  with  thp  qiipstinn  oi. 
power,  not  of  the  expediency  of  .iny  rpgiil.itions  whifh  Congresajia^ 
made.  That  is  not  within  the  pale  of  ourjurisdiction^  In  exercising 
the  power,  however,  we  are  bound  to  presume  that  Congress  has  done 
so  in  a  judicious  manner ;  that  it  has  endeavored  to  guard  as  far  as 
possible  against  any  unnecessary  interference  with  State  laws  and 
regulatious,  with  the  duties  of  State  officers,  or  with  local  prejudices. 
It  could  not  act  at  all  so  as  to  accomplish  any  beneficial  object  in  pre- 
venting frauds  and  violence,  and  securing  the  faithful  performance  of 
duty  at  the  elections,  without  providing  for  the  presence  of  officers  and 
agents  to  carry  its  regulations  into  effect.  It  is  also  difficult  to  see 
how  it  could  attain  tiiese  objects  without  imposing  proper  sanctions 
and  penalties  against  offenders. 

The  views  we  have  expressed  seem  to  us  to  be  founded  on  such  plain 
and  practical  principles  as  hardly  to  need  any  labored  argument  in 
their  support.  We  may  mystify  anything.  But  if  we  take  a  plain 
view  of  the  words  of  the  Constitution,  and  give  to  them  a  fair  and 
obvious  interpretatiou,  we  cannot  fail  in  most  cases  of  coming  to  a 
clear  understanding  of  its  meaning.  We  shall  not  have  far  to  seek. 
We  shall  find  it  on  the  surface,  and  not  in  the  profound  depths  of 
speculation. 

The  greatest  difficulty  in  coming  to  a  just  conclusion  arises  from 
mistaken  notions  with  regard  to  the  relations  which  subsist  between 
the  State  and  national  governments.  It  seems  to  be  often  overlooked 
that  a  national  constitution  has  been  adopted  in  this  country,  estab- 
lishing a  real  government  therein,  operating  upon  persons  and  territory 
and  things ;  and  which,  moreover,  is,  or  should  be,  as  dear  to  every 
American  citizen  as  his  State  government  is.  Whenever  the  true  con- 
ception of  the  nature  of  this  government  is  once  conceded,  no  real  diffi- 
culty will  arise  in  the  just  interpretation  of  its  powers.  But  if  we  allow 
ourselves  to  regard  it  as  a  hostile  organization,  opposed  to  the  proper 
sovereignty  and  dignity  of  the  State  governments,  we  shall  continue  to 
be  vexed  with  difficulties  as  to  its  jurisdiction  and  authority.  No 
greater  jealousy  is  required  to  be  exercised  towards  this  government  in 
reference  to  the  preservation  of  our  liberties,  than  is  proper  to  be  ex- 
ercised towards  the  State  governments.  Its  powers  are  limited  in 
number,  and  clearly  defined  ;  and  its  action  within  the  scope  of  those 
powers  is  restrained  by  a  sufficiently  rigid  bill  of  rights  for  the  pro- 
tection of  its  citizens  from  oppression.  The  true  interest  of  the  people 
of  this  country  requires  that  both  the  national  and  State  governments 
should  be  allowed,  without  jealous  interference  on  either  side,  to  exer- 
cise all  the  powers  which  respectively  belong  to  them  according  to  a 
fair  and  practical  construction  of  the  Constitution.  State  rights  and 
the  rights  of  the  United  States  should  be  equally  respected.  Both  are 
essential  to  the  preservation  of  our  liberties  and  the  perpetuity  of  our 


CHAP.  III.]  EX   PARTE   SIEBOLD.  333 

institutions.     But  in  endeavoring  to  vindicate  the  one,  we  should  not 
allow  our  zeal  to  nullify  or  impair  the  other. 

Several  other  questions  bearing  upon  the  present  controversy  have 
been  raised  by  the  counsel  of  the  petitioners.  Somewhat  akin  to  the 
argument  which  has  been  considered  is  the  objection  that  the  deputy 
marshals  authorized  by  the  Act  of  Congress  to  be  created  and  to 
attend  the  elections  are  authorized  to  keep  the  peace  ;  and  that  this  is 
a  duty  which  belongs  to  the  State  authorities  alone.  It  is  argued  that 
the  preservation  of  peace  and  good  order  in  society  is  not  within  the 
powers  confided  to  the  government  of  the  United  States,  but  belongs 
exclusively  to  the  States.  Here  again  we  are  met  with  the  theory  that 
the  government  of  the  United  States  does  not  rest  upon  the  soil  and 
territory  of  the  country.  We  think  that  this  theory  is  founded  on  an 
entire  misconception  of  the  nature  and  powers  of  that  government. 
We  hold  it  to  be  an  incontrovertible  p.riiici42le^JliiLt-the^gax£jUimenlo.f 
the  United  States  may,  by  jpeans  of_physicaI  force,  exercised  tlirough 
its  official  agents,  execute_on  every  foot  of  American  soil  the  powers 
and  functions  that  belong  to  it.  This  necessarily  involves  the  power 
to  command  obedience  to  its  laws,  and  hence  the  power  to  keep  tha. 
peace  to  thnt,  pxtpnf,. 

This  power  to  enforce  its  laws  and  to  execute  its  functions  in  all 
places  does  not  derogate  from  the  power  of  the  State  to  execute  its 
laws  at  the  same  time  and  in  the  same  places.  The  one  does  not 
exclude  the  other,  except  where  both  cannot  be  execu ted_at  the  same 
time.  In  that  case,  the  words  of  the  Constitution  itself  show  which 
is  to  yield.  "  This  Constitution,  and  all  laws  which  shall  be  made  in 
pursuance  thereof,  .   .  .  shall  be  the  supreme  law  of  tlie  land." 

This  concurrent  jurisdiction  which  the  national  government  neces- 
sarily possesses  to  exercise  its  powers  of  sovereignty  in  all  parts  of 
the  United  States  is  distinct  from  that  exclusive  power  which,  by  the 
First  Article  of  the  Constitution,  it  is  authorized  to  exercise  over  the 
District  of  Columbia,  and  over  those  places  witliin  a  State  which  are 
purchased  by  consent  of  the  legislature  thereof,  for  the  erection  of  forts, 
magazines,  arsenals,  dock-yards,  and  other  needful  buildings.  There 
its  jurisdiction  is  absolutely  exclusive  of  that  of  the  State,  unless,  as 
is  sometimes  stipulated,  power  is  given  to  the  latter  to  serve  the  ordi- 
nary process  of  its  courts  in  the  precinct  acquired. 

Without  the  concurrent  sovereignty  referred  to,  the  national  govern- 
ment  would  be  nothing  but  an  advisory  government.'TTs  executive 
power  would  be  absolutely  nullified. 

Why  do  we  have  marshals  at  all,  if  they  cannot  physically  lay  their 
hands  on  persons  and  things  in  the  performance  of  their  proper  duties? 
What  functions  can  they  perform,  if  they  cannot  use  force?  In  exe- 
cuting the  processes  of  the  courts,  must  they  call  on  the  nearest  con- 
stable for  protection?  Must  they  rely  on  him  to  use  the  requisite 
compulsion,  and  to  keep  the  peace  whilst  they  are  soliciting  and  en- 
treating the  parties  and  bystanders  to  allow  the  law  to  take  its  course  ? 


334  EX   PARTE   SIEBOLD.  fCHAP.  III. 

This  is  the  necessary  consequence  of  the  positions  that  are  assumed. 
If  we  indulge  in  such  impracticable  views  as  these,  and  keep  on  refining 
and  re-refining,  we  shall  drive  the  national  government  out  of  the 
United  States,  and  relegate  it  to  the  District  of  Columbia,  or  perhaps 
to  some  foreign  soil.  We  shall  bring  it  back  to  a  condition  of  greater 
helplessness  than  that  of  the  old  Confederation. 

The  argument  is  based  on  a  strained  and  impracticable  view  of  the 
nature  and  powers  of  the  national  government.  It  must  execute  its 
powers,  or  it  is  no  government.  It  must  execute  them  on  the  land  as 
well  as  on  the  sea,  on  things  as  well  as  on  persons.  And,  to  do  this, 
it  must  necessarily  have  power  to  command  obedience,  preserve  order, 
and  keep  the  peace  ;  and  no  person  or  power  in  this  land  has  the  right 
to  resist  or  question  its  authority,  so  long  as  it  keeps  within  the  bounds 
of  its  jurisdiction.  AVithout  specifying  other  instances  in  which  this 
power  to  preserve  order  and  keep  the  peace  unquestionably  exists, 
take  the  very  case  in  hand.  The  counsel  for  the  petitioners  concede 
that  Congress  ma}',  if  it  sees  fit,  assume  the  entire  control  and  regula- 
tion of  the  election  of  representatives.  This  would  necessarily  involve 
the  appointment  of  the  places  for  holding  the  polls,  the  times  of  voting, 
and  the  officers  for  holding  the  election  ;  it  would  require  the  regula- 
tion of  the  duties  to  be  performed,  the  custody  of  the  ballots,  the  mode 
of  ascertaining  the  result,  and  every  other  matter  relating  to  the  sub- 
ject. Is  it  possible  that  Congress  could  not,  in  that  case,  provide  for 
keeping  the  peace  at  such  elections,  and  for  arresting  and  punishing 
those  guilty  of  breaking  it?  If  it  could  not,  its  power  would  be  but  a 
shadow  and  a  name.  But,  if  Congress  can  do  this,  where  is  the  differ- 
ence in  principle  in  its  making  provision  for  securing  the  preservation 
of  the  peace,  so  as  to  give  to  ever}'  citizen  his  free  right  to  vote  with- 
out molestation  or  injury,  when  it  assumes  only  to  supervise  the  regu- 
lations made  by  the  State,  and  not  to  supersede  them  entirely?  In  our 
judgment,  there  is  no  difference ;  and,  if  the  power  exists  in  the  one 
case,  it  exists  in  the  other. 

The  next  point  raised  is,  that  the  Act  of  Congress  proposes  to 
operate  on  officers  or  persons  authorized  by  State  laws  to  perform 
certain  duties  under  them,  and  to  require  them  to  disobey  and  disregard 
State  laws  when  they  come  in  conflict  with  the  Act  of  Congress  ;  that 
it  thei'eb}'  of  necessity  produces  collision,  and  is  therefore  void.  This 
point  has  been  already  fully  considered.  We  have  shown,  as  we  think, 
that,  where  the  regulations  of  Congress  crnflirt  with  thf^°^i7f  th"  Stntc^ 
it^is  the  latter  which  are  void,  and  not  the  regulations  of  Congress; 

and  that  the  laws  of   the  State.  Ip  sn  fnr    na  tlipy  nrp    inpnr^sistent  with 

fho     Iqwc     r>f    r^,^^^•^,aa     r,j^     ^^q     ^fimP     SI]bjPr't.^      CCaSe   tO     ha.V9.     P.ffe.C.t     aS 

laws.  ._.  .  Application  denied. 

Mr.  Justice  Clifford  and  Mr.  Justice  Field  dissented. 


CHAP.  III.]  IN   RE  NEAGLE.  335 


IN  RE  NEAGLE. 

Supreme  Court  of  the  United  States.     1890. 
[135  U.  S.  1.] 

Mr.  Justice  Miller,  on  behalf  of  the  court,  stated  the  case  as 
follows :  — 

This  was  an  appeal  by  Cunningham,  sherift'  of  the  county  of  San 
Joaquin,  in  the  State  of  California,  from  a  judgment  of  the  Circuit 
Court  of  the  United  States  for  the  Northern  District  of  California, 
discharging  David  Neagle  from  the  custod}'  of  said  sheriff,  who  held 
him  a  prisoner  on  a  charge  of  murder. 

On  the  16th  day  of  August,  1889,  there  was  presented  to  Judge 
Saw3'er,  the  Circuit  Judge  of  the  United  States  for  the  Ninth  Circuit, 
embracing  the  Northern  District  of  California,  a  petition  signed  David 
Neaglo,  deputy  United  States  marshal.  In*  A.  L.  Farrish  on  his  behalf 
This  petition  represented  that  the  said  Farrish  was  a  deputy  marshal 
duly  appointed  for  the  Northern  District  of  California  by  J.  C  Franks, 
who  was  the  marshal  of  that  district.  It  further  alleged  that  David 
Neagle  was,  at  the  time  of  the  occurrences  recited  in  the  petition  and 
at  the  lime  of  filing  it,  a  dul_v  appointed  and  acting  deputy  United 
States  marshal  for  the  same  district.  It  then  proceeded  to  state  that 
s:vid  Neagle  was  imprisoned,  confined,  and  restrained  of  his  liberty  in 
tlie  county  jail  in  San  Joaquin  Count}',  in  the  State  of  California,  hy 
Thomas  Cunningham,  sheriff  of  said  county,  upon  a  charge  of  mur- 
der, under  a  warrant  of  arrest,  a  copy  of  which  was  annexed  to  the 
petition.     The  warrant  was  as  follows  :  — 


\  ss. 

in,  j 


"In  the  Justice's  Court  of  Stockton  Township. 
"  State  of  California, 

County  of  San  Joaquh 

"  The  People  of  the  State  of  California  to  any  sheriff,  constable, 
marshal,  or  policeman  of  said  State  or  of  the  county  of  San 
Joaquin  : 

"  Information  on  oath  having  been  this  day  laid  before  me  by  Sarah 
A.  Terry  that  the  crime  of  murder,  a  felony,  has  been  committed  within 
said  county  of  San  Joaquin  on  the  14th  day  of  August,  a.d.  1889,  in 
tins,  that  one  David  S.  Terry,  a  human  being  then  and  there  being, 
was  wilfully,  unlawfully,  feloniously,  and  with  malice  aforethought  shot, 
killed,  and  murdered,  and  accusing  Stephen  J.  Field  and  David  Neagle 
thereof:  You  are  therefore  commanded  forthwith  to  arrest  tiie  above- 
named  Stephen  J.  Field  ^  and  David  Neagle  and  bring  them  before  me, 

1  The  Governor  of  California,  on  learning  that  a  warrant  had  been  issued  for  the 
arrest  of  Mr.  Justice  Field,  promptly  wrote  to  the  Attorney-General  of  the  State, 
urging  "  the  propriety  of  at  once  instructing  the  District  Attorney  of  San  Joaquin 
County  to  dismiss  the  unwarranted  proceeding  against  him,"  as  his  arrest  "  would 


336  IN   PE   NEAGLE.  [cHAP.  III. 

at  vay  office,  in  the  citj'  of  Stockton,  or,  in  case  of  my  absence  or  in- 
ability to  act,  before  the  nearest  and  most  accessible  magistrate  in  the 
county. 

"  bated  at  Stockton  this  14th  day  of  August,  a.d.  1889. 

"  H.  V.  J.  Swain, 

"  Justice  of  the  Peace. 

"  The  defendant,  David  Neagle,  having  been  brought  before  me  on 
this  warrant,  is  committed  for  examination  to  the  sheriff  of  San  Joaquin 
Count}',  California. 

"Dated  August  15,  1889.  H.  V.  J.  Swain, 

"  Justice  of  the  Peace." 

The  petition  then  recited  the  circumstances  of  a  rencontre  between 
said  Neagle  and  David  S.  Terr}-,  in  which  the  latter  was  instantly 
killed  b}'  two  shots  from  a  revolver  in  the  hands  of  the  former.  The 
circumstances  of  this  encounter  and  of  what  led  to  it  will  be  considered 
with  more  particularity  hereafter.  The  main  allegation  of  this  petition 
-was  that  Neagle,  as  United  States  deputy  marshal,  acting  under  the 
orders  of  Marshal  Franks,  and  in  pursuance  of  instructions  from  the 
Attorney-General  of  the  United  States,  had,  in  consequence  of  an  an- 
ticipated attempt  at  violence  on  the  part  of  Terr}-  against  the  Honor- 
able Stephen  J.  Field,  a  justice  of  the  Supreme  Court  of  the  United 
States,  been  in  attendance  upon  said  justice,  and  was  sitting  by  his 
side  at  a  breakfast  table  when  a  murderous  assault  was  made  by  Terry 
on  Judge  Field,  and  in  defence  of  the  life  of  the  judge  the  homicide  was 
committed  for  which  Neagle  was  held  by  Cunningham.  The  allegation 
was  very  distinct  that  Justice  Field  was  engaged  in  the  discharge  of  his 
duties  as  circuit  justice  of  the  United  States  for  that  circuit,  having  held 
court  at  Los  Angeles,  one  of  the  places  at  which  the  court  is  by  law 
held,  and,  having  left  that  court,  was  on  his  way  to  San  Francisco  for 
the  purpose  of  holding  the  Circuit  Court  at  that  place.  The  allegation 
was  also  very  full  that  Neagle  was  directed  by  Marshal  Franks  to  ac- 
company him  for  the  purpose  of  protecting  him,  and  that  these  orders 
of  Franks  were  given  in  anticipation  of  the  assault  which  actually 
occurred.  It  was  also  stated,  in  more  general  terms,  that  Marshal 
Neagle,  in  killing  Terry  under  the  circumstances,  was  in  the  discharge 
of  his  duty  as  an  officer  of  the  United  States,  and  was  not,  therefore, 
guiltv  of  a  murder,  and  that  his  imprisonment  under  the  warrant  held 
by  Sheriff  Cunningham  was  in  violation  of  the  laws  and  Constitution 
of  the  United  States,  and  that  he  was  in  custody  for  an  act  done  in 
pursuance  of  the  laws  of  the  United  States.  This  petition  being 
sworn  to  by  Farrish,  and  presented  to  Judge  Sawyer,  he  made  the 
following  order :  — 

be  a  burning  disgrace  to  the  State  unless  disavowed."  The  Attorney-General  as 
promptly  responded  by  advising  the  District  Attorney  that  there  was  "  no  evidence 
to  implicate  Justice  Field  in  said  shooting,"  and  that  "  public  justice  demands  that 
the  charge  against  him  be  dismissed ;  "  which  was  accordingly  done. 


CHAP.  III.]  IN   EE   NEAGLK  337 

"  Let  a  writ  of  habeas  corptis  issue  in  pursuance  of  the  prayer  of  the 
within  petition,  returnable  before  the  United  States  Circuit  Court  for 
the  Northern  District  of  California. 

"  SAwrER,  Circuit  Judge." 

The  writ  was  accordingly  issued  and  delivered  to  Cunningham,  who 

made  the  following  return :  — 

*' County  of  San  Joaquin,  State  of  California, 
"Sheriff's  Office. 

''  To  the  honorable  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  California  ; 

"  I  hereby  certify  and  return  that  before  the  coming  to  me  of  the 
annexed  writ  of  habeas  corpus  the  said  David  Neagle  was  committed 
to  my  custody,  and  is  detained  by  me  by  virtue  of  a  warrant  issued  out 
of  the  justice's  court  of  Stockton  township,  State  of  California,  county 
of  San  Joaquin,  and  by  the  indorsement  made  upon  said  wa,rrant. 
Copy  of  said  warrant  and  indorsement  is  annexed  hereto  and  made 
a  part  of  this  return.  Nevertheless,  I  have  the  body  of  the  said 
David  Neagle  before  the  honorable  court,  as  I  am  in  tlie  said  writ 
commanded. 

"  August  17,  1889.  Thomas  Cunningham, 

"  Sheriff  San  Joaquin  County,  California" 

Various  pleadings  and  amended  pleadings  were  made  which  do  not 
tend  much  to  the  elucidation  of  the  matter  before  us.  Cunningham 
filed  a  demurrer  to  the  petition  for  the  writ  of  habeas  corpus,  and 
Neagle  filed  a  traverse  to  the  return  of  the  sheriff,  which  was  ac- 
companied by  exhibits,  the  substance  of  which  will  be  hereafter  con- 
sidered when  the  case  comes  to  be  examined  upon  its  facts. 

The  hearing  in  the  Circuit  Court  was  had  before  Circuit  Judge 
Sawyer  and  District  Judge  Sabin.  The  sheriff,  Cunningham,  was 
represented  by  G.  A.  Johnson,  Attorney-General  of  the  State  of 
California,  and  other  counsel.  A  large  body  of  testimony,  documen- 
tary and  otherwise,  was  submitted  to  the  court,  on  which,  after  a 
full  consideration  of  the  subject,  the  court  made  the  following  order : 

"  In  the  Matter  of  David  Neagle,  on  habeas  corpus. 

"  In  the  above-entitled  matter,  the  court  having  heard  the  testimony 
introduced  on  behalf  of  the  petitioner,  none  having  been  offered  for 
the  respondent,  and  also  the  arguments  of  the  counsel  for  petitioner 
and  respondent,  and  it  appearing  to  the  court  that  the  allegations  of 
the  petitioner  in  his  amended  answer  or  traverse  to  the  return  of  the 
sheriff  of  San  Joaquin  County,  respondent  herein,  are  true,  and  that 
the  prisoner  is  in  custody  for  an  act  done  in  pursuance  of  a  law  of  the 
United  States,  and  in  custody  in  violation  of  the  Constitution  and  laws 
of  the  United  States,  it  is  therefore  ordered  that  petitioner  be,  and  he 
is  hereby,  discharged  from  custody." 
VOL.  I.  —  22 


338  IN   RE   NEAGLE.  [CHAP.  III. 

From  that  order  an  appeal  was  allowed  whicli  brought  the  case  to 
this  court,  accompanied  b}-  a  voluminous  record  of  all  the  matters 
which  were  before  the  court  on  tlie  hearing. 

Z.  Montgomery,  G.  A.  Johnson,  Attorney-General  of  the  State  of 
California,  Samuel  Shellabarger,  and  Jeremiah  M.  Wilson,  for  the 
appellant.  Attorney-General  Miller,  and  Joseph  H.  Choate  (with 
whom  was  James  C.  Carter  on  the  brief),  for  the  appellee. 

Mr.  Justice  Miller,  after  stating  the  case  as  above,  delivered  the 
opinion  of  the  court. 

If  it  be  true,  as  stated  in  the  order  of  the  court  discharging  the 
prisoner,  that  he  was  held  *'  in  custody  for  an  act  done  in  pursuance 
of  a  law  of  the  United  States,  and  in  custody  in  violation  of  the  Con- 
stitution and  laws  of  the  United  States,"  there  does  not  seem  to  be  any 
doubt  that,  under  the  statute  on  that  subject,  he  was  properly  dis- 
charged by  the  Circuit  Court.  .  .  . 

These  are  the  material  circumstances  produced  in  evidence  before 
the  Circuit  Court  on  the  hearing  of  this  habeas  corpus  case.  It  is  but 
a  short  sketch  of  a  historj'  which  is  given  in  over  five  hundred  pages  in 
the  record,  but  we  think  it  is  sufficient  to  enable  us  to  appl}-  the  law  of 
the  case  to  tlie  question  before  us.  Without  a  more  minute  discussion 
of  this  testimou}-,  it  produces  upon  us  the  conviction  of  a  settled  purpose 
on  the  part  of  Terry  and  his  wife,  amounting  to  a  conspiracy,  to  mur- 
der Justice  Field.  And  we  are  quite  sure  that  if  Neagle  had  been 
merely  a  brother  or  a  friend  of  Judge  Field,  travelling  with  him,  and 
aware  of  all  the  previous  relations  of  Terry  to  the  judge,  —  as  he  was, 
—  of  his  bitter  animosit}-,  his  declared  purpose  to  have  revenge  even 
to  the  point  of  killing  him,  he  would  have  been  justified  in  what  he  did 
in  defence  of  IVIr.  Justice  Field's  life,  and  possibly  of  his  own. 

But  such  a  justification  would  be  a  proper  subject  for  consideration 
on  a  trial  of  the  case  for  murder  in  the  courts  of  the  State  of  California, 
and  there  exists  no  authorit}'  in  the  courts  of  the  United  States  to  dis- 
charge the  prisoner  while  held  in  custod}'  bj-  the  State  authorities  for 
this  offence,  unless  there  be  found  in  aid  of  the  defence  of  the  prisoner 
some  element  of  power  and  authority  asserted  under  the  government 
of  the  United  States.   .   .   . 

We  have  no  doubt  that  Mr.  Justice  Field  when  attacked  by  Terry 
was  engaged  in  the  discharge  of  his  duties  as  Circuit  Justice  of  the 
Nifith  Circuit,  and  was  entitled  to  all  the  protection  under  those  cir- 
cumstances which  the  law  could  give  him. 

It  is  urged,  however,  that  there  exists  no  statute  authorizing  any 
such  protection  as  that  which  Np-iglp  was  instructed  to  give  Judge 
Field  in  the  present  case,  and  indeed  no  protection  whatever  against 
a  vindictive  or  malicious  assault  growing  out  of  the  faithful  discharge 
of  his  official  duties  ,  and  that  the  language  of  section  753  of  the  Re- 
vised Statutes,  that  the  party  seeking  the  benefit  of  the  writ  of  habeas 
corpus  must  in  this  connection  show  that  he  is  "  in  custody  for  an  act 
done  or  omitted  in  pursuance  of  a  law  of  the  United  States,"  makes  it 


CHAP.  III.]  IN   RE   NEAGLE.  339 

necessary  that  upon  this  occasion  it  should  be  shown  that  the  act  for 
which  Neugle  is  imprisoned  was  done  b}-  virtue  of  an  Act  of  Con- 
gress. It  is  not  supposed  that  an}-  special  Act  of  Congress  exists 
which  authorizes  the  marshals  or  deputy  marshals  of  the  United  States 
in  express  terrn^  to  accompan}'  the  judges  of  the  Supreme  Court  through 
their  circuits,  and  act  as  a  body-guard  to  them,  to  defend  them  against 
malicious  assaults  against  their  persons.  But  we  are  of  opinion  that 
this  view  of  the  statute  is  an  unwarranted  restriction  of  the  meaning  of 
a  law  designed  to  extend  in  a  liberal  manner  the  benefit  of  the  writ  of 
habeas  corpus  to  persons  imprisoned  for  the  performance  of  their  dut}'. 
And  we  are  satisfied  that  if  it  was  the  duty  of  Neagle,  under  the  cir- 
cumstances, a  duty  which  could  onl}'  arise  under  the  laws  of  the  United 
States,  to  defend  Mr.  Justice  Field  from  a  murderous  attack  upon  him, 
he  brings  himself  within  the  meaning  of  the  section  we  have  recited. 
This  view  of  the  subject  is  confirmed  b}'  the  alternative  provision,  that 
he  must  be  in  custody  "  for  an  act  done  or  omitted  in  pursuance  of  a 
law  of  the  United  States  or  of  an  order,  process,  or  decree  of  a  court  or 
judge  thereof,  or  is  in  custody  in  violation  of  the  Constitution  or  of  a 
law  or  treaty  of  the  United  States." 

In  the  view  we  take  of  the  Constitution  of  the  United  States,  any 
obligation  fairly  and  properl}'  inferrible  from  that  instrument,  or  any 
duty  of  the  marshal  to  be  derived  from  the  general  scope  of  his  duties 
under  the  laws  of  the  United  States^js  '-'-  a  law  "  withi n_the_meaning  of 
this  phrase.  It  would  be  a  great  reproach  to  the  S3-stem  of  government 
of  the  United  States,  declared  to  be  within  its  sphere  sovereign  and 
supreme,  if  there  is  to  be  found  within  the  domain  of  its  powers  no 
means  of  protecting  the  judges,  in  the  conscientious  and  faithful  dis- 
charge of  their  duties,  from  the  malice  and  hatred  of  those  upon  whom 
their  judgments  may  operate  unfavorabh'. 

It  has  in  modern  times  become  apparent  that  the  ph3sical  health  of 
the  community  is  more  efficiently  promoted  by  hygienic  and  preventive 
means,  than  by  the  skill  which  is  applied  to  the  cure  of  disease  after  it 
has  become  fully  developed.  So  also  the  law,  which  is  intended  to  pre- 
vent crime,  in  its  general  spread  among  the  communit}',  b}'  regulations, 
police  organization,  and  otherwise,  which  are  adapted  for  the  protection 
of  the  lives  and  property  of  citizens,  for  the  dispersion  of  mobs,  for  the 
arrest  of  thieves  and  assassins,  for  the  watch  which  is  kept  over  the 
communit}',  as  well  as  over  this  class  of  people,  is  more  efficient  than 
punishment  of  crimes  after  the}'  have  been  committed. 

If  a  person  in  the  situation  of  Judge  Field  could  have  no  other 
guarantee  of  his  personal  safety,  while  engaged  in  the  conscientious 
discharge  of  a  disagreeable  duty,  than  the  fact  that  if  he  was  murdered 
his  murderer  would  be  subject  to  the  laws  of  a  State  and  b}'  those  laws 
could  be  punished,  the  securit\-  would  be  ver}'  insufficient.  The  plan 
which  Terry  and  wife  had  in  mind  of  insulting  him  and  assaulting  him 
and  drawing  him  into  a  defensive  physical  contest,  in  the  course  of 
which  they  would  slay  him,  shows  the  little  value  of  such  remedies 


340  IN    RE   NEAGLE.  [CHAP.  III. 

We  do  not  believe  that  the  government  of  the  United  States  is  thus 
inefficient,  or  that  its  Constitution  and  laws  have  left  the  high  officers 
of  the  government  so  defenceless  and  unprotected.  .   .  . 

Where,  then,  are  we  to  look  for  the  protection  which  we  have  shown 
Judge  Field  was  entitled  to  when  engaged  in  the  discharge  of  his  official 
duties?  Not  to  the  courts  of  the  United  States;  because,  as  has  been 
more  than  once  said  in  this  court,  in  the  division  of  the  powers  of  gov- 
ernment between  the  three  great  departments,  executive,  legislative  and 
judicial,  the  judicial  is  the  weakest  for  the  purposes  of  self-protection 
and  for  the  enforcement  of  the  powers  which  it  exercises.  The  minis- 
terial officers  through  whom  its  commands  must  be  executed  are  mai-- 
shals  of  the  United  States,  and  belong  emphaticallj-  to  the  executive 
department  of  the  government.  They  are  appointed  by  the  President, 
wilh  the  advice  and  consent  of  the  Senate.  They  are  removable  from 
office  at  his  pleasure.  Thej-  are  subjected  by  Act  of  Congress  to  the 
supervision  and  control  of  the  Department  of  Justice,  in  the  hands  of 
one  of  the  cabinet  officers  of  the  President,  and  their  compensation  is 
provided  by  Acts  of  Congress.  The  same  may  be  said  of  the  district 
attorneys  of  the  United  States,  who  prosecute  and  defend  the  claims  of 
the  government  in  the  courts. 

The  legislative  branch  of  the  government  can  only  protect  the  judicial 
officers  b}-  the  enactment  of  laws  for  that  purpose,  and  the  argument 
we  are  now  combating  assumes  that  no  such   law  has   been   passed 

bv  Conoress. 

..If  ' ' 

If  we  turn  to  the  executive  department  of  the  government,  we  find  a 
ver}'  different  condition  of  affairs.  The  Constitution,  section  f^.  Article 
2,  declares  that  the  President  '•'■  shall  take  care  tliat  the  Inws  be  fnitb-^ 
lully  execuieg,^  and  he  is  provided  with  the  means  of  fulfilling  this 
oDii gallon  by  his  authority  to  commission  all  the  officers  of  the  United 
States,  and,  b}-  and  with  the  advice  and  consent  of  the  Senate,  to  ap- 
point the  most  important  of  them  and  to  fill  vacancies.  He  is  declared 
to  be  commander-in-chief  of  the  arm}-  and  nav}'  of  the  United  States. 
The  duties  which  are  thus  imposed  upon  him  he  is  further  enabled  to 
perform  b}'  the  recognition  in  the  Constitution,  and  the  creation  by  Acts 
of  Congress,  of  executive  departments,  which  have  varied  in  number 
from  four  or  five  to  seven  or  eight,  the  heads  of  which  are  familiarly 
called  cabinet  ministers.  These  aid  him  in  the  performance  of  the  great 
duties  of  his  office,  and  represent  him  in  a  thousand  acts  to  which  it  can 
hardly  be  supposed  his  personal  attention  is  called,  and  thus  he  is  en- 
abled to  fulfil  tlie  duty  of  liis  gi-eat  department,  expressed  in  the  phrase 
that  "  he  shall  take  care  that  the  laws  be  faithfully  executed." 

Is  this  .dilty-l«tuted  to  the  enforcement  of  Acts  of  Congress  or  of, 
treaties  of  the  United  States  according  to  their  express  terms,  or  does 
it  include  the  rights,  duties  and  obhgations  growing  nut  nf  thp  Cnpt;tjTi^- 
tion  itself,  our  international  relations,  and  all  the  protection  implied  by 
the  naturp  of  Mie  {Government  under  the  Constitution? 

One  of  the  most  remarkable  episodes  in  the  history  of  our  foreign 


CHAP.  III.]  IN    RE   NEAGLE.  341 

relations,  and  which  has  become  an  attractive  historical  incident,  is  the 
case  of  Martin  Koszta,  a  native  of  Hungary,  who,  though  not  fully  a 
naturalized  citizen  of  the  United  States,  had  in  due  form  of  law  made 
his  declaration  of  intention  to  become  a  citizen.  While  in  Smyrna  he 
was  seized  by  command  of  the  Austrian  consul-general  at  that  place, 
and  carried  on  board  the  Hussar,  an  Austrian  vessel,  where  he  was 
held  in  close  confinement.  Captain  Ingraham,  in  command  of  the 
American  sloop-of-war  St.  Louis,  arriving  in  port  at  that  critical  period, 
and  ascertaining  that  Koszta  had  with  him  his  naturalization  papers, 
demanded  his  surrender  to  him,  and  was  compelled  to  train  his  guns 
upon  the  Austrian  vessel  before  his  demands  were  complied  with.  It 
was,  however,  to  prevent  bloodshed,  agreed  that  Koszta  should  be  placed 
in  the  hands  of  the  French  consul  subject  to  the  result  of  diplomatic 
negotiations  between  Austria  and  the  United  States.  The  celebrated 
correspondence  between  Mr.  Marc}',  Secretary  of  State,  and  Chevalier 
Hulsemann,  the  Austrian  minister  at  Washington,  which  arose  out  of 
this  affair  and  resulted  in  the  release  and  restoration  to  libert}'  of 
Koszta,  attracted  a  great  deal  of  public  attention,  and  the  position 
assumed  by  Mr.  Marc}'  met  the  approval  of  the  country'  and  of  Con- 
gress, who  voted  a  gold  medal  to  Captain  Ingraham  for  his  conduct  in 
the  affair.  Upon  what  Act  of  Congress  then  existing  can  an}'  one  lay 
his  finger  in  support  of  the  action  of  our  government  in  this  matter? 

So,  if  the  President  or  the  Postmaster-General  is  advised  that  the 
mails  of  the  United  States,  possibly  carrying  treasure,  are  liable  to  be 
robbed  and  the  mail  carriers  assaulted  and  murdered  in  any  particular 
region  of  country,  who  can  doubt  the  authority-  of  the  President  or  of 
one  of  the  executive  departments  under  him  to  make  an  order  for  the 
protection  of  the  mail  and  of  the  persons  and  lives  of  its  carriers,  b}'  doing 
exactly  what  was  done  in  the  case  of  Mr.  Justice  Field,  namel}',  pro- 
viding a  sufficient  guard,  whether  it  be  by  soldiers  of  the  army  or  by 
marshals  of  the  United  States,  with  a  posse  comitatus  properly  armed 
and  equipped,  to  secure  the  safe  performance  of  the  duty  of  carrying 
the  mail  wherever  it  may  be  intended  to  go? 

The  United  States  is  the  owner  of  millions  of  acres  of  valuable  pub- 
lic land,  and  has  been  the  owner  of  much  more  which  it  has  sold. 
Some  of  these  lands  owe  a  large  part  of  their  value  to  the  forests 
which  grow  upon  them.  These  forests  are  liable  to  depredations  by 
people  living  in  the  neighborhood,  known  as  timber  thieves,  who  make 
a  living  by  cutting  and  selling  such  timber,  and  who  are  trespassers. 
But  until  quite  recently,  even  if  there  be  one  now,  there  was  no  statute 
authorizing  any  preventive  measures  for  the  protection  of  this  valu- 
able public  property.  Has  the  President  no  authority  to  place  guards 
upon  the  public  territory  to  protect  its  timber?  No  authority  to  seize 
the  timber  when  cut  and  found  upon  the  ground  ?  Has  he  no  power 
to  take  any  measures  to  protect  this  vast  domain?  Fortunately  we  find 
this  question  answered  by  this  court  in  the  case  of  Wells  v.  Nickles, 
104  U.  S.  444.     That  was  a  case  in  which  a  class  of  men  appointed  by 


342  IN   KE   NEAGLE.  [CHAP.  III. 

local  land  officers,  under  instructions  from  the  Secretar}'  of  the  Interior, 
having  found  a  large  quantity  of  this  timber  cut  down  from  the  forests 
of  the  United  States  and  lying  where  it  was  cut,  seized  it.  The  ques- 
tion of  the  title  to  this  property*  coming  in  controvers}'  between  Wells 
and  Nickles,  it  became  essential  to  inquire  into  the  authority*  of  these 
timber  agents  of  the  government  thus  to  seize  the  timber  cut  by  tres- 
passers on  its  lands.  The  court  said:  "  The  effort  we  have  made  to 
ascertain  and  fix  the  authority  of  these  timber  agents  by  an}'  positive 
provision  of  law  has  been  unsuccessful."  But  the  court,  notwithstand- 
ing there  was  no  special  statute  for  it,  held  that  the  Department  of  the 
Interior,  acting  under  the  idea  of  protecting  from  depredation  timber 
on  the  lands  of  the  government,  had  gradual!}'  come  to  assert  the  right 
to  seize  what  is  cut  and  taken  awa}'  from  them  wherever  it  can  be 
traced,  and  in  aid  of  this  the  registers  and  receivers  of  the  Land  Office 
had,  by  instructions  from  the  Secretary'  of  the  Interior,  been  constituted 
agents  of  the  United  States  for  these  purposes,  with  power  to  appoint 
special  agents  under  themselves.  And  the  court  upheld  the  authority 
of  the  Secretary  of  the  Interior  to  make  these  rules  and  regulations  for 
the  protection  of  the  pubhc  lands.   .  .   . 

We  cannot  doubt  the  power  of  the  President  to  take  measures  for 
the  protection  of  a  judge  of  one  of  tlie  courts  of  the  United  States, 
who,  while  in  the  discharge  of  the  duties  of  his  office,  is  threatened 
with  a  personal  attack  which  ma}-  probabl}'  result  in  his  death,  and 
we  think  it  clear  that"  where  this  protection  is  to  be  aflforded  through 
the  civil  power,  the  Department  of  Justice  is  the  proper  one  to  set  in 
motion  the  necessar}'  means  of  protection.  The  correspondence  alread}' 
recited  in  this  opinion  between  the  marshal  of  the  Northern  District  of 
California,  and  the  Attorney-General,  and  the  district  attorne}'  of  the 
United  States  for  that  district,  although  prescribing  no  ver}-  specific 
mode  of  affording  this  protection  b}'  the  Attorne3'-General,  is  sufficient, 
we  think,  to  warrant  the  marshal  in  taking  the  steps  which  he  did  take, 
in  making  the  provisions  which  he  did  make,  for  the  protection  and 
defence  of  Mr.  Justice  Field. 

But  there  is  positive  law  investing  the  marshals  and  their  deputies 
with  powers  which  not  onl}'  justify  what  Marshal  Neagle  did  in  this 
matter,  but  which  imposed  it  upon  him  as  a  duty.  .   .   . 

That  there  is  a  peace  of  the  United  States ;  that  a  man  assaulting  a 
judge  of  the  United  States  while  in  the  discharge  of  his  duties  violates 
that  peace;  that  in  such  case  the  m.nrshnl7)f  tlift  United  Stntps  stnnrlsj 
in  the  same  relation  to  the  peace  of  the  United  l^tates  which  the  sheriff 
of  the  county  does  to  the  ppar^p  of  thp  Stnte  nf  ralifornia  ;  are  ques- 
tions  too  clear  to  need  argument  to  prove  them.  That  it  would  be  the 
dut}'  of  a  sheriff,  if  one  had  been  j)resent  at  this  assault  b}'  Terry 
upon  Judge  Field,  to  prevent  this  breach  of  the  peace,  to  prevent  tliis 
assault,  to  prevent  the  murder  which  was  contemplated  by  it,  cannot  be 
doubted.  And  if,  in  performing  this  duty,  it  became  necessary  for  the 
protection  of  Judge  Field,  or  of  himself,  to  kill  Terry,  in  a  case  where, 


CHAP.  III.]  '■O"*'^'   "•   '^"'"™   ^'''^■'^^'  ^^ 

rv„  fl,i.  it  was  evidcntlv  a  qncstion  of  the  choice  of  who  should  be 
M  cd  he IrsaL,  and'violater  of  the  law  and  disUuber  of  the  peace, 
'„  «fe  unoSing  .an  who  was  in  "is  P-e.  there  e-  e  "O  qnesUon 
nf  the  authority  of  the  sheriff  to  have  killed  ferrj .  bo  tlie  marslia  oi 
1  II„i«  States,  charged  with  the  duty  of  protecting  and  guarding 
the  i"d"e  of  th  United  States  court  against  this  special  assault  upon 
the  judge  otie  V  ^^  ^l_^  ^^.^.^^^  moment,  when 

pvLT  ctio"  w  n  c^^sary.-foiud  it  to  be  his  duty,  a  duty  which  he 
h,d  1  o  libet  ■  to  refuse  to  perform.  U,  take  the  steps  which  resulted  ii 
T7rrv°s  deatli  This  duty  was  imposed  on  him  by  the  sec  ion  of  the 
S^iedSutes  which  w^  have  recited,  =" .-""-"»"  "'**\.7b 
conferred  by  the  State  of  California  upon  its  pe.ace  office  s  which  «- 
come,  bv  t'his  statute,  in  proper  cases,  transferred  as  duties  to  the 

"Thr';s';:it"rtw,;;!:irl!rv:ar;i;ed  upon  this  examination  l.  that 
i„rfectionofthei..o„a^^^^^^^^^^^^^ 

hit  without  prompt  action  on  his  part  tlie  assault  of  Ten}  upon  uie 

t"wo;;id  have  ended  in  the  death  of  the  lat^^'-- ."""X.^a?   h 
lelUbunded  belief,  he  was  justifled  in  t.aki„g  the  life  of  Ten  '^s  the 
llv  means  of  preventing  the  death  of  the  man  who  was  intended  to  be 
h  ivirtin      thit  in  taki,;,  the  life  of  Terry,  under  the  circumstances 
he  wis  act  n..  under  the  authority  of  the  law  of  the  United  States,  and 
was"  stifled" n  so  doing;  and  that  he  is  not  liable  to  answer  in  the 
courts  of  California  on  account  of  his  part  in  that  transaction. 
'"       We  therefore  affirm  tkejudgment  ofih.  CircuU  C<n<r    "Uthoru- 
inrj  his  d-Mharge  frmn  the  custody  of  tU  sheriff  of  txm 

Joaquin   County.  .  ,      i,        n   T^r. 

[The  dissenting  opinion  of  Mr.  Justice  Lamar,  with  whom  Chief 
Justice  Fuller  concmred,  is  omitted.] 

IK  Logan  v.  United  States,  144  U.  S.  263  (^«91),  on  ewor  to  the 
Circuit  Court  of  the  United  States  for  the  Northern  D.stnct  of  Texas 
w  ere  Logan  and  others  had  been  indicted  for  the  statutoy  offence  of 
Tn  pirac^-  to  injure  and  oppress  citizens  of  the  United  States  m  the 
frexercise  of  a  right  secured  to  them  by  the  Constitution  and  laws 
of  the  United  States  and  for  murder  in  pursuance  thereof,  and  were 
convicted   of  the   conspiracy  and  duly   ^^^^enced,- exceptions   were 
taken  to  various  rulings  and  instructions.  ,  ^^^^^  J^^?^^^'^,  ^.^^^ ^hf  ,^^^ 
court)  said:  "The  principal  question  in  this  case  is  whethei  the  light 
of  a  citizen  of  the  United  States,  in  the  custody  of  a  United  States  mar 
shal  under  a  lawful  commitment  to  answer  for  an  offence  against  the 
United  States,  to  be  protected  against  lawless  violence   is  a  nght  se- 
cured to  him  by  the  Constitution  or  laws  of  the  l^";ted  States   oi 
whether  it  is  a  right  which  can  be  vindicated  only  under  the  laws  of 
the  several  States. 


344  LOGAN   7).    UNITED   STATES,  [CHAP.  III. 

"This  question  is  presented  by  the  record  in  several  forms.  It  was 
raised  in  the  first  instance  by  the  defendants  '  excepting  to'  and  moving 
to  quash  the  indictment.  A  motion  to  quash  an  indictment  is  ordina- 
rily addressed  to  the  discretion  of  the  court,  and  therefore  a  refusal  to 
quash  cannot  generally  be  assigned  for  error.  United  States  v.  JRosen- 
burgh,  7  Wall.  580.  United  States  v.  Hamilton,  109  U.  S.  63.  But 
the  motion  in  this  case  appears  to  have  been  intended  and  understood 
to  include  an  exception,  which,  according  to  the  practice  in  Louisiana 
and  Texas,  is  equivalent  to  a  demurrer.  And  the  same  question  is  dis- 
tinctly presented  by  the  judge's  refusal  to  instruct  the  jury  as  requested, 
and  by  the  instructions  given  by  him  to  the  jury. 

"  Uix>n  this  question,  the  court  has  no  doubt.  As  was  said  by  Chief 
Justice  Marshall,  in  the  great  case  of  MeCuUock  v.  Maryland,  'The 
government  of  the  Union,  though  limited  in  its  powers,  is  supreme 
within  its  sphere  of  action.'  '  No  trace  is  to  be  found  in  the  Constitu- 
tion of  an  intention  to  create  a  dependence  of  the  government  of  the 
Union  on  those  of  the  States,  for  the  execution  of  the  gr-eat  ^wwers  as- 
signed to  it.  Its  means  are  adequate  to  its  ends  ;  and  on  those  means 
alone  was  it  expected  to  rely  for  the  accomplishment  of  its  ends.  To 
impose  on  it  the  necessity  of  resorting  to  means  which  it  cannot  control, 
which  another  government  may  furnish  or  withhold,  would  render  its 
course  precarious,  the  result  of  its  measures  uncertain,  and  create  a  de- 
pendence on  other  governments,  which  might  disappoint  its  most  impor- 
tant designs,  and  is  incompatible  with  the  language  of  the  Constitution.' 
4  Wheat.  316,  405,  424. 

"Among  the  powers  which  the  Constitution  expressly  confers  upon 
Congress  is  the  power  to  make  all  laws  necessary  and  proper  for  carrying 
jnto  execution  the  powers  specifically  granted  to  it,  and  all  other  powers 
vested  by  the  Constitution  in  the  government  of  the  United  States,  or  in 
any  department  or  officer  thereof.  In  the  exercise  of  this  general  power 
of  legislation,  Congress  may  use  any  means  appearing  to  it  most  eligible 
and  appropriate,  which  are  adapted  to  the  end  to  be  accomplished,  and 
are  consistent  with  the  letter  and  the  spirit  of  the  Constitution.  Mc  Cul- 
loch  V.  Maryland,  4  Wheat.  316,  421  ;  Juilliard  v.  Greenman,  110  U.  S. 
421,  440,  441. 

"  Although  the  Constitution  contains  no  grant,  general  or  specific,  to 
Congress  of  the  power  to  provide  for  the  punishment  of  crimes,  except 
piracies  and  felonies  on  the  high  seas,  offences  against  the  law  of  na- 
tions, treason,  and  counterfeiting  the  securities  and  current  coin  of  the 
United  States,  no  one  doubts  the  power  of  Congress  to  provide  for  the 
punishment  of  all  crimes  and  offences  against  the  United  States,  whether 
committed  within  one  of  the  States  of  the  Union,  or  within  territory 
over  which  Congress  has  plenary  and  exclusive  jurisdiction. 

"To  accomplish  this  ond,  Conpress  has  the  right  to  enact  laws  for 
the  arrest  and  commitment  of  thn-^p  nrr^ps^d  of  nny  ruHi  crime  or  of- 
fence, and  for  holdino:  them  in  safe  custodv  until  indictment  and  trial ; 
and  persons  arrested  and  held  pursuant  to  such  laws  arc  in  the  cxcIut 


CHAP.  III.]  LOGAN   V.   UNITED   STATES.  345 

sive  custod}- of  the  L>itH  ^<-"tor  nnc\  -^m  not  snhlpct,  to^tlie  inrlicinl. 
process  or  executive  warrant  of  any  State.  Ahleman  v.  Booth,  21  How. 
506;  Tarble's  Case,  13  Wall.  397;  Robb  v.  Connolly,  111  U.  S.  624. 
The  United  States,  having  the  absolute  right  to  hold  such  prisoners, 
.EH^^-arTeciuardu^o  protect  themj^jwhile_so_held,  against  assault  or 
injury  fromlTny  quarter.  The  existeiice  of  that  duty  on  the  part  of  the 
government  necessarily  implies  a  (;orrespondin<y  rJp-ht  of  the  prisoners 
to  hft  so  protected  :  and  this  right  of  the  prisonpr,^  i,s  a  ri°:hti  Sf^cured  to 
them  by  the  Constitution  and  laws  of  the  United  States. 

"The  statutes  of  the  United  States  have  provided  that  any  person 
accused  of  a  crime  or  offence  against  the  United  States  may  by  any 
United  States  judge  or  commissioner  of  a  Circuit  Court  be  arrested  and 
confined,  or  bailed,  as  the  case  may  be,  for  trial  before  the  court  of  the 
United  States  having  cognizance  of  the  offence  ;  and,  if  bailed,  may  be 
arrested  by  his  bail,  and  delivered  to  the  marshal  or  his  deputy,  before 
any  judge  or  other  officer  having  power  to  commit  for  the  offence,  and 
be  thereupon  recommitted  to  the  custody  of  the  marshal,  to  be  held 
until  discharged  by  due  course  of  law.  Rev.  Stat,  §§  1014,  1018. 
They  have  also  provided  that  all  the  expenses  attendant  upon  the  trans- 
portation from  place  to  place,  and  upon  the  temporary  or  permanent 
confinement,  of  persons  arrested  or  committed  under  the  laws  of  the 
United  States,  shall  be  paid  out  of  the  Treasury  of  the  United  States  ; 
and  that  the  marshal,  in  case  of  necessity,  may  provide  a  convenient 
place  for  a  temporary  jail,  and  '  shall  make  such  other  provision  as  he 
may  deem  expedient  and  necessary  for  the  safe-keeping  of  the  prisoners 
arrested  or  committed  under  the  authority  of  the  United  States,  until 
permanent  provision  for  that  purpose  is  made  by  law.'  Rev.  Stat. 
i§  5536-5538. 

"  In  the  case  at  bar,  the  indictments  alleged,  the  evidence  at  the 
trial  tended  to  prove,  and  the  jury  have  found  by  their  verdict,  that 
while  Charles  ISIarlow  and  five  others,  citizens  of  the  United  States, 
were  ir*  the  custody  and  control  of  a  deputy  marshal  of  the  United 
States  under  writs  of  commitment  from  a  commissioner  of  the  Circuit 
Court,  in  default  of  bail,  to  answer  to  indictments  for  an  offence  against 
the  laws  of  the  United  States,  the  plaintiffs  in  error  conspired  to  injure 
and  oppress  them  in  the  free  exercise  and  enjoyment  of  the  right,  se- 
cured to  them  by  the  Constitution  and  laws  of  the  United  States,  to  be 
protected,  while  in  such  custody  and  control  of  the  deputy  marshal, 
against  assault  and  bodily  harm,  until  they  had  been  discharged  by  due 
process  of  the  laws  of  the  United  States. 

"  If,  as  some  of  the  evidence  introduced  by  the  government  tended 
to  show,  the  deputy  marshal  and  his  assistants  made  no  attempt  to 
protect  the  prisoners,  but  were  in  league  and  collusion  with  the  con- 
spirators, that  does  not  lessen  or  impair  the  right  of  protection,  secured 
to  the  prisoners  by  the  Constitution  and  laws  of  the  United  States. 

"The  prisoners  were  in  the  exclusive  custody  and  control  of  the 
United  States,  under  the  protection  of  the  United  States,  and  iu  the 


346  LOGAN   V.   UNITED   STATES.  [CHAP.  Ill, 

peace  of  the  United  States.  There  was  a  co-extensive  duty  on  the  part 
of  the  United  States  to  protect  against  lawless  violence  persons  so 
within  their  custody,  control,  protection,  and  peace  ;  and  a  correspond- 
ing right  of  those  persons,  secured  by  the  Constitution  and  laws  of  the 
United  States,  to  be  so  protected  by  the  United  States.  If  the  officers 
of  the  United  States,  charged  with  the  performance  of  the  duty,  in  be- 
half of  the  United  States,  of  affording  that  protection  and  securing  that 
right,  neglected  or  violated  their  duty,  the  prisoners  were  not  the  less 
under  the  shield  and  panoply  of  the  United  States. 

"The  cases  heretofore  decided  by  this  court,  and  cited  in  behalf  of 
the  plaintiffs  in  error,  are  in  no  way  inconsistent  with  these  views,  but, 
on  the  contrary,  contain  much  to  support  them.  The  matter  considered 
in  each  of  those  cases  was  whether  the  particular  right  there  in  question 
was  secured  by  the  Constitution  of  the  United  States,  and  was  within  the 
Acts  of  Congress.  But  the  question  before  us  is  so  important,  and  the 
learned  counsel  for  the  plaintiffs  in  error  have  so  strongly  relied  on 
those  cases,  that  it  is  fit  to  review  them  in  detail.  .  .  . 

"  The  whole  scope  and  effect  of  this  series  of  decisions  is  that,  while 
certain  fundamental  rights,  recognized  and  declared,  but  not  granted  or 
created,  in  some  of  the  amendments  to  the  Constitution,  are  thereby 
guaranteed  only  against  violation  or  abridgment  by  the  United  States, 
or  by  the  States,  as  the  case  may  be,  and  cannot  therefore  be  affirma- 
tively enforced  by  Congress  against  unlawful  acts  of  individuals ;  yet 
that  9\9ry  vi,o:bt,,  orpnted  by.  arising  under  or  dependent  upon,  the 
Constitution  of  the  United  States,  may  be  protected  and  enforced  by 
Congress  by  such  means  and  in  such  manner  as  Congress,  in  the  exer^ 
cise  of  the' correlative  duty  of  protection,  or  ofjhe  legislative jjow^ia 
conferred  upon  it  by  the  Constitution,  mav  in  its  discretion  deem  most 
eligible  and  best  adapted  to  attain  the  object 

"  Among  the  particular  rights  which  this  court,  as  we  have  seen,  has 
adjudged  to  be  secured,  expressly  or  by  implication,  by  the  Constitution 
and  laws  of  the  United  States,  and  to  be  within  section  5508  of  the 
Revised  Statutes,  providing  for  the  punishment  of  conspiracies  by  indi- 
viduals to  oppress  or  injure  citizens  in  the  free  exercise  and  enjoyment 
of  rights  so  secured,  are  the  political  right  of  a  voter  to  be  protected 
from  violence  while  exercising  his  right  of  suffrage  under  the  laws  of 
the  United  States;  and  the  private  right  of  a  citizen,  having  made  a 
homestead  entry,  to  be  protected  from  interference  while  remaining  in 
the  possession  of  the  land  for  the  time  of  occupancy  which  Congress 
has  enacted  shall  entitle  him  to  a  patent. 

"In  the  case  at  bar,  the  right  in  question  does  not  depend  upon  a_ny 
of  the  amendments  to  the  Constitution,  bul "arises  out  of  the  creation 
and  cstabiisbment  by  tlie  Constitution  itself  of  a  national  governmenj. 
wamount  and  supreme  within  its  sphereof  action.  Am-  government 
which  has  power  to  indict,  try,  and  punistfTor  c^'i"^e,  and  to  arrest 
the  accusej_and  hold  them  in  safekeepingTmtil  triaL  must  Inve  the 
,.j^r»^ar  ^pfl  t]^P  flinty  to  prntppt  ngninst  unlawful  interference  its  prisoners 


CHAP.  HI.]  LOGAN  V.   UNITED  STATES.  347 

SO  held,  as  well  as  its  executive  and  judicial  officers  charged  with  keep=. 
ing  and  trying  them. 

"In  the  ver}'  recent  Case  of  Neagle,  135  U.  S.  1,  at  October  Terra, 
1889,  it  was  held  that,  although  there  was  no  express  Act  of  Congress 
authorizing  the  appointment  of  a  deputy-  marshal  or  other  officer  to  at- 
tend a  justice  of  this  court  while  travelling  in  his  circuit,  and  to  protect 
him  against  assault  or  injur}',  it  was  within  the  power  and  the  dut}-  of 
the  executive  department  to  protect  a  judge  of  an}-  of  the  courts  of  the 
United  States,  when  there  was  just  reason  to  believe  that  he  would  be 
in  personal  danger  while  executing  the  duties  of  his  office  ;  that  an  as- 
sault upon  such  a  judge,  while  in  discharge  of  his  official  duties,  was 
a  breach  of  the  peace  of  tlie  United  States,  as  distinguished  from  the 
peace  of  the  State  in  which  the  assault  took  place;  and  tliat  a  deputy- 
marshal  of  the  United  States,  specially  charged  with  the  duty  of  pro- 
tecting and  guarding  a  judge  of  a  court  of  the  United  States,  had  im- 
posed upon  him  the  dutj'  of  doing  whatever  might  be  necessary  for  that 
purpose,  even  to  the  taking  of  human  life. 

"  In  delivering  judgment,  Mr.  Justice  Miller,  repeating  the  language 
used  by  Mr.  Justice  Bradley  speaking  for  the  court  in  Ex  parie  Siebold^ 
100  U.  S.  371,  394,  said :  '  It  is  argued  that  the  preservation  of  peace 
and  good  order  in  society  is  not  within  the  powers  confided  to  the  gov- 
ernment of  the  United  States,  but  belongs  exclusively  to  the  States. 
Here  again  we  are  met  with  the  theory  that  the  government  of  the  United 
States  does  not  rest  upon  the  soil  and  territor}-  of  the  countr}-.  We 
think  that  this  theory  is  founded  on  an  entire  misconception  of  the  na- 
ture and  powers  of  that  government.  We  hold  it  to  be  an  incontro- 
vertible principle,  that  the  government  of  the  United  States  may,  by 
means  of  physical  force,  exercised  through  its  official  agents,  execute 
on  every  foot  of  American  soil  the  powers  and  ftnictions  that  belong  to 
it.  This  necessarily  involves  the  power  to  command  obedience  to  its 
laws,  and  hence  the  power  to  keep  the  peace  to  that  extent '  135  U.  S. 
60.  After  further  discussion  of  that  question,  and  of  the  powers  of 
sheriffs  in  the  State  of  California,  where  the  transaction  took  place,  Mr. 
Justice  Miller  added  :  'That  there  is  a  peace  of  the  United  States  ;  that 
a  man  assaulting  a  judge  of  the  United  States  while  in  the  discharge  of 
his  duties  violates  that  peace  ;  that  in  such  case  the  marshal  of  the 
United  States  stands  in  the  same  relation  to  the  peace  of  the  United 
States  which  the  sheriff  of  the  county  does  to  the  peace  of  the  State  of 
California ;  are  questions  too  clear  to  need  argument  to  prove  them.' 
135  U.S.  69. 

''The  United  States  are  bmind-to  protoot  againot  law^loee  violonco  alt 
persons  in  their  service  or  custody  in  the  course  of  the  ndministrnt.inn 
of  justice.  This  duty  and  the  correlative  right  of  protection  -ivp  nnt. 
limited  to  the  magistrates  and  offipprs  ohnrve^c\  y^^iMi  f>-t-pr.nnri;ng  >^p.i 
executing  the  law^s,  bii<^  "PP^^'j  '^'^^^  nt  ^^-^^t.  pgnnl  fm-.^,  f/^  f]ir>cp  h^h} 
in  custody  on  accusation  of  crime,  and  deprived  of  all  mpqna  /->f  <,rAr. 
defence. 


348  HEPBURN   AND   DUNDAS   V.   ELLZEY.  [cHAP.  III. 

"  For  these  reasons,  we  are  of  opinion  that  the  crime  of  which  the 
plaintiffs  in  error  were  indicted  and  convicted  was  within  the  reach  of 
the  constitutional  powers  of  Congress,  and  was  covered  hy  section  5508 
of  the  Revised  Statutes."  .  .  . 


HEPBURN   AND  DUNDAS   v.  ELLZEY. 
Supreme  Court  of  the  United  States.     1804. 

[2  Crunch,  445  ;  1  Ciirtis's  Decisions,  520.] 

This  ease  came  before  the  court  npon  a  certificate  of  division  of 
opinion  of  the  judges  of  the  Circuit  Court,  for  the  District  of  Virginia. 
The  question  was  whether  Hepburn  and  Dundas,  the  plaintiffs  in  this 
cause,  who  are  citizens  and  residents  of  the  District  of  Columbia,  and 
are  so  stated  in  the  pleadings,  can  maintain  an  action  in  this  court 
against  the  defendant,  who  is  a  citizen  and  inhabitant  of  the  Common- 
wealth of  Virginia,  and  is  also  stated  so  to  be  in  the  pleadings,  or 
whether,  for  want  of  jurisdiction,  the  said  suit  ought  not  to  be  dis- 
missed. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  question  in  this  case  is,  whether  the  plaintiffs,  as  residents  of 
the  District  of  Columbia,  can  maintain  an  action  in  the  Circuit  Court 
of  the  United  States  for  the  District  of  Virginia. 

This  depends  on  the  Act  of  Congress  describing  the  jurisdiction  of 
that  court.  That  Act  gives  jurisdiction  to  the  Circuit  Courts  in  cases 
between  a  citizen  of  the  State  in  which  the  suit  is  brought,  and  a  citi- 
zen of  another  State.  To  support  the  jurisdiction  in  this  case,  there- 
fore, it  must  appear  that  Columbia  is  a  State. 

On  the  part  of  the  plaintiffs  it  has  been  urged  that  Columbia  is  a 
distinct  political  society  ;  and  is,  therefore,  "  a  State,"  according  to  the 
definitions  of  writers  on  general  law. 

This  is  true.  But  as  the  Act  of  Congress  obviously  uses  the  word 
"State"  in  reference  to  that  terra  as  used  in  the  Constitution,  it  be- 
comes necessarj'  to  inquire  whether  Columbia  is  a  State  in  the  sense 
of  that  instrument.  The  result  of  that  examination  is  a  conviction 
that  the  members  of  the  American  confederacy  only  are  the  States 
contemplated  in  the  Constitution. 

The  House  of  Representatives  is  to  be  composed  of  members  chosen 
by  the  people  of  the  several  States ;  and  each  State  shall  have  at  least 
one  representative. 

The  Senate  of  the  United  States  shall  be  composed  of  two  senators 
from  each  State.  ? 

Each  State  shall  appoint,  for  the  election|of  the  executive,  a  number 
of  electors  equal  to  its  whole  number  of  senators  and  representatives. 


CHAP.  III.]  SERE   ET   AL.   V.   PITOT   ET   AL.  349 

These  clauses  sb^w  thnt  tho  wnvfl  SlnfifLJqjqgrl  in  \h9  ^onstitii<^'''^n 
as  designating  a  member  of  the  Union,  and  excludes  from  the  term  the 
signification  attaclied  to  it  b}'  writers  on  tlie  law  ofnations.  When 
tlie  s.qmp  t^p'-m  which  has  been  iisefTplainl}-  in  this  limited  sense  in  the 
articlps  respecting  the  legislative  and  executive  departments,  is  also 
employpd  in  tiiat  wliich  respects  the  judicial  department,  it  must  be 
understood  as  retainJ'^g  ^hp  spnsp  m-iginnlly  given  to  it. 

Other  passages  from  the  Constitution  have  been  cited  by  the  plaintiffs 
to  show  that  the  term  State  is  sometimes  used  in  its  more  enlarged 
sense.  But  on  examining  the  passages  quoted,  the}'  do  not  prove  what 
was  to  be  shown  by  them. 

It  is  true  that  as  citizens  of  the  United  States,  and  of  that  particular 
district  which  is  subject  to  the  jurisdiction  of  Congress,  it_is  extra- 
ordinary that  the  courts  of  the  United  States,  which  are  open  to  aliens, 
and  to  the  citizens  of  every  State  in  the  Union,  should  be  closed  upon 
theuT  But  this  is  a  subject  for  legislative,  not  for  judicial  consid- 
eration. 

The  opinion  to  be  certified  to'  the  Circuit  Court  is,  that  that  court 
has  no  jurisdiction  in  the  c^e.^ 

In  Sere  et  al.  v.  Fitot  et  aZ.,  6  Cranch,  332  (1810),  Marshall,  C.  J., 
for  the  court,  said  :  "  Whether  the  citizens  of  the  Territory-  of  Orleans 
are  to  be  considered  as  the  citizens  of  a  State,  witliin  the  meaning  of 
the  Constitution,  is  a  question  of  some  difficult}',  which  would  be  de- 
cided, should  one  of  them  sue  in  any  of  the  circuit  courts  of  the 
United  States.  The  present  inquiry  is  limited  to  a  suit  brought  by 
or  agamst  a  citizen  of  the  Territory,  in  the  District  Court  of  Orleans. 
The  power  of  governing  and   nF  Ipgislgfing  fni-  a  Tprvitr.vy  ia  thp  iiipyi- 

1  As  regards  the  mere  power  of  Congress,  the  District  of  Cohimbia  is  supposed  to 
be  ou  the  same  footing  as  the  Territories.  It  was  formerly  sometimes  called  the  "  Terri- 
tory of  Columbia." 

"  Has  Congress  a  riglit  to  impose  a  direct  tax  ou  the  District  of  Columbia?  .  .  . 
The  power,  then,  to  lay  and  collect  duties,  imposts,  and  excises  may  be  exercised, 
and  must  be  exercised  throughout  the  United  States.  Does  this  term  designate 
the  whole,  or  any  particular  portion  of  the  American  empire  ?  Certainly  this 
question  can  admit  of  but  one  answer.  It  is  the  name  given  to  our  great  republic, 
which  is  composed  of  States  and  Territories.  The  District  of  Columbia,  or  tlie  terri- 
tory west  of  the  Missouri,  is  not  less  within  the  United  States  than  Maryland  or 
Pennsylvania;  and  it  is  not  less  necessary,  on  the  principles  of  our  Constitution,  that 
uniformity  in  the  imposition  of  imposts,  duties,  and  excises  should  be  observed  in  tiie 
one  than  in  the  other.  Since,  then,  the  power  to  lay  and  collect  taxes,  which  includes 
direct  taxes,  is  obviously  co-extensive  with  the  power  to  lay  and  collect  duties,  imposts, 
and  excises,  and  since  tlie  Intt.pr  AvtAndfi  throughout  the  United  States,  if.  follows. 
that  the  power  to  impose  direct  taxes  also  extends  throughout  the  United  StatfiS." 
[The  court  held  that  a  direct  tax  could  be  levied  on  the  district.]  Marshall,  C.  J. 
(for  the  court),  in  Loughborough  v.  Blake,  5  Wheat.  317  (1820). 

In  Geofroy  v.  Riggs,  133  U.  S.  258  (1889),  it  was  held  that  the  Di.^trict  of  Columbia 
js  oneot  "  the  States  of  the  Union?^  within  the  meanjng  of  Article  7  of  the  Consular 
Convention  witn  i<  ranee,  of  Feb.  7^  1853,  whereby  certain  rights  are  secured  to  French- 
men  in  "  the  States  of  the  Union."  —  Ed. 


350  AMERICAN   INS.   CO.   V.   CANTER.  [CHAP.  IIL 

table  .consequence  of  the  rjobt,  t,Q  flognirp  and  to  bold  tcrriton-.  Could 
this  position  be  contested,  the  Constitution  of  the  UiikecTStates  de- 
clares that  "  Congress  shall  have  power  to  djapeSe  of  and  make  all 
needful  rules  and  regulations  respecting  the^erritor}-  or  other  property' 
belonging  to  the  United  States."  ^^^Cordingly,  we  find  Congress  prts- 
spssino-  nnd  pvf^rf^i^jng  t.lie  absnluto.  and  nndJRputod  pog:£r_of  gov ei'n i ng 
and  legislating  for  the  Territory  of  Orleans.  Congress  has  given  theni. 
a  legislative,  an  executive,  aud  a  jndifiary^  wifli  snfh  pr>wpvg  nc  it  has. 
been  their  will  to  assign  to  those  depar^TripntR-i-PR^^of^^JA::^'. 


In  JVew  Orleans  v.  Winter  et  ah,  1  Wheat.  91  (1816),  Marshall, 
C.  J.,  for  the  court,  said  :  "  The  proceedings  of  the  court  .  .  .  are 
arrested  in  limine,  by  a  question  respecting  its  jurisdiction.  In  the 
case  of  Hepburn  &  Dundas  v.  Ellzey,  this  court  determined,  on  ma- 
ture consideration,  that  a  citizen  of  the  District  of  Columbia  could 
not  maintain  a  suit  in  the  Circuit  Court  of  the  United  States.  That 
opinion  is  still  retained. 

"  It  has  been  attempted  to  distinguish  a  Territory*  from  the  District 
of  Columbia  ;  but  the  court  is  of  opinion,  that  this  distinction  cannot  be 
maintained.  They  may  differ  in  man}'  respects,  but  neither  of  them  is 
a  State,  in  the  sense  in  which  that  term  is  used  in  the  Constitution. 
Every  reason  assigned  for  the  opinion  of  the  court^  that  a_citizen  of 
Columbia  was  not  capable  of  suingjn  the  courJL&j^fJihe  Uiiited, -States. 
under  the  Judiciary  Act,  is  equally  applicable  to  a  citizen^of^a  Tem- 
tory.  Gabriel  Winter,  then,  being  a  citizen  of  the  Mississippi  Territory, 
•was  incapable  of  maintaining  a  suit  alone  in  the  Circuit  Court  of 
Louisiana."  ^ 


THE  AMERICAN  INSURANCE  COMPANY  et  al.  v.  THREE 
HUNDRED  AND  FIFTY-SIX  BALES  OF  COTTON,  DAVID 
CANTER,  CLAIMANT. 

Supreme  Court  of  the  United  States.     1828. 

[1  Peters,  511.     7  Curtis's  Decisions,  685.] 

Ogden,  for  the  appellants  [the  plaintiffs]  ;  Whipjyle  and  Webster, 
contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  plaintiffs  filed  their  libel  in  this  cause  in  the  District  Court  of 
South  Carolina,  to  obtain  restitution  of  356  bales  of  cotton,  part  of  the 
cargo  of  the  ship  "  Point  a  Petre  ;  "  which  had  been  insured  b^-  them 

•  These  rulings  [in  Hepburn  v.  Ellzey  and  New  Orleans  v.  Winter'\  have  never  befin. 
^sturbeH,  hi^f.  tVip  print^ipl^  p|ggo7.fpH  hn^  hpen  acted  npon  ever  since  by  the  courts, 
when  the  point  has  _aiiaext.  —  Miller,  J.  (for  the  court),  in  Barney  y.  Baltimore,  & 
Wall.  280,  287  (1867).  — Ed. 


Cii^LT.  III.]  AMERICAN   INS.   CO.   V.   CANTER.  351 

on  a  voyage  from  New  Orleans  to  Havre  de  Grace,  in  France.  The 
"  Point  a  Petre"  was  wrecked  on  the  coast  of  Florida,  the  cargo  saved 
b}-  the  inhabitants,  and  carried  into  Key  West,  where  it  was  sold  for 
the  purpose  of  satisfying  the  salvors  ;  hy  virtue  of  a  decree  of  a  court 
consisting  of  a  notary  and  five  jurors,  which  was  erected  b}'  an  Act  of 
the  territorial  legislatui'e  of  Florida.  The  owners  abandoned  to  the  ' 
underwriters,  who  having  accepted  the  same,  proceeded  against  the 
property,  alleging  that  the  sale  was  not  made  by  order  of  a  court  com- 
petent to  change  the  propert}'. 

David  Canter  claimed  the  cotton  as  a  bona  fide  purchaser,  under  the 
decree  of  a  competent  court,  which  awarded  sevent3'-six  per  cent  to 
the  salvors  on  tlie  value  of  the  property  saved. 

The  district  judge  pronounced  the  decree  of  the  territorial  court  a 
nullity,  and  awarded  restitution  to  the  libellants  of  such  part  of  the 
cargo  as  he  supposed  to  be  identified  by  the  evidence,  deducting  there- 
from a  salvage  of  fift}'  per  cent. 

The  libellants  and  claimant  both  appealed.  The  Circuit  Court  re- 
versed the  decree  of  the  District  Court,  and  decreed  the  whole  cotton 
to  the  claimant,  with  costs,  on  the  ground  that  the  proceedings  of  the 
court  at  Key  AVest  were  legal,  and  transferred  the  property  to  the 
purchaser. 

From  this  decree  the  libellants  have  appealed  to  this  court. 

The  cause  depends  mainly  on  the  question  whether  the  property  \\\ 
the  cargo  saved  was  changed  by  the  sale  at  Key  West.  The  con- 
formit}-  of  that  sale  to  the  order  under  which  it  was  made  has  not 
been  controverted.  Its  validity  has  been  denied,  on  the  ground  that 
it  was  ordered  b}'  an  incompetent  tribunal. 

The  tribunal  was  constituted  hy  an  Act  of  the  territorial  legislature 
of  Florida,  passed  on  the  4th  July,  1823,  which  is  inserted  in  the 
record.  That  Act  purports  to  give  the  power  which  has  been  ex- 
ercised ;  consequently,  the  sale  is  valid,  if  the  territorial  legislature 
was  competent  to  enact  the  law. 

The  course  which  the  argument  has  taken,  will  require  that,  in 
deciding  this  question,  the  court  should  take  into  view  the  relation  in 
■which  Florida  stands  to  the  United  States. 

The  Constitution  confers  absolutel}-  on  the  government  of  the  Union 
the  powers  of  making  war  and  of  making  treaties ;  consequently,  that 
government  possesses  the  power  of  acquiring,  territory,  either  by  con- 
quest or  by  treat}'. 

The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued,  to 
consider  the  holding  of  conquered  territory  as  a  mere  military  occupa- 
tion, until  its  fate  shall  be  determined  at  the  treaty  of  peace.  If  it  be 
ceded  by  the  treat}',  the  acquisition  is  confirmed,  and  the  ceded  terri- 
tory beconj^s  a  part  of  the  nation  to  which  it  is  annexed,  either  on  the 
terms  stipq)ated  in  the  treaty  of  cession,  or  on  such  as  its  new  master 
shall  impo|e.  On  such  transfer  of  territory,  it  has  never  been  held 
that  the  relations  of  the  inhabitants  with   each   other   undergo   any 


352  AMERICAN   INS.    CO.   V.    CANTER.  [CHAP.  III. 

change.  Their  relations  with  their  former  sovereign  are  dissolved,  and 
new  relations  are  created  between  them  and  the  government  whicli 
has  acquired  their  territory'.  The  same  act  whicli  transfers  their 
country,  transfers  the  allegiance  of  those  who  remain  in  it ;  and  thfi 
law,  which  may  be  denominated  political ,  is  jiecessarily  changed, 
although  "tEat  which  regulates  the  intercourse  and  general  conduct  of 
individuals,  remains  in  force  until  altered  by  the  newl^'  creaied-poviiei: 
of  the  State. 

On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the  United 
States.  Tlie  6th  article  of  the  treat}-  of  cession,  8  Stats,  at  Large,  252, 
contains  tlie  following  provision:  "  The  inhabitants  of  the  territories 
which  his  Catholic  Majesty  cedes  to  the  United  States  by  this  treaty, 
shall  be  incorporated  in  the  Union  of  the  United  States,  as  soon  as 
may  be  consistent  with  the  principles  of  the  Federal  Constitution,  and 
admitted  to  the  enjoyment  of  the  privileges,  rights,  and  immunities  of 
the  citizens  of  tlie  United  States." 

This  treaty  is  the  law  of  the  land,  and  admits  the  inhabitants  of 
Florida  to  the  enjoyment  of  the  privileges,  rights,  and  immunities  of 
the  citizens  of  the  United  States.  It  is  unnecessary  to  inquire  whether 
this  is  not  their  condition,  independent  of  stipulation.  The}-  do  not, 
however,  participate  in  political  power ;  the}-  do  not  sliare  in  the  gov- 
ernment till  Florida  shall  become  a  State.  In  the  mpnn  tiipp^  Tj^lnnVln. 
continues  to  be  a  Territory  of  the  United  States,  g^overned  by  virtue^f 
that  clause  in  the  Constitution  whi(!h  empow-ers  Congress  "  to  make  al^ 
needful  rules  and  regulations  respecting  the  territory  or  other  property 
belonging;  to  the  TTnitpd  Stntps," 

Perhaps  the  power  of  governing  a  Territory  belonging  to  the  United 
States,  which  has  not,  by  becoming  a  State,  acquired  the  means  of 
self-government,  may  result  necessarily  from  the  facts  that  it  is  not 
within  the  jurisdiction  of  any  particular  State,  and  is  within  the  power 
and  jurisdiction  of  the  United  States.  The  right  to  govern  may  be  the 
inevitable  consequence  of  the  right  to  acquire  territon-.  Whichever 
may  be  the  source  whence  the  power  is  derived,  the  possession  of  it  is 
unquestioned.  In  execution  of  it.  Congress,  in  1822,  passed  "an  Act 
for  the  establishment  of  a  territorial  government  in  Florida,"  3  Stats, 
at  Large,  654,  and  on  the  3d  of  March,  1823,  passed  another  Act  to 
amend  the  Act  of  1822.  Under  this  Act,  the  territorial  legislature 
enacted  the  law  now  under  consideration.  .  .  . 

The  powers  of  the  Territorial  legislature  extend^to  nil  rightful  f»hjpf>|a 
of  legislation,  subject  to  the  restriction  tliat^their  laws  shalL  not  b^ 
"  inconsistent  with  the  laws  and  Constitution  of  the  United  States." 
As  salvage  is  admitted  to  come  within  this  description,  the  Act  is  valid 
unless  it  can  be  brought  within  the  restriction. 

The  counsel  for  the  libellants  contend  that  it  is  inconsistent  with 
both  the  law  and  the  Constitution  ;  that  it  is  inconsistent  with  the 
provisions  of  the  law  by  which  the  territorial  government  was  created, 
and  with  the  amendatory  Act  of  March,  1823.     It  vests,  they  sav^  in 


CHAP.  III.]  AMERICAN   INS.    CO.   V.   CANTER.  353 

anjnferiorjribu^^  Acts.  Yiisl^d 

pvflnsivelv  in  the  saperior__cmiils  J^Llhe_lerritQry.  •  •   •  ,  .  ,    ,. 

"ThTi^Testion  suggested   by  this  view  of  the  subject,  on  which  the 
case  under  consideration  must  depend,  is  this  :  —  ,     ,       t— .  ^ 

Is  the  admiralty  jurisdiction  of  the  district  courts   of  tiie   Lm  ed 
States  vested  in  the  superior  courts  of  Florida,  under  the  words  of  the 
8th  section,  declaring  that  each  of  the  said  courts  -  s^hall^.mopover^ 
1^.  .nd  PVProise  the  same  jurisdiction  witliin  its  limits,  in  al  c,as_ei 
^pg.uidPr  f'hiUa^  -in^  rvT7:;i;i;^;iI^n-^  the-United-Statea^  which_ 
wn«  vPstPd  in  the  courts  of  theJCenMcky-dlstlict  ? 

It  is  observable  that  this  cTause  does  not  confer  on  the  territorial 
courts  all  the  jurisdiction  which  is  vested  in  the  court  of  the  Kentucky 
district,  but  that  part  of  it  only  which  applies  to  '^  cases^nsui|_imder 
thUaws^n<LConstitu^^ 

raltv  of  this  description?  .     .    -.w       * 

■  The  Constitution  a^KUaws  of  the  United  States  give  jurisdiction  to 
the  district  courts  over  all  cases  in  admiralty  ;  but  jurisdiction  over 
the  case  does  not  constitute  the  case  itself.  We  are,  therefore  to 
inquire  whether  cases  in  admiralty  and  cases  arising  under  the  laws 
and  Constitution  of  the  United  States  are  identical. 

If  we  have  recourse  to  that  pure  fountain  from  which  all  the  jnnsdici- 
tion  of  the  Federal  courts  is  derived,  we  find  language  employed  which 
cannot  well  be  misunderstood.  The  Constitution  declares  that  "the 
judicial  power  shall  extend  to  all  cases  in  law  and  equity  arising  under 
this  Constitution,  the  laws  of  the  United  States,  and  treaties  made,  or 
which  shall  be  made,  under  their  authority  ;  to  all  cases  affecting  am- 
bassadors, or  other  public  ministers,  and  consuls ;  to  all  cases  of 
admiralty  and  maritime  jurisdiction." 

The    Constitution    certainly   contemplates   these   as   three   distinct 
classes  of  cases;    and,  if  they  are  distinct,  the  grant  of  jurisdiction 
over  one  of  them  does  not  confer  jurisdiction  over  either  of  the  other 
two      The  discrimination  made  between  them  in  the  Constitution  is, 
we  think,  conclusive  against  their  identity.     If  it  were  not  so,  if  this 
were   a  point  open   to  inquiry,  it  would  be  difficult  to  maintain  the 
proposition  that  they  are  the  same.     A_casejnjulrnir^^ 
fact,  nrispnnder  the  Constitution  or  laws  of  theUiiited_States.     These 
^^i^TJTfe  as  old  as  navigation  itself;  and  the  law,  admiralty  and  mari- 
time, as  it  has  existed  for  ages,  is  applied  by  our  courts  to  the  cases  as 
they  arise.     It  is  not,  then,  to  the  8th  section  of  the  territorial  law  that 
we  are  to  look  for  the  grant  of  admiralty  and  maritime  jurisdiction  to 
the  territorial  courts.     Consequently,  if  that  jurisdiction  is  exclusive, 
it  is  not  made  so  bv  the  reference  to  the  District  Court  of  Kentucky. 

It  has  been  contended  that,  by  the  Constitution,  the  judicial  power 
of  the  United  States  extends  to  all  cases  of  admiralty  and  maritime 
jurisdiction,  and  that  the  whole  of  this  judicial  power  must  be  vested 
"  in  one  supreme  court  and  in  such  inferior  courts  as  Congress  shall 
from  time  to  time  ordain  and  establish."  Hence,  it  has  been  argued 
vol..  I.  — 23 


354  AMERICAN   INS.   CO.   V.   CANTER.  [CHAP.  III. 

that  Congress  cannot  vest  admiralty  jurisdiction  in  courts  created  by 
the  territorial  legislature. 

We  have  only  to  pursue  this  subject  one  step  further  to  perceive 
that  this  provision  of  the  Constitution  does  not  apply  to  it.  The  next 
sentence  declares  that  "  the  judges,  both  of  the  supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior."  The  judges  of 
the  superior  courts  of  Florida  hold  their  offices  for  four  years.  These 
courts,  then,  are  not  constitutional  courts,  in  which  the  judicial  power 
conferred  by  the  Constitution  on  the  general  government  can  be 
deposited.  They  are  incapable  of  receiving  it.  They  are  legislative 
courts,  created  in  virtue  of  the  general  right  of  sovereignty  which 
exists  in  the  government,  or  in  virtue  of  that  clause  which  enables 
Congress  to  make  all  needful  rules  and  regulations  respecting  the  terri- 
tor}'  belonging  to  the  United  States.  Tlie  jurisdiction  with  which 
they  are  invested  is  not  a  part  of  that  judicial  power  which  is  defined 
in  the  3d  article  of  the  Constitution,  but  is  conferred  b}-  Congress,  in 
the  execution  of  those  general  powers  which  that  body  possesses  over 
the  Territories  of  the  United  States.     Although  admiralty  jurisdiction 

^•nn_  hp  pvprpispfl  iii  Iho  Stntpg  in  llin^p  fniiits  only  which  are  estab- 
lished 'n  ppi-snnnpp  nf  thp  .^rl  nrtirlp  nf  the  Constitution,  the  same 
limitation  does  not  extend  to  the  Territories.  In  legislating  for  thepn, 
Congress  exercises  the  combined  powej;s  <>>'  thp  apnernl  and  of  a  State 
aoverninppt. 

We  think,  then,  that  the  Act  of  the  territorial  legislature  erecting 
the  court  by  whose  decree  the  cargo  of  the  "  Point  a  Petre"  was  sold, 
is  not  "inconsistent  with  the  laws  and  Constitution  of  the  United 
States,"  and  is  valid.  Consequenth',  the  sale  made  in  pursuance  of  it 
changed  the  property*,  and  the  decree  of  the  Circuit  Court,  awarding 
restitution  of  the  property  to  the  claimant,  ought  to  be  affirmed,  with 
costs. ^ 

^  In  the  argnment  at  the  Bar,  great  attention  has  been  paid  to  the  meaning  of  the 
word  "  territory." 

Ordinarily,  when  the  territory  of  a  sovereign  power  is  spoken  of,  it  refers  to  that 
tract  of  country  which  is  under  the  political  jurisdiction  of  that  sovereign  power. 
Thus  Chief  Justice  Marshall  (in  United  States  v.  Bevans,  3  Wheat.  386)  says  :  "  What, 
then,  is  the  extent  of  jurisdiction  which  a  State  possesses?  We  answer,  without  hesi- 
tation, the  jurisdiction  of  a  State  is  coextensive  with  its  territory."  Examples  might 
easily  be  multiplied  of  this  use  of  the  word,  but  they  are  unnecessary  because  it  is 
familiar.  But  the  word  "  territory  "  is  not  used  in  this  broad  and  general  sense  in 
this  clause  of  the  Constitution. 

At  the  time  of  the  adoption  of  the  Constitution,  the  United  States  held  a  great 
tract  of  country  northwest  of  the  Ohio  ;  another  tract,  then  of  unknown  extent,  ceded 
by  South  Carolina ;  and  a  confident  expectation  was  then  entertained,  and  afterwards 
realized,  that  they  then  were  or  would  become  the  owners  of  other  great  tracts, 
claimed  by  North  Carolina  and  Georgia.  These  ceded  tracts  lay  within  the  limits  of 
the  United  States,  and  out  of  the  limits  of  any  particular  State ;  and  the  cessions 
embraced  the  civil  and  political  jurisdiction,  and  so  much  of  the  soil  as  had  not  previ- 
ously been  granted  to  individuals. 

These  words,  "  territory  belonging  to  the  United  States,"  were  not  used  in  the 
Constitution  to  describe  an  abstraction,  but  to  identify  and  apply  to  these  actual  sub- 


CHAP.  III.J  AMERICAN  INS.   CO.   V.   CANTER.  355 

jects  matter  then  existing  and  belonging  to  the  United  States,  and  other  similar 
subjects  which  might  afterwards  be  acquired ;  and  this  being  so,  all  the  essential 
qualities  and  incidents  attending  such  actual  subjects  are  embraced  within  the  words 
"  territory  belonging  to  the  United  States."  as  fully  as  if  each  of  those  essential 
qualities  and  incidents  had  been  specifically  described. 

I  say,  the  essential  qualities  and  incidents.  But  in  determining  what  were  the 
essential  qualities  and  incidents  of  tlie  subject  with  which  they  were  dealing,  we  must 
take  into  consideration  not  only  all  the  particular  facts  which  were  immediately 
before  them,  but  the  great  consideration,  ever  present  to  the  minds  of  those  who 
framed  and  adopted  the  Constitution,  that  they  were  making  a  frame  of  government 
for  the  people  of  the  United  States  and  their  posterity,  under  which  they  hoped  the 
United  States  might  be,  what  they  have  now  become,  a  great  and  powerful  nation, 
possessing  the  power  to  make  war  and  to  conclude  treaties,  and  thus  to  acquire  terri- 
tory. (See  Sere  v.  Pitot,  6  Cr.  3.36  ;  Am.  his.  Co.  v.  Canter,  1  Pet.  542.)  With  these 
in  view,  I  turn  to  examine  the  clause  of  the  article  now  in  question. 

It  is  said  this  provision  has  no  application  to  any  territory  save  that  then  belonging 
to  the  United  States.  I  have  already  shown  that,  when  the  Constitution  was  framed, 
a  confident  expectation  was  entertained,  which  was  speedily  realized,  that  North  Caro- 
lina and  Georgia  would  cede  their  claims  to  that  great  territory  which  lay  west  of 
those  States.  No  doubt  has  been  suggested  that  the  first  clause  of  this  same  article, 
which  enabled  Congress  to  admit  new  States,  refers  to  and  includes  new  States  to  be 
formed  out  of  this  territory,  expected  to  be  thereafter  ceded  by  North  Carolina  and 
Georgia,  <as  well  as  new  States  to  be  formed  out  of  territory  northwest  of  the  Ohio, 
which  then  had  been  ceded  by  Virginia.  It  must  have  been  seen,  therefore,  that  the 
same  necessity  would  exist  for  an  authority  to  dispose  of  and  make  all  needful  regu- 
lations respecting  this  territory,  when  ceded,  as  existed  for  a  like  authority  respecting 
territory'  which  had  been  ceded. 

No  reason  has  been  suggested  why  any  reluctance  should  have  beeu  felt,  by  the 
framers  of  the  Constitution,  to  apply  this  provision  to  all  the  territory  which  might 
belong  to  the  United  States,  or  why  any  distinction  should  have  been  made,  founded 
on  the  accidental  circumstance  of  the  dates  of  the  cessions ;  a  circumstance  in  no  way 
material  as  respects  tlie  necessity  for  rules  and  regulations,  or  the  propriety  of  con- 
ferring on  the  Congress  power  to  make  them.  And  if  we  look  at  the  course  of  the 
debates  in  the  Convention  on  this  article,  we  shall  find  that  the  then  unceded  lands, 
so  far  from  having  been  left  out  of  view  in  adopting  this  article,  constituted,  in  the 
minds  of  members,  a  subject  of  even  paramount  importance. 

Again,  in  what  an  extraordinary  position  would  the  limitation  of  this  clause  to 
territory  then  belonging  to  the  United  States,  place  the  territory  which  lay  within  the 
chartered  limits  of  North  Carolina  and  Georgia.  The  title  to  that  territory  was  then 
claimed  by  those  States,  and  by  the  United  States ;  their  respective  claims  are  pur- 
posely left  unsettled  by  the  express  words  of  this  clause ;  and  when  cessions  were 
made  by  those  States,  they  were  merely  of  their  claims  to  this  territory,  the  United 
States  neither  admitting  nor  denying  the  validity  of  those  claims;  so  that  it  was  im 
po.ssible  then,  and  has  ever  since  remained  impossible,  to  know  whether  this  territory 
did  or  did  not  then  belong  to  the  United  States ;  and,  consequently,  to  know  whether 
it  was  within  or  without  the  authority  conferred  by  this  clause,  to  dispose  of  and  make 
rules  and  regulations  respecting  the  territory  of  the  United  States.  This  attributes 
to  the  eminent  men  who  acted  on  this  subject  a  want  of  ability  and  forecast,  or  a 
want  of  attention  to  the  known  facts  upon  which  they  were  acting,  in  which  I  cannot 
concur. 

There  is  not,  in  my  judgment,  anything  in  the  language,  the  history,  or  the  sub- 
ject-matter of  this  article,  which  restricts  its  operation  to  territory  owned  by  the 
United  States  when  the  Constitution  was  adopted. 

But  it  is  also  insisted  that  provisions  of  the  Constitution  respecting  territory 
belonging  to  the  United  States  do  not  apply  to  territory  acquired  by  treaty  from  a 
foreign  nation.  This  objection  must  rest  upon  the  position  that  the  Constitution 
did  not  authorize  the  Federal   government   to   acquire   foreign   territory,  and   cou- 


^ 


356  AMERICAN   INS.    CO.   V.   CANTER.  [CHAP.  III. 

sequently  has  made  no  provision  for  its  government  when  acquired ;  or,  that  though 
the  acquisition  of  foreign  territory  was  contemplated  by  the  Constitution,  its  pro- 
visions concerning  the  admission  of  new  States,  and  the  making  of  all  needful  rules 
and  regulations  respecting  territory  belonging  to  the  United  States,  were  not  designed 
to  be  applicable  to  territory  acquired  from  foreign  nations. 

It  is  undoubtedly  true,  that  at  the  date  of  the  treaty  of  1803,  between  the  United 
States  and  France,  for  the  cession  of  Louisiana,  it  was  made  a  question,  whether  the 
Constitution  had  conferred  on  the  executive  department  of  the  government  of  the 
United  States  power  to  acquire  foreign  territory  by  a  treaty. 

There  is  evidence  that  very  grave  doubts  were  then  entertained  concerning  the 
existence  of  this  power.  But  that  there  was  then  a  settled  opinion  in  the  executive 
and  legislative  branches  of  the  government,  that  this  power  did  not  exist,  cannot  be 
admitted,  without  at  the  same  time  imputing  to  those  who  negotiated  and  ratified  the 
treaty,  and  passed  the  laws  necessary  to  carry  it  into  execution,  a  deliberate  and 
known  violation  of  their  oaths  to  support  the  Constitution ;  and  whatever  doubts  may 
then  have  existed,  the  question  must  now  be  taken  to  have  been  settled.  Four  dis- 
tinct acquisitions  of  foreign  territory  have  been  made  by  as  many  different  treaties, 
under  as  many  different  administrations.  Six  States,  formed  on  such  territory,  are 
now  in  the  Union.  Every  branch  of  this  government,  during  a  period  of  more  than 
fifty  years,  has  participated  in  these  transactions.  To  question  their  validity  now,  is 
vain.  As  was  said  by  Mr.  Chief  Justice  Marshall,  in  the  American  Insurance  Company 
V.  Canter  (1  Peters,  .542),  "  the  Constitution  confers  absolutely  on  thp  gnvprnrnpnt.  of  f.ha 
Unionthe  powers  of  makinp;  war  and  of  making  treaties:  consequently  tliat.  gf^yprg- 
ment  possesses  the  power  of  acquiring  territory,  either  by  conquest  or  treaty."  ( See 
Seri  V.  Pitot,  6  Cr.  336.)  And  I  add,  it  also  possesses  the  power  of  governing  it. 
when  acquired,  not  by  resorting  to  supposititiouspowers,  nowhere  found  descril)ed.  ia 
the  Constitution,  but  expressly  granted  in  the  authority  to  make  all  needful^u]es_axui 
regulations  respecting  the  territorv  of  the  United  St.^.tRS■ 

There  was  to  be  established  by  the  Constitution  a  frame  of  government,  under 
which  the  people  of  the  United  States  and  their  posterity  were  to  continue  indefi- 
nitely. To  take  one  of  its  provisions,  the  language  of  which  is  broad  enough  to 
extend  throughout  the  existence  of  the  Government,  and  embrace  all  territory 
belonging  to  the  United  States  throughout  all  time,  and  tlie  purposes  and  objects  of 
which  apply  to  all  territory  of  the  United  States,  and  narrow  it  down  to  territory 
belonging  to  the  United  States  when  the  Constitution  was  framed,  while  at  the  same 
time  it  is  admitted  that  the  Constitution  contemplated  and  authorized  the  acquisition, 
from  time  to  time,  of  other  and  foreign  territory,  seems  to  me  to  be  an  interpretation 
as  inconsistent  with  the  nature  and  purposes  of  the  instrument,  as  it  is  with  its 
language,  and  I  can  have  no  hesitation  in  rejecting  it. 

I  construe  this  clause,  therefore,  as  if  it  had  read.  Congress  shall  have  power  to 
make  all  needful  rules  and  regulations  respecting  those  tracts  of  country,  ouCoTThe 
limits  of  the  several  States,  which  the  United  States  have  acquired,  or  may  hereafter 
acquire,  by  cessions,  as  well  of  the  jurisdiction  a^  of  the  soil,  so  far  as  the  soil  may  be 
the  property  of  the  party  makinf^  the  cession,  at  the  time  of  making  it. 

It  has  been  urged  that  the  words  "  rules  and  regulations  are  not  appropriate 
terms  in  which  to  convey  authority  to  make  laws  for  the  government  of  the  territory. 

But  it  must  be  remembered  that  this  is  a  grant  of  power  to  the  Congress  —  that  it 
is  therefore  necessarily  a  grant  of  power  to  legislate  —  and,  certainly,  rules  and  regu- 
lations respecting  a  particular  subject,  made  by  the  legislative  power  of  a  country, 
can  be  nothing  but  laws.  Nor  do  the  particular  terms  employed,  in  my  judgment, 
tend  in  any  degree  to  restrict  this  legislative  power.  Power  granted  to  a  legislature 
to  make  all  needful  rules  and  regulations  respecting  the  territory,  is  a  power  to  pass 
all  needful  laws  respecting  it. 

The  word  regulate,  or  regulation,  is  several  times  used  in  the  Constitution.  It  is 
used  in  the  fourth  section  of  the  first  article  to  describe  those  laws  of  the  States  which 
prescribe  the  times,  places,  and  manner  of  choosing  senators  and  representatives;  in 
the  second  section  of  the  fourth  article,  to  designate  the  legislative  action  of  a  State 


CHAP.  III.]  AMERICAN  INS.   CO.   V.    CANTER.  357 

on  the  subject  of  fugitives  from  service,  having  a  very  close  relation  to  the  matter  of 
our  present  inquiry ;  in  the  second  section  of  the  third  article,  to  empower  Congress 
to  fix  the  extent  of  the  appellate  jurisdiction  of  this  court ;  and,  finally,  in  the  eighth 
section  of  the  first  article  are  the  words,  "  Congress  shall  have  powei>to  regulate 
commerce." 

It  is  unnecessary  to  describe  the  body  of  legislation  which  has  been  enacted  under 
this  grant  of  power ;  its  variety  and  extent  are  well  known.  But  it  may  be  men- 
tioned, in  passing,  that  under  this  power  to  regulate  commerce,  Congress  has  enacted 
a  great  system  of  municipal  laws,  and  extended  it  over  the  vessels  and  crews  of  the 
United  States  on  the  high  seas  and  in  foreign  ports,  and  even  over  citizens  of  the 
United  States  resident  in  China ;  and  has  established  judicatures,  with  power  to  inflict 
even  capital  punishment  within  that  country. 

If,  then,  this  clause  does  contain  a  power  to  legislate  respecting  the  territory,  what 
are  the  limits  of  that  power  1 

To  this  I  answer,  that,  in  common  with  all  the  other  legislative  pnwprs  of  Con- 
gress, it  finds  limits  in  the  expret^s  pmhihitinTis  nii  Congress  not  to  do  certain  tilings  ; 
that,  in  the  exercise  of  the  legislative  power,  Congress  cannot  pass  an  ex  post  facto 
law  or  bill  of  attainder;  and  so  in  respect  to  each  of  the  other  prohibitions  contained 
in  the  Constitution. 

Besides  this,  the  rules  and  regulations  must  be  needfi^L  But  undoubtedly  the 
question  whether  a  particular  rule  or  regulation  be-HecttfulTnmst  be  finally  determined 
by  Congress  itself.  Whgthe£--a-4{rvr~l5e"ueedful,  is  a  legislative  or  political,  not  a 
judicial,  question.     Whatever  Congress  tleeliis  needful  is  so,  under  the  grn.nt  of  power. 

Nor  am  I  aware  that  it  has  ever  been  questioned  that  laws  providing  for  the  tem- 
porary government  of  the  settlers  on  the  public  lands  are  needful,  not  only  to  prepare 
them  for  admission  to  the  Union  as  States,  but  even  to  enable  the  United  States  to 
dispose  of  the  lauds. 

Without  government  and  social  order,  there  can  be  no  property  ;  for  without  law, 
its  ownership,  its  use,  and  the  power  of  disposing  of  it,  cease  to  exist,  in  the  sense  in 
which  those  words  are  used  and  understood  in  all  civilized  States. 

Since,  then,  this  power  was  manifestly  conferred  to  enable  the  United  States  to 
dispose  of  its  public  lands  to  settlers,  and  to  admit  them  into  the  Union  as  States, 
when  in  the  judgment  of  Congress  they  should  be  fitted  therefor,  since  these  were  the 
needs  provided  for,  since  it  is  confessed  that  government  is  indispensable  to  provide 
for  those  needs,  and  the  power  is,  to  make  all  needful  rules  and  regulations  respecting 
the  territory,  I  cannot  doubt  that  this  is  a  power  to  govern  the  inhabitants  of  the 
territory,  by  such  laws  as  Congress  deems  needful,  until  they  obtain  admission  as 
States. 

Whether  they  should  be  thus  governed  solely  by  laws  enacted  by  Congress,  or 
partly  by  laws  enacted  by  legislative  power  conferred  by  Congress,  is  one  of  those 
questions  which  depend  on  the  judgment  of  Congress  —  a  question  which  of  these 
is  needful  —Curtis,  J.  in  Dred  Scott  v.  Sandford,  19  How.  610-615  (1856).  Cora- 
pare  Taney,  C.  J.  lb.  432-451. 

See  Benner  v.  Porter,  9  How.  235;  U.  S.  v.  Guthrie,  17  How.  284,  and  Clinton  v. 
Englebrecht,  13  Wall.  434  (1871).  In  the  last  of  the.se  cases,  at  p.  447,  Cha.'^e,  C.  J. 
(for  the  court)  said:  "There  is  no  Supreme  Court  of  the  United  States,  nor  is  there 
any  District  Court  of  the  United  States,  in  the  sense  of  the  Constitution,  in  the  Ter- 
ritory of  Utah.  The  judges  are  not  appointed  for  the  same  terms,  nor  is  the  juris- 
diction which  they  exercise  part  of  the  judicial  power  conferred  by  the  Constitution  or 
the  general  government.  The  courts  are  the  legislative  courts  of  the  Territory,  created 
in  virtue  of  the  clause  which  authorizes  Congress  to  make  all  needful  rules  and  regu- 
lations respecting  the  Territories  belonging  to  the  United  States."  —  Ed. 


358  CALLAN   V.   WILSON.  [CHAP.  III. 


CALLAN  V.  WILSON. 
Supreme  Court  of  the  United  States.     1887. 

[127  U.  S.  540.] 

The  court  stated  the  case  as  follows  :  — 

This  was  an  appeal  from  a  judgment  refusing,  upon  writ  of  habeas 
corpus^  to  discharge  the  appellant  from  the  custody  of  the  appellee  as 
Marshal  of  the  District  of  Columbia.  It  appears  that  by  an  informa- 
tion filed  by  the  United  States  in  the  police  court  of  the  District,  the 
petitioner,  with  others,  was  charged  with  the  crime  of  conspiracy,  and 
having  been  found  guilty  by  the  court,  was  sentenced  to  pa}-  a  fine  of 
twenty-five  dollars,  and  upon  default  in  its  payment  to  suffer  imprison- 
ment in  jail  for  the  period  of  thirty  days.  He  perfected  an  appeal  to 
the  Supreme  Court  of  the  District,  but  having  subsequently  withdrawn 
it,  and  having  refused  to  pay  the  fine  imposed  upon  him,  he  was  com- 
mitted to  the  custody  of  the  marshal,  to  the  end  that  the  sentence  might 
be  carried  into  effect. 

The  contention  of  the  petitioner  was  that  he  is  restrained  of  his 
libert}'  in  violation  of  the  Constitution.  .  .  .  To  this  information  the 
defendants  interposed  a  demurrer,  which  was  overruled.  They  united 
in  requesting  a  trial  by  jury.  That  request  was  denied,  and  a  trial  was 
had  before  the  court,  without  the  intervention  of  a  jur}-,  and  with  the 
result  already  stated. 

Mr.  J.  H.  Ralston,  for  appellant.  Mr.  Charles  S.  Moore  was  with 
him  on  the  brief 

Mr.  Assistant  Attorney-  General  Maury,  for  appellee. 

Mr.  Justice  Harlan,  after  stating  the  case  as  above  reported, 
delivered  the  opinion  of  the  court. 

It  is  contended  by  the  appellant  that  the  Constitution  of  the  United 
States  secured  to  him  the  right  to  be  tried  by  a  jury,  and,  that  right 
having  been  denied,  the  police  court  was  without  jurisdiction  to  impose 
a  fine  upon  him,  or  to  order  him  to  be  imprisoned  until  such  fine  was 
paid.  This  precise  question  is  now,  for  the  first  time,  presented  for 
determination  by  this  court.  If  the  appellant's  position  be  sustained, 
it  will  follow  that  the  statute  (Rev.  Stat.  Dist.  Col.  §  1064),  dispensing 
with  a  petit  jur}-,  in  prosecutions  by  information  in  the  police  court,  is 
inapplicable  to  cases  like  the  present  one. 

The  third  article  of  the  Constitution  provides  that  "the  trial  of  all 
crimes,  except  in  cases  of  impeachment,  shall  be  by  jur}',  and  such  trial 
shall  be  held  in  the  State  where  the  said  crimes  shall  have  been  com- 
mitted; but  when  not  committed  within  any  State,  the  trial  shall  be  at 
such  place  or  places  as  the  Congress  may  b}-  law  have  directed."  The 
Fifth  Amendment  provides  that  no  person  shall  "be  deprived  of  life, 
liberty,  or  propert}-,  without  due  process  of  law."  By  the  Sixth  Amend- 
ment it  is  declared  that  *'  in  all  criminal  prosecutions  the  accused  shall 


CHAP.  III.]  CALL  AN   V.   WILSON.  359 

enjoy  the  right  to  a  speed}'  and  public  trial,  b}'  an  impartial  jury  of  the 
State  and  district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  b}-  law,  and  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation  ;  to  be  confronted 
with  the  witnesses  against  him  ;  to  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel  for  his 
defence." 

The  contention  of  the  appellant  is,  that  the  offence  with  which  he  is 
charged  is  a  "  crime"  within  tlie  meaning  of  the  third  article  of  the 
Constitution,  and  that  he  was  entitled  to  be  tried  b}^  a  jur}- ;  that  his 
trial  by  the  police  court,  without  a  jur}-,  was  not  "  due  process  of  law  " 
within  the  meaning  of  the  Fifth  Amendment ;  and  that,  in  an}'  event, 
the  prosecution  against  him  was  a  "  criminal  prosecution,"  in  which  he 
was  entitled,  b}'  the  Sixth  Amendment,  to  a  speedy  and  public  trial  by 
an  impartial  jury. 

The  contention  of  the  government  is,  that  the  Constitution  does  not 
require  that  the  riglit  of  trial  b}'  jury  shall  be  secured  to  the  people  of 
the  District  of  Columbia  ;  that  the  original  provision,  that  when  a  crime 
was  not  committed  within  an}-  State  "  the  trial  shall  be  at  such  place  or 
places  as  the  Congress  may  by  law  have  directed,"  had,  probably,  refer- 
ence only  to  offences  committed  on  the  high  seas  ;  that,  in  adopting  the 
Sixth  Amendment,  the  people  of  the  States  were  solicitous  about  trial 
by  jury  in  the  States  and  nowhere  else,  leaving  it  entirely  to  Congress 
to  declare  in  what  way  persons  should  be  tried  who  might  be  accused 
of  crime  on  the  high  seas,  and  in  the  District  of  Columbia  and  in  places 
to  be  thereafter  ceded  for  the  purposes,  respectively,  of  a  seat  of  gov- 
ernment, forts,  magazines,  arsenals,  and  dock-yards  ;  and,  consequent!}', 
that  that  amendment  should  be  deemed  to  have  superseded  so  much  of 
the  third  article  of  the  Constitution  as  relates  to  the  trial  of  crimes  by 
a  jury. 

Upon  a  careful  examination  of  this  position  we  are  of  opinion  that 
it  cannot  be  sustained  without  violence  to  the  letter  and  spirit  of  the 
Constitution. 

The  third  article  of  the  Constitution  provides  for  a  jury  in  the  trial 
of  "  all  crimes,  except  in  cases  of  impeachment."  The  word  "  crime," 
in  its  more  extended  sense,  comprehends  every  violation  of  public  law ; 
in  a  limited  sense,  it  embraces  offences  of  a  serious  or  atrocious  char- 
acter. In  our  opinion,  the  provision  is  to  be  interpreted  in  the  light  of 
the  principles  which,  at  common  law,  determined  whether  the  accu s edj 
in  a  given  class  of  cases,  was  entitled  to  be  tried  by  n.  jnry.  Tt.  jsjinf. 
to  be  construed  as  relating  only  to  felonies,  or  offences  punishable  by 
confinement  in  the  penitentiary.  It  embraces  as  well  some  classei~of 
misdemeanors,  the  punishment  of  which  involves  or  may  involve  the 
deprivation  of  the  liberty  of  the  citizen.  It  would  be  a  narrow  con- 
struction of  the  Constitution  to  hold  that  no  prosecution  for  a  misde- 
meanor is  a  prosecution  for  a  "  crime  "  within  the  meaning  of  the  third 
article,  or  a  "  criminal  prosecution  "  within  the  meaning  of  the  Sixth 


3 GO  C ALLAN   V.   WILSON.  [CHAP.  la 

Amendment.  And  we  do  not  think  that  the  amendment  was  intended 
to  supplant  that  part  of  the  third  article  which  relates  to  trial  b}-  jury. 
There  is  no  necessary  conflict  between  them.  Mr.  Justice  Storj'  says 
tliat  the  amendment,  "  in  declaring  that  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial  by  an  impartial  jur}'  of  the  State  or 
district  wherein  the  crime  shall  have  been  committed  (which  district 
shall  be  previously  ascertained  by  law),  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation,  and  to  be  confronted  with  the 
witnesses  against  him,  does  but  follow  out  the  established  course  of 
the  common  law  in  all  trials  for  crimes."  Stor}-  on  the  Constitution, 
§  1791.  Aiid  as  the  guarantee  of  a  trial  by  jur^-,  in  the  third  article, 
implied  a  trial  in  that  mode  and  according  to  the  settled  rules  of  the 
common  law,  the  enumeration,  in  the  Sixth  Amendment,  of  the  rights 
of  the  accused  in  criminal  prosecutions,  is  to  be  taken  as  a  declaration 
of  what  those  rules  were,  and  is  to  be  referred  to  the  anxiet}'  of  the 
people  of  the  States  to  have  in  the  supreme  law  of  the  land,  and  so  far 
as  the  agencies  of  the  general  government  were  concerned,  a  full  and 
distinct  recognition  of  those  rules,  as  involving  the  fundamental  rights 
of  life,  liberty,  and  property'.  Tiiis  recognition  was  demanded  and  se-_ 
cured  for  the  benefit  of  all  thp  ppoplp  of  thp  TTnitpd  St.at.ps,  as  wpI )  those 
permanently  or  temporarily  residing  in  the  District  of  Columbia,  as  those 
residing  or  being  in  the  several  States.  There  is  nothing  in  the  history 
of  the  Constitution  or  of  the  original  amendments  to  justify  the  asser- 
tion that  the  people  of  this  district  may  be  lawfulh'  deprived  of  the 
benefit  of  any  of  the  constitutional  guarantees  of  life,  libert}',  and  prop- 
ert}'  —  especially  of  the  privilege  of  trial  In-  jury  in  criminal  cases.  In 
the  draft  of  a  constitution  reported  by  the  Committee  of  Five  oa  the 
6th  of  August,  1787,  in  the  convention  which  framed  the  Constitution, 
the  4th  section  of  Article  XI.  read  that  ''  the  trial  of  all  criminal  of- 
fences (except  in  cases  of  impeachment)  shall  be  in  the  States  where 
they  shall  be  committed ;  and  shall  be  by  jury."  1  Elliott's  Deb.  (2d 
ed.),  229.  But  that  article  was,  b}'  unanimous  vote,  amended  so  as  to 
read  :  "■  The  trial  of  all  crimes  (except  in  cases  of  impeachment)  shall 
be  by  jur}' ;  and  such  trial  shall  be  held  in  the  State  where  the  said 
crimes  shall  have  been  committed  ;  but  when  not  committed  within  any 
State,  then  the  trial  shall  be  at  such  place  or  places  as  the  legislature 
ma}'  direct."  lb.  270.  The  object  of  thus  amending  the  section,  Mr. 
Madison  says,  was  "to  provide  for  trial  by  jury  of  offences  committed 
out  of  any  State."  3  Madison  Papers,  144.  In  Reynolds  v.  United 
States,  98  U.  S.  145,  154,  it  was  taken  for  granted  that  the  Sixth 
Amendment  of  the  Constitution  secured  to  the  people  of  the  Territories 
the  right  of  trial  by  jury  in  criminal  prosecutions  ;  and  it  had  been 
previously  held  in  Webster  \.  Heid,  11  How.  437,  460,  that  the  Seventh 
Amendment  secured  to  them  a  like  right  in  civil  actions  at  common 
law.  We  cannot  think  that  the  people  of  this  district  have,  in  that 
regard,  less  rights  than  those  accorded  to  the  people  of  the  Terri- 
tories of  the  United  States. 


361 


CHAP.  11I.J  MORMON   CHURCH  V.   UNITED   STATES. 

It  is  next  insisted  that  the  constitutional  guarantee  of  trial  by  jury  in 
all  criminal  prosecutions  -  even  supposing  it  to  exist  for  the  people  of 
the  district  —  has  not  been  denied.  ...  .    •      ,•       fi  „t   if 

The  argument,  made  in  behalf  of  the  government,  imphes  that  if 
Concxress  should  provide  the  police  court  with  a  grand  J^iry,  and 
autho  e  that  comt  to  try,  without  a  petit  jury,  all  persons  indicted 
!!ev  n  for  crimes  punishable  by  confinement  in  the  penitentiary - 
sue  1  1  ^.islation  would  not  be  an  invasion  of  the  constitu  lona  righ 
of  rilrbv  jury,  provided  the  accused,  after  being  tried  and  sentenced 
in  lie  police  loL,  is  given  an  unobstructed  right  of  appeal  to,  and 
trial  by  jury  in,  another  court  to  which  the  case  may  be  taken.  We 
cannot  assent  o  that  interpretation  of  the  Constitution.  Exceptin 
^^Tls^^^^^rade^^ 

Zl^h-^lF^der  the  authority  of,  the  Umte^_States.S££^ 

hT^atever  court,  he  is  put  on  trial  for  the  off^ncejharged,^^ 
(^ses  a  judgment  of  conviction,  norbasc^iiEonXyerdi^t,  ot  sniii.V  P,M- 
T;^v.J.o\d.  To^^;;^^rd'trt'he  accused  a  right  to  be  tried  by  a  jury, 
inanappellate  court,  after  he  has  been  once  fully  tried  otherwise  than 
bv  a  jury,  in  the  court  of  original  jurisdiction,  and  sentenced  to  pay  a 
fine  or  be  imprisoned  for  not  paying  it,  does  not  satisfy  the  requu-e- 
ments  of  the  Constitution.  When,  therefore,  the  appellant  was  brought 
before  the  Supreme  Court  of  the  district,  and  the  fact  was  disclosed 
that  he  had  been  adjudged  guilty  of  the  crime  of  conspiracy  charged 
in  the  information  in  this  case,  without  ever  having  been  tried  by  a  jury, 
he  should  have  been  restored  to  his  liberty. 
For  the  reasons  stated, 

The  Judgment  is  reversed,  and  the  cause  remanded  with  directions 
to  discharge  the  appellant  from  custody. 

l^  Ilormon  Church  v.  U^iited  States,  136  U.   S.  1,  42-43  (1889), 
Mr  Justice  Bradley  (for  the  court)  said :  — 

"The  principal  questions  raised  are,%3iasJo^the_  power  of  Congress 
^_i^e^3earU3ejaiMMofJMJ^^  ^^l"*-p 

and  ,(|e^nmibasJgLt-he4ioweiLQLCQii^^ 
j^^^^^j^^^j^t^^^;^f^o,vi   ^nrpnrntion  and  to  hold  tJife^mfiJbj^the  purHgggg- 

mftntjmied  in  tliejlecTBe.  ,  o^  4.      • 

~"^^e  power  ofCongress  over  the  Territories  of  the  United  States  is 
general  and  plenary,  arising  from  and  incidental  to  the  right  to  acquire 
the  territory  itself,  and  from  the  power  given  by  the  Constitution  to 
make  all  needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States.  It  would  be  absurd  to  hold 
that  the  United  States  has  power  to  acquire  territory,  and  no  power  to 
govern  it  when  acquired.     The  power  to  acquire  territory,  other  than 


362  MORMON    CHURCH    V.    UNITED    STATES.  [cHAP.  III. 

the  territor}-  northwest  of  the  Ohio  River  (which  belonged  to  the  United 
States  at  the  adoption  of  the  Constitution),  is  derived  from  the  treatj'- 
making  power  and  the  power  to  declare  and  cany  on  war.  The  inci- 
dents of  these  powers  are  those  of  national  sovereignt}-,  and  belong  to 
all  independent  governments.  The  power^to  mf\ke  flcgnisitions  of  ter- 
rUory  by  conquest,  by  treatjj  and  by  cession  is  an  incident  of  national 
sovei'eignty.  The  Territory  of  Louisiana,  when  acquired  from  France, 
and  the  Territories  west  of  the  Rocky  Mountains,  when  acquired  from 
Mexico,  became  the  absolute  property  and  domain  of  the  United  States, 
subject  to  such  conditions  as  the  government,  in  its  diplomatic  nego- 
tiations, had  seen  fit  to  accept  relating  to  the  rights  of  the  people  then 
inhabiting  those  Territories.    Having  rio^litfully  acquired  said  Territoriesj 

the    United    States    (Tr.vprnmr.nt  n70c    tlio    r.n]y    nnp  vvhinll    POIlId     impngp 

laws  upon  them,  and  its  sovereignty  over  them  wps  cnmplptp.  No 
State  of  the  Union  had  an}'  such  right  of  sovereignty'  over  them  ;  no 
other  country  or  government  had  any  such  right.  These  propositions 
are  so  elementary,  and  so  necessarily  follow  from  the  condition  of  things 
arising  upon  the  acquisition  of  new  territory,  that  the}'  need  no  aigu- 
ment  to  support  them.  They  are  self  evident.  .  .  .  Mr.  Justice  Nelson 
delivering  the  opinion  of  the  court  in  J^emier  v.  Porter,  9  How.  235, 
242,  speaking  of  the  territorial  governments  established  by  Congress, 
sa^'s  :  '  They  are  legislative  governments,  and  their  courts  legislative 
courts,  Congress,  in  the  exercise  of  its  powers  in  the  organization  and 
government  of  the  Territories,  combining  the  powers  of  both  the  Federal 
and  State  authorities.'  Chief  Justice  Waite,  in  the  case  of  National 
Bank  v.  Coimty  of  Yankton,  101  U.  S.  129,  133,  said:  'In  the 
organic  Act  of  Dakota  tliere  was  not  an  express  reservation  of  power  in 
Congress  to  amend  the  Acts  of  the  territorial  legislature,  nor  was  it  neces- 
sary. Siich  a  power  is  an  incident  of  sovereignty,  and  continues_until 
granted  away.  Congress  ma}'  not  only  abrogate  laws  of  the  territorial 
legislatures,  but  it  may  itself  legislate  directly  for  the  local  government. 
It  may  make  a  void  Act  of  the  territorial  legislature  valid,  and  a  valid 
Act  void.  In  other  words,  it  has  full  and  complete  legislative  authority 
over  the  people  of  the  Territories  and  all  the  departments  of  the  terri-, 
torial  governments.  It  may  do  for  the  Territories  what  the  people. 
under  the  Constitution  of  thp  United  Stntps.,  may  do  for  the  States.' 
In  a  still  more  recent  case,  and  one  relating  to  the  legislation  of  Con- 
gress over  the  Territory  of  Utaii  itself,  Murphy  v.  Ramsey,  114  U.  S. 
15,  44,  Mr.  Justice  Matthews  said:  'The  counsel  for  the  appellants  in 
argument  seem  to  question  the  constitutional  power  of  Congress  to  pass 
the  Act  of  March  22,  1882,  so  far  as  it  abridges  the  rights  of  electors  in 
the  Territory  under  previous  laws.  But  that  question  is,  we  think,  no 
longer  open  to  discussion.  It  has  passed  beyond  the  stage  of  contro- 
versy into  final  judgment.  The  people  of  the  United  States  as  sovereign 
owners  of  the  national  Territories,  have  supreme  power  over  them  and 
their  inhabitants.  In  the  exercise  of  this  sovereign  dominion,  they  are  I 
represented  by  the  government  of  the  United  States,  to  whom  all  the 


CHAP.  III.]  MORMON    CHURCH    V.    UNITED    STATES.  363 

powers  of  government  over  that  subject  have  been  delegated,  subject 
only  to  such  restrictions  as  are  expressed  in  the  Constitution,  or  are 
iiecessaril}'  implied  in  its  terms.'  Doubtless  Congress  iji^leg^islating^for 
the  Territories  would  be  subject  to  tliosc  fundamen_tal  bmifntion.-^  in 
favor  of  personal  rights  which  arc  foruudatcd  in_  tlie  Constitution 
and  its  amendments  ;  but  these  limitations  would  ex isLxather  by-inferm- 
ence  and  the  general  spirit  of  the  Constitutioii  fromvvhich  Cangrfisa. 
derives  all  its  powers,  than  by  any  express  and  direct  ai^plication  of  its 
provisions."  ^ 

^  "  It  would  seem,  from  these  various  congressioual  regulations  of  the  Territories 
belonging  to  the  United  States,  that  Congress  have  supreme  power  in  the  government 
of  them,  depending  on  the  exercise  of  their  sound  discretion.  That  discretion  has 
hitherto  been  exercised  in  wisdom  and  good  faith,  and  with  an  anxious  regard  for  tlie 
security  of  the  rights  and  privileges  of  the  inhabitants,  as  defined  aud  declared  in  the 
ordinance  of  July,  1787,  and  in  the  Constitution  of  the  United  States.  '  All  admit,' 
said  Chief  Justice  Marsliall  (4  Wheaton,  422),  '  the  constitutionality  of  a  territorial 
government.'  But  neither  the  District  of  Columbia,  nor  a  Territory,  is  a  State,  within 
the  meaning  of  the  Constitution,  or  entitled  to  claim  the  privileges  secured  to  the  mem- 
bers of  the  Union.  This  has  been  so  adjudged  by  the  Supreme  Court.  Hepburn  v. 
^//zey,  2  Cranch,  445 ;  Cur/ioratioti  of  New  Orleans  v.  Winter,  \  Wheaton,  91.  Nor 
will  a  writ  of  error  or  appeal  lie  from  a  territorial  court  to  the  Supreme  Court,  unless 
there  be  a  special  statute  provision  for  the  purpose.  Clarke  v.  Bazadone,  1  Cranch, 
212;  United  States  v.  .l/ore,  3  lb.  159.  If,  therefore,  the  government  of  the  United 
States  should  carry  into  execution  the  project  of  colonizing  the  great  valley  of  the 
Columbia  or  Oregon  Eiver,  to  the  west  of  the  Rocicy  Mountains,  it  would  afford  a 
subject  of  grave  consideration,  what  would  be  the  future  civil  and  political  destiny  of 
that  country.  It  would  be  a  long  time  before  it  would  be  populous  enough  to  be 
created  into  one  or  more  independent  States;  and  in  the  meantime,  upon  the  doctrine 
taught  by  the  Acts  of  Congress,  aud  even  by  the  judicial  decisions  of  the  Supreme 
Court,  the  colonists  would  be  in  a  state  of  the  most  complete  subordination,  aud  as 
dependent  upon  the  will  of  Congress  as  the  people  of  this  country  would  have  been 
upon  the  liing  aud  Parliament  of  Great  Britain,  if  they  could  have  sustained  their 
claim  to  bind  us  in  all  cases  whatsoever.  Such  a  state  of  absolute  sovereignty_on_tha. 
one  hand,  and  of  absolute  dependence  on  the  other,  is  not  congenial  with  the  free  and 
independent  spirit  of  our  native  institutionw  •  and  t]m  estnhlishment  of  distant  terrp~ 
torial  governments,  ruled  aopording  to  will  and  pleii.sure.  would  have  a  very  natural 
tendency,  as  all  proconsular  governments  have  had,  to  abuse  and  oppression."  — 
1  Kent's  Com.  *  385. 

The  foregoing  passage  is  found,  in  substantially  the  same  form,  in  all  the  editions  of 
Kent's  Commentaries,  beginning  with  the  first  in  1826. 

Compare  the  doctrine  of  U.  S.  v.  Kar/ama,  118  U.  S.  375  (1886),  deciding  that  the 
United  States  has  full  legislative  power  over  tribal  Indians,  on  reservations  in  the 
States  as  well  as  tiie  Territories,  —  and  the  grounds  on  which  it  is  put.  "  These 
Indians,"  said  Miller,  J.,  for  the  court,  "are  within  the  geographical  limits  of  the 
United  States.  The  soil  and  the  people  within  these  limits  are  under  the  political 
control  of  the  government  of  the  United  States,_or  of  the  States  of  the  Union.  There 
exist  within  the  broad  domain  of  sovereignty  but  these  two.  There  may  be  cities, 
counties,  and  other  organized  bodies  with  limited  legislative  functions,  but  they  are  all 
derived  from,  or  exist  in,  subordination  to  one  or  the  other  of  these.  The  territorial 
governments  owe  all  their  powers  to  the  statutes  of  the  United  States  conferring  on 
them  the  powers  which  they  exercise,  and  which  are  liable  to  be  withdrawn,  modified, 
or  repealed  at  any  time  by  Congress.  What  authority  the  State  governments  may 
have  to  enact  criminal  laws  for  tlie  Indians  will  be  presently  considered.  But  this 
power  of  Congress  toorfyanize  territorial  governments,  and  make  laws  for  their  inhabi- 
tants, arises  not  so  much  from  the  clause  in  the  Constitution  in  regard  to  disp(^sinp;  of 


364  JONES   V.    UNITED   STATES.  [CHAP  IIL 


JONES   V.  UNITED   STATES. 
Supreme  Court  of  the  United  States.     1890. 

[137  U.  S.  202.] 

.  .  .  Mr.  E.  J.  Waring,  Mr.  John  Henry  Keene,  Jr.,  and  Mr.  Archi- 
bald Stirling,  for  plaintiffs  in  error.  Mr.  Joseph  S.  Davis  and  Mr. 
J.  Edward  Stirling  were  with  them  on  the  brief. 

3Ir.  Attorney-  General,  for  defendants  in  error. 

Mr.  Justice  Gray  deUvered  the  opinion  of  the  court. 

This  was  an  indictment,  found  in  the  District  Court  of  the  United 
States  for  the  District  of  Maryland,  and  remitted  to  the  Circuit  Court 
under  Rev.  Stat.  §  1039,  alleging  that  Henrj- Jones,  late  of  that  district, 
on  September  14,  1889,  "  at  Navassa  Island,  a  place  which  then  and 
there  was  under  the  sole  and  exclusive  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  an}-  particular  State  or  district  of  the 
United  States,  the  same  being,  at  the  time  of  the  committing  of  the 
offences  in  the  manner  and  form  as  hereinafter  stated  by  the  persons 
hereinafter  named,  an  island  situated  in  the  Caribbean  Sea,  and  named 
Navassa  Island,  and  which  was  then  and  there  recognized  and  consid- 
ered by  the  United  States  as  containing  a  deposit  of  guano,  within  the 
meaning  and  terras  of  the  laws  of  the  United  States  relating  to  such 
islands,  and  which  was  then  and  there  recognized  and  considered  by 
the  United  States  as  appertaining  to  the  United  States,  and  which  was 
also  then  and  there  in  the  possession  of  the  United  States,  under  the 
laws  of  the  United  States  then  and  there  in  force  relating  to  such 
islands,"  murdered  one  Thomas  N.  Foster,  by  giving  him  three  mortal 
blows  with  an  axe,  of  which  he  there  died  on  the  same  da}' ;  and  that 

and  making  rules  and  rep^ulations  concerning  the  territory  and  other  property  of_thft 
United  States,  as  from  the  ownership  of  the  country  in  wtii^h  *^h°  Territi^rips,  are,  and 
the  ri^ht  of  exclusive  sovereignty  which  must  exist  in  the  national  gnvpminoi.i-^  >in^ 
can  be  found  nowhere  else.  Murphy  v.  Ramsey,  114  U.  S.  15,  44.  .  .  .  [It  is  then  laid 
down  that  the  general  government  may  legislate  for  tribal  Indians  on  both  State  and 
territorial  reservations.]  They  owe  no  allegiance  to  the  States,  and  receive  from  them 
no  protection.  Because  of  the  local  ill  feeling,  the  people  of  the  States  where  they  are 
found  are  often  their  deadliest  enemies.  From  their  very  weakness  and  helplessness, 
so  largely  due  to  the  course  of  dealing  of  the  Federal  government  with  them  and  the 
treaties  in  which  it  has  been  promised,  there  arises  the  duty  of  protection,  and  with 
it  the  power.  This  has  always  been  recognized  by  the  executive  and  by  Congress,  and 
by  this  court,  whenever  the  question  has  arisen.  .  .  .  The  power  of  the  general  gov- 
ernment over  these  remnants  of  a  race  once  powerful,  now  weak  and  diminished  in 
numbers,  is  necessary  to  their  protection,  as  well  as  to  the  safety  of  those  among  whom 
they  dwell.  It  must  exist  in  that  government,  because  it  never  has  exi.'^ted  anywhere 
else,  because  the  theatre  of  its  exercise  is  within  the  geographical  limits  of  the  United 
States,  because  it  has  never  been  denied,  and  because  it  alone  can  enforce  its  laws  on 
all  the  tribes." 

In  dealing  with  the  tribal  Indians,  the  United  States  government  has  never  pro- 
ceeded on  the  theory  that  its  action  was  restrained  by  the  amendments,  or  by  other  like 
clauses  in  the  body  of  the  Federal  Constitution.  —  Ed. 


CHAP.  III.] 


JONES   V.   UNITED   STATES. 


365 


othe.  persons  na.e.  .^  and  «  in  ^^^^J^  ';^t"f 

nrrnSi^a^:^^ 

The  fe^^^^";"^  .,     °   .fi^e  uiry  returned  a  verdict  of  guilty  ;  and  a 
rofext;;:«  wastna^ra^  4  U,e  defendant,  and  allowed  b,  tUe 

"7f;e;V:"r r^rd:::  ^..d  .  a™,  or  „dg»e„t  ro^  vano. 
reasons,  the  on,-  one  of  w^ieb,  ^Hed  on  ,n  ^'^^^^sJl- 
^™T  t  Tul°  2  :f"the  «  Stltes  of  the  United  States  is 
r:  stHntI;:':,  Indt'd,  and  the  oo„,t  was  wi.,out  Jnnsdietion  to  t,, 
the  defendant  nnde.  the  in..ctn,ent  ^«"  »|  "V'  ^tenced  to  death  ; 
The  mot  on  was  overruled,  ana  ine  ucieuua  c   1S8Q    o 

anihe  Ted  ont  this  writ  of  e,-,-o,-  nnder  the  Act  of  tebrnary  6,  1889,  c. 

"ev'see^i!'  6  of't'hfsanie  Act,  ve-enacted  in  section  5576  of  the  Ke- 

B_v  section  u  oi  u..  nffpnoes  or  crimes  committed,  on  any 

vised  Statntes.  all  -'?    °"  ;.  ;"4°^™;,^r^a,  land  thereon,  or  in  the 

snch  island,  ''of ;.  "l.^^^'.^,,,^^     e  TeW  -<l  <<«»™"'  ^°  "-«  "^'^  ''°"» 
watersadjacenttheeto       shall  he  h  ^^^^_^_^^  ^^^^^    ^_.  ^.^^^^j 

the  hicrh  seas;  which  laws,  for  the  purposes  aforesaid,  aie  herebj  ex 

^^i^S^tntory,  the  whole  criminal  jurisdiction  of  the  con,^ 
of  the  0  ted  States  being  derived  from  Acts  of  Congress  K.<e<; 
StZ  V  IJu<l.on,  7  Cranch,  32  ;   UnM  States  v.  BrUton,  108  U.  S. 

'''Bv\te  Constitntion  of  the  United  States,  while  a  crime  committed 
wiMn  r„y  Sta  n,nst  be  tried  in  that  State  and  in  a  district  previous^ 
Is  ertatncd  by  law,  yet  a  crime  not  committed  -*-  anj-^S  ate  of  the 
Union  may  be  tried  .at  such  place  as  C<'"8'-<'f  "%,\'7„^"  '  *X„- 
Constitntion,  art  3,  §  2  ;  Amendments,  art  6;  ^^'f  f  *'*  JjV^^ 
so,..  15  How.  467,  488.     Congress  has  ''■''f  ^''^  .  on-t^fa^lulSa^ 

ofea^.  committed  yP^" '^l'^f,:;gf^S^Mg^ 


366  IN  RE  ROSS.  [chap.  in. 

§  730.  And  Congress  has  awarded  the  punishment  of  death  to  the 
crime  of  murder,  whether  committed  upon  the  high  seas  or  other  tide- 
waters out  of  the  jurisdiction  of  an}'  particular  State,  or  "  within  any 
fort,  arsenal,  dock-yard,  magazine,  or  in  an}-  other  place  or  district  of 
country  under  the  exclusive  jurisdiction  of  the  United  States."  Rev. 
Stat.  §  5339.  Both  these  Acts  of  Congress  clcarly^nclude  murder  com- 
mitted oil  an}-  land  within  the  exclusive  jMHgflu'tiop  "f  «i'^  TTnjtPd 
States,  and  not  within  any  judicial  district,  as  well  as  murder  com- 
mitted on  the  high  seas.  Ex  imrte  Bollman^  4  Cranch,  75,  136  ; 
ifnited  States  v.  Bevans,  3  Wheat.  336,  390,  391  ;  United  States  v. 
Arioo,  19  Wall.  486. 

By  the  law  of  nations,  recognized  by  all  civilized  S tales,  dom i nion  of 
new  territon'  may  be  acquired  by  discovery  and  occupation,  as  well_as 
by  ppsi^ion  or  conquest ;  and  when  citizens  or  subjects  of  one  nation,  in 
its  name,  and  by  its  authority  or  with  its  assent,  take  and  hold  actual, 
continuous,  and  useful  possession  (although  only  for  the  purpose  of 
carrying  on  a  particular  business,  such  as  catching  and  curing  fish, 
or  working  mines)  of  territory  unoccupied  by  any  other  government  or 
its  citizens,  the  nation  to  whifh  t.hpy  htAcna  mny  exercise  such  jurisdic- 
tion nnd  for  siioh  period  as  it  sees  fit  over  territory  so  acquired.  This 
principle  affords  ample  warrant  for  the  legislation  of  Congrcss^concern- 
ing  guano  islands.  Vattel,  lib.  1,  c.  18;  Wheaton  on  International 
Law  (8th  ed.)  §§  161,  165,  176,  note  104;  Halleck  on  International 
Law,  c.  6,  §§  7,  15  ;  1  Phillimore  on  International  Law  (3d  ed.)  §§  227, 
229,  230,  232,  242  ;  1  Calvo  Droit  International  (4th  ed.)  §§  266,  277, 
300 ;    Whiton  v.  Albajiy  Ins.  Co.,  109  Mass.  24,  31. 

Who  is  the  sovereign,  de  jure  or  de  facto,  of  a  te]Titory_is_not  a_ 
judicial,  but  a  political  question,  the  determination  of  which  by  the 
legislative  and  executive  departments  of  any  government  conclusively 
binds  the  judges,  as  well  as  all  other  officers,  citizens,  and  subjects  of 
that  government.  This  principle  has  always  been  upheld  by  this  court, 
and  has  been  affirmed  under  a  great  variety  of  circumstances.  .  .  . 

Judgment  affirmed. 


In  re  ROSS. 
Supreme  Court  of  the  United  States.     1890. 

[140  U.  S.  453.] 

The  petitioner  below,  the  appellant  here,  was  imprisoned  in  the 
penitentiary  at  Albany  in  the  State  of  New  York.  He  was  convicted 
on  the  20th  of  May,  1880,  in  the  American  consular  tribunal  in  Japan, 
of  the  crime  of  murder,  committed  on  board  of  an  American  ship  in 
the  harbor  of  Yokohama  in  that  empire,  and  sentenced  to  death. 


CHAP.  III.]  IN   RE   ROSS.  367 

On  the  6tli  of  August  following,  his  sentence  was  commuted  by  the 
President  to  imprisonment  for  life  in  the  penitentiary  at  Albany,  and 
to  that  place  he  was  taken,  and  there  he  has  ever  since  been  confined. 
Nearly  ten  years  afterwards,  on  the  19th  of  March,  1890,  he  applied 
to  the  Circuit  Court  of  the  United  States  for  the  Northern  District  of 
New  York  for  a  writ  of  habeas  cor2ms  for  his  discharge,  alleging  that 
his  conviction,  sentence,  and  imprisonment  were  unlawful,  and  stating 
the  causes  thereof  and  the  attendant  circumstances.  The  writ  was 
issued,  directed  to  the  superintendent  of  the  penitentiary,  who  made 
return'  that  he  held  the  petitioner  under  the  warrant  of  the  Presi- 
dent. ...  .  .        ,  i. 

To  this  warrant  was  annexed  a  copy  of  the  petitioner  s  acceptance 
of  the  conditional  pardon  of  the  President,  certified  to  be  correct  by  the 
United  States  consul-general  at  Japan.  ... 

The  case  was  then  heard  by  the  Circuit  Court,  counsel  appearing 
for  the  petitioner   and  the  assistant  United  States  attorney   for  the 

government.  ...  ,,   „  r 

On  the  9th  of  May,  1880,  the  appellant,  John  M.  Ross,  was  one  of 
the  crew  of  the  American  ship  Bullion,  then  in  the  waters  of  Japan, 
and  \ymcr  at  anchor  in  the  harbor  of  Yokohama.  On  that  day,  on 
board  of" the  ship,  he  assaulted  Robert  Kelly,  its  second  mate,  with 
a  knife,  inflicting  in  his  neck  a  mortal  wound,  of  which  in  a  few  minutes 
afterwards  he  died  on  the  deck  of  the  ship.  Ross  was  at  once  arrested 
by  direction  of  the  master  of  the  vessel  and  placed  in  irons,  and  on  the 
same  day  he  was  taken  ashore  and  confined  in  jail  at  Yokohama.  On 
the  following  day.  May  10,  the  master  filed  with  the  American  consul- 
general  at  that  place,  Thomas  B.  Van  Buren,  a  complaint  against  Ross, 
charging  him  with  the  murder  of  the  mate.  It  contained  suflftcient 
averments  of  the  offence,  was  verified  by  the  oath  of  the  master,  and  to 
it  tiie  consul-general  appended  his  certificate  that  he  .had  reasonable 
grounds  for  believing  its  contents  were  true.  The  complaint  described 
the  accused  as  one  "■  supposed  to  be  a  citizen  of  the  United  States." 

On  the  18th  of  that  month  an  amended  complaint  was  filed  by  the 
master  of  the  ship  with  the  consul-general,  in  which  the  accused  was 
described  as  "  an  American  seaman,  duly  and  lawfully  enrolled  and 
shipped  and  doing  service  as  such  seaman  on  board  the  American 
ship  Bullion."  The  complaint  was  also  amended  in  some  other  par- 
ticulars. ... 

Previously  to  its  being  filed  the  accused  appeared  with  counsel 
before  the  consul-general,  and  the  complaint  being  read  to  him,  he 
presented  an  aflfldavit  stating  that  he  was  a  subject  of  Great  Britain,  a 
native  of  Prince  Edward's  Island,  a  dependency  of  the  British  Empire, 
and  had  never  renounced  the  rights  or  liabilities  of  a  British  subject  or 
been  expatriated  from  his  native  allegiance  or  been  naturalized  in  any 
other  country.  Upon  this  affidavit  he  contended  that  the  court  was 
without  jurisdiction  over  him,  by  reason  of  his  being  a  subject  of  Great 
Britain,  and  he  prayed  that  he  be  discharged.  His  contention  was 
termed  in  the  record  a  demurrer  to  the  complaint. 


368  IN   RE   ROSS.  [chap.  III. 

The  court  held  that  as  the  accused  was  a  seaman  on  an  American 
vessel,  he  was  subject  to  Its  jurisdiction,  and  overruled  the  objection. 
The  counsel  of  the  accused  then  moved  that  the  charge  against  him  be 
dismissed,  on  the  ground  that  he  could  not  be  held  for  the  offence  except 
upon  the  presentment  or  indictment  of  a  grand  jury,  but  this  motion 
was  also  overruled. 

Four  associates  were  drawn,  as  required  b}^  statute  and  the  consular 
regulations,  to  sit  with  the  consul-general  on  the  trial  of  the  accused, 
and,  being  sworn  to  answer  questions  as  to  their  eligibilit}',  the  accused 
stated  that  he  had  no  questions  to  ask  them  on  that  subject.  They 
were  then  sworn  in  to  try  the  cause  "  in  accordance  with  court  regula- 
tions." A  motion  for  a  jury  on  the  trial  was  also  made  and  denied. 
The  amended  complaint  was  then  substituted  in  place  of  the  original, 
to  which  no  objection  was  interposed,  and  to  it  the  accused  pleaded 
"  not  guilty,"  and  asked  for  the  names  Of  the  witnesses  for  the  prose- 
cution, which  were  furnished  to  him.  The  witnesses  were  then  sworn 
and  examined,  and  they  estabhshed  beyond  all  possible  doubt  the 
offence  of  murder  charged  against  the  accused,  which  was  committed 
under  circumstances  of  great  atrocity.  The  court  found  him  guilty  of 
murder,  and  he  was  sentenced  to  suffer  death  in  such  manner  and  at 
such  time  and  place  as  the  United  States  minister  should  direct.  The 
conviction  and  sentence  were  concurred  in  b}'  the  four  associates,  and 
were  approved  by  Mr.  Bingham,  the  minister  of  the  United  States  in 
Japan.  The  minister  transmitted  the  record  of  the  case  to  the  Depart- 
ment of  State  for  the  consideration  of  the  President,  and  for  commuta- 
tion of  the  sentence  or  pardon  of  the  prisoner,  if  deemed  advisable. 
The  President  subsequently  directed  the  issue  to  the  prisoner  of  a  par- 
don on  condition  that  he  be  imprisoned  at  hard  labor  for  the  term  of 
his  natural  life  in  the  penitentiar}-  at  Albanj",  and  it  was  accepted  by 
iiim  on  that  condition.  His  sentence  was  accordinglj-  commuted,  and 
he  was  removed  to  the  Alban}'  penitentiary. 

The  Circuit  Court,  after  hearing  argument  of  counsel  and  full  con- 
sideration of  the  subject,  made  an  order  on  Januarj-  21,  1891,  denying 
the  motion  of  the  prisoner  for  his  discharge,  and  remanding  him  to  the 
penitentiary  and  the  custod}'  of  its  superintendent.  44  Fed.  Rep.  185. 
From  that  order  the  case  was  brought  here  on  appeal. 

Mr.  George  W.  Kirchwey,  for  appellant  made  the  following 
points.  .   .  . 

Mr.  Assistant  Attorney- General  Parker  for  appellee. 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

The  Circuit  Court  did  not  refuse  to  discharge  the  petitioner  upon  any 
independent  conclusion  as  to  the  validit}-  of  the  legislation  of  Congress 
establishing  the  consular  tribunal  in  Japan,  and  the  trial  of  Americans 
for  offences  committed  within  the  territory  of  that  countr}-,  without  the 
indictment  of  a  grand  jury,  and  without  a  trial  by  a  petit  jury,  but  placed 
its  decision  upon  the  long  and  uniform  acquiescence  by  the  executive, 


CHAP.  III.]  IN   RE   ROSS.  369 

administrative,  and  legislative  departments  of  the  government  in  the 
validity  of  the  legislation.  Nor  did  the  Circuit  Court  consider  whether 
the  status  of  the  petitioner  as  a  citizen  of  the  United  States,  or  as  au 
American  within  the  meaning  of  the  treat}'  with  Japan,  could  be  ques- 
tioned, while  he  was  a  seaman  of  an  American  ship,  under  the  protec- 
tion of  the  American  flag,  but  simply  stated  the  view  talcen  on  that 
subject  by  the  minister  to  Japan,  the  State  Department,  and  the 
President.  Said  the  court :  "  During  the  thirty  years  since  the  stat- 
utes conferring  the  judicial  powers  on  ministers  and  consuls,  which 
have  been  referred  to,  were  enacted,  that  jurisdiction  has  been  freely 
exercised.  Citizens  of  the  United  States  have  been  tried  for  serious 
offences  before  these  officers,  without  preliminary  indictment  or  a  com- 
mon-law jury,  and  convicted  and  punished.  These  trials  have  been 
authorized  by  the  regulations,  orders  and  decrees  of  ministers,  and  it 
must  be  presumed  that  the  regulations,  orders  and  decrees  of  ministers 
prescribing  the  mode  of  trial  liave  been  transmitted  to  the  Secretary  of 
the  State,  and  by  him  been  laid  before  Congress  for  revision,  as  re- 
quired by  law.  Unless  the  petitioner  was  not  properly  subject  to  this 
jurisdiction  because  lie  was  not  a  citizen  of  the  United  States,  his  trial 
and  sentence  were  in  all  respects  modal,  as  well  as  substantial,  regular 
and  valid  under  the  laws  of  Congress,  according  to  the  construction 
placed  upon  these  statutes  by  the  acquiescence  of  the  executive,  ad- 
ministrative, and  legislative  departments  of  the  government  for  this 
long  period  of  time." 

Under  these  circumstances  the  Circuit  Court  was  of  opinion  that  it 
ought  not  to  adjudge  that  the  sentence  imposed  upon  the  petitioner  was 
utterly  unwarranted  and  void,  when  the  case  was  one  in  which  his  rights 
could  be  adequately  protected  by  this  court,  and  when  a  decision  by  , 
the  Circuit  Court  setting  him  at  liberty,  although  it  might  be  reversed, 
would  be  practically  irrevocable. 

The  Circuit  Court  might  have  found  an  additional  ground  for  not 
calling  in  question  the  legislation  of  Congress,  in  the  uniform  practice 
of  civilized  governments  for  centuries  to  provide  consular  tribunals  in 
ether  thnn  Clnistinn  countries,  or  to  invest  their  consuls  with  judicial 
authority,  which  is  the  same  thing,  for  the  trial  of  their  own  subjects 
or  citizens  for  ottences  committed  inthose  countries,  as_  well  as  for  the 
settlement  of  civil  disputes  between  them  ;  and  in  the  uniform  recogni- 
tion, down  to  the  time  of  the  formation  of  our  government,  of  the  fact 
that  the  establishment  of  such  tribunals  was  among  the  most  important 
subjects  for  treaty  stipplfltinns.  This  recognition  of  their  importance 
has  continued  ever  since,  though  the  powers  of  those  tribunals  are  now 
more  carefully  defined  than  formerly.     Dainese  v.  Hale,d\  U.  S.  13. 

The  practice  of  European  governments  to  send  officers  to  reside  in 
foreign  countries,  authorized  to  exercise  a  limited  jurisdiction  over 
vessels  and  seamen  of  their  country,  to  watch  the  interests  of  their 
countrymen  and  to  assist  in  adjusting  their  disputes  and  protecting  their 
commerce,  goes  back  to  a  very  early  period,  even  preceding  what  are 
VOL.  I.  —  24 


370  IN  RE  ROSS.  [chap,  iil 

termed  the  Middle  Ages.  During  those  ages  these  commercial  magis- 
trates, generally  designated  as  consuls,  possessed  to  some  extent  a 
representative  character,  sometimes  discharging  judicial  and  diplomatic 
functions.  In  other  than  Christian  countries  they  were,  by  treaty 
stipulations,  usually  clothed  with  authority  to  hear  complaints  against 
their  countrymen  and  to  sit  in  judgment  upon  them  when  charged  with 
public  offences.  After  the  rise  of  Islamism,  and  the  spread  of  its  fol- 
lowers over  eastern  Asia  and  other  countries  bordering  on  the  Mediter- 
ranean, the  exercise  of  this  judicial  authority  became  a  matter  of  great 
concern.  The  intense  hostility  of  the  people  of  Moslem  faith  to  all 
other  sects,  and  particularly  to  Christians,  affected  all  their  intercourse, 
and  all  proceedings  had  in  their  tribunals.  Even  the  rules  of  evidence 
adopted  by  them  placed  those  of  different  faith  on  unequal  grounds  in 
any  controversy  with  them.  For  this  cause,  and  b}'  reason  of  the 
barbarous  and  cruel  punishments  inflicted  in  those  countries,  and  the 
frequent  use  of  torture  to  enforce  confession  from  parties  accused,  it 
was  a  matter  of  deep  interest  to  Christian  governments  to  withdraw 
the  trial  of  their  subjects,  when  charged  with  the  commission  of  a 
public  offence,  from  the  aibitrary  and  despotic  action  of  the  local 
officials.  Treaties  conferring  such  jurisdiction  upon  these  eonsiils  we^ 
essential  to  the  peaceful  residence  of  Christians  within  those  countries 
and  the  successful  prosecution  of  commerce  with  their  people. 

The  treaty-making  power  vested  in  our  government  extends  to  all 
proper  subjects  of  negotiation  with  foreign  governments,  Ifcan, 
equally  with  any  of  the  former  or  jireseut-goveniments  of  Europe,  make 
trPf^|ie^^^^fmTtr"g  foi' the  exercise  of  judicial  authority  in  other  coun- 
tries by  its  officers  appointed  to  reside  the  rein . 

We  do  not  understand  that  an}'  question  is  made  b}'  counsel  as  to  its 
power  in  this  respect.  His  objection  is  to  the  legislation  b}'  which  such 
treaties  are  carried  out,  contending  that,  so  far  as  crimes  of  a  felonious 
chai-acter  are  concerned,  the  same  protection  and  guarantee  against  an 
undue  accusation  or  an  unfair  trial,  secured  by  the  Constitution  to  citi- 
zens of  the  United  States  at  home,  should  be  enjoyed  by  them  abroad. 
In  none  of  the  laws  which  have  been  passed  by  Congress  to  give  effect 
to  treaties  of  the  kind  has  there  been  an}-  attempt  to  require  indictment 
by  a  grand  jury  before  one  can  be  called  upon  to  answer  for  a  public 
offence  of  that  grade  committed  in  those  countries,  or  to  secure  a  jurj* 
on  the  trial  of  the  offence.  Yet  the  laws  on  that  subject  have  been  passed 
without  objection  to  their  constitutionality.  Indeed,  objection  on  that 
ground  was  never  raised  in  any  quarter,  so  far  as  we  are  informed, 
until  a  recent  period. 

It  is  now,  however,  earnestl}'  pressed  by  counsel  for  the  petitioner, 
but  we  do  not  think  it  tenable.  Bv  the  Constitution  a  government  is 
ordained  and  established  '^  for  the  United  States  of  America,"  and  not 
lor  countries_ontside  of  thejr  limif.s^.  The  guarantees  it  affords  agamst 
accusation  of  capital  or  infamous  crimes,  except  b}'  indictment  or  pre- 
sentment by  a  grand  jury,  and  for  an  impartial  trial  by  a  jury  when 


CHAP.  III.]  IN   RE   ROSS.  371 

thus  accused,  apply  ouly  to  citizens  and  others  within  the  United 
States,  or  who  are  brought  there  for  trial  for  alleged  offences  committed 
elsewhere,  and  not  to  residents  or  temporary  sojourners  abroad.  Cook 
V.  United  States,  138  U.  S.  157,  181.  The  Constitution  can  have  no 
operation  in  another  country.  When,  therefore,  the  representatives  or 
officers  of  our^overnment  are  permitted  to  exercise  authority  of  any 
kind  in  another  country^  it  must  be  on  such  conditions  as  the  two 
countries  may  agree,  the  laws  of  neither  one  being  obligatorv  upon  the 
other.  The  deck  of  a  private  American  vessel,  it  is  true,  is  considered 
for  many  purposes  constructively  as  territor}'  of  the  United  States,  yet 
persons  on  board  of  such  vessels,  whether  officers,  sailors,  or  passen- 
gers, cannot  invoke  the  protection  of  the  provisions  referred  to  until 
brought  within  the  actual  territorial  boundaries  of  the  United  States. 
Aud^esides,  their  enforcement  abroad  in  numerous  places,  where_Lt 
would  be  highly  important  to  have  consuls  invested  with  judicial  autho- 
rity, would  be  impracticable  from  the  impossibility  of  o_btaining^.  a 
Qompf^tpnt  grand  or  petit  jury.  The  requirement  of  such  a  bod}'  to 
accuse  and  to  try  an  offender  would,  in  a  majority  of  cases,  cause  an 
abandonment  of  all  prosecution.  The  framers  of  the  Constitution,  who 
were  fully  aware  of  the  necessity-  of  having  judicial  authority  exercised 
by  our  consuls  in  non-Christian  countries,  if  commercial  intercourse 
was  to  be  had  with  their  people,  never  could  have  supposed  that  all  the 
guarantees  in  the  administration  of  the  law  upon  criminals  at  home 
were  to  be  transferred  to  such  consular  establishments,  and  applied 
before  an  American  who  had  committed  a  felony  there  could  be  accused 
and  tried.  They  must  have  known  that  such  a  requirement  would  de- 
feat the  main  purpose  of  investing  the  consul  with  judicial  authority'. 
While,  therefore,  in  one  aspect  the  American  accused  of  crime  com- 
mitted in  those  countries  is  deprived  of  the  guarantees  of  the  Constitu- 
tion against  unjust  accusation  and  a  partial  trial,  yet  in  another  aspect 
he  is  the  gainer,  in  being  withdrawn  from  the  procedure  of  their  tri- 
bunals, often  arbitrary'  and  oppressive,  and  sometimes  accompanied 
with  extreme  cruelty  and  torture.  Letter  of  Mr.  Cushing  to  Mr. 
Calhoun  of  September  29,  1844,  accompanying  President's  message 
communicating  abstract  of  treat}'  with  China,  Senate  Doc.  58,  28th 
Cong.  2d  Sess.  ;  Letter  on  Judicial  Exterritorial  Rights  by  Secretary 
Frelinghuysen  to  Chairman  of  Senate  Committee  on  Foreign  Relations 
of  April  29,  1882,  Senate  Doc.  89,  47th  Cong.  1st  Sess. ;  Phillimore 
on  Int.  Law,  vol.  2,  part  7  ;  Halleck  on  Int.  Law,  c.  4L  .  .  . 

The  jurisdiction  of  the  consular  tribunal,  as  is  thus  seen,  is  to  be 
exercised  and  enforced  in  accordance  with  the  laws  of  the  United 
States ;  and  of  course  in  pursuance  of  them  the  accused  will  have  an 
opportunity  of  examining  the  complaint  against  him,  or  will  be  pre- 
sented with  a  copy  stating  the  offence  he  has  committed,  will  be  entitled 
to  be  confronted  with  the  witnesses  against  him  and  to  cross-examine 
them,  and  to  have  the  benefit  of  counsel ;  and,  indeed,  will  have  the 
benefit  of  all  the  provisions  necessary'  to  secure  a  fair  trial  before  the 


372  IN  RE  BOSS.  [chap.  III. 

consul  and  bis  associates.  The  only  complaint  of  this  legislation  made 
by  counsel  is  that,  in  directing  the  trial  to  be  had  before  the  consul 
and  associates  summoned  to  sit  with  him,  it  does  not  require  a  previous 
presentment  or  indictment  by  a  grand  jury,  and  does  not  give  to  the 
accused  a  petit  jury.  The  want  of  such  clauses,  as  affecting  the  va- 
lidity of  the  legislation,  we  have  already'  considered.  It  is  not  pretended 
that  the  prisoner  did  not  have,  in  other  respects,  a  fair  trial  in  the 
consular  court. 

It  is  further  objected  to  the  proceedings  in  the  consular  court  that 
the  offence  with  which  the  petitioner  was  charged,  having  been  com- 
mitted on  board  of  a  vessel  of  the  United  States  in  Japanese  waters, 
was  not  triable  before  the  consular  court ;  and  that  the  petitioner,  being 
a  subject  of  Great  Britain,  was  not  within  the  jurisdiction  of  that  court. 
These  objections  we  will  now  proceed  to  consider. 

The  argument  presented  in  support  of  the  first  of  these  positions  is 
briefly  this.  Congress  has  provided  for  the  punishment  of  murder 
committed  upon  the  high  seas,  or  any  arm  or  bay  of  the  sea  within  the 
admiralt}'  and  maritime  jurisdiction  of  the  United  States,  and  out  of  the 
jurisdiction  of  any  particular  State ;  and  has  provided  that  the  trial  of 
all  offences  committed  upon  the  high  seas,  out  of  the  jurisdiction  of  any 
particular  State,  shall  be  in  the  district  where  the  offender  is  found  or 
into  which  he  is  first  brought.  The  term  "  high  seas"  includes  waters 
on  the  sea-coast  without  the  boundaries  of  low-water  mark' ;  and  the 
waters  of  the  port  of  Yokohama  constitute,  within  the  meaning  of  the 
statute,  high  seas.  Therefore  it  is  contended  that,  although  the  ship 
Bullion  was  at  the  time  l3ing  in  those  waters,  the  oflTence  for  which  the 
appellant  was  tried  and  convicted  was  committed  on  the  high  seas  and 
within  the  jurisdiction  of  the  domestic  tribunals  of  the  United  States, 
and  is  not  punishable  elsewhere.  In  support  of  this  position  it  is  as- 
sumed that  the  jurisdiction  of  the  consular  court  is  limited  to  offences 
committed  on  land,  within  the  territory-  of  Japan,  to  the  exclusion  of 
offences  committed  on  waters  within  that  territor}'. 

There  is,  as  it  seem  to  us,  an  obvious  answer  to  this  argument.  Tlia. 
junsdiction  to  try  offences  committed  on  thp  high  seas  in  therlklxiat 
•ghere  tjie  offender  mav  be  found,  or  into  which  he  mav  be  first  brought, 
is  not  exclusive  of  the  jurisdiction  of  the  consular  tribunal  to  try  a 
similar  offence  when  committed  in  a  port  of  a  foreio:n  country  in  which 
that  tribunal  is  established,  and  the  offender  is  not  taken  to  the  United 
States.  There  is  no  law  of  Congress  compelling  the  master  of  a  vessel 
to  carry  or  transport  him  to  any  home  port  when  he  can  be  turned  over 
to  a  consular  court  having  jurisdiction  of  similar  offences  committed  in 
the  foreign  countrj*.  7  Opinions  Attj's.  Gen.  722.  The  provisions 
conferring  jurisdiction  in  capital  cases  upon  the  consuls  in  Japan,  when 
the  offence  is  committed  in  that  country,  are  embodied  in  the  Revised 
Statutes,  with  the  provisions  as  to  the  jurisdiction  of  domestic  tribunals 
over  such  offences  committed  on  the  high  seas ;  and  those  statutes  were 
re-enacted  together,  and,  as  re-enacted,  went  into  operation  at  the  same 


CHAP.  III.]  IN   RE   ROSS.  373 

time.  To  both  effect  must  be  given  in  proper  cases,  where  they  are 
applicable.  We  do  not  adopt  the  limitation  stated  by  counsel  to  the 
jurisdiction  of  the  consular  tribunal,  that  it  extends  onl}'  to  offences 
committed  on  land.  Neither  the  treat}-  nor  the  Revised  Statutes  to 
carr}-  them  into  effect  contain  an}-  such  limitation.  The  latter  speak 
of  offences  committed  in  the  country  of  Japan  —  meaning  within  the 
territorial  jurisdiction  of  that  country  —  which  includes  its  ports  and 
navigable  waters  as  well  as  its  lands. 

The  position  that  the  petitioner,  being  a  subject  of  Great  Britain, 
was  not  within  the  jurisdiction  of  the  consular  court,  is  more  plausible, 
but  admits,  we  think,  of  a  sufficient  answer.  The  national  character 
of  til e  petitioner,  for  all  the  DUrposes  of  the  f^onsnlar  jurisdietion,  was 
dptpvpii'"''^^^^^  ^y  hip  nnligtmpnt,  q<8  r>np  nf  fjjP  r'rpxy  nMhp^A  mcrican  ship 

Bullion.  .  .  . 

It  is  true  that  the  occasion  for  consular  tribunals  in  Japan  maj'  here- 
after be  less  than  at  present,  as  every  3-ear  that  countrj-  progresses  in 
civilization  and  in  the  assimilation  of  its  sj-stem  of  judicial  procedure 
to  that  of  Christian  countries,  as  well  as  in  the  improvement  of  its 
penal  statutes  ;  but  the  s^-stem  of  consular  tribunals  which  have  a  general 
similarity  in  their  main  provisions,  is  of  the  highest  importance,  and 
their  establishment  in  other  than  Christian  countries,  where  our  people 
may  desire  to  go  in  pursuit  of  commerce,  will  often  be  essential  for  the 
protection  of  their  persons  and  property.  .  .  .  Order  affirmed} 

1  That  the  treaty  power  of  the  United  States  extends  to  all  proper  subjects  of  nego- 
tiation between  our  government  and  the  governments  of  other  nations,,  is  clear.  It  is 
also  clear  that  the  protection  wliich  should  be  afforded  to  the  citizens  of  one  country 
owning  property  in  another,  and  the  manner  in  which  that  jjroperty  may  be  transferred, 
devised,  or  inherited,  are  fitting  subjects  for  such  negotiation  and  of  regulation  by 
mutual  stipulations  between  the  two  countries.  As  commercial  intercourse  increases 
between  different  countries,  the  residence  of  citizens  of  one  country  within  the  territory 
of  the  other  naturally  follows,  and  the  removal  of  their  disability  from  alienage  to 
hold,  transfer,  and  inherit  property  in  such  cases  tends  to  promote  amicable  relations. 
Such  removal  has  been  within  the  present  century  the  frequent  subject  of  treaty 
arrangement.  The  treaty  pn^ver.  as  expressed  in  the  Constitution,  is  in  terms  un 
limited  except  by  those  restraints  which  are  found  in  that  instrument,  against  the 
action  of  the  government  or  of  its  departments,  and  those  arising  from  the  iiatiire  o." 
the  government  itself  and  of  that  of  the  States.  It  would  not  be^contended  that  jt 
extends  so  far  as  to  authorize  what  the  Constitution  forbids,  or  a  change  in  the  char- 
acter of  the  government  or  in  that  of  one  of  the  States,  or  a  cession  of  any  portion  of 
"the  territory  of  the  latter,  without  its  consent.  Fort  Leavemcorth  Railroad  Co.  v.  Lowe, 
114  U.  S.  525,  541.  But  witlj  these  exceptions,  it  is  not  percejvpH  t.Tiat  xht^re.  ]fi,  ^,py 
limit  to  the  questions  which  can  be  adjusted  touching  any  mattpr  which  ;«  properly 
the  subject  of  negotiation  with  a  foreign  country.  Ware  v.  H niton,  3  Dall.  199; 
Chirac  v.  Chirac,  2  Wheat  259;  Hauenstein  v.  Lynham,  100  U.  S.  483;  8  Opinions 
Attys.  Gen.  417  ;  The  People  v.  Gerke,  5  Cal.  381.  —  Field,  J.,  for  the  court  in  Gcofroij 
V.  Riggs,  133  U.  S.  258,  266. 

The  case  of  Chirac  v,  CA/rac,  2  "Wheat  259  (1817),  held  that  a  treaty  had  done 
away  with  the  incapacity  of  alienage  imposed  by  certain  State  laws.  In  U.  S.  v. 
Forti/'three  Gallons  of  Whiskei/,  93  U.  S.  188,  197  (1876),  Davis,  J.,  for  the  court,  said : 
"  The  power  to  make  treaties  with  the  Indian  tribes  is,  as  we  have  seen,  coextensive 
with  that  to  make  treaties  with  foreign  nations.  In  regard  to  the  latter,  it  is,  beyond 
doubt,  ample  to  cover  all  the  usual  subjects  of  diplomacy.     One  of  them  relates  to  the 


374  FONG  YUE  TING  V.   UNITED   STATES.  [CHAP.  III. 


FONG  YUE  TING  v.   UNITED   STATES. 

WONG   QUAN    V.   UNITED   STATES. 

LEE  JOE  V.    UNITED   STATES. 

Supreme  Court  of  the  United  States.     1893. 

[149  U.  S.  698.] 

These  were  three  writs  of  habeas  corpus,  granted  by  the  Circuit 
Court  of  the  United  States,  for  the  Southern  District  of  New  Yorlc, 
upon  petitions  of  Chinese  laborers,  arrested  and  held  by  the  marshal 
of  the  district  for  not  having  certificates  of  residence,  under  section  6 
of  the  Act  of  May  5,  1892,  c.  60,  which  is  copied  in  the  margin.  .  .  . 

Each  petition  alleged  that  the  petitioner  was  arrested  and  detained 
without  due  process  of  law,  and  that  section  6  of  the  Act  of  Ma}'  5, 
1892,  was  unconstitutional  and  void. 

In  each  case,  the  Circuit  Court,  after  a  hearing  upon  the  writ  of  ha- 
beas corpus  and  the  return  of  the  marshal,  dismissed  the  writ  of  habeas 
corpus,  and  allowed  an  appeal  of  the  petitioner  to  this  court,  and  ad- 
mitted him  to  bail  pending  the  appeal.  All  the  proceedings,  from  the 
arrest  to  the  appeal,  took  place  on  Maj'  6. 

Mr.  Joseph  H.  Choate  and  Mr.  J.  Hubley  Ashton,  for  appellants. 

Mr.  Maxwell  Ecarts  was  on  Mr.  Choate's  brief 

Mr.  Solicitor- General,  for  appellees. 

Mr.  Justice  Gray,  after  stating  the  facts,  delivered  the  opinion  of 
the  court. 

The  general  principles  of  public  law  which  lie  at  the  foundation  of 
these  cases  are  clearly  established  by  previous  judgments  of  this  court, 
and  by  the  authorities  therein  referred  to. 

In  the  recent  case  of  N^ishimiira  Ekixi  v.  United  States,  142  U.  S. 
651,  659,  the  court,  in  sustaining  the  action  of  the  executive  depart- 
ment, putting  in  force  an  Act  of  Congi-ess  for  the  exclusion  of  aliens, 
said  :  ' '  It  i_s  an  accepted  maxim  of  international  jaw,  that  every  sover- 
eign nation  has  the  power,  as  inherent  in  sovereignty,  and  essential  to 
self-preservation,  to  forbid  the  entrance  of  foreigners  within  its  domin- 
ions, or  to  admit  them  only  in  such  cases  and  upon  such  condjtiQiis-as 
it  may  see  fit  to  prescribe.  In  the  United  States,  this  power  is  vested 
in  the  national  government,  to  which  the  Constitution  has  committed 

disability  of  the  citizens  or  subjects  of  either  contracting  nation  to  take,  by  descent  or 
devise,  real  property  situate  in  the  territory  of  the  other.  If  a  treaty  to  which  the 
United  States  is  a  party  removed  such  disability,  and  secured  to  them  the  right  so  to 
take  and  hold  such  property,  as  if  they  were  natives  of  this  country,  it  might  contra- 
vene the  statutes  of  a  State ;  but,  in  that  event,  the  courts  would  disregard  them,  and 
give  to  the  alien  the  full  protection  conferred  by  its  provisions.  If  this  result  can  be 
thus  obtained,  surely  the  Federal  government  may,  in  the  exercise  of  its  acknowledged 
power  to  treat  with  Indians,  make  the  provision  in  question,  coming,  as  it  fairly  does, 
within  the  clause  relating  to  the  regulation  of  commerce."  —  Ed. 


CHAP.  HI.]  FOXG   YUE   TING   V,    UNITED   STATES.  375 

the  entire  control  of  international  relations,  in  peace  as  well  as  in  war. 
It  belongs  to  the  [wlitical  department  of  the  government,  and  may  be 
exercised  eitlier  through  treaties  made  by  tlie  President  and  Senate,  or 
throtigh  statutes  enacted  b\-  Congress." 

Tlie  same  views  were  more  fully  expounded  in  the  earlier  case  of 
C/iae  Chan  Ping  v.  United  States^  130  U.  S.  581,  in  which  the  validity 
of  a  former  Act  of  Congress,  excluding  Chinese  laborers  from  the  United 
States,  under  the  circumstances  therein  stated,  was  affirmed. 

In  the  elaborate  opinion  delivered  bj-  Mr.  Justice  Field,  in  behalf  of 
the  court,  it  was  said:  '*  Those  laborers  are  not  citizens  of  the  United 
Slates ;  the}-  are  aliens.  That  the  government  of  the  United  States, 
through  the  action  of  the  legislative  department,  can  exclude  aliens  from 
its  territory  is  a  proposition  which  we  do  not  think  open  to  controversy. 
Jurisdiction  over  its  own  territory  to  that  extent  is  an  incident  of  every 
independent  nation.  It  is  a  part  of  its  independence.  If  it  could  not 
exclude  aliens,  it  would  be  to  that  extent  subject  to  the  control  of  an- 
other power."  "The  United  States,  in  their  relation  to  foreign  coun- 
tries and  their  subjects  or  citizens,  are  one  nation,  invested  with  powers 
which  belong  to  independent  nations,  the  exercise  of  which  can  be  in- 
voked for  the  maintenance  of  its  absolute  independence  and  security 
throughout  its  entire  territor}-."     130  U.  S.  603,  604. 

It  was  also  said,  repeating  the  langiiage  of  Mr.  Justice  Bradley  in 
Knox  V.  Zee,  12  Wall.  457,  555:  "The  United  States  is  not  only  a 
government,  but  it  is  a  national  government,  and  the  only  government 
in  this  countr}'  that  has  the  character  of  nationality.  It  is  invested 
with  power  over  all  the  foieign  relations  of  the  country,  war,  peace,  and 
negotiations  and  intercourse  with  other  nations  ;  all  of  which  are  forbid- 
den to  the  State  governments."  130  U.  S.  605.  And  it  was  added: 
"  For  local  interests  the  several  States  of  the  Union  exist ;  but  for  in- 
ternational purposes,  embracing  our  relations  with  foreign  nations,  we 
are  but  one  people,  one  nation,  one  power."     130  U.  S.  606. 

The  court  tlien  went  on  to  say  :  "To  preserve  its  independence,  and 
give  security  against  foreign  aggression  and  encroachment,  is  the  high- 
est  duty  of  every  nation,  and  to  attain  these  ends  nearly  all  other  con- 
siderations are  to  be  subordinated.  It  matters  not  in  what  form  such 
aggression  and  encroachment  come/sdietlier  from  the  foreign  nation 
acting  in  its  national  character,  or  from  v^t  hordes  of  its  people  crowd- 
ing in  upon  us.  The  government,  possessmc  the  powers  which  are  to 
be  exercised  for  protection  and  security,  is  cl^hed  with  authority  to 
determine  the  occasion  on  which  the  powers  shatKbe  called  forth ;  and 
its  determination,  so  far  as  the  subjects  affected  arevconcerned,  is  ne- 
cessarily conclusive  upon  all  its  departments  and  officersSs^,  therefore, 
the  government  of  the  United  States,  through  its  legislative  department, 
considers  tbe  presence  of  foreigners  of  a  different  race  in  this  country, 
who  will  not  assimilate  with  us,  to  be  dangerous  to  its  peace  and  secur- 
it}',  ttieir  exclusion  is  not  tn  bp  stMyed  because  at  the  time  there  are"no 
actual  hostilities  with  the  nation  of  which  the  foreigners  are  subjects. 


376  FONG   YUE   TING   V.    UNITED    STATES.  [gHAP.  III. 

The  existence  of  war  would  render  the  necessity  of  the  proceeding  onl}' 
more  obvious  and  pressing.  The  same  necessity*,  in  a  less  pressing 
degree,  ma^*  arise  wlien  war  does  not  exist,  and  the  same  auihority 
which  adjudges  the  necessity  in  one  case  must  also  determine  it  in  the 
other.  In  both  cases,  its  determinatioiijsjconclusiYP  upon  thp  jndicinry- 
If_tlie  government  of  the  country  of  which_jtbeJrQreignfirs^  cxcluded-iure 
subjectsis  dissatisfied  with  this  action,  it  can  makp  rnmplflinf.  tn  tJiA 
executive  head  of  our  government,  oxjieaprt  to  any  other  measu re_whicli» 
in  its  iudoment.  its  interests  or  dio^nity  mny  rlpmnnW  -^ajia-ihai-P  lies  ita^ 
only  remedy.  The  power  of  the  government  to  exclude  foreigners  from 
the  country,  whenever,  in  its  judgment,  the  public  interests  require  such 
exclusion,  has  been  asserted  in  repeated  instances,  and  never  denied  by 
the  executive  or  legislative  departments."  130  U.  S.  606,  607.  This 
statement  was  supported  by  man}'  citations  from  the  diplomatic  corre- 
spondence of  successive  Secretaries  of  State,  collected  in  Wharton's 
International  Law  Digest,  §  206. 

The  right  of  a  nation  to  expel  or  deport  foreigners,  who  have  n^ 
been  naturalized  or  taken  any  steps  towards  becoming  citizens  of  the 
qaimtry~,  resTs  upon  the  same  grounds,  and  is  as  absolute  and  unquali- 
fied as  the  right  to  prohibit  and  prevent  their  entrance  into  the  country. 

This  is  clearly  affirmed  in  despatches  referred  to  by  the  court  in  Chae 
Chan  Ping's  Case.  In  1856,  Mr.  Marcy  wrote:  ''P^very  society  pos- 
sesses the  undoubted  right  to  determine  who  shall  compose  its  members, 
and  it  is  exercised  by  all  nations,  both  in  peace  and  war.  A  memorable 
example  of  the  exercise  of  this  power  in  time  of  peace  was  the  passage 
of  the  alien  law  of  the  United  States  in  the  year  1798."  In  1869,  Mr. 
Fish  wrote :  "The  control  of  the  people  within  its  limits,  and  the  right 
to  expel  from  its  territory  persons  who  are  dangerous  to  the  peace  of 
the  State,  are  too  clearh'  within  the  essential  attributes  of  sovereignty 
to  be  seriously  contested."  Wharton's  International  Law  Digest, 
§  206  ;  130  U.  S.  607. 

The  statements  of  leading  commentators  on  the  law  of  nations  are  to 
the  same  effect.  .   .   . 

The  right  to  exclude  or  to  expel  all  aliens,  or  an}'  class  of  aliens,  abso- 
lutely or  upon  certain  conditions,  in  war  or  in  peace,  being  an  inherent 
and  inalienable  right  of  every  sovereign  and  independent  nation,  essen- 
tial to  its  safety,  its  independence,  and  its  welfare,  the  question  now 
before  the  court  is  whether  the  manner  in  which  Congress  has  e-gercised 
tMs  right  iifsections  6  and  7  of  the  Act  of  1892  is  consistent  with  tjie 
Constitution. 

The  United  States  are  a  sovereign  and  independent  nation,  and  are 
vested  by  the  Constitution  with  the  entire  control  of  international  rela- 
tions, and  with  all  the  powers  of  government  necessary  to  maintain  that 
control  and  to  make  it  effective.  The  only  government  of  this  country, 
which  other  nations  recognize  or  treat  with,  is  the  government  of  the 
Union  ;  and  the  only  American  flag  known  throughout  the  woild  is  the 
flag  of  the  United  States. 


CHAP.  III.]  FONG   YUE  TING   V.   UNITED   STATES.  377 

The  Constitution  of  the  United  States  speaks  with  no  uncertain  sound 
upon  this  subject.  That  instrument,  established  by  the  people  of  the 
United  States  as  the  fundamental  law  of  the  land,  has  conferred  upon 
the  President  the  executive  power ;  has  made  him  the  commander-in- 
chief  of  the  army  and  navy  ;  has  authorized  him,  by  and  with  the  con- 
sent of  the  Senate,  to  make  treaties,  and  to  appoint  ambassadors,  public 
ministers,  and  consuls ;  and  has  made  it  his  duty  to  take  care  that  the 
laws  be  faithfully  executed.  The  Constitution  has  granted  to  Congress 
the  power  to  regulate  commerce  with  foreign  nations,  including  the  en- 
trance of  ships,  the  importation  of  goods,  and  the  bringing  of  persons 
into  the  ports  of  the  United  States  ;  to  establish  a  uniform  rule  of  natu- 
ralization ;  to  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations  ;  to  declare  war,  grant 
letters  of  marque  and  reprisal,  and  make  rules  concerning  captures  on 
land  and  water ;  to  raise  and  support  armies,  to  provide  and  maintain 
a  navy,  and  to  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces ;  and  to  make  all  laws  necessary  and  proper  for 
carrying  into  execution  these  powers,  and  all  other  powers  vested  by 
the  Constitution  in  the  government  of  the  United  States,  or  in  an}'  de- 
l)artment  or  officer  thereof.  And  the  several  States  are  expressly'  for- 
bidden to  enter  into  an}'  treaty,  alliance,  or  confederation ;  to  grant 
letters  of  marque  and  reprisal ;  to  enter  into  any  agreement  or  compact 
with  another  State,  or  with  a  foreign  power ;  or  to  engage  in  war,  unless 
actually  invaded,  or  in  such  imminent  danger  as  will  not  admit  of  delay. 

In  exercising  the  great  power  which  the  people  of  the  United  States, 
by  establishing  a  written  constitution  as  the  supreme  and  paramount 
law,  have  vested  in  this  court,  of  determining,  whenever  the  question  is 
properly  brought  before  it,  whether  the  Acts  of  the  legislature  or  of  the 
executive  are  consistent  with  the  Constitution,  it  behooves  the  court  to 
be  careful  tliat  it  does  not  undertake  to  pass  upon  political  questions, 
the  final  decision  of  which  has  been  committed  by  the  Constitution  to 
the  other  departments  of  the  government.  .  .  . 

The  power  to  exclude  or  to  expel  aliens,  being  a  power  affectuig^inter^ 
natTonal  relations,  is  vested  in  the  political  departments  of  the  govern- 
ment, and  is  to  be  regfulated  by  treaty  or  bv  Act  of  Congress,  and  to  be 
executed  by  the  executive  authority  according  to  the  regulations  so  es- 
tablished,  except  so  far  as  the  judicial  department  has  been  authorized 
bj:  treaty  or  by  statute,  or  is  required  bv  the  paramount  Jaw^^^f^he 
Constitution,  to  intervene. 

In  Nishimiira  Ekiu's  Case^  it  was  adjudged  that,  although  Congress 
might,  if  it  saw  fit,  authorize  the  courts  to  investigate  and  ascertain  the 
facts  upon  which  the  alien's  right  to  land  was  made  by  the  statutes  to 
depend,  yet  Congress  might  intrust  the  final  determination  of  those 
facts  to  an  executive  oflficer,  and  that,  if  it  did  so,  his  order  was  due 
process  of  law,  and  no  other  tribunal,  unless  expressly  authorized  by 
law  to  do  so,  was  at  liberty  to  re-examine  the  evidence  on  which  he 
acted,  or  to  controvert  its  sufficiency.     142  U.  S.  G60. 


378  FONG   YUE   TING   V.   UNITED   STATES.  [CHAP.  III. 

The  power  to  exclude  aliens  and  the  power  to  expel  them  rest  upon 
one  foundation,  are  derived  from  one  source,  are  supported  by  the  same 
reasons,  and  are  in  truth  but  parts  of  one  and  the  same  power. 

The  power  of  Congress,  therefore,  to  expel,  like  the  power  to  exclude 
aliens,  or  an}-  specified  class  of  aliens,  from  the  country",  maj'  be  exer- 
cised entirely  through  executive  officers ;  or  Congi'ess  may  call  in  the 
aid  of  the  judiciary  to  ascertain  anj'  contested  facts  on  which  an  alien's 
right  to  be  in  the  country  has  been  made  b}-  Congress  to  depend.  .  ,  . 

In  our  jurisprudence,  it  is  well  settled  that  the  provisions  of  an  Act 
of  Congress,  passed  in  the  exercise  of  its  constitutional  authority,  on 
this,  as  on  any  other  subject,  if  clear  and  explicit,  must  be  upheld  by 
the  courts,  even  in  contravention  of  express  stipulations  in  an  earlier 
treaty.  As  was  said  by  this  court  in  Chae  Chan  Ping's  Case^  follow- 
ing previous  decisions  :  "  The  treaties  were  of  no  greater  legal  obliga- 
tion than  the  Act  of  Congress.  B}-  the  Constitution,  laws  made  in 
pursuance  thereof  and  treaties  made  under  the  authority  of  the  United 
States  are  both  declared  to  be  the  supreme  law  of  the  land,  and  no 
paramount  authority  is  given  to  one  over  the  other.  A  treaty,  it  is 
true,  is  in  its  nature  a  contract  between  nations,  and  is  often  merely 
promissory  in  its  character,  requiring  legislation  to  carr}-  its  stipulations 
into  effect.  Such  legislation  will  be  open  to  future  repeal  or  amend- 
ment. If  the  treaty  operates  by  its  own  force,  and  relates  to  a  subject 
within  the  power  of  Congress,  it  can  be  deemed  in  that  particular  only 
the  equivalent  of  a  legislative  Act,  to  be  repealed  or  modified  at  the 
pleasure  of  Congress.  In  either  case,  the  last  expression  of  the  sover- 
eign will  must  control."  "  So  far  as  a  treaty  made  by  the  United  States 
with  an}-  foreign  nation  can  become  the  subject  of  judicial  cognizance 
in  the  courts  of  this  country,  it  is  subject  to  such  Acts  as  Congress  may 
pass  for  its  enforcement,  modification,  or  repeal."  130  U.  S.  600. 
See  also  Foster  v.  Neilson,  2  Pet.  253,  314  ;  Edye  v.  Robertson^  112 
U.  S.  580,  597-599  ;    Whitney  v.  Robertson,  124  U.  S.  190. 

By  the  supplementary  Act  of  October  1,  1888,  c.  1064,  it  was  enacted, 
in  section  1,  that  "  from  and  after  the  passage  of  this  Act,  it  shall  be 
unlawful  for  any  Chinese  laborer,  who  shall  at  an}'  time  heretofore  have 
been,  or  who  may  now  or  hereafter  be,  a  resident  within  the  United 
States,  and  who  shall  have  departed  or  shall  depart  therefrom,  and  shall 
not  have  returned  before  the  passage  of  this  Act,  to  return  to,  or  remain 
in,  the  United  States  ;  "  and  in  section  2,  that  "  no  certificates  of  iden- 
tity, provided  for  in  the  fourth  and  fifth  sections  of  the  Act  to  which 
this  is  a  supplement,  shall  hereafter  be  issued  ;  and  every  certificate 
heretofore  issued  in  pursuance  thereof  is  hereb}-  declared  void  and  of 
no  effect,  and  the  Chinese  laborer  claiming  admission  b}'  virtue  thereof 
shall  not  be  permitted  to  enter  the  United  States."     25  Stat.  504.  .  .  . 

By  the  law  of  nations,  doubtless,  aliens  residing  in  a  countrj-,  with 
the  intention  of  making  it  a  permanent  place  of  abode,  acquire,  in  one 
sense,  a  domicil  there ;  and,  while  the}'  are  permitted  by  the  nation  to 
retain  such  a  residence  and  domicil,  are  subject  to  its  laws,  and  may 


CHAP.  III.]  FONG   YUE   TING   V.   UNITED    STATES.  379 

invoke  its  protection  against  other  nations.  This  is  recognized  b}-  those 
publicists  who,  as  has  been  seen,  maintain  in  the  strongest  terms  the 
right  of  the  nation  to  expel  an}'  or  all  aliens  at  its  pleasure.  Vattel, 
lib.  1,  c.  19,  §  213  ;  1  Phillimore,  c.  18,  §  321  ;  Mr.  Marcy,  in  Koszta's 
Case.,  Wharton's  International  Law  Digest,  §  198.  See  also  Lau  Ow 
Beio  V.  United  States,  144  U.  S.  47,  Q'2-,  Merlin,  Repertoire  de  Juris- 
prudence, Domicile,  §  13,  quoted  in  the  case,  above  cited,  of  In  re 
Adam,  1  Moore,  P.  C.  4G0,  472,  473. 

Chinese  laborers,  therefore,  like  all  other  aliens  residing  in  the  United 
States  for  a  shorter  or  Jonger  time,  are  entitled,  so  long  as  the}-  are 
permitted  by  the  government  of  the_lJnite7l  ^States  to  "remain  in  the 
country,  to  the  safeguards  of  the  Constitution,  and  to  the  protection  of 
the  laws,  in  regard  to  their  rights  of^rson  and  ot  property,  ancTTo" 
Jtiieir  civil  and  criminal  res|)on^ibility.  But  they  continue  to  be  aliens^ 
having  taken  no  steps  towards  becoming  citizens,  and  incapable  of  be- 
coming such  under  the  naturalization  laws ;  and  therefore  remain  sub- 
ject  to  the  power  of  Congress  to  expel  them,  or  to  order  them  to  be 
removed  arid  df  pur  ted  fi'om  the  country,  whenever  in  its  judgment  their 
removal  is  necessary  or  expedient  for  the  public  interest.  .  .  . 

The  question  whether,  and  upon  what  conditions,  these  aliens  shall 
be  permitted  to  remain  within  the  United  States  being  one  to  be  deter- 
mined by  the  political  departments  of  the  government,  the  judicial 
department  cannot  properly  express  an  opinion  upon  the  wisdom,  the 
policy  or  the  justice  of  the  measures  enacted  by  Congress  in  the  exer- 
cise of  the  powers  confided  to  it  by  the  Constitution  over  this  subject. 
...  In  each  of  these  cases  the  judgment  of  the  Circuit  Court,  dismiss- 
ing the  writ  of  habeas  corpus,  is  right  and  must  be  Affirmed. 

[Brewer,  J.,  Field,  J.,  and  Fuller,  C.  J.,  dissented.] 


NOTE. 

The  scope  of  the  judicial  power  of  the  United  States  is  seen  by  the  Constitution, 
Art.  3,  s.  2,  and  Art.  6,  cl.  2.  But  not  all  this  power  has  ever  been  conferred  upon  the 
courts.  Kent  (Com.  i.  *314,  12th  ed.)  says:  "The  disposal  of  the  judiiial  power,  ex- 
cept in  a  few  specified  cases,  belongs  to  Congress;  and  the  courts  cannot  exercise  juris- 
diction in  every  case  to  which  the  judicial  power  extends,  without  the  intervention  of 
Congress,  who  are  not  bound  to  enlarge  the  jurisdiction  of  the  Federal  courts  to  every 
subject  which  the  Constitution  might  warrant.  .  .  .  A  considerable  portion  of  the  ju- 
dicial power,  placed  at  the  disposal  of  Congress  by  the  Constitution,  has  been  intention^ 
ally  permitted  to  lie  dormant,  by  not  being  called  into  action  by  law." 

The  student  should  acquaint  himself  with  certain  leading  points  as  to  the  jurisdic- 
tion of  the  courts  of  the  United  States ;  e.  g.  those  which  appear  in  Rev.  St.  U.  S.  ss. 
639,  641,  687,  691-693  iucl.,  697,  699,  702,  705,  707,  709,  and  in  the  Appellate  Courts 
Act,  26  U.  8.  Stat,  at  Large,  826.  References  to  later  statutes  may  be  found  in  Gould 
and  Tucker's  Notes  on  the  Rev.  Stats.  See  also  Curtis,  Jurisdiction  U.  S.  Courts, 
passim,  and  Foster's  Federal  Practice.  —  Ed. 


APPENDIX  TO  PART  I. 


A   CONSTITUTION   OR  FORM  OF   GOVERNMENT  FOR 
THE  COMMONWEALTH   OF   MASSACHUSETTS.^ 


PREAMBLE. 


The  end  of  the  institution,  maintenance,  and  administration  of  government,  is  to 
secure  the  existence  of  the  body  politic,  to  protect  it,  and  to  furnish  the  individuals 
who  compose  it  with  the  power  of  enjoying  in  safety  and  tranquillity  their  natural 
rights,  and  the  blessings  of  life  :  and  whenever  these  great  objects  are  not  obtained, 
the  people  have  a  right  to  alter  the  government,  and  to  take  measures  necessary  for 
their  safety,  prosperity,  and  happiness. 

The  body  politic  is  formed  by  a  voluntary  association  of  individuals  •  it  is  a  social 
compact,  by  which  the  wliole  people  covenants  with  each  citizen,  and  each  citizen  with 
the  whole  people,  that  all  sliall  be  governed  by  certain  laws  for  the  common  good.  It 
is  the  duty  of  the  people,  therefoi-e,  in  framing  a  constitution  of  government,  to  pro- 
vide for  an  equitable  mode  of  making  laws,  as  well  as  for  an  impartial  interpretation 
and  a  faitiiful  execution  of  them  ;  that  every  man  may,  at  all  times,  find  his  security 
in  them. 

We,  tiierefore,  the  people  of  Massachusetts,  acknowledging,  with  grateful  hearts,  the 
goodness  of  the  great  Legislator  of  the  universe,  in  affording  us,  in  the  course  of  His 
providence,  an  opportunity,  deliberately  and  peaceably,  without  fraud,  violence,  or  sur- 
prise, of  entering  into  an  original,  explicit,  and  solemn  compact  with  each  other ;  and 
of  forming  a  new  constitution  of  civil  government,  for  ourselves  and  posterity ;  and 
devoutly  imploring  His  direction  in  so  interesting  a  design,  do  agree  upon,  ordain, 
and  establish  the  following  Declaration  of  Rights,  and  Frame  of  Government,  as  the 

CONSTITUTIOX   OF    THK    COMMONWEALTH    OF    MASSACHUSETTS. 


PART  THE   FIRST. 
A  Declaration  of  the  Rights  of  the  Inhabitants  of  the  Commonwealth  of  Massachusetts. 

Article  I.  All  men  are  born  free  and  equal,  and  have  certain  natural,  essential, 
and  unalienable  rights ;  among  which  may  be  reckoned  the  right  of  enjoying  and 
defending  tlieir  lives  and  liberties  ;  that  of  acquiring,  possessing,  and  protecting 
property  ;  in  fine,  that  of  seeking  and  obtaining  their  safety  and  happiness. 

II.  It  is  the  right  as  well  as  the  duty  of  all  men  in  society,  publicly,  and  at  stated 
seasons,  to  worship  the  Supreme  Being,  the  great  Creator  and  Preserver  of  the  uni- 
verse. And  no  subject  shall  be  hurt,  molested,  or  restrained,  in  his  person,  liberty,  or 
estate,  for  worshipping  God  in  the  manner  and  sea.son  most  agreeable  to  the  dictates 
of  his  own  conscience  ;  or  for  his  religious  profession  of  sentiments  ;  provided  he  doth 
not  disturb  the  public  peace,  or  obstruct  others  in  their  religious  worship. 

1  Printed  from  the  oflScial  edition  of  Massachusetts  Acts  and  Resolves  for  1 893.  This 
instrument  went  into  operation  in  October,  1780,     See  a«<e,  54-55,  2 15,  and  220. —  Ed. 


382  APPENDIX   TO   PART   I. 

III.^  [As  the  happiness  of  a  people,  and  the  good  order  and  preservation  of  civil 
government,  essentially  depend  upon  piety,  religion,  and  morality ;  and  as  these  can- 
not be  generally  diffused  through  a  community  but  by  the  institution  of  the  public 
wursliip  of  God,  and  of  public  instructions  in  piety,  religion,  and  morality :  There- 
fore, to  promote  their  liappiness,  and  to  secure  the  good  order  and  preservation  of 
their  government,  the  people  of  this  Commonwealth  have  a  riglit  to  invest  their  legis- 
lature with  power  to  authorize  and  require,  and  the  legislature  shall,  from  time  to 
time,  authorize  and  require  the  several  towns,  parishes,  precincts,  and  other  bodies 
politic,  or  religious  societies,  to  make  suitable  provision,  at  their  own  expense,  for 
tlie  institution  of  the  public  worship  of  God,  and  for  the  support  and  maintenance  of 
public  Protestant  teacliers  of  piety,  religion,  and  morality,  in  all  cases  where  such  pro- 
vision shall  not  be  made  voluntarily. 

And  the  people  of  this  Commonwealth  have  also  a  right  to,  and  do,  invest  their 
legislature  with  authority  to  enjoin  upon  all  the  subjects  an  attendance  upon  the 
instructions  of  the  public  teachers  aforesaid,  at  stated  times  and  seasons,  if  there  be 
any  on  whose  instructions  they  can  conscientiously  and  conveniently  attend. 

Provided,  notwithstanding,  that  the  several  towns,  parishes,  precincts,  and  other 
bodies  politic,  or  religious  societies,  sliall,  at  all  times,  have  the  exclusive  right  of 
electing  their  public  teachers,  and  of  contracting  with  them  for  their  support  and 
maintenance. 

And  all  moneys  paid  by  the  subject  to  the  support  of  public  worship,  and  of  the 
public  teachers  aforesaid,  shall,  if  he  require  it,  be  uniformly  applied  to  the  sup- 
port of  the  public  teacher  or  teachers  of  his  own  religious  sect  or  denomination, 
provided  there  be  any  on  whose  instructions  he  attends ;  otherwise  it  may  be  paid 
towards  the  support  of  the  teacher  or  teachers  of  the  parish  or  precinct  in  which  the 
said  moneys  are  raised. 

And  every  denomination  of  Christians,  demeaning  themselves  peaceably,  and  as 
good  subjects  of  the  Commonwealth,  shall  be  equally  under  the  protection  of  the 
law:  and  no  subordination  of  any  one  sect  or  denomination  to  another  shall  ever 
be  established  by  law]. 

IV.  The  people  of  this  Commonwealth  have  the  sole  and  exclusive  right  of  govern- 
ing themselves,  as  a  free,  sovereign,  and  independent  State ;  and  do,  and  forever  here- 
after shall,  exercise  and  enjoy  every  power,  jurisdiction,  and  right,  which  is  not,  or 
may  not  hereafter  be,  by  them  expres.sly  delegated  to  the  United  States  of  America, 
in  Congress  as.sembled. 

V.  All  power  residing  originally  in  the  people,  and  being  derived  from  them,  the 
several  magistrates  and  officers  of  government,  vested  with  authority,  whether  legis- 
lative, executive,  or  judicial,  are  their  substitutes  and  agents,  and  are  at  all  times 
accountable  to  them. 

VI.  No  man,  nor  corporation,  or  association  of  men,  have  any  other  title  to  obtain 
advantages,  or  particular  and  exclusive  privileges,  distinct  from  those  of  the  com- 
nmnity,  than  what  arises  from  the  consideration  of  services  rendered  to  the  public ; 
and  this  title  being  in  nature  neither  hereditary,  nor  transmissible  to  children,  or 
descendants,  or  relations  by  blood,  the  idea  of  a  man  born  a  magistrate,  lawgiver,  or 
judy:e,  is  absunl  and  unnatural. 

VII.  Government  is  instituted  for  the  common  good ;  for  the  protection,  safety, 
prosperity,  and  happiness  of  the  people ;  and  not  for  the  profit,  honor,  or  private  in- 
terest of  any  one  man,  family,  or  class  of  men  :  Therefore  tlie  people  alone  have  an 
incontestilile,  unalienable,  and  indefeasible  right  to  institute  government;  and  to 
reform,  alter,  or  totally  change  the  same,  when  their  protection,  safety,  prosperity, 
and  happiness  require  it. 

VIII.  In  order  to  prevent  those  who  are  vested  with  authority  from  becoming 
oppressors,  the  people  have  a  right,  at  such  periods  and  in  such  manner  as  they  shall 
establish  by  their  frame  of  government,  to  cause  their  public  ofl^cers  to  return 
to  private  life ;  and  to  fill  up  vacant  places  by  certain  and  regular  elections  and 
appointments. 

1  Amendment,  Article  XI.  substituted  for  this. 


APPENDIX   TO   PART   I.  383 

IX.  All  elections  ought  to  be  free ;  and  all  the  inhabitants  of  this  Commonwealth, 
having  such  qualifications  as  they  shall  establish  by  their  frame  of  government,  have 
an  equal  right  to  elect  officers,  and  to  be  elected,  for  public  employments. 

X.  Eacli  individual  of  the  society  has  a  right  to  be  protected  by  it  in  the  enjoyment 
of  his  life,  liberty,  and  property,  according  to  standing  laws.  He  is  obliged,  conse- 
quently, to  contribute  his  share  to  the  expense  of  this  protection  ;  to  give  his  personal 
service,  or  an  equivalent,  when  necessary ;  but  no  part  of  the  property  of  any  indi- 
vidual can,  with  justice,  be  taken  from  him,  or  applied  to  public  uses,  without  his  own 
consent,  or  that  of  the  representative  body  of  the  people.  In  fine,  the  people  of  this 
Commonwealth  are  not  controllable  by  any  other  laws  than  those  to  which  their  con- 
stitutional representative  body  have  given  their  consent.  And  whenever  the  public 
exigencies  re(iuire  that  the  property  of  any  individual  should  be  appropriated  to 
public  uses,  he  shall  receive  a  reasonable  compensation  therefor. 

XI.  Every  subject  of  the  Commonwealth  ought  to  find  a  certain  remedy,  by  having 
recourse  to  the  laws,  for  all  injuries  or  wrongs  which  he  may  receive  in  his  person, 
property,  or  character.  He  ought  to  obtain  right  and  justice  freely,  and  without  being 
obliged  to  purchase  it ;  completely,  and  without  any  denial ;  promptly,  and  without 
delay ;  conformably  to  the  laws. 

XII.  No  subject  shall  be  held  to  answer  for  any  crimes  or  offence,  until  the  same  is 
fully  and  plainly,  substantially,  and  formally,  described  to  him ;  or  be  compelled  to 
accuse,  or  furnish  evidence  against  himself.  And  every  subject  shall  have  a  right  to 
produce  all  proofs  that  may  be  favorable  to  him  ;  to  meet  the  witnesses  against  him 
face  to  face,  and  to  be  fully  heard  in  his  defence  by  himself,  or  his  counsel,  at  his 
election.  And  no  subject  shall  be  arre.sted,  imprisoned,  despoiled,  or  deprived  of  his 
property,  immunities,  or  privileges,  put  out  of  the  protection  of  the  law,  exiled,  or 
deprived  of  his  life,  liberty,  or  estate,  but  by  the  judgment  of  his  peers,  or  the  law  of 
the  laud. 

And  the  legi.^lature  shall  not  make  any  law  that  shall  subject  any  person  to  a  capital 
or  infamous  punishment,  excepting  for  the  government  of  the  army  and  navy,  without 
trial  by  jury. 

XIII.  In  criminal  prosecutions,  the  verification  of  facts,  in  the  vicinity  where 
they  happen,  is  one  of  the  greatest  securities  of  the  life,  liberty,  and  property  of 
the  citizen. 

XIV.  Every  subject  has  a  right  to  be  secure  from  all  unreasonable  searches,  and 
seizures  of  his  person,  his  houses,  his  papers,  and  all  his  possessions.  All  warrants, 
therefore,  are  contrary  to  this  right,  if  the  cause  or  foundation  of  them  be  not  pre- 
viously supported  by  oath  or  attirmation,  and  if  the  order  in  the  warrant  to  a  civil 
officer,  to  make  search  in  suspected  places,  or  to  arrest  one  or  more  suspected  persons, 
or  to  seize  their  property,  be  not  accompanied  with  a  special  designation  of  the  persons 
or  objects  of  search,  arrest,  or  seizure  :  and  no  warrant  ought  to  be  issued  hut  in  cases, 
and  with  the  formalities  prescribed  by  the  laws. 

XV.  In  all  controversies  concerning  property,  and  in  all  suits  between  two  or  more 
persons,  except  in  cases  in  which  it  has  heretofore  been  otherways  used  and  practised, 
the  parties  have  a  right  to  a  trial  by  jury  ;  and  this  method  of  procedure  shall  be  held 
sacred,  unless,  in  causes  arising  on  the  high  seas,  and  such  as  relate  to  mariners'  wages, 
the  legislature  shall  hereafter  find  it  necessary  to  alter  it. 

XVI.  The  liberty  of  the  press  is  essential  to  the  security  of  freedom  in  a  State  :  it 
ought  not,  therefore,  to  be  restrained  in  this  Commonwealth. 

XVII.  The  people  have  a  right  to  keep  and  to  bear  arms  for  the  common  defence. 
And  as,  in  time  of  peace,  armies  are  dangerous  to  liberty,  they  ought  not  to  be  main- 
tained without  the  consent  of  the  legislature  ;  and  the  military  power  shall  always  be 
held  in  an  exact  subordination  to  the  civil  authority,  and  be  governed  by  it. 

XVIII.  A  frequent  recurrence  to  the  fundamental  principles  of  the  Constitution, 
and  a  constant  adherence  to  those  of  piety,  justice,  moderation,  temperance,  industry, 
and  frugality,  are  absolutely  necessary  to  preserve  the  advantages  of  liberty,  and  to 
maintain  a  free  government.  The  people  ought,  consequently,  to  have  a  particular 
attention  to  all  those  principles,  in  the  choice  of  their  officers  and  representatives :  and 


384  APPENDIX   TO   PART  I. 

they  have  a  right  to  require  of  their  lawgivers  and  magistrates  an  exact  and  constant 
observance  of  them,  in  the  formation  and  execution  of  the  laws  necessary  for  the  good 
administration  of  the  Commonwealth. 

XIX.  The  people  have  a  right,  in  an  orderly  and  peaceable  manner,  to  assemble 
to  consult  upon  the  common  good  ;  give  instructions  to  their  representatives,  and  to 
request  of  the  legislative  body,  by  the  way  of  addresses,  petitions,  or  remonstrances, 
redress  of  the  wrongs  done  them,  and  of  the  grievances  they  suffer. 

XX.  The  power  of  suspending  the  laws,  or  the  execution  of  the  laws,  ought  never 
to  be  exercised  but  by  the  legislature,  or  by  authority  derived  from  it,  to  be  exercised 
in  such  particular  cases  only  as  the  legislature  shall  expressly  provide  for. 

XXI.  The  freedom  of  deliberation,  speech,  and  debate,  in  either  house  of  the  legis- 
lature, is  so  essential  to  the  rights  of  the  people,  that  it  cannot  be  the  foundation  of  any 
accusation  or  prosecution,  action  or  complaint,  in  any  other  court  or  place  whatsoever. 

XXII.  The  legislature  ought  frequently  to  assemble  for  the  redress  of  grievances, 
for  correcting,  strengthening,  and  confirming  the  laws,  and  for  making  new  laws,  as  the 
common  good  may  require. 

XXIII.  No  subsidy,  charge,  tax,  impost,  or  duties  ought  to  be  established,  fixed, 
laid,  or  levied,  under  any  pretext  whatsoever,  without  the  consent  of  the  people  or  their 
representatives  in  the  legislature. 

XXI  v.  Laws  made  to  punish  for  actions  done  before  the  existence  of  such  laws,  and 
which  have  not  been  declared  crimes  by  preceding  laws,  are  unjust,  oppressive,  and 
inconsistent  with  the  fundamental  principles  of  a  free  government. 

XXV.  No  subject  ought,  in  any  case,  or  in  any  time,  to  be  declared  guilty  of  treason 
or  felony  by  the  legislature. 

XXVI.  No  magistrate  or  court  of  law  shall  demand  excessive  bail  or  sureties, 
impose  excessive  fines,  or  inflict  cruel  or  unusual  punishments. 

XXVII.  In  time  of  peace,  no  soldier  ought  to  be  quartered  in  any  house  without 
the  consent  of  tlie  owner ;  and  in  time  of  war,  such  quarters  ought  not  be  made  but  by 
the  civil  magistrate,  in  a  manner  ordained  by  the  legislature. 

XXVIII.  No  person  can  in  any  case  be  subject  to  law-martial,  or  to  any  penalties 
or  pains,  by  virtue  of  that  law,  except  those  employed  in  the  army  or  navy,  and  except 
the  militia  in  actual  service,  but  by  authority  of  the  legislature. 

XXIX.  It  is  essential  to  the  preservation  of  the  rights  of  every  individual,  his  life, 
liberty,  property,  and  character  that  there  be  an  impartial  interpretation  of  the  laws,  and 
administration  of  justice.  It  is  the  right  of"  every  citizen  to  be  tried  by  judges  as  free, 
impartial,  and  independent  as  the  lot  of  humanity  will  admit.  It  is,  therefore,  not 
only  the  best  policy,  but  for  the  security  of  the  rights  of  the  people,  and  of  every 
citizen,  that  tlie  judges  of  the  Supreme  Judicial  Court  should  hold  their  offices  as  long 
as  they  behave  themselves  well ;  and  that  they  should  have  honorable  salaries  ascer- 
tained and  established  by  standing  laws. 

XXX.  In  the  government  of  this  Commonwealth,  the  legislative  department  shall 
never  exercise  the  executive  and  judicial  powers,  or  either  of  them  :  the  executive 
shall  never  exercii^e  the  legislative  and  judicial  powers,  or  either  of  them  :  the  judicial 
shall  never  exercise  the  legislative  and  executive  powers,  or  either  of  them  :  to  the 
end  it  may  be  a  government  of  laws  and  not  of  men.^ 

1  "  It  is  plain  that  where  the  law  is  made  by  one  man  there  it  may  be  unmade  by 
one  man ;  so  that  the  man  is  not  governed  by  the  law,  but  the  law  by  the  man  ,  which 
amounts  to  the  government  of  the  man,  and  not  of  the  law.  Whereas  the  law  being 
not  to  be  made  but  by  the  many,  no  man  is  governed  by  another  man,  but  by  that  only 
which  is  the  common  interest ;  by  which  means  this  amounts  to  a  government  of  laws 
and  not  of  men."  —  James  Harrington,  The  Art  of  Lawgiving,  Preface;  Oceana 
and  Other    Works,  3d  ed.  386. 

"  Sir,"  said  Hufus  Choate,  in  the  Massachusetts  Convention  of  1853,  for  revising  the 
Constitution  of  the  State  (1  De])ates,  120),  "  that  same  Bill  of  Rights,  which  so  solicit- 
ously separates  executive,  judicial,  and  legislative  powers  from  each  other, '  to  the 
end,'  —  in  the  fine  and  noble  expression  of  Harrington,  borrowed  from  the  '  ancient 


APPENDIX  TO   PAKT  L  385 

PART  THE   SECOND. 

The  Frame  of  Government. 

The  people,  inhabiting  the  territory  formerly  called  the  Province  of  Massachusetts 
Bay,  do  hereby  solemnly  and  mutually  agree  with  each  other,  to  form  themselves  into 
a  free,  sovereign,  and  independent  body  politic,  or  State,  by  the  name  of  The  Com- 
monwealth OF  Massachusetts. 


CHAPTER  I. 

THE    LEGISLATIVE    POWER. 

Section  I. 

The  General  Court. 

Article  I.  The  department  of  legislation  shall  be  formed  by  two  branches,  a 
Senate  and  House  of  Representatives;  each  of  which  shall  have  a  negative  on 
the  other. 

The  legislative  body  shall  assemble  every  year  [on  the  last  Wednesday  in  May,  and 
at  such  other  times  as  they  shall  judge  necessary  ;  and  shall  dissolve  and  be  dissolved 
on  the  day  next  preceding  the  said  last  Wednesday  in  May ;]  ^  and  shall  be  styled,  The 
General  Court  of  Massachusetts. 

II.  No  bill  or  resolve  of  the  Senate  or  House  of  Representatives  shall  become  a 
law,  and  have  force  as  such,  until  it  shall  have  been  laid  before  the  Governor  for  his 
revisal ;  and  if  he,  upon  such  revision,  approve  thereof,  he  shall  signify  his  approba- 
bation  by  signing  the  same.  But  if  he  have  any  objection  to  the  passing  of  such  bill 
or  resolve,  he  shall  return  the  same,  together  with  his  objections  thereto,  in  writing,  to 
the  Senate  or  House  of  Representatives,  in  whichsoever  the  same  shall  have  originated  ; 
who  shall  enter  the  objections  sent  down  by  the  Governor,  at  large,  on  their  records, 
and  proceed  to  reconsider  the  said  bill  or  resolve.  But  if  after  such  reconsideration, 
two-thirds  of  the  said  Senate  or  House  of  Representatives,  shall,  notwithstanding  the 
said  objections,  agree  to  pass  the  same,  it  shall,  together  with  the  objections,  be  sent 
to  the  other  branch  of  the  legislature,  where  it  shall  also  be  reconsidered,  and  if 
approved  by  two-thirds  of  the  members  present,  shall  have  the  force  of  a  law  :  but  in 
all  such  cases,  the  votes  of  both  houses  shall  be  determined  by  yeas  and  nays ;  and  the 
names  of  the  persons  voting  for,  or  against,  the  said  bill  or  resolve,  shall  be  entered 
upon  the  public  records  of  the  Commonwealth. 

And  in  order  to  prevent  unnecessary  delays,  if  any  bill  or  resolve  shall  not  be 
returned  by  the  Governor  within  five  days  after  it  shall  have  been  presented,  the 
same  shall  have  the  force  of  a  law. 

III.  The  General  Court  shall  forever  have  full  power  and  authority  to  erect  and 
constitute  judicatories  and  courts  of  record,  or  other  courts,  to  be  held  in  the  name  of 
the  Commonwealth,  for  the  hearing,  trying,  and  determining  of  all  manner  of  crimes, 
offences,  pleas,  processes,  plaints,  actions,  matters,  causes,  and  things,  whatsoever, 
arising  or  happening  within  the  Commonwealth,  or  between  or  concerning  persons 

prudence,'  one  of  those  historical  phrases  of  the  old  glorious  school  of  liberty  of  which 
this  Bill  of  Rights  is  so  full,  —  and  which  phrases  I  entreat  the  good  taste  of  my 
accomplished  friends  in  my  eye,  to  whom  it  is  committed,  to  spare  in  their  very  rust, 
as  they  would  spare  the  general  English  of  the  Bible,  —  '  to  the  end  it  may  be  a  gov- 
ernment of  laws,  and  not  of  men ; '  that  same  Bill  of  Rights  separates  the  people, 
with  the  same  solicitude,  and  for  the  same  reason,  from  every  part  of  their  actual  gov- 
ernment, — '  to  the  end  it  may  be  a  government  of  laws  and  not  of  men.'  "  —  Ed. 
1  For  change  of  time,  etc.,  see  Amendments,  Art.  X. 
VOL.  I.  —  25 


386  APPENDIX   TO   PART   I. 

inhabiting,  or  residing,  or  brought  within  the  same  :  whetlier  the  same  be  criminal  or 
civil,  or  whether  the  said  crimes  be  capital  or  not  capital,  and  whether  the  said  pleas 
be  real,  personal,  or  mixed ;  and  for  the  awarding  and  making  ont  of  execution  tliere 
upon.  To  which  courts  and  judicatories  are  hereby  given  and  granted  full  power  and 
authority,  from  time  to  time,  to  administer  oaths  or  atHrmatious,  for  the  better  discov- 
ery of  truth  in  any  matter  in  controversy  or  depending  before  them. 

IV.  And  further,  full  power  and  authority  are  hereby  giveu  and  granted  to  the  said 
General  Court,  from  time  to  time  to  make,  ordain,  and  establish,  all  manner  of  wholesome 
and  reasonable  orders,  laws,  statutes,  and  ordinances,  directions,  and  instructions,  either 
with  penalties  or  without ;  so  as  the  same  be  not  repugnant  or  contrary  to  this  Consti- 
tution, as  they  shall  judge  to  be  for  the  good  and  welfare  of  this  Commonwealth,  and 
for  the  government  and  ordering  thereof,  and  of  the  subjects  of  the  same,  and  for  the 
necessary  support  and  defence  of  the  government  thereof ;  i  and  to  name  and  settle 
annually,  or  provide  by  fixed  laws  for  the  naming  and  settling,  all  civil  officers  within 
the  said  Commonwealth,  the  election  and  constitution  of  whom  are  not  hereafter  in 
this  form  of  government  otherwise  provided  for ;  and  to  set  forth  the  several  duties, 
powers,  and  limits,  of  the  several  civil  and  military  officers  of  this  Commonwealth, 
and  the  forms  of  such  oaths  or  affirmations  as  shall  be  respectively  administered  unto 
them  for  the  execution  of  their  several  offices  and  places,  so  as  the  same  be  not  repug- 
nant or  contrary  to  this  Constitution ;  and  to  impose  and  levy  proportional  and  reason- 
able assessments,  rates,  and  taxes,  upon  all  the  inhabitants  of,  and  persons  resident, 
and  estates  lying,  withiu  the  said  Commonwealth ;  and  also  to  impose  and  levy  reason- 
able duties  and  excises  upon  any  produce,  goods,  wares,  merchandise,  and  commodities, 
whatsoever,  brought  into,  produced,  manufactured,  or  being  within  the  same  ;  to  be 
issued  and  disposed  of  by  warrant,  under  the  hand  of  the  Governor  of  this  Common- 
wealth for  the  time  being,  with  the  advice  and  consent  of  the  Couucil,  for  the  public 
service,  in  the  necessary  defence  and  support  of  the  government  of  the  said  Common- 
wealth, and  the  protection  and  preservation  of  the  subjects  thereof,  according  to  such 
acts  as  are  or  shall  be  in  force  within  the  same. 

And  while  the  public  charges  of  government,  or  any  part  thereof,  shall  be  assessed 
on  polls  and  estates,  in  the  manner  that  has  hitherto  been  practised,  in  order  that  such 
assessments  may  be  made  with  equality,  there  shall  be  a  valuation  of  estates  within  the 
Commonwealth,  taken  anew  once  in  every  ten  years  at  least,  and  as  much  ofteuer  as 
the  General  Court  shall  order. 


CHAPTER    I. 

Section  II. 

Senate. 


Article  I.^  [There  shall  be  annually  elected,  by  the  freeholders  and  other  inhab- 
itants of  this  Commonwealth,  qualified  as  in  this  Constitution  is  provided,  forty  persons 

1  These  words  (and  indeed  the  same  is  true  of  the  whole  of  §§  III.  and  IV.),  are 
taken  from  the  Provincial  Charter  of  1691  (1  Poore's  Charters,  951),  with  only  such 
variations  as  are  needed  to  adapt  them  to  the  new  purposes  :  .  .  .  "And  we  do  further 
.  .  .  give  and  grant  to  the  said  governor  and  the  great  and  general  court  or  as- 
sembly .  .  .  full  power  and  authority  from  time  to  time  to  make,  ordain,  and  estab- 
lish all  manner  of  wholesome  and  reasonable  orders,  laws,  statutes,  and  ordiuauces, 
directions,  and  instructions,  either  with  penalties  or  without  (so  as  the  same  be  not 
repugnant  or  contrary  to  the  laws  of  this  our  realm  of  England)  as  they  shall  judge 
to  be  for  the  good  and  welfare  of  our  said  province  or  territory,  and  for  the  gov- 
ernment and  ordering  thereof  and  of  the  people  inhabiting  or  who  shall  inhabit  the 
same,  and  for  the  necessary  support  and  defence  of  the  government  thereof."  —  Ed. 

2  Superseded  by  Amendments,  Art.  XIII.,  which  was  also  superseded  by  Amend- 
ments, Art.  XXII.     For  provision  as  to  councillors,  see  Amendments,  Art.  XVI. 


APPENDIX   TO   PART   I.  387 


to  be  councillors  and  senators  for  the  year  ensuing  their  election  ;  to  he  chosen  by  the 
to  be  councillors  d  Commonwealth  may,  from  time  to  time,  be 

t^t^^^n^^^^^or  that  purpose  :  and  the  General  Court,  in  assigning 
the  nuniber  to  be  elected  by  the  respective  districts,  shall  govern  themselves  by  the  p  o- 
thenumoers  I  taxes  paid  bv  the  said  districts;  and  timely  make  known  to  the 

?T  r?.l  oni^Coimnonwealth  the  limits  of  each  district,  and  the  number  o  coun- 
dUo  and  sei^for^t  b  chosen  therein  ;  provided  that  the  number  of  such  istr.cts 
«h' 11  ne'er  be  kss  than  thirteen  ;  and  that  no  district  be  so  large  as  to  entitle  the  same 

''t:il^::J^^^:^T:^s  commonwealth  shall,  until  the  General  Court  shall 
defermine  t  necessarv  to  alter  the  said  districts,  be  districts  for  tlie  choice  o  council- 
fors  and  seia  o^'  (exc'ept  that  the  counties  of  Dukes  County  and  Nantucket  shaU  form 
!  ^ilot  for  that  purpose)  and  shall  elect  the  following  number  for  councilors  and 
Tat  rzSuffirr;  Essex,  six ;  Middlesex,  five  ;  Hampshire,  four ;  Plymouth 
h  e  bI  nstable,  one;  Bristol,  three;  York,  two;  Dukes  County  and  Nantucket, 
cue     Worcester   five;  Cumberland,  one;  Lincoln,  one;  Berkshire   two.] 

n  Tl  Senate  sh^ll  be  the  first  branch  of  the  legislature  ;  and  the  senators  shall 
be  chosen  in  the  following  manner,  viz. :  there  shall  be  a  meeting  on  the  [first  Mon- 
day iuTpril],^  annually,  forever,  of  the  inhabitants  of  each  town  in  the  several  counties 
o?th  Commonwealth  ;  to  be  called  by  the  selectmen,  and  warned  in  due  course  of  law 
a  lea  t  seven  davs  befo  e  the  [first  Monday  in  April],  for  the  purpose  of  electing  persons 
to  be  nato  s  and  councillors  ;  [and  at  such  meetings  every  male  inhabitant  of  t^-enty- 
one  years  of  ate  and  upwards,  having  a  freehold  estate  within  the  Commonwealth  o 
the  annual  inc^'ome  of  tliree  pounds,  or  any  estate  of  the  value  of  sixty  pounxls,  shaU 
haveTright  to  give  in  his  ^^te  for  the  senators  for  the  district  of  which  he  is  an 
inhabitantP  And  to  remove  all  doubts  concerning  the  meaning  of  the  word  m- 
haM^ant "  in  this  Constitution,  every  per..on  shall  be  considered  as  an  inhabitan  ,  for 
'he  purpose  of  electing  and  being  elected  into  any  office,  or  place  withiu  this  btate,  m 
that  town  district,  or  plantation  wliere  he  dwelleth,  or  liath  his  home 

The  sekctmen  of  the  several  towns  shall  preside  at  such  meet.ngs  impartially  ;  and 
Bhal  Ireceiye  the  votes  of  all  the  inhabitants  of  such  towns  present  and  qual.hed  to  yote 
or  enat^s  and  shall  sort  and  count  them  in  open  town  meeting,  and  in  presence 
of  the  town  derk,  who  shall  make  a  fair  record,  in  presence  of  the  selectmen,  and  m 
open  town  meeting,  of  the  name  of  every  person  voted  for,  and  of  the  number  of  votes 
again  t  his  name  :  and  a  fair  copy  of  this  record  shall  be  attested  by  the  selectmen  and 
the  town  clerk,  and  shall  be  sealed  up,  directed  to  tlie  Secretary  of  the  Commonwealth 
for  thrt°ne  be  ng,  with  a  superscription,  expressing  the  purport  of  the  contents  thereof 
and  el  iered  bv  the  town  clerk  of  such  towns,  to  the  sheriff  of  the  county  in  which  such 
town  lies,  thirtv'days  at  least  before  [the  l.st  Wednesday  n  May  ^  annually  ;  or  it  sha  1 
be  delivered  into  tiie  secretary's  office  seventeen  days  at  least  before  the  said  Qast  ^  ed- 
nesday  in  Mav] :  and  the  sheriff  of  each  county  shall  deliver  all  such  certificates  by  him 
receted°into"the  secretary's  office,  seventeen  days  before  the  said  [last  Wednesday 

""  Amilhe  inhabitants  of  plantations  unincorporated,  qualified  as  this  Constitution  pro- 
Tides  who  are  or  shall  be  empowered  and  required  to  assess  taxes  upon  themselves 
towa;d  the  support  of  government,  shall  have  the  same  privilege  of  voting  for  council- 
lors and  senators  in  the  plantations  where  they  reside,  as  town  nihabitants  have  in  their 
respective  towns  ;  and  the  plantation  meetings  for  that  purpose  shall  be  held  annually 
[on  the  same  first  Monday  in  April],*  at  such  place  in  the  plantat.ons,  respectively  a. 
he  assessors  thereof  shall  direct ;  which  assessors  shall  have  like  authority  for  notify  ng 
the  electors  collecting  and  returning  the  votes,  as  the  selectmen  and  town  clerks  ha^e 
In  their  several  towns^  by  this  Constitution.    And  all  other  persons  living  in  places  uu- 

1  See  Amendments,  Arts.  X.  and  XV.    As  to  cities,  see  Amendments,  Art.  II. 

2  Superseded  by  Amendments,  Arts.  III.,  XX..  XXVIII.,  XXX.,  XXXI.,  and 

XXXII 

8  Time  changed  to  first  Wednesday  of  January.     See  Amendments,  Art.  X 
*  Time  of  election  changed  by  Amendments,  Art.  XV. 


388  APPENDIX   TO   PART   I. 

incorporated  (qualified  as  aforesaid)  who  shall  he  assessed  to  the  support  of  government 
by  the  assessors  of  an  adjacent  town,  shall  have  the  privilege  of  giving  in  their  votes 
for  councillors  and  senators  in  the  town  where  they  shall  be  assessed,  and  be  notified 
of  the  place  of  meeting  by  the  selectmen  of  the  town  where  they  shall  be  assessed,  for 
that  purpose,  accordingly. 

III.  And  that  there  may  be  a  due  convention  of  senators  on  the  [last  Wednesday 
in  May]  i  annually,  the  Governor  with  five  of  the  Council,  for  the  time  being,  shall,  as 
soon  as  may  be,  examine  the  returned  copies  of  such  records ;  and  fourteen  days  before 
the  said  day  he  shall  issue  his  summons  to  such  persons  as  shall  appear  to  be  chosen  by  , 
[a  majority  of]  ^  voters,  to  attend  on  that  day,  and  take  their  seats  accordingly  :  pro- 
vided, nevertheless,  that  for  the  first  year  the  said  returned  copies  shall  be  examined 
by  the  president  and  five  of  the  council  of  the  former  constitution  of  government ;  and 
the  said  president  shall,  in  like  manner,  issue  his  summons  to  the  persons  so  elected, 
that  they  may  take  their  seats  as  aforesaid. 

IV.  The  Senate  shall  be  the  final  judge  of  the  elections,  returns,  and  qualifications 
of  their  own  members,  as  pointed  out  in  the  Constitution  ;  and  shall  [on  the  said  last 
Wednesday  in  May]  '  annually,  determine  and  declare  who  are  elected  by  each  district 
to  be  senators  [by  a  majority  of  votes ;  and  in  case  there  shall  not  appear  to  be  the 
full  number  of  senators  returned  elected  by  a  majority  of  votes  for  any  district,  the 
deficiency  shall  be  supplied  in  the  following  manner,  viz. :  The  members  of  the  House 
of  Representatives,  and  such  senators  as  shall  be  declared  elected,  shall  take  the  names 
of  such  persons  as  shall  be  found  to  have  the  highest  number  of  votes  in  such  district, 
and  not  elected,  amounting  to  twice  the  number  of  senators  wanting,  if  there  be  so 
many  voted  for ;  and  out  of  these  shall  elect  by  ballot  a  number  of  senators  sufficient 
to  fill  up  the  vacancies  in  such  district ;  and  in  this  manner  all  such  vacancies  shall  be 
filled  up  in  every  district  of  the  Commonwealth ;  and  in  like  manner  all  vacancies  in 
the  senate,  arising  by  death,  removal  out  of  the  State,  or  otherwise,  shall  be  sujjplied 
as  soon  as  may  be,  after  such  vacancies  shall  happen].* 

V.  Provided,  nevertheless,  that  no  person  shall  be  capable  of  being  elected  as  a 
senator  [who  is  not  seised  in  his  own  right  of  a  freehold,  within  this  Commonwealth, 
of  the  value  of  three  hundred  pounds  at  least,  or  possessed  of  personal  estate  to  the 
value  of  six  hundred  pounds  at  least,  or  of  both  to  the  amount  of  the  same  sum,  and]  5 
who  has  not  been  an  inhabitant  of  this  Commonwealth  for  the  space  of  five  years 
immediately  preceding  his  election,  and,  at  the  time  of  his  election,  he  shall  be  an 
inhabitant  in  the  district  for  which  he  shall  be  chosen. 

VI.  The  Senate  shall  have  power  to  adjourn  themselves,  provided  such  adjourn- 
ments do  not  exceed  two  days  at  a  time. 

VII.  The  Senate  sliall  choose  its  own  president,  appoint  its  own  officers,  and  deter- 
mine its  own  rules  of  proceedings. 

VIII.  The  Senate  shall  be  a  court  with  full  authority  to  hear  and  determine  all 
impeachments  made  by  the  House  of  Representatives,  against  any  officer  or  officers  of 
the  Commonwealth,  for  misconduct  and  mal-admiuistration  in  their  offices.  But  pre- 
vious to  the  trial  of  every  impeachment  the  members  of  tlie  Senate  shall  respectively 
be  sworn,  truly  and  impartially  to  try  and  determine  the  charge  in  question,  according 
to  evidence.  Their  judgment,  however,  shall  not  extend  further  than  to  removal  from 
office  and  disqualification  to  hold  or  enjoy  any  place  of  honor,  trust  or  profit,  under  this 
Commonwealth  ;  but  the  party  so  convicted  shall  be,  nevertheless,  liable  to  indictment, 
trial,  judgment,  and  punishment,  according  to  the  laws  of  the  land. 

IX.  [Not  less  than  sixteen  members  of  the  Senate  shall  constitute  a  quorum  for 
doing  business.]^ 

1  Time  changed  to  first  Wednesday  in  January  by  Amendments,  Art.  X. 

2  Majority  changed  to  plurality  by  Amendments,  Art.  XIV. 

8  Time  changed  to  first  Wednesday  of  January  by  Amendments,  Art.  X. 
*  Majority  changed  to  plurality  by  Amendments,  Art.  XIV.     Changed  to  election 
by  people.     See  Amendments,  Art.  XXIV. 
^  Property  qualification  abolished.     See  Amendments,  Art.  XIU. 
6  See  Amendments,  Arts.  XXII.  and  XXXIIL 


APPENDIX   TO   PART  I.  389 

CHAPTER    I. 

Section  III. 

House  of  Representatives. 

Article  I.  There  shall  be,  in  the  legislature  of  this  Commonwealth,  a  represent£^ 
tiou  of  the  people,  annually  elected,  and  founded  upon  the  principle  of  equality. 

II.  [And  in  order  to  provide  for  a  representation  of  the  citizens  of  this  Common- 
wealth, founded  upon  the  principle  of  equality,  every  corporate  town  containing  one 
hundred  and  fifty  ratable  polls  may  elect  one  representative ;  every  corporate  town 
containing  three  hundred  and  seventy-five  ratable  polls  may  elect  two  representatives ; 
every  corporate  town  containing  six  hundred  ratable  polls  may  elect  three  represen- 
tatives ;  and  proceeding  in  that  manner,  making  two  hundred  and  twenty-five  ratable 
polls  the  mean  increasing  number  for  every  additional  representative. 

Provided,  nevertlieless,  that  each  town  now  incorporated,  not  having  one  hundred 
and  fifty  ratable  polls,  may  elect  one  representative ;  but  no  place  shall  hereafter  be 
incorporated  with  tlie  privilege  of  electing  a  representative,  unless  there  are  within  the 
same  one  hundred  and  fifty  ratable  polls.]' 

And  the  House  of  Representatives  shall  have  power  from  time  to  time  to  impose 
fines  upon  such  towns  as  shall  neglect  to  choose  and  return  members  to  the  same, 
agreeably  to  this  Constitution. 

The  expenses  of  travelling  to  the  General  Assembly,  and  returning  home,  once  in 
every  session,  and  no  more,  shall  be  paid  by  the  government,  out  of  the  public  treas- 
ury, to  every  member  who  shall  attend  as  seasonably  as  he  can,  in  the  judgment  of  the 
house,  and  does  not  depart  without  leave. 

III.  Every  member  of  the  House  of  Representatives  shall  be  chosen  by  written 
votes ;  [and,  for  one  year  at  least  next  preceding  his  election,  shall  have  been  an 
inhabitant  of,  and  have  been  seised  in  his  own  right  of  a  freehold  of  the  value  of  one 
hundred  pounds  within  the  town  he  shall  be  chosen  to  represent,  or  any  ratable  estate 
to  the  value  of  two  hundred  pounds  ;  and  he  shall  cease  to  represent  the  said  town 
immediately  on  his  ceasing  to  be  qualified  as  aforesaid].'^ 

IV.  [Every  male  person,  being  twenty-one  years  of  age,  and  resident  in  any  par- 
ticular town  in  this  Commonwealtli  for  the  space  of  one  year  next  preceding,  having  a 
freehold  estate  within  the  said  town  of  the  annual  income  of  three  pounds,  or  any 
estate  of  the  value  of  sixty  pounds,  shall  have  a  right  to  vote  in  the  choice  of  a 
representative  or  representatives  for  the  .said  town.]* 

v.  [The  members  of  the  House  of  Representatives  shall  be  chosen  annually  in  the 
month  of  May,  ten  days  at  least  before  the  last  Wednesday  of  that  month.]* 

VI.  The  House  of  Representatives  shall  be  the  grand  inquest  of  this  Common- 
wealth ;  and  all  impeachments  made  by  them  shall  be  heard  and  tried  by  the  Senate. 

VII.  All  money  bills  shall  originate  in  the  House  of  Repre.'^entatives ;  but  the 
Senate  may  propose  or  concur  with  amendments,  as  on  other  bills. 

VIII.  The  House  of  Representatives  shall  have  power  to  adjourn  themselves ; 
provided  such  adjournment  shall  not  exceed  two  days  at  a  time. 

IX.  [Not  less  than  sixty  members  of  the  House  of  Representatives  shall  constitute 
a  quorum  for  doing  business.]^ 

1  Superseded  by  Amendments,  Arts.  XII.  and  XIII.,  which  were  also  superseded 
by  Amendments,  Art.  XXI.  7  Mass.  523. 

2  New  provision  as  to  residence.  See  Amendments,  Art.  XXI.  Property  qualifica- 
tions abolished  by  Amendments,  Art.  XIII. 

3  These  provisions  superseded  by  Amendments,  Arts  III.,  XX.,  XXVIIL,  XXX., 
XXXI.,  and  XXXII.  See  also  Amendments,  Art.  XXIII.,  which  was  annulled  by 
Art.  XXVI. 

*  Time  of  election  changed  by  Amendments,  Art.  X.,  and  changed  again  by  Amend- 
ments, Art.  XV. 
&  See  Amendments,  Arts.  XXI.  and  XXXIII. 


390  APPENDIX  TO   PART  I. 

X.  The  House  of  Representatives  shall  be  the  jiulge  of  the  returns,  elections,  and 
qualifications  of  its  own  members,  as  pointed  out  in  the  Constitution  ;  shall  choose 
their  own  speaker ;  appoint  thoir  own  officers,  and  settle  the  rules  and  orders  of  pro- 
ceeding in  their  own  house.  Tiiey  shall  have  authority  to  punish  by  imprisonment 
every  person,  not  a  member,  who  shall  be  guilty  of  disrespect  to  the  house,  by  any 
disorderly  or  contemptuous  behavior  in  its  presence ;  or  who,  in  the  town  wliere  the 
General  Court  is  sitting,  and  during  the  time  of  its  sitting,  shall  threaten  harm  to  the 
body  or  estate  of  any  of  its  members,  for  any  thing  said  or  done  in  the  house  ;  or  who 
shall  assault  any  of  them  therefor  ;  or  who  shall  assault,  or  arrest,  any  witness,  or 
other  person,  ordered  to  attend  the  house,  in  his  way  in  going  or  returning ;  or 
who  shall  rescue  any  person  arrested  by  the  order  of  the  house. 

And  no  member  of  the  House  of  Representatives  shall  be  arrested,  or  held  to  bail 
on  mean  process,  during  his  going  unto,  returning  from,  or  his  attending  the  General 
Assembly. 

XL  The  Senate  shall  have  the  same  powers  in  the  like  cases  ;  and  the  Governor 
and  Council  shall  have  the  same  authority  to  punish  in  like  cases  :  provided,  that  no 
imprisonment  on  the  warrant  or  order  of  the  Governor,  Council,  Senate,  or  House  of 
Representatives,  for  either  of  the  above  described  offences,  be  for  a  term  exceeding 
thirty  days. 

And  the  Senate  and  House  of  Representatives  may  try  and  determine  all  cases 
where  their  rights  and  privileges  are  concerned,  and  which,  by  the  Constitution,  they 
have  authority  to  try  and  determine,  by  committees  of  their  own  members,  or  in  such 
other  way  as  they  may  respectively  think  best. 


CHAPTER  II. 

EXECUTIVE      POWER. 

Section  I. 

Governor. 

Article  I.  There  shall  be  a  supreme  executive  magistrate,  who  shall  be  styled  — 
The  Governor  of  the  Cojimonwealth  of  Massachusetts  ;  and  whose  title  shall 
be  —  His  Excellency. 

II.  The  Governor  shall  be  chosen  annually  ;  and  no  person  shall  be  eligible  to  this 
office,  unless,  at  the  time  of  his  election,  he  shall  have  been  an  inhabitant  of  this 
Commonwealth  for  seven  years  next  preceding ;  [and  unless  he  shall  at  the  same  time 
be  seised,  in  his  own  right,  of  a  freehold,  within  the  Commonwealth,  of  the  value  of 
one  thousand  pounds] ;  [and  unless  he  shall  declare  himself  to  be  of  the  Christian 
religion]. 1 

III.  Those  persons  who  shall  be  qualified  to  vote  for  senators  and  representatives 
within  the  several  towns  of  this  Commonwealth  shall,  at  a  meeting  to  be  called  for 
that  purpose,  on  the  [first  Monday  of  April]  ^  annually,  give  in  their  votes  for  a  Gov- 
ernor, to  the  selectmen,  who  shall  preside  at  such  meetings ;  and  the  town  clerk,  in 
the  presence  and  with  the  assi.stance  of  the  selectmen,  shall,  in  open  town  meeting, 
sort  and  count  the  votes,  and  form  a  list  of  the  persons  voted  for,  with  the  number  of 
votes  for  each  jjerson  against  his  name ;  and  shall  make  a  fair  record  of  the  same  in 
the  town  books,  and  a  public  declaration  thereof  in  the  said  meeting ;  and  shall,  in  the 
presence  of  the  inhabitants,  seal  up  copies  of  the  said  list,  attested  by  him  and  the  select- 
men, and  transmit  the  same  to  the  sheriff  of  the  county,  thirty  days  at  least  before  the 
[last  Wednesday  in  May] ;  ^  and  the  sheriff  shall  transmit  the  same  to  the  secretary's 

1  [See  Amendments,  Arts.  VII.  and  XXIV.] 

2  Time  of  election  changed  by  Amendments,  Art.  X.,  and  changed  again  by  Amend- 
ments, Art.  XV. 

3  Time  changed  to  first  Wednesday  of  January  by  Amendments,  Art.  X. 


APPENDIX  TO   PAPvT   I.  391 

office,  seventeen  days  at  least  before  the  said  [last  Wednesday  in  May] ;  or  the  select- 
men may  cause  returns  of  the  same  to  be  made  to  the  office  of  the  Secretary  of  the 
Commonwealth,  seventeen  days  at  least  before  the  said  day ;  and  the  secretary  shall 
lay  the  same  before  the  Senate  and  the  House  of  Representatives  on  the  [last  Wednes- 
day in  May],  to  be  by  them  examined  ;  and  [in  case  of  an  election  by  a  majority  of  all 
the  votes  returned], ^  the  choice  shall  be  by  them  declared  and  published  ;  [but  if  no  per- 
son shall  have  a  majority  of  votes,  the  House  of  Representatives  shall,  by  ballot,  elect 
two  out  of  four  persons  who  liad  the  highest  number  of  votes,  if  so  many  shall  have 
been  voted  for ;  but,  if  otherwise,  out  of  the  number  voted  for ;  and  make  return  to 
the  Senate  of  the  two  persons  so  elected ;  on  which  the  Senate  shall  proceed,  by  ballot, 
to  elect  one,  who  shall  be  declared  Governor] 

IV.  The  Governor  shall  have  authority,  from  time  to  time,  at  his  discretion,  to 
assemble  and  call  together  the  councillors  of  this  Commouwealtli  for  the  time  being  ; 
and  the  Governor  with  the  said  councillors,  or  five  of  them  at  least,  shall,  and  may, 
from  time  to  time,  Iiold  and  keep  a  Council,  for  the  ordering  and  directing  the  affairs 
of  the  Commonwealth,  agreeably  to  the  Constitution  and  the  laws  of  the  laud. 

V.  The  Governor,  with  advice  of  Council,  sliall  have  full  power  and  authority,  during 
the  session  of  the  General  Court,  to  adjourn  or  prorogue  the  same  to  any  time  the  two 
houses  shall  desire ;  [and  to  dissolve  the  same  on  the  day  next  preceding  the  last 
Wednesday  in  May ;  and,  in  the  recess  of  the  said  court,  to  prorogue  the  same  from 
time  to  time,  not  exceeding  ninety  days  in  any  one  recess] ;  ^  and  to  call  it  together 
sooner  than  the  time  to  which  it  may  be  adjourned  or  prorogued,  if  the  welfare  of  the 
Commonwealth  shall  require  tlie  same  ;  and  in  case  of  any  infectious  distemper  pre- 
vailing in  the  place  where  the  said  court  is  next  at  any  time  to  convene,  or  any  other 
cause  happening,  whereby  danger  may  arise  to  the  health  or  lives  of  the  members 
from  their  attendance,  he  may  direct  the  session  to  be  held  at  some  other,  the  most 
convenient  place  within  the  State. 

[And  the  Governor  shall  dissolve  the  said  General  Court  on  the  day  next  preceding 
the  last  Wednesday  in  May.]^ 

VI.  In  cases  of  disagreements  between  the  two  Houses,  with  regard  to  the  neces- 
sity, expediency,  or  time  of  adjournment  or  prorogation,  the  Governor,  with  advice  of 
the  Council,  shall  have  a  right  to  adjourn  or  prorogue  the  General  Court,  not  exceeding 
ninety  days,  as  he  shall  determine  the  public  good  shall  require. 

VII.  The  Governor  of  this  Commonwealth,  for  the  time  being,  shall  be  the  com- 
mander-in-chief of  the  army  and  navy,  and  of  all  the  military  forces  of  the  State,  by 
sea  and  land  ;  and  shall  liave  full  power,  by  himself,  or  by  any  commander,  or  other 
officer  or  officers,  from  time  to  time,  to  train,  instruct,  exercise,  and  govern  the  militia 
and  navy  ;  and,  for  the  special  <lefence  and  safety  of  the  Commonwealth,  to  assemble 
in  martial  array,  and  put  in  warlike  posture,  the' inhabitants  thereof,  and  to  lead  and 
conduct  them,  and  with  them  to  encounter,  repel,  resist,  expel,  and  pursue,  by  force  of 
arms,  as  well  by  sea  as  by  land,  within  or  without  the  limits  of  this  Commonwealth, 
and  also  to  kill,  slay,  and  destroy,  if  necessary,  and  conquer,  by  all  fitting  ways,  enter- 
prises, and  means  whatsoever,  all  and  every  such  person  and  persons  as  shall,  at  any 
time  hereafter,  in  a  hostile  manner,  attempt  or  enterprise  the  destruction,  invasion, 
detriment,  or  annoyance  of  this  Commonwealth  ;  and  to  use  and  exercise  over  the 
army  and  navy,  and  over  the  militia  in  actual  service,  the  law-martial,  in  time  of  war 
or  invasion,  and  also  in  time  of  rebellion,  declared  by  the  legislature  to  exist,  as  occa- 
sion shall  necessarily  require  ;  and  to  take  and  surprise,  by  all  ways  and  means  what- 
soever, all  and  every  such  person  or  persons,  with  their  ships,  arms,  ammunition,  and 
other  goods,  as  shall,  in  a  hostile  manner,  invade,  or  attempt  the  invading,  conquering, 
or  annoying  this  Commonwealth ;  and  that  the  Governor  be  intrusted  with  all  these 
and  other  powers,  incident  to  the  offices  of  captain-general  and  commander-in-chief, 
and  admiral,  to  be  exercised  agreeably  to  the  rules  and  regulations  of  the  Constitution, 
and  the  laws  of  the  land,  and  not  otherwise. 

1  Changed  to  plurality  by  Amendments,  Art.  XIV. 

2  As  to  dissolution,  see  Amendments,  Art.  X. 

3  As  to  dissolution,  see  Amendments,  Art.  X. 


392  APPENDIX   TO   PART   I. 

Provided,  that  the  said  Governor  shall  not,  at  any  time  hereafter,  by  virtue  of  any 
power  by  this  Constitution  granted,  or  hereafter  to  be  granted  to  him  by  the  legisla- 
ture, transport  any  of  the  inhabitants  of  this  Commonwealth,  or  oblige  them  to  march 
out  of  the  limits  of  the  same,  without  their  free  and  voluntary  consent,  or  the  consent 
of  the  General  Court ;  except  so  far  as  may  be  necessary  to  march  or  transport  them 
by  land  or  water,  for  the  defence  of  such  part  of  the  State  to  which  they  cannot  other- 
wise conveniently  have  access. 

VIII.  The  power  of  pardoning  offences,  except  such  as  persons  may  be  convicted 
of  before  the  Senate  by  an  impeachment  of  the  house,  shall  be  in  the  Governor,  by  and 
witli  the  advice  of  Council ;  but  no  charter  of  pardon,  granted  by  the  Governor,  with 
advice  of  tlie  Council  before  conviction,  shaU  avail  the  party  pleading  the  same,  not- 
withstanding any  general  or  particular  expressions  contained  therein,  descriptive  of  the 
offence  or  offences  intended  to  be  pardoned. 

IX.  All  judicial  officers  [the  attorney-general],  the  solicitor-general  [all  sheriffs], 
coroners  [and  registers  of  prubate],^  shall  be  nominated  and  appointed  by  the  Governor, 
by  and  with  the  advice  and  consent  of  the  Council ;  and  every  such  nomination  shall  be 
made  by  the  Governor,  and  made  at  least  seven  days  prior  to  such  appointment. 

X.  The  captains  and  subalterns  of  the  militia  shall  be  elected  by  the  written  votes 
of  the  train-baud  and  alarm  lists  of  their  respective  companies  [of  twenty-one  years  of 
age  and  upwards] ;  ^  the  field  officers  of  regiments  shall  be  elected  by  the  written  votes 
of  the  captains  and  subalterns  of  their  respective  regiments;  the  brigadiers  shall  be 
elected,  in  like  manner,  by  the  field  officers  of  their  respective  brigades ;  and  such 
officers,  so  elected,  shall  be  commissioned  by  the  Governor,  who  shall  determine 
their  rank. 

The  legislature  shall,  by  standing  laws,  direct  the  time  and  manner  of  convening 
the  electors,  and  of  collecting  votes,  and  of  certifying  to  the  Governor  the  officers 
elected. 

The  major-generals  shall  be  appointed  by  the  Senate  and  House  of  Representatives, 
each  having  a  negative  upon  the  other ;  and  be  commissioned  by  the  Governor. 

And  if  the  electors  of  brigadiers,  field  officers,  captains,  or  subalterns,  shall  neglect 
or  refuse  to  make  such  elections,  after  being  duly  notified,  according  to  the  laws  for 
the  time  being,  then  the  Governor,  with  advice  of  Council,  shall  appoint  suitable 
persons  to  fill  such  offices. 

[And  no  officer,  duly  commissioned  to  command  in  the  militia,  shall  be  removed 
from  his  office,  but  by  the  address  of  both  Houses  to  the  Governor,  or  by  fair  trial 
in  court-martial,  pursuant  to  the  laws  of  the  Commonwealth  for  the  time  being.]^ 

The  commanding  officers  of  regiments  shall  appoint  their  adjutants  and  quarter- 
masters ;  the  brigadiers  their  brigade-majors  ;  and  the  major-generals  their  aids  ;  and 
the  Governor  shall  appoint  the  adjutant-general. 

The  Governor,  with  advice  of  Council,  shall  appoint  all  officers  of  the  continental 
army,  whom  by  the  confederation  of  the  United  States  it  is  provided  that  this  Common- 
wealth shall  appoint,  as  also  all  officers  of  forts  and  garrisons. 

The  divisions  of  the  militia  into  brigades,  regiments,  and  companies,  made  in  pur- 
suance of  the  militia  laws  now  in  force,  shall  be  considered  as  the  proper  divisions  of 
the  militia  of  this  Commonwealth,  until  the  same  shall  be  altered  in  pursuance  of  some 
future  law. 

XI.  No  moneys  shall  be  issued  out  of  the  treasury  of  this  Commonwealth,  and  dis- 
posed of  (except  such  sums  as  may  be  appropriated  for  the  redemption  of  bills  of  credit 
or  treasurer's  notes,  or  for  the  payment  of  interest  arising  thereon)  but  by  warrant 
under  the  hand  of  the  Governor  for  the  time  being,  with  the  advice  and  consent  of  tlie 
Council,  for  the  necessary  defence  and  support  of  the  Commonwealth ;  and  for  the 

1  For  provisions  as  to  election  of  Attorney-General,  see  Amendments,  Art.  XVII. 
For  provision  as  to  election  of  Sheriffs,  Registers  of  Probate,  etc.,  see  Amendments, 
Art.  XIX.  For  provision  as  to  appointment  of  Notaries  Public^  see  Amendments, 
Art.  IV. 

2  Limitation  of  age  struck  out  by  Amendments,  Art.  V. 
'  Superseded  by  Amendments,  Art.  IV. 


APPENDIX  TO   PART   I.  393 

protection  and  preservation  of  the  inhabitants  thereof,  agreeably  to  the  acts  and 
resolves  of  the  General  Court. 

XII.  All  public  boards,  the  commissary-general,  all  superintending  officers  of  pub- 
lic magazines  and  stoi-es,  belonging  to  this  Commonwealth,  and  all  commanding  officers 
of  forts  and  garrisons  within  the  same,  sliall  once  in  every  three  mouths,  officially,  and 
without  requisition,  and  at  other  times,  when  required  by  the  Governor,  deliver  to  him 
an  account  of  all  goods,  stores,  provisions,  ammunition,  cannon  with  their  appendages, 
and  small  arms  with  their  accoutrements,  and  of  all  other  public  property  whatever 
under  their  care  respectively ;  distinguishing  the  quantity,  number,  quality,  and  kind 
of  each,  as  particularly  as  may  be ;  together  with  the  condition  of  such  forts  and  gar- 
risons; and  the  said  commanding  officer  shall  exhibit  to  the  Governor,  when  required 
by  him,  true  and  exact  plans  of  such  forts,  and  of  the  land  and  sea  or  harbor  or 
harbors,  adjacent. 

And  the  said  boards,  and  all  public  officers,  shall  communicate  to  the  Governor,  as 
soon  as  may  be  after  receiving  the  same,  all  letters,  despatches,  and  intelligences  of  a 
public  nature,  which  shall  be  directed  to  them  respectively. 

XIII.  As  the  public  good  requires  that  the  Governor  should  not  be  under  the  undue 
influence  of  any  of  the  members  of  the  General  Court  by  a  dependence  on  them  for  his 
support,  that  he  should  in  all  cases  act  with  freedom  for  the  benefit  of  the  public,  that 
he  should  not  have  his  attention  necessarily  diverted  from  that  object  to  his  private 
concerns,  and  that  he  should  maintain  the  dignity  of  the  Commonwealth  in  the  char- 
acter of  its  chief  magistrate,  it  is  necessary  that  he  should  have  an  honorable  stated 
salary  of  a  fixed  and  permanent  value,  amply  sufficient  for  those  purposes,  and  estab- 
lished by  standing  laws  :  and  it  shall  be  among  the  first  acts  of  the  General  Court,  after 
the  commencement  of  this  Constitution,  to  establish  such  salary  by  law  accordingly. 

Permanent  and  honorable  salaries  shall  also  be  established  by  law  for  the  justices  of 
the  Supreme  Judicial  Bench. 

And  if  it  shall  be  found  that  any  of  the  salaries  aforesaid,  so  established,  are  insuffi- 
cient, they  shall,  from  time  to  time,  be  enlarged,  as  the  General  Court  shall  judge  proper. 


CHAPTER     II. 

Section  II. 

Lieutenant-  Governor. 

Article  I.  There  shall  be  annually  elected  a  lieutenant-governor  of  the  Com- 
monwealth of  Massachusetts,  whose  title  shall  be  —  His  Honor  ;  and  who  shall  be 
qualified,  in  point  of  [religion],^  property,  and  residence  in  the  Commonwealth,  in  the 
same  manner  with  the  Governor ;  and  the  day  and  manner  of  his  election,  and  the 
qualifications  of  the  electors,  shall  be  the  same  as  are  required  in  the  election  of  a 
Governor.  The  return  of  the  votes  for  this  officer,  and  the  declaration  of  his  election, 
shall  be  in  the  same  manner ;  [and  if  no  one  person  shall  be  found  to  have  a  majorit^^y 
of  all  the  votes  returned,  the  vacancy  shall  be  filled  by  the  Senate  and  House  of  Repre- 
sentatives, in  the  same  manner  as  the  Governor  is  to  be  elected,  in  case  no  one  person 
shall  have  a  majority  of  the  votes  of  the  people  to  be  Governor.]'^ 

II.  The  Governor,  and  in  his  absence  the  Lieutenant-Governor,  shall  be  president  of 
the  Council,  but  shall  have  no  vote  in  council ,  and  the  Lieutenant-Governor  shall  always 
be  a  member  of  the  Council,  except  when  the  chair  of  the  Governor  shall  be  vacant. 

III.  Whenever  the  chair  of  the  Governor  shall  be  vacant,  by  reason  of  his  death,  or 
absence  from  the  Commonwealth,  or  otherwise,  the  Lieutenant-Governor,  for  the  time 
being,  shall,  during  such  vacancy,  perform  all  the  duties  incumbent  upon  the  Governor, 
and  shall  have  and  exercise  all  the  powers  and  authorities,  which  by  this  Constitution 
the  Governor  is  vested  with,  when  personally  present. 

1  See  Amendments,  Arts.  VII.  and  XXXIV. 

2  Election  by  plurality  provided  for  by  Amendments,  Art.  XIV. 


394  APPENDIX  TO   PART  L 

CHAPTER    n. 

Section  III. 

Council,  and  the  Manner  of  Settling  Elections  by  the  Legislature. 

Article  I.  There  shall  he  a  Council  for  advising  the  Governor  in  the  executive 
part  of  the  government,  to  consist  of  [nine]  i  persons  besides  the  Lieutenant-Governor, 
whom  the  Governor,  for  the  time  being,  shall  have  full  power  and  authority  from  time 
to  time  at  his  discretion  to  assemble  and  call  together ;  and  the  Governor,  with  the 
said  councillors,  or  five  of  them  at  least,  shall  and  may,  from  time  to  time,  hold  and 
keep  a  Council,  for  the  ordering  and  directing  the  affairs  of  the  Commonwealth, 
according  to  the  laws  of  the  land. 

II.  [Nine  councillors  shall  be  annually  chosen  from  among  the  persons  returned  for 
councillors  and  senators,  on  the  last  Wednesday  in  May,  by  tlie  joint  ballot  of  the 
senators  and  representatives  assembled  in  one  room ;  and  in  case  there  shall  not  be 
found  upon  the  first  choice,  the  whole  number  of  nine  persons  wlio  will  accept  a  seat 
in  the  Council,  the  deficiency  shall  be  made  up  by  the  electors  aforesaid  from  among 
the  people  at  large ;  and  the  number  of  senators  left  shall  constitute  the  Senate  for 
the  year.  Tiie  seats  of  the  persons  thus  elected  from  the  Senate,  and  accepting  the 
trust,  shall  be  vacated  in  the  Senate.]^ 

III.  The  councillors,  in  the  civil  arrangements  of  the  Commonwealth,  shall  have 
rank  next  after  the  Lieutenant-Governor. 

IV.  [Not  more  than  two  councillors  shall  be  chosen  out  of  any  one  district  of  this 
Coramonwealth.]^ 

V.  The  resolutions  and  advice  of  the  Council  shall  be  recorded  in  a  register,  and 
signed  by  the  members  present ;  and  this  record  may  be  called  for  at  any  time  by 
either  house  of  the  legislature ;  and  any  member  of  the  Council  may  insert  his  opinion, 
contrary  to  the  resolution  of  the  majority. 

VI.  Whenever  the  oftice  of  the  Governor  and  Lieutenant-Governor  shall  be  vacant, 
by  reason  of  death,  absence,  or  otherwise,  then  the  Council,  or  the  major  part  of  them, 
shall,  during  such  vacancy,  have  full  power  and  authority  to  do,  and  execute,  all  and 
every  such  acts,  matters,  and  things,  as  the  Governor  or  lieutenant-governor  might  or 
could,  by  virtue  of  this  Constitution,  do  or  execute,  if  they,  or  either  of  them,  were 
personally  present. 

VII.  [And  whereas  the  elections  appointed  to  be  made,  by  this  Constitution,  on  the 
last  Wednesday  in  May  annually,  by  the  two  Houses  of  the  legislature,  may  not  be 
completed  on  that  day,  the  said  elections  may  be  adjourned  from  day  to  day  until  the 
same  shall  be  completed.  And  the  order  of  elections  shall  be  as  follows  :  The  vacan- 
cies in  the  Senate,  if  any,  shall  first  be  filled  up ;  the  Governor  and  Lieutenant-Governor 
shall  then  be  elected,  provided  there  should  be  no  choice  of  them  by  the  people  ;  and 
afterwards  the  two  Houses  shall  proceed  to  the  election  of  the  Council.]* 

^  Number  of  councillors  changed  to  eight.     See  Amendments,  Art.  XVI. 
2  Modified  by  Amendments,  Arts.  X.  and  XIII.      Superseded   by  Amendments, 
Art.  XVI. 
'  Superseded  by  Amendments,  Art.  XVI. 
*  Superseded  by  Amendments,  Arts.  XVI.  and  XXV. 


APPENDIX  TO  PART  I.  395 

CHAPTER    II. 

Section  IV. 

Secretary,  Treasurer,  Commissary,  etc. 

Article  I.  [The  secretary,  treasurer,  and  receiver-general,  and  the  commissary- 
general,  notaries  public,  and]  i  naval  officers,  shallbe  chosen  annually,  by  joint  ballot 
of  the  senators  and  representatives  in  one  room.  And,  that  the  citizens  of  this  Com- 
monwealth may  be  assured,  from  time  to  time,  that  the  moneys  remaining  in  the  public 
treasury,  upon  the  settlement  and  liquidation  of  the  public  accounts,  are  their  prop- 
erty, no  man  shall  be  eligible  as  treasurer  and  receiver-general  more  than  five  years 
successively. 

II.  The  records  of  the  Commonwealth  shall  be  kept  in  the  office  of  the  secretary, 
who  may  appoint  his  deputies,  for  whose  conduct  he  shall  be  accountable  ;  and  he 
shall  attend  the  Governor  and  Council,  the  Senate  and  House  of  Kepresentatives,  in 
person,  by  his  deputies,  as  they  shall  respectively  require. 


CHAPTER    III. 

JUDICIARY    POWER. 

Article  I.  The  tenure,  that  all  commission  officers  shall  by  law  have  in  their 
offices,  shall  be  expressed  in  their  respective  commissions.  All  judicial  officers,  duly 
appointed,  commissioned,  and  sworu,  shall  hold  their  offices  during  good  behavior, 
excepting  such  concerning  whom  there  is  different  provision  made  in  this  Constitution : 
provided,  nevertheless,  tlie  Governor,  with  consent  of  the  Council,  may  remove  them 
upon  the  address  of  both  houses  of  the  legislature. 

II.  Each  branch  of  the  legislature,  as  well  as  the  Governor  and  Council,  shall  have 
authority  to  require  the  opinions  of  the  justices  of  the  Supreme  Judicial  Court,  upon 
important  questions  of  law,  and  upon  solemn  occasions. 

III.  In  order  that  the  people  may  not  suffer  from  the  long  continuance  in  place  of 
any  justice  of  the  peace  who  shall  fail  of  discharging  the  important  duties  of  his  office 
with  ability  or  fidelity,  all  commissions  of  justices  of  the  peace  shall  expire  and  become 
void,  in  the  term  of  seven  years  from  their  respective  dates  ;  and,  upon  the  expiration 
of  any  commission,  the  same  may,  if  necessary,  be  renewed,  or  another  person  appointed, 
as  shall  most  conduce  to  the  well-being  of  the  Commonwealth. 

IV.  The  judges  of  probate  of  wills,  and  for  granting  letters  of  administration,  shall 
hold  their  courts  at  such  place  or  places,  on  fixed  days,  as  the  convenience  of  the  people 
shall  require ;  and  the  legislature  shall,  from  time  to  time,  hereafter,  appoint  such 
times  and  places ;  until  which  appointments,  the  said  courts  shall  be  holden  at  the 
times  and  places  which  the  respective  judges  shall  direct. 

V.  All  causes  of  marriage,  divorce,  and  alimony,  and  all  appeals  from  the  judges 
of  probate,  shall  be  heard  and  determined  by  the  Governor  and  Council,  until  the 
legislature  shall,  by  law,  make  other  provision. 


CHAPTER    IV. 

delegates  to  congress. 

[The  delegates  of  this  Commonwealth  to  the  Congress  of  the  United  States,  shall, 
some  time  in  the  month  of  June,  annually,  be  elected  by  the  joint  ballot  of  the  Senate 

*  For  provision  as  to  election  of  Secretary,  Treasurer,  and  Receiver-General,  and 
Auditor  and  Attorney-General,  see  Amendments,  Art.  XVII. 


396  APPENDIX  TO   PART   I. 

and  House  of  Representatives,  assembled  together  in  one  room  ;  to  serve  in  Congress 
for  one  year,  to  commence  on  the  first  Monday  in  November  then  next  ensuing.  They 
shall  have  commissions  under  the  hand  of  the  Governor,  and  the  great  seal  of  the 
Commonwealth ;  but  may  be  recalled  at  any  time  within  the  year,  and  others  chosen 
and  commissioned,  in  the  same  manner,  in  their  stead.] 


CHAPTER    V. 

THE   UNIVERSITY   AT  CAMBRIDGE   AND   ENCOURAGEMENT    OF    LITERATURE,   ETC. 

Section  I. 

The  University. 

Article  I.  Whereas  our  wise  and  pious  ancestors,  so  early  as  the  year  one  thou- 
sand six  hundred  and  thirty-six,  laid  the  foundation  of  Harvard  College,  in  which 
university  many  persons  of  great  eminence  have,  by  the  blessing  of  God,  been  initiated 
in  those  arts  and  sciences  which  qualified  them  for  public  employments,  both  in  Church 
and  State  ;  and  whereas  the  encouragement  of  arts  and  sciences,  and  all  good  litera- 
);ure,  tends  to  the  honor  of  God,  the  advantage  of  the  Christian  religion,  and  tlie  great 
benefit  of  this  and  the  other  United  States  of  America,  —  it  is  declared,  that  tlie 
President  and  Fellows  of  Hakvakd  College,  in  their  corporate  capacity,  and 
their  successors  in  that  capacity,  their  officers  and  servants,  shall  have,  hold,  use,  exer- 
cise, and  enjoy,  all  the  powers,  authorities,  rights,  liberties,  privileges,  immunities,  and 
franchises,  which  they  now  have,  or  are  entitled  to  have,  hold,  use,  exercise,  and 
enjoy ;  and  the  same  are  hereby  ratified  and  confirmed  unto  them,  the  said  President 
and  Fellows  of  Harvard  College,  and  to  their  successors,  and  to  their  officers  and 
servants,  respectively,  forever. 

II.  And  whereas  there  have  been  at  sundry  times,  by  divers  persons,  gifts,  grants, 
devises  of  houses,  lands,  tenements,  goods,  chattels,  legacies,  and  conveyances,  hereto- 
fore made,  either  to  Harvard  College  in  Cambridge,  in  New  England,  or  to  the  Presi- 
dent and  Fellows  of  Harvard  College,  or  to  the  said  college  by  some  other  description, 
under  several  charters  successively  ;  it  is  declared,  that  all  the  said  gifts,  grants,  devises, 
legacies,  and  conveyances,  are  hereby  forever  confirmed  unto  the  President  and  Fellows 
of  Harvard  College,  and  to  their  successors  in  the  capacity  aforesaid,  according  to 
the  true  intent  and  meaning  of  the  donor  or  donors,  grantor  or  grantors,  devisor 
or  devisors. 

III.  And  whereas,  by  an  Act  of  the  General  Court  of  the  colony  of  Massachusetts 
Bay,  passed  in  the  year  one  thousand  six  hundred  and  forty-two,  the  Governor  and 
Deputy-Governor,  for  the  time  being,  and  all  the  magistrates  of  that  jurisdiction,  were, 
with  the  President,  and  a  number  of  the  clergy  in  the  said  Act  described,  constituted 
the  overseers  of  Harvard  College ;  and  it  being  necessary,  in  this  new  constitution  of 
government  to  ascertain  who  shall  be  deemed  successors  to  the  said  Governor,  Deputy- 
Governor,  and  magistrates ;  it  is  declared,  that  the  Governor,  Lieutenant-Governor, 
council,  and  senate  of  this  Commonwealth,  are,  and  shall  be  deemed,  their  successors, 
who,  M'ith  the  President  of  Harvard  College,  for  the  time  being,  together  with  the 
ministers  of  the  congregational  churches  in  the  towns  of  Cambridge,  Watertowu, 
Charlestown,  Boston,  Roxbury,  and  Dorchester,  mentioned  in  the  said  Act,  shall  be, 
and  hereby  are,  vested  with  all  the  powers  and  authority  belonging,  or  in  any  way 
appertaining  to  the  overseers  of  Harvard  College  ;  provided,  that  nothing  herein  shall 
be  construed  to  prevent  the  legislature  of  this  Commonwealth  from  making  such 
alterations  in  the  government  of  the  said  university,  as  shall  be  conducive  to  its 
advantage,  and  the  interest  of  the  republic  of  letters,  in  as  full  a  manner  as  might 
have  been  done  by  the  legislature  of  the  late  Province  of  the  Massachusetts  Bay. 


APPENDIX  TO  PART  I.  2^*^ 


CHAPTER    V. 

Section  IL 

The  EncouTwjement  of  Literature,  etc. 

people  being  necessary  for  the  pre^^^^^^  advantages  of  education  in  the  various 

depend  on  spreading  the  ^P^f.^j  f ^^^^^^t^^rders  of  the  people,  it  shall  he  the  duty 

Agriculture,  arts,  science.,  ~™--:;S^f;%r;S"'of  h™a^  general 

erou3  sentiments,  among  the  people. 


CHAPTER    VI. 


HABEAS    corpus;     THE    ENACTING    STYLE;     CONTINUANCE    O.    OEFICEKS  .     PROVI- 
SION  FOR   A    FUTURE    REVISAL   OF    THE    CONSTITUTION,    ETC. 

Article  I      [Any  person  chosen  governor,  lieutenant-governor,  councillor  senator 
ortprientativ    a'd'accepting  the  frust,  shall,  before  he  proceed  to  execute  the  duties 

of  his  Dlace  or  office  make  and  subscribe  the  following  declaration,  t.z. ;  - 
of  h  s  p^ace  or  omce  ^^^  ^^^^^^.^^  ^^^.^^^^^  ^^^  have  a  firm  persua- 

sion ;fi;struh  and  hat  I  am  seised  and  possessed,  in  my  own  right,  of  the  property 
required  by  the  Constitution,  as  one  qualification  for  the  office  or  place  to  which  I  am 

'^'Anfthe  Governor  Lieutenant-Governor,  and  councillors,  shall  make  and  subscribe 
the  ."td  Lclaration  in  the  presence  of  the  two  Houses  of  Assembly ;  and  the  senators 
the  said  ^lecl^^';[^«^'  '  I  ^     ^^is  Constitution,  before  the  President  and  five 

:fth7crndrof  tL' oltSusIution  ;  and  forever  afterwards  before  the  Governor 

^]^t::^y';:::r^^^^  of  the  places  or  offices  aforesaid,  as  also  any  per 
son  app^n  ed'or  commissioned  to  any  judicial,  executive,  military,  or  other  office  unde 
he  Sovernment,  shall,  before  he  enters  on  the  discharge  of  the  business  of  h^  Pl-^  «^ 
nffipf  take  and  subscribe  the  following  declaration,  and  oaths  or  affirmations,  i  z    - 
office  take  and  su.  ^  acknowledge,  profess,  testify,  and  declare,  that  the 

cimmotveaiui  of  Massachusetts  is,  and  of  right  ought  to  be,  a  ree,  sovereign,  and  mde- 
Lommon^  eait  ^^^^  ^^^^  ^^.^^  ^^^  allegiance  to  the  sa  d  Com- 

spiritual,  within  this  Commonwealth,  except  '"^^  f^'^^^'^^f^^ZT-  Tnd  I  do  furrher 
te  vested  by  their  constituents  in  the  Congress  of  the  United  States,  and  I  do  further 

1  Abolished.     See  amendments,  Art.  VII. 


393  APPENDIX   TO   PART   L 

testify  and  declare,  that  no  man  or  body  of  men  hath  or  can  have  any  right  to  absolve 
or  discharge  me  from  the  obligation  of  this  oath,  declaration,  or  affirmation  ;  and  that 
I  do  malie  this  acknowledgment,  profession,  testimony,  declaration,  denial,  renuncia- 
tion, and  abjuration,  heartily  and  truly,  according  to  the  common  meaning  and  accep- 
tation of  the  foregoing  words,  without  any  equivocation,  mental  evasion,  or  secret 
reservation  whatsoever.     So  help  me,  God.]  ^ 

"  I,  A.  B.,  do  solemnly  swear  and  affirm,  that  I  will  faithfully  and  impartially  dis- 
charge and  perform  all  the  duties  incumbent  on  me  as  ,  according  to  the  best 
of  my  abilities  and  understanding,  agreeably  to  the  rules  and  regulations  of  the  Consti- 
tution and  the  laws  of  the  Commonwealth.     So  help  me,  God." 

Provided,  always,  that  when  any  person  chosen  or  appointed  as  aforesaid,  shall  be  of 
the  denomination  of  the  people  called  Quakers,  and  shall  decline  taking  the  said  oath[s], 
he  shall  make  his  affirmation  in  the  foregoing  form,  and  subscribe  the  same,  omitting 
the  words  ["  /  do  swear,"  "and  abjure,"  "oath  or,"  "  and  abjuration,"  in  the  first  oath^ 
and  in  the  second  oath,  the  Avords]  "  swear  and,"  and  [in  each  of  them]  the  words  "  So 
help  me,  God  ;  "  subjoining  instead  thereof,  "  This  I  do  under  the  pains  and  penalties 
of  perjury ." 

And  the  said  oaths  or  affirmations  shall  be  taken  and  subscribed  by  the  Governor, 
Lieutenant-Governor,  and  councillors,  before  the  President  of  the  Senate,  in  the  pres- 
ence of  the  two  Houses  of  Assembly ;  and  by  the  senators  and  representatives  first 
elected  under  this  Constitution,  before  the  President  and  five  of  the  Council  of  the 
former  Constitution  ;  and  forever  afterwards  before  the  Governor  and  Council  for  the 
time  being ;  and  by  the  residue  of  the  officers  aforesaid,  before  such  persons  and  in 
such  manner  as  from  time  to  time  shall  be  prescribed  by  the  legislature. 

II.  No  governor,  lieutenant-governor,  or  judge  of  the  Supreme  Judicial  Court, 
shall  hold  any  other  office  or  place,  under  the  authority  of  this  Commonwealth,  except 
such  as  by  this  Constitution  they  are  admitted  to  hold,  saving  that  the  judges  of  the 
said  court  may  hold  the  offices  of  justices  of  the  peace  through  the  State  ;  nor  shall 
they  hold  any  other  place  or  office,  or  receive  any  pension  or  salary  from  any  other 
State  or  government  or  power  whatever. 

No  person  shall  be  capable  of  holding  or  exercising  at  the  same  time,  within  this 
State,  more  than  one  of  the  following  offices,  viz.:  Judge  of  probate  —  sheriff  —  regis- 
ter of  probate  —  or  register  of  deeds  ;  and  never  more  than  any  two  offices,  which  are 
to  be  held  by  appointment  of  the  Governor,  or  the  Governor  and  Council,  or  the  Senate, 
or  the  House  of  Representatives,  or  by  the  election  of  the  people  of  the  State  at  large, 
or  of  the  people  of  any  county,  military  offices,  and  the  offices  of  justices  of  the  peace 
excepted,  shall  be  held  by  one  person. 

No  person  holding  the  office  of  judge  of  the  Supreme  Judicial  Court  —  secretary  — 
attorney-general  —  solicitor-general  —  treasurer  or  receiver-general  —  judge  of  pro- 
bate—  commissary-general  —  [president,  professor,  or  instructor  of  Harvard  College]  ^ 
—  sheriff  —  clerk  of  the  House  of  Representatives  —  register  of  probate  —  register  of 
deeds  —  clerk  of  the  Supreme  Judicial  Court  —  clerk  of  the  inferior  Court  of  Common 
Pleas  —  or  officer  of  the  customs,  including  in  this  description  naval  officers  —  shall  at 
the  same  time  have  a  seat  in  the  Senate  or  House  of  Representatives  ;  but  their  being 
chosen  or  appointed  to,  and  accepting  the  same,  shall  operate  as  a  resignation  of  their 
seat  in  the  Senate  or  House  of  Representatives ;  and  the  place  so  vacated  shall  be 
filled  up. 

And  the  same  rule  shall  take  place  in  case  any  judge  of  the  said  Supreme  Judicial 
Court,  or  judge  of  probate,  shall  accept  a  seat  in  council ;  or  any  councillor  shall 
accept  of  either  of  those  offices  or  places. 

And  no  person  shall  ever  be  admitted  to  hold  a  seat  in  the  legislature,  or  any  office 
of  trust  or  importance  under  the  government  of  this  Commonwealth,  who  shall,  in  the 
due  course  of  law,  have  been  convicted  of  bribery  or  corruption  in  obtaining  an  election 
or  appointment. 

1  For  new  oath  of  allegiance,  see  amendments,  Art.  VI, 

'  Officers  of  Harvard  College  excepted  by  Amendments,  Art.  XXVIL 


APPENDIX  TO   PART  I.  399 

III  In  all  cases  where  sums  of  money  are  mentioned  in  this  Constitution,  the  value 
thereof  shall  be  computed  in  silver,  at  six  shillings  and  eightpence  per  ounce  ;  and  it 

ale  in  the  power  of  the  legislature,  from  time  to  time,  to  mcrease  such  qual  fi  a- 
tions,  as  to  propertv.  of  the  persons  to  be  elected  to  offices,  as  the  circumstances  of  the 

""TTZ^^oSt::^  be  in  the  name  of  the  Commonwealth  of  Massachusetts 
signed  by  the  Governor  and  attested  by  the  secretary  or  his  deputy,  and  have  the  great 
spal  of  the  Commonwealth  affixed  thereto.  ,11. 

V  Al  writs,  issuing  out  of  the  clerk's  office  in  any  of  the  courts  of  law,  shall  be 
in  the  name  of  the  Commonwealth  of  Massachusetts;  they  shall  be  under  the  seal 
of  the  coTr  from  whence  they  issue  ;  they  shall  bear  test  of  the  first  justice  of  the 
court  to  which  they  shall  be  returnable,  who  is  not  a  party,  and  be  signed  by  the  clerk 

""^vT^  AlTthe  laws  which  have  heretofore  been  adopted,  used,  and  approved  in  the 
Province  Colony,  or  State  of  Massachusetts  Bay,  and  usually  practised  on  in  the 
rourVsof  law,  sLll  still  remain  and  be  in  full  force,  until  altered  or  repealed  by 
the  legislature  ;  such  parts  only  excepted  as  are  repugnant  to  the  rights  and  liberties 
contained  in  this  Constitution.  ,    „  .         •     „j  :„  fu.-a 

VII  The  privilege  and  benefit  of  the  writ  of  habeas  carpus  shall  be  enjoyed  in  this 
Commonwealth,  in  the  most  free,  easy,  cheap,  expeditious,  and  ample  manner  ;  and 
siiaU  not  be  suspended  by  the  legislature,  except  upon  the  most  urgent  and  pressing 
occasions,  and  for  a  limited  time,  not  exceeding  twelve  months. 

Vm  The  enacting  style,  in  making  and  passing  all  Acts,  statutes,  and  laws,  shal 
be -"Be  it  enacted  by  "the  Senate  and  House  of  Representatives  in  General  Court 
assembled,  and  by  the  authority  of  the  same."  •  ^  ,^  ,Ka  rnm 

IX  To  the  end  there  may  be  no  failure  of  justice,  or  danger  arise  to  the  Com- 
monwealth from  a  change  of  the  form  of  government,  all  officers  civil  and  military, 
"oUUng  commissions  under  the  government  and  people  of  Massachusetts  Bay  in  New 
Encrland,  and  all  other  officers  of  the  said  government  and  people,  at  the  t™e  this 
Constitution  shall  take  effect,  shall  have,  hold,  use,  exercise,  and  ^^Joy.  aU  the  POwers 
and  authority  to  them  granted  or  committed,  until  other  persons  shall  be  appointed  in 
their  stead  ;  and  all  courts  of  law  shall  proceed  in  the  execution  of  the  business  of  their 
respective  departments ;  and  all  the  executive  and  legislative  officers  bodies,  and  powers 
shall  continue  in  full  force,  in  the  enjoyment  and  exercise  of  all  their  trusts,  employ- 
ments  and  authority  ;  until  the  General  Court,  and  the  supreme  and  executive  officers 
under  this  Constitution,  are  designated  and  invested  with  their  respective  trusts,  powers, 

aud^aut  lority.^^  the  more  effectually  to  adhere  to  the  principles  of  the  Constitution, 
and  to  correct  those  violations  which  by  any  means  may  be  made  therein  as  well  as  to 
form  such  alterations  as  from  experience  shall  be  found  necessary,  the  General  Court 
which  shall  be  in  the  year  of  our  Lord  one  thousand  seven  hundred  and  ninety-five,  shall 
issue  precepts  to  the  selectmen  of  the  several  towns,  and  to  the  assessors  of  the  unin- 
corporated plantations,  directing  them  to  convene  the  qualified  voters  of  their  respec- 
tive towns  and  plantations,  for  the  purpose  of  collecting  their  sentiments  on  the  necessity 
or  expediency  of  revising  the  Constitution,  in  order  to  amendments. 

An'l  if  it  shall  appear,  by  the  returns  made,  that  two-thirds  of  the  qualified  voters 
throuo-hout  the  State,  who  shall  assemble  and  vote  in  consequence  of  the  said  precepts, 
are  in°favor  of  such  revision  or  amendment,  the  General  Court  shall  issue  precepts,  or 
direct  them  to  be  issued  from  the  secretary's  office,  to  the  several  towns  to  elect  dele- 
eates  to  meet  in  convention  for  the  purpose  aforesaid. 

The  said  delegates  to  be  chosen  in  the  same  manner  and  proportion  as  their  represen- 
tatives in  the  second  branch  of  the  legislature  are  by  this  Constitution  to  be  chosen.] 


1  For  existing  provision  as  to  amendments,  see  amendments.  Art.  IX.  ^ 

[In  1821  nine  amendments  to  this  Constitution  were  proposed  by  a  convention  and 
adopted  by  the  people.     Of  these,  the  ninth  was  as  follows  :  — 
Art.  IX.   If,  at  any  time  hereafter,  any  specific  and  particular  amendment  or  amend- 


400  APPENDIX  TO   PART  I. 

XI.  This  form  of  government  shall  be  enrolled  on  parchment,  and  deposited  in  the 
secretary's  office,  and  be  a  part  of  the  laws  of  the  land ;  and  printed  copies  thereof 
shall  be  prefixed  to  the  book  containing  the  laws  of  this  Commonwealth,  in  all  future 
editions  of  the  said  laws. 


ARTICLES  OF  CONFEDERATION. 

Articles  of  Confederation  and  Perpetual  Union  between  the  States  of  Neiv  Hampshire, 
Massachusetts  Bay,  Rhode  Island  and  Providence  Plantations,  Connecticut,  New 
York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina, 
South  Carolina,  and  Georgia. 

Article  I.  The  style  of  this  Confederacy  shall  be,  "  The  United  States  of 
America." 

Article  II.  Each  State  retains  its  sovereignty,  freedom,  and  independence,  and 
every  power,  jurisdiction,  and  right,  which  is  not  by  this  Confederation  expressly 
delegated  to  the  United  States  in  Congress  assembled. 

Article  III.  The  said  States  hereby  severally  enter  into  a  firm  league  of  friend- 
ship with  each  other,  for  their  common  defence,  the  security  of  their  liberties,  and 
their  mutual  and  general  welfare,  binding  themselves  to  assist  each  other  against  all 
force  offered  to,  or  attacks  made  upon  them,  or  any  of  them,  on  account  of  religion, 
sovereignty,  trade,  or  any  other  pretence  whatever. 

Article  IV.  The  better  to  secure  and  perpetuate  mutual  friendship  and  inter- 
course among  the  people  of  the  different  States  in  this  Union,  the  free  inhabitants  of 
each  of  these  States,  paupers,  vagabonds,  and  fugitives  from  justice  excepted,  shall  be 
entitled  to  all  privileges  and  immunities  of  free  citizens  in  the  several  States ;  and  the 
people  of  each  State  shall  have  free  ingress  and  regress  to  and  from  any  other  State, 
and  shall  enjoy  therein  all  the  privileges  of  trade  and  commerce  subject  to  the  same 
duties,  impositions,  and  restrictions  as  the  inhabitants  thereof  respectively ;  provided  that 
such  restrictions  shall  not  extend  so  far  as  to  prevent  the  removal  of  property  imported 
into  any  State  to  any  other  State  of  which  the  owner  is  an  inhabitant ;  provided  also, 
that  no  imposition,  duties,  or  restriction  shall  be  laid  by  any  State  on  the  property  of 
the  United  States  or  either  of  them.  If  any  person  guilty  of,  or  charged  with,  treason, 
felony,  or  other  high  misdemeanor  in  any  State  shall  flee  from  justice  and  be  found  in 
any  of  the  United  States,  he  shall,  upon  demand  of  the  Governor  or  executive  power  of 
the  State  from  which  he  fled,  be  delivered  up  and  removed  to  the  State  having  jurisdic- 
tion of  his  offence.  Full  faith  and  credit  shall  be  given  in  each  of  these  States  to  the 
records,  acts,  and  judicial  proceedings  of  the  courts  and  magistrates  of  every  other 
State. 

ments  to  the  Constitution  be  proposed  in  the  General  Court,  and  agreed  to  by  a  majority 
of  the  senators  and  two-thirds  of  the  members  of  the  House  of  Representatives  present 
and  voting  thereon,  such  proposed  amendment  or  amendments  shall  be  entered  on  the 
journals  of  the  two  Houses,  with  the  yeas  and  nays  taken  thereon,  and  referred  to  the 
General  Court  then  next  to  be  chosen,  and  shall  be  published  ;  and  if,  in  the  General 
Court  next  chosen  as  aforesaid,  such  proposed  amendment  or  amendments  shall  be 
agreed  to  by  a  majority  of  the  senators  and  two-thirds  of  the  members  of  the  House  of 
Representatives  present  and  voting  thereon,  then  it  shall  be  the  duty  of  the  General 
Court  to  submit  such  proposed  amendment  or  amendments  to  the  people  ;  and  if  they 
shall  be  approved  and  ratified  by  a  majority  of  the  qualified  voters,  voting  thereon,  at 
meetings  legally  warned  and  holden  for  that  purpose,  they  shall  become  part  of  the 
Constitution  of  this  Commonwealth. 

Under  the  mode  of  change  thus  prescribed,  there  have  been  added,  down  to  the  end 
of  the  year  1893,  twenty-five  other  amendments,  making  thirty-four  in  all.  See  ante^ 
220.  — Ed.] 


APPENDIX   TO   PART   I.  401 

Article  V.  For  the  more  convenient  management  of  the  general  interests  of  the 
United  States,  delegates  shall  be  annually  appointed  in  such  manner  as  the  legislature 
of  each  State  shall  direct,  to  meet  in  Congress  on  the  first  Monday  in  November,  in 
every  year  with  a  power  reserved  to  each  State  to  recall  its  delegates,  or  any  of  them, 
at  any  time  within  the  year,  and  to  send  others  in  tlieir  stead  for  the  remainder  of  the 
year.  No  State  shall  be  represented  in  Congress  by  less  than  two,  nor  by  more  than 
seven  members ;  and  no  person  shall  be  capable  of  being  a  delegate  for  piore  than 
three  years  in  any  term  of  six  years  ;  nor  shall  any  person,  being  a  delegate,  be  capable 
of  holding  any  office  under  the  United  States  for  which  he,  or  another  for  his  benefit, 
receives  any  salary,  fees,  or  emolument  of  any  kind.  Each  State  shall  maintain  its 
own  delegates  in  any  meeting  of  the  States  and  while  they  act  as  members  of  the 
committee  of  the  States.  In  determining  questions  in  the  United  States  in  Congress 
assembled,  each  State  shall  have  one  vote.  Freedom  of  speech  and  debate  in  Con- 
gress shall  not  be  impeached  or  questioned  in  any  court  or  place  out  of  Congress ;  and 
the  members  of  Congress  shall  be  protected  in  their  persons  from  arrests  and  imprison- 
ment during  the  time  of  their  going  to  and  from,  and  attendance  on,  Congress,  except 
for  treason,  felony,  or  breach  of  the  peace. 

Article  VI.  No  State,  without  the  consent  of  the  United  States,  in  Congress 
assembled,  shall  send  any  embassy  to,  or  receive  any  embassy  from,  or  enter  into  any 
conference,  agreement,  alliance,  or  treaty  with  any  king,  prince,  or  State ;  nor  shall 
any  person  holding  any  office  of  profit  or  trust  under  the  United  States,  or  any  of 
them,  accept  of  any  present,  emolument,  office,  or  title  of  any  kind  wliatever  from  any 
king,  prince,  or  foreign  State  ;  nor  shall  the  United  States,  in  Congress  assembled,  or 
any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation,  or  alliance  what- 
ever between  them,  without  the  consent  of  the  United  States,  in  Congress  assembled, 
specifying  accurately  the  purposes  for  which  the  same  is  to  be  entered  into,  and  how 
long  it  shall  continue. 

No  State  shall  lay  any  imposts  or  duties  which  may  interfere  with  any  stipulations  in 
treaties  entered  into  by  the  United  States,  in  Congress  assembled,  with  any  king,  prince, 
or  State,  in  pursuance  of  any  treaties  already  proposed  by  Congress  to  the  courts  of 
France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  State,  except  such  num- 
ber only  as  shall  be  deemed  necessary  by  the  United  States,  in  Congress  assembled, 
for  the  defence  of  such  State  or  its  trade,  nor  shall  any  body  of  forces  be  kept  up 
by  any  State  in  time  of  peace,  except  such  number  only  as,  in  the  judgment  of  the 
United  States,  in  Congress  assembled,  shall  be  deemed  requisite  to  garrison  the  forts 
necessary  for  the  defence  of  such  State  ;  but  every  State  shall  always  keep  up  a  well- 
regulated  and  disciplined  militia,  sufficiently  armed  and  accoutered,  and  shall  provide 
and  constantly  have  ready  for  use  in  public  stores  a  due  number  of  field-pieces  and 
tents,  and  a  proper  quantity  of  arms,  ammunition,  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the  United  States,  in 
Congress  assembled,  unless  such  State  be  actually  invaded  by  enemies,  or  shall  have 
received  certain  advice  of  a  resolution  being  formed  by  some  nation  of  Indians  to 
invade  such  State,  and  the  danger  is  so  imminent  as  not  to  admit  of  a  delay  till  the 
United  States,  in  Congress  assembled,  can  be  consulted  ;  nor  shall  any  State  grant 
commissions  to  any  ships  or  vessels  of  war,  cor  letters  of  marque  or  reprisal,  except 
it  be  after  a  declaration  of  war  by  the  United  States,  in  Congress  assembled,  and  then 
only  against  the  kingdom  or  state,  and  the  subjects  thereof,  against  which  war  has 
been  so  declared,  and  under  such  regulations  as  shall  be  established  by  the  United 
States,  in  Congress  assembled,  unless  such  State  be  infested  by  pirates,  in  which 
case  vessels  of  war  may  be  fitted  out  for  that  occasion,  and  kept  so  long  as  the  danger 
shall  continue,  or  until  the  United  States,  in  Congress  assembled,  shall  determine 
otherwise. 

Article  VII.  When  land  forces  are  raised  by  any  State  for  the  common  defence, 
all  officers  of  or  under  the  rank  of  colonel  shall  be  appointed  by  the  legislature  of 
each  State  respectively  by  whom  such  forces  shall  be  raised,  or  in  such  manner  as 
VOL.  I.  — 26 


402  APPENDIX  TO   PART   I. 

such  State  shall  direct,  and  all  vacancies  shall  be  filled  up  by  the  State  which  first 
made  the  appointment. 

Article  VIII.  All  charges  of  war,  and  all  other  expenses  that  shall  be  inciarred 
for  the  common  defence,  or  general  welfare,  and  allowed  by  the  United  States,  in 
Congress  assembled,  shall  be  defrayed  out  of  a  common  treasury,  which  shall  be  sup- 
plied by  the  several  States  in  proportion  to  the  value  of  all  land  within  each  State, 
granted  to,  or  surveyed  for,  any  person,  as  such  land  and  the  buildings  and  improve- 
ments thereon  shall  be  estimated,  according  to  such  mode  as  the  United  States,  in 
Congress  assembled,  shall,  from  time  to  time,  direct  and  appoint.  The  taxes  for 
paying  that  proportion  shall  be  laid  and  levied  by  the  authority  and  direction  of  the 
legislatures  of  the  several  States,  within  the  time  agreed  upon  by  the  United  States, 
in  Congress  assembled. 

Article  IX.  The  United  States,  in  Congress  assembled,  shall  have  the  sole  and 
exclusive  right  and  power  of  determining  on  peace  and  war,  except  in  the  cases  men- 
tioned in  the  si.xth  Article  ;  of  sending  and  receiving  ambassadors ;  entering  into 
treaties  and  alliances,  provided  that  no  treaty  of  commerce  shall  be  made,  whereby 
the  legislative  power  of  the  respective  States  shall  be  restrained  from  imposing  such 
imposts  and  duties  on  foreigners  as  their  own  people  are  subjected  to,  or  from  pro- 
hibiting the  exportation  or  importation  of  any  species  of  goods  or  commodities  what- 
ever ;  of  establishing  rules  fur  deciding,  in  all  cases,  wliat  captures  on  land  and  water 
shall  be  legal,  and  in  what  manner  prizes  taken  by  land  or  naval  forces  in  the  service 
of  the  United  States  shall  be  divided  or  appropriated  ;  of  granting  letters  of  marque 
and  reprisal  in  times  of  peace ;  appointing  courts  for  the  trial  of  piracies  and  felonies 
committed  on  the  high  seas  ;  and  establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures  ;  provided  that  no  member  of  Congress  shall  be 
appointed  a  judge  of  any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also  be  the  last  resort  on  appeal  in 
all  disputes  and  differences  now  subsisting,  or  that  hereafter  may  arise  between  two  or 
more  States  concerning  boundary,  jurisdiction,  or  any  other  cause  whatever;  which 
authority  shall  always  be  exercised  in  tlie  manner  following :  Whenever  the  legislative 
or  executive  authority,  or  lawful  agent  of  any  State  in  controversy  with  another,  shall 
present  a  petition  to  Congress,  stating  the  matter  in  question,  and  praying  for  a  hear- 
ing, notice  thereof  shall  be  given  by  order  of  Congress  to  the  legislative  or  executive 
authoritv  of  the  other  State  in  controversy,  and  a  day  assigned  for  the  appearance  of 
the  parties  bv  their  lawful  agents,  who  shall  then  be  directed  to  appoint,  by  joint  eon- 
sent,  commissioners  or  judges  to  constitute  a  court  for  hearing  and  determining  the 
matter  in  question  ;  but  if  they  cannot  agree.  Congress  shall  name  three  persons  out 
of  each  of  the  United  States,  and  from  the  list  of  such  persons  each  party  shall  alter- 
nately strike  out  one,  the  petitioners  beginning,  until  the  number  shall  be  reduced  to 
thirteen  ;  and  from  that  number  not  less  than  seven  nor  more  than  nine  names,  as 
Congress  shall  direct,  shall,  in  the  presence  of  Congress,  be  drawn  out  by  lot ;  and 
the  persons  whose  names  shall  be  so  drawn,  or  any  five  of  them,  shall  be  commission- 
ers or  judges,  to  hear  and  finally  determine  the  controversy,  so  always  as  a  major  part 
of  the  judges  who  shall  hear  the  cause  shall  agree  in  the  determination ;  and  if  either 
party  shall  neglect  to  attend  at  the  day  appointed,  without  showing  reasons  which 
Congress  shall  judge  sufficient,  or  being  present,  shall  refuse  to  strike,  the  Congress 
shall  proceed  to  nominate  three  persons  out  of  each  State,  and  the  secretary  of  Con- 
gress shall  strike  in  behalf  of  such  party  absent  or  refusing ;  and  the  judgment  and 
sentence  of  the  court,  to  be  appointed  in  the  manner  before  prescribed,  shall  be  final 
and  conclusive ;  and  if  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of 
such  court,  or  to  appear  or  defend  their  claim  or  cause,  the  court  shall  nevertheless 
proceed  to  pronounce  sentence  or  judgment,  which  shall  in  like  manner  be  final  and 
decisive  ;  the  judgment  or  sentence  and  other  proceedings  being  in  either  case  trans- 
mitted to  Congress,  and  lodged  among  the  Acts  of  Congress  for  the  security  of  the 
parties  concerned  ;  provided,  that  every  commissioner,  before  he  sits  in  judgment, 
shall  take  an  oath,  to  be  administered  by  one  of  the  judges  of  the  Supreme  or  Supe- 
rior Court  of  the  State  where  the  cause  shall  be  tried,  "  well  aud  truly  to  hear  and 


APPENDIX   TO   PART  I.  403 

determine  the  matter  in  question,  according  to  the  best  of  his  judgment,  without  favor, 
affection,  or  hope  of  reward."  Provided,  also,  that  no  State  shall  be  deprived  of  terri- 
tory for  the  benefit  of  the  United  States. 

All  controversies  couceruiug  tlie  private  right  of  soil  claimed  under  different 
grants  of  two  or  more  States,  whose  jurisdictions,  as  they  may  respect  such  lands  and 
the  States  which  passed  such  grants  are  adjusted,  the  said  grants  or  either  of  theni 
being  at  tlie  same  time  claimed  to  have  originated  antecedent  to  such  settlement  of 
jurisdiction,  sliall,  on  the  petition  of  either  party  to  the  Congress  of  tlie  United  States, 
be  finally  determined,  as  near  as  may  be,  in  the  same  manner  as  is  before  prescribed 
for  deciding  disputes  respecting  territorial  jurisdiction  between  different  States. 

The  United  States,  in  Congress  assembled,  shall  also  liave  tlie  sole  and  exclusive 
right  and  power  of  regulating  the  alloy  and  value  of  coin  struck  by  their  own  author- 
ity, or  by  that  of  the  respective  States ;  fixing  the  standard  of  weights  and  measures 
tliroughont  tlie  United  States  ;  regulating  the  trade  and  managing  all  affairs  with  the 
Indians,  not  members  of  any  of  the  States ;  provided  that  the  legislative  right  of  any 
State,  within  its  own  limits,  be  not  infringed  or  violated  ;  establishing  and  regulating 
post-offices  from  one  State  to  another,  throughout  all  the  United  States,  and  exacting 
such  postage  on  the  papers  passing  through  tiie  same  as  may  be  requisite  to  defray  the 
expenses  of  tlie  said  office  ;  appointing  all  officers  of  the  land  forces  in  the  service  of 
the  United  States,  excepting  regimental  officers ;  appointing  all  the  officers  of  tlie 
naval  forces,  and  commissioning  all  officers  whatever  in  the  service  of  the  United 
States ;  making  rules  for  the  government  and  regulation  of  the  said  land  and  naval 
forces,  and  directing  their  operations. 

The  United  States,  in  Congress  assembled,  shall  have  authority  to  appoint  a  com- 
mittee, to  sit  in  the  recess  of  Congress,  to  be  denominated,  "  A  Committee  of  the 
States,"  and  to  consist  of  one  delegate  from  each  State,  and  to  appoint  such  other 
committees  and  civil  officers  as  may  be  necessary  for  managing  the  general  affairs  of 
the  United  States  under  their  direction  ;  to  appoint  one  of  their  number  to  preside  ; 
provided  that  no  person  be  allowed  to  serve  in  the  office  of  president  more  than  one 
year  in  any  term  of  three  years ;  to  ascertain  the  necessary  sums  of  money  to  be  raised 
for  the  service  of  the  United  States,  and  to  appropriate  and  apply  the  same  for  defray- 
ing the  public  expenses  ;  to  borrow  money  or  emit  bills  on  the  credit  of  the  United 
States,  transmitting  every  half  year  to  the  respective  States  an  account  of  the  sums  of 
money  so  borrowed  or  emitted  ;  to  build  and  ecjuip  a  navy ;  to  agree  upon  the  number 
of  land  forces,  and  to  make  requisitions  from  each  State  for  its  quota,  in  proportion  to 
the  number  of  white  inhabitants  in  such  State,  which  requisition  shall  be  binding;  and 
thereupon  the  legislature  of  each  State  shall  appoint  tlie  regimental  officers,  raise  the 
men,  and  clothe,  arm,  and  equip  them  in  a  soldier-like  manner,  at  the  expense  of  the 
United  States  ;  and  the  officers  and  men  so  clothed,  armed,  and  equipped,  shall  march 
to  the  place  appointed,  and  within  the  time  agreed  on  by  the  United  States,  in  Con- 
gress assembled  ;  but  if  the  United  States,  in  Congress  assembled,  shall,  on  considera- 
tion of  circumstances,  judge  proper  that  any  State  should  not  raise  men,  or  should 
raise  a  smaller  number  than  its  quota,  and  that  any  other  State  should  raise  a  greater 
number  of  men  than  the  quota  thereof,  such  extra  number  shall  be  raised,  officered, 
clothed,  armed,  and  equipped  in  the  same  manner  as  the  quota  of  such  State,  unless  the 
legislature  of  such  State  shall  judge  that  such  extra  number  cannot  be  safely  spared 
out  of  the  same,  in  which  case  they  shall  raise,  officer,  clothe,  arm,  and  equip  as  many 
of  such  extra  number  as  they  judge  can  be  safely  spared,  and  the  officers  and  men  so 
clothed,  armed,  and  equipped  shall  march  to  the  place  appointed,  and  within  the  time 
agreed  on  by  the  United  States,  in  Congress  assembled. 

The  United  States,  in  Congress  assembled,  shall  never  engage  in  a  war,  nor  grant 
letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into  any  treaties  or  alliances, 
nor  coin  money,  nor  regulate  the  value  thereof,  nor  ascertain  the  sums  and  expenses 
necessary  for  the  defence  and  welfare  of  the  United  States,  or  any  of  them,  nor  emit 
bills,  nor  borrow  money  on  the  credit  of  the  United  States,  nor  apjiropriate  money, 
nor  agree  upon  the  number  of  vessels  of  war  to  be  built  or  purchased,  or  the  number 
of  land  or  sea  forces  to  be  raised,  nor  appoint  a  commander-in-chief  of  the  urmy  or 


404  APPENDIX  TO   PART  I. 

navv,  unless  nine  States  assent  to  the  same,  nor  shall  a  question  on  any  other  point, 
except  for  adjourning  from  day  to  day,  be  determined,  unless  by  the  votes  of  a  majority 
of  the  United  States,  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn  to  any  time  within  the 
year,  and  to  any  place  within  the  United  States,  so  that  no  period  of  adjournment  be 
for  a  longer  duration  than  the  space  of  six  months,  and  shall  publish  the  journal  of 
their  proceedings  monthly,  except  such  parts  thereof  relating  to  treaties,  alliances,  or 
military  operations  as  in  their  judgment  require  secrecy ;  and  the  yeas  and  nays  of  the 
delegates  of  each  State,  on  any  question,  shall  be  entered  on  the  journal  when  it  is 
desired  by  any  delegate ;  and  the  delegates  of  a  State,  or  any  of  them,  at  his  or  their 
request,  shall  be  furnished  with  a  transcript  of  the  said  journal  except  such  parts  as  are 
above  excepted,  to  lay  before  the  legislatures  of  the  several  States. 

Article  X,  The  committee  of  the  States,  or  any  nine  of  them,  shall  be  authorized 
to  execute,  in  the  recess  of  Congress,  such  of  the  powers  of  Congress  as  the  United 
States,  in  Congress  assembled,  by  tiie  consent  of  nine  States,  shall,  from  time  to  time, 
think  expedient  to  vest  them  with ;  provided  that  no  power  be  delegated  to  the  said 
committee,  for  the  exercise  of  which,  by  the  Articles  of  Confederation,  the  voice  of 
nine  States  in  the  Congress  of  the  United  States  assembled  is  requisite. 

Article  XI.  Canada,  acceding  to  this  Confederation,  and  joining  in  the  measures 
of  the  United  States,  shall  be  admitted  into,  and  entitled  to  all  the  advantages  of  this 
Union  ;  but  no  other  colony  shall  be  admitted  into  the  same,  unless  such  admission  be 
agreed  to  by  nine  States. 

Article  XII.  All  bills  of  credit  emitted,  moneys  borrowed,  and  debts  contracted 
by  or  under  the  authority  of  Congress,  before  the  assembling  of  the  United  States,  in 
pursuance  of  the  present  Confederation,  shall  be  deemed  and  considered  as  a  charge 
against  the  United  States,  for  payment  and  satisfaction  whereof  the  said  United  States 
and  the  public  faith  are  hereby  solemnly  pledged. 

Article  XIII.  Every  State  shall  abide  by  the  determinations  of  the  United  States, 
in  Congress  assembled,  on  all  questions  which  by  this  Confederation  are  submitted  to 
them.  And  the  Articles  of  this  Confederation  shall  be  inviolably  observed  by  every 
State,  and  the  Union  shall  be  perpetual ;  nor  shall  any  alteration  at  any  time  here- 
after be  made  in  any  of  them,  unless  such  alteration  be  agreed  to  in  a  Congress  of  the 
United  States,  and  be  afterwards  confirmed  by  the  legislatures  of  every  State. 

And  whereas  it  hath  pleased  the  great  Governor  of  the  world  to  incline  the  hearts 
of  the  legislatures  we  respectively  represent  in  Congress  to  approve  of,  and  to  author- 
ize us  to  ratify,  the  said  Articles  of  Confederation  and  perpetual  Union,  know  ye,  that 
we,  the  undersigned  delegates,  by  virtue  of  the  power  and  authority  to  us  given  for 
that  purpose,  do,  by  these  presents,  in  the  name  and  in  behalf  of  our  respective  con- 
stituents, fully  and  entirely  ratify  and  confirm  each  and  every  of  the  said  Articles  of 
Confederation  and  perpetual  Union,  and  all  and  singular  the  matters  and  things 
therein  contained.  And  we  do  further  solemnly  plight  and  engage  the  faith  of  our 
respective  constituents,  that  they  shall  abide  by  the  determinations  of  the  United  States, 
in  Congress  assembled,  on  all  questions  which  by  the  said  Confederation  are  submitted 
to  them  ;  and  that  the  articles  thereof  shall  be  inviolably  observed  by  the  States  we 
respectively  represent,  and  that  the  Union  shall  be  perpetual.  In  witness  whereof, 
we  have  hereunto  set  our  hands  in  Congress.  Done  at  Philadelphia,  in  the  State 
of  Pennsylvania,  the  ninth  day  of  July,  in  the  year  of  our  Lord  1778,  and  in  the  third 
year  of  the  Independence  of  America.^ 

1  Ratified  by  the  last  of  the  States  March  1,  1781.  —  Ed. 


APPENDIX  TO  PART  L  405 


CONSTITUTION  OF  THE  UNITED  STATES,  WITH  THE 
AMENDMENTS.! 

We  the  People  of  the  United  States,  in  Order  to  form  a  more  perfect  Union,  estab- 
lish Justice,  insure  domestic  Tranquility,  provide  for  the  common  defence,  promote 
the  general  Welfare,  and  secure  the  Blessings  of  Liberty  to  ourselves  and  our  Pos- 
terity, do  ordain  and  establish  this  Constitution  for  the  United  States  of  America. 

ARTICLE.  L 

Section.  1.  All  legislative  Powers  herein  granted  shall  be  vested  in  a  Congress  of 
the  United  States,  which  shall  consist  of  a  Senate  and  House  of  Representatives. 

Section.  2.  The  House  of  Representatives  shall  be  composed  of  Members  chosen 
every  second  Year  by  the  People  of  the  several  States,  and  the  Electors  in  each  State 
shall  have  the  Qualifications  requisite  for  Electors  of  the  most  numerous  Branch  of  the 
State  Legislature. 

No  Person  shall  be  a  Representative  who  shall  not  have  attained  to  the  Age  of 
twenty  five  Years,  and  been  seven  Years  a  Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

Representatives  and  jiiifict  Taxes  shall  be  apportioned  among  the  several  States  which 
may  be  included  within  this  Union,  according  to  their  respective  Numbers,  [which  shall 
be  determined  by  adding  to  the  whole  Number  of  free  Persons,  including  those  bound 
to  Service  for  a  Term  of  Years,  and  excluding  Indians  not  taxed,  three  fifths  of  all 
other  Persons.l^  The  actual  Enumeration  shall  be  made  within  three  Years  after  the 
first  Meeting  of  the  Congress  of  the  United  States,  and  within  every  subsequent  Term 
of  ten  Years,  in  such  Manner  as  they  shall  by  Law  direct.  The  Number  of  Represen- 
tatives shall  not  exceed  one  for  every  thirty  Thousand,  but  each  State  shall  have  at 
Least  one  Representative;  and  until  such  enumeration  shall  be  made,  the  State 
of  New  Hampshire  shall  be  entitled  to  chuse  three,  Massachusetts  eight,  Rhode-Island 
and  Providence  Plantations  one,  Connecticut  five.  New- York  six.  New  Jer.sey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten,  North  Carolina  five. 
South  Carolina  five,  and  Georgia  tiiree. 

When  vacancies  happen  in  the  Representation  from  any  State,  the  Executive 
Authority  thereof  shall  issue  Writs  of  Election  to  fill  such  Vacancies. 

The  House  of  Representatives  shall  chuse  their  Speaker  and  other  Officers ;  and 
shall  have  the  sole  Power  of  Impeachment. 

Section.  3.  The  Senate  of  the  United  States  shall  be  composed  of  two  Senators 
from  each  State,  chosen  by  the  Legislature  thereof,  for  six  Years ;  and  each  Senator 
shall  have  one  Vote. 

Immediately  after  they  shall  be  assembled  in  Consequence  of  the  first  Election,  they 
sliall  be  divided  as  equally  as  may  be  into  three  Classes.  The  Seats  of  the  Senators  of 
the  first  Class  shall  be  vacated  at  the  Expiration  of  the  second  Year,  of  the  second 
Class  at  the  Expiration  of  the  fourth  Year,  and  of  the  third  Class  at  the  Expiration  of 
the  sixth  Year,  so  that  one  third  may  be  chosen  every  second  Year  ;  and  if  Vacancies 
happen  by  Resignation,  or  otherwise,  during  the  Recess  of  the  Legislature  of  any 

1  Printed,  by  permission,  from  an  edition  by  Professors  Hart  and  Channing  of 
Harvard  University  (published  by  A.  Lovell  &  Co.,  New  York),  of  which  the  editors 
say  :  "  The  text  ...  is  the  result  of  careful  comparison  by  one  of  the  editors  with  the 
original  manuscripts,  Feb.  10,  11,  1893;  and  it  is  intended  to  be  absolutely  exact  in 
word,  spelling,  capitalization,  and  punctuation."  Some  of  the  editors'  notes  have  been 
omitted,  some  notes  have  been  added,  and  certain  section-marks  in.serted  by  the  editors 
have  been  dropped.  An  obvious  misprint,  "  Uember,"  for  "  Member  "  (first  line  p.  409, 
infra),  has  been  corrected.   Otherwise  the  text  above-named  is  exactly  followed.  —  Ed. 

2  Superseded  by  Fourteenth  Amendment. 


406  APPENDIX  TO   PART  I. 

State,  the  Executive  thereof  may  make  temporary  Appointments  until  the  next 
Meeting  of  the  Legislature,  which  shall  then  fill  such   Vacancies. 

No  Person  shall  be  a  Senator  who  shall  not  have  attained  to  the  Age  of  thirty 
Years,  and  been  nine  Years  a  Citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  for  which  he  shall  be  chosen. 

The  Vice  President  of  the  United  States  shall  be  President  of  the  Senate,  but  shall 
have  no  Vote,  unless  they  be  equally  divided. 

The  Senate  shall  chuse  their  other  Officers,  and  also  a  President  pro  tempore,  in  the 
Absence  of  the  Vice  President,  or  when  he  shall  exercise  the  Office  of  President  of  the 
United  States. 

The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments.  When  sitting  for 
that  Purpose,  they  shall  be  on  Oath  or  Affirmation.  When  the  President  of  the  United 
States  is  tried,  the  Chief  Justice  shall  preside :  And  no  Person  shall  be  convicted  with- 
out the  Concurrence  of  two  thirds  of  the  Members  present. 

Judgment  in  Cases  of  Impeachment  shall  not  extend  further  than  to  removal  from 
Office,  and  disqualification  to  hold  and  enjoy  any  Office  of  honor,  Trust  or  Profit  under 
the  United  States  :  but  the  Party  convicted  shall  nevertheless  be  liable  and  subject  to 
Indictment,  Trial,  Judgment  and  Punishment,  according  to  Law. 

Section.  4.  The  Times,  Places  and  Manner  of  holding  Elections  for  Senators  and 
Representatives,  shall  be  prescribed  in  each  State  by  the  Legislature  thereof ;  but  the 
Congress  may  at  any  time  by  Law  make  or  alter  such  Regulations,  except  as  to  the 
Places  of  chusing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  Year,  and  such  Meeting  shall  bo 
on  the  first  Monday  in  December,  unless  they  shall  by  Law  appoint  a  different  Day. 

Section.  5.  Each  House  shall  be  the  Judge  of  the  Elections,  Returns  and  Quali- 
fications of  its  own  Members,  and  a  Majority  of  each  shall  constitute  a  Quorum  to  do 
Business ;  but  a  smaller  Number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  Attendance  of  absent  Members,  in  such  Manner,  and  under  such  Penal- 
ties as  each  House  may  provide. 

Each  House  may  determine  the  Rules  of  its  Proceedings,  punish  its  Members  for 
disorderly  Behaviour,  and,  with  the  Concurrence  of  two  thirds,  expel  a  Member. 

Each  House  shall  keep  a  Journal  of  its  Proceedings,  aud  from  time  to  time  publish 
the  same,  excepting  such  Parts  as  may  in  their  Judgment  require  Secrecy  ;  and  the 
Yeas  and  Nays  of  the  Members  of  either  House  on  any  question  shall,  at  the  Desire  of 
one  fifth  of  those  Present,  be  entered  on  the  Journal. 

Neither  House,  during  the  Session  of  Congress,  shall,  without  the  Consent  of  the 
other,  adjourn  for  more  than  three  days,  nor  to  any  other  Place  than  that  in  which  the 
two  Houses  shall  be  sitting. 

Section.  6.  The  Senators  and  Representatives  shall  receive  a  Compensation  for 
their  Services,  to  be  ascertained  by  Law,  and  paid  out  of  the  Treasury  of  the  United 
States.  They  shall  in  all  Cases,  except  Treason,  Felony  and  Breach  of  the  Peace,  be 
privileged  from  Arrest  during  their  Attendance  at  the  Session  of  their  respective 
Houses,  and  in  going  to  and  returning  from  the  same ;  and  for  any  Speech  or  Debate 
in  either  House,  they  shall  not  be  questioned  in  any  other  Place. 

No  Senator  or  Representative  shall,  during  the  Time  for  which  he  was  elected,  be 
appointed  to  any  civil  Office  under  the  Authority  of  the  United  States,  which  shall 
have  been  created,  or  the  Emoluments  whereof  shall  have  been  encreased  during  such 
time  ;  and  no  Person  holding  any  Office  under  the  United  States,  shall  be  a  Member 
of  either  House  during  his  Continuance  in  Office. 

Section.  7.  All  Bills  for  raising  Revenue  shall  originate  in  the  House  of  Represen- 
tatives ;  but  the  Senate  may  propose  or  concur  with  Amendments  as  on  other  Bills. 

Every  Bill  which  shall  have  passed  the  House  of  Representatives  and  the  Senate, 
shall,  before  it  become  a  Law,  be  presented  to  the  President  of  the  United  States  ;  If 
he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Objections  to  that 
House  in  which  it  shall  have  originated,  who  shall  enter  the  Olijections  at  large  on 
their  Journal,  and  proceed  to  reconsider  it,  If  after  such  Reconsideration  two  thirds 
of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be  sent,  together  with  the  Objeo" 


APPENDIX   TO   PART   I.  407 

tions,  to  the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two  thirds  of  that  House,  it  shall  become  a  Law.  But  in  all  such  Cases  the  Votes 
of  both  Houses  shall  be  determined  by  yeas  and  Nays,  and  the  Names  of  the  Persons 
voting  for  and  against  the  Bill  shall  be  entered  on  tlie  Journal  of  each  House  respec- 
tively. If  any  Bill  shall  not  be  returned  by  tlie  President  within  ten  Days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the  same  shall  be  a  Law,  in  like 
Manner  as  if  he  had  signed  it,  unless  the  Congress  by  their  Adjournment  prevent  its 
Return,  in  which  Case  it  shall  not  be  a  Law. 

Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence  of  the  Senate  and  House 
of  Representatives  may  be  necessary  (except  on  a  question  of  Adjournment)  shall  be 
presented  to  the  President  of  the  United  States ;  and  before  the  same  shall  take  Effect, 
shall  be  approved  by  him,  or  being  disapproved  by  him,  shall  be  repassed  by  two  thirds 
of  the  Senate  and  House  of  Representatives,  acconling  to  the  Rules  and  Limitations 
prescribed  in  the  Case  of  a  Bill. 

Section.  8.  Tlie  Congress  shall  have  Power  To  lay  and  collect  Taxes,  Duties, 
Imposts  and  Excises,  to  pay  the  Debts  and  provide  for  the  common  Defence  and  gen- 
eral Welfare  of  the  United  States ;  but  all  Duties,  Imposts  and  Excises  F\]■^'^'^  »??  ninform 
throughout  the  United  States  ; 


fo  borrow  Money  on  the  credit  of  the  United  States  ; 

To  regulate  Commerce  with  foreign  Nations,  and  among  the  several  States,  and  with 
the  Indian  Tribes ; 

To  establish  an  uniform  Rule  of  Naturalization,  and  uniform  Laws  on  the  subject  of 
Bankruptcies  throughout  the  United  States  ; 

To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin,  and  fix  the  Standard 
of  Weights  and  Measures  ; 

To  provide  for  the  Punishment  of  counterfeiting  the  Securities  and  current  Coin  of 
the  United  States  ; 

To  establish  Post  Offices  and  post  Roads  ; 

To  promote  the  Progress  of  Science  and  useful  Arts,  by  securing  for  limited  Times 
to  Authors  and  Inventors  the  exclusive  Right  to  their  respective  Writings  and  Dis- 
coveries ; 

To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

To  define  and  punish  Piracies  and  Felonies  committed  on  the  high  Seas,  and  Offences 
against  the  Law  of  Nations  ; 

To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and  make  Rules  concerning 
Captures  on  Land  and  Water  ; 

To  raise  and  support  Armies,  but  no  Appropriation  of  Money  to  that  Use  shall  be 
for  a  longer  Term  than  two  Years  ; 

To  provide  and  maintain  a  Navy ; 

To  make  Rules  for  the  Government  and  Regulation  of  the  land  and  naval  Forces  ; 

To  provide  for  calling  forth  the  Militia  to  execute  the  Laws  of  the  Union,  suppress 
Insurrections  and  repel  Invasions ; 

To  provide  for  organizing,  arming,  and  disciplining,  the  Militia,  and  for  governing 
such  Part  of  them  as  may  be  employed  in  the  Service  of  the  United  States,  reserving 
to  the  States  respectively,  the  Appointment  of  the  Officers,  and  the  Authority  of  train- 
ing the  Militia  according  to  the  discipline  prescribed  by  Congress  ; 

To  exercise  ^exclusive  Legislation  in  all  Cases  whatsoever,  over  such  District  (not 
exceeding  ten  Miles  square)  as  may,  by  Cession  of  particular  States,  and  the  Accept- 
ance of  Congress,  become  the  Seat  of  the  Government  of  the  United  States,  and  to 
exercise  like  Authority  over  all  Places  purchased  by  the  Consent  of  the  Legislature  of 
the  State  in  which  the  same  shall  be,  for  the  Erection  of  Forts,  Magazines,  Arsenals, 
dock- Yards,  and  other  needful  Buildings  ;  —  And 

To  make  all  Laws  which  shall  be  necessary  and  proper  for  carrying  into  Execution 
the  foregoing  Powers,  and  all  other  Powers  vested  by  this  Constitution  in  the  Govern- 
ment of  the  United  States,  or  in  any  Department  or  Officer  thereof. 

Section.  9.  The  Migration  or  Importation  of  such  Persons  as  any  of  the  States 
now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by  the  Congress 


408  APPENDIX  TO   PART   I. 

prior  to  the  Year  one  thousand  eight  hundred  and  eight,  but  a  Tax  or  duty  may  be 
imposed  on  such  Importation,  not  exceeding  ten  dollars  for  each  Person. 

The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended,  unless  when  in 
Cases  of  Kebellion  or  Invasion  the  public  Safety  may  require  it. 

No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

No  Capitation,  or  other  direct.  Tax  shall  be  laid,  unless  in  Proportion  to  the  Census 
or  Enumeration  herein  before  directed  to  be  taken. 

NoTax  or  r»uty~slialT"be  laid  on  Articles  exported  from  any  State. 

No  Preference  shall  be  given  by  any  Regulation  of  Commerce  or  Revenue  to  the 
Ports  of  one  State  over  those  of  another  :  nor  shall  Vessels  bound  to,  or  from,  one 
State,  be  obliged  to  enter,  clear,  or  pay  Duties  in  another. 

No  Money  shall  be  drawn  from  the  Treasury,  but  in  Consequence  of  Appropriations 
made  by  Law ;  and  a  regular  Statement  and  Account  of  the  Receipts  and  Expendi- 
tures of  all  public  Money  shall  be  published  from  time  to  time. 

No  Title  of  Nobility  shall  be  granted  by  the  United  States  :  And  no  Person  holding 
any  (Jffice  of  Proiit  or  Trust  under  them,  shall,  without  the  Consent  of  the  Congress, 
accept  of  any  present,  Emolument,  OfSce,  or  Title,  of  any  kind  whatever,  from  any 
King,  Prince,  or  foreign  State. 

Section.  10.     No  State  shall  enter  into  any  Treaty,  Alliance,  or  Confederation  ; 

grant  Letters  of  Marque  and  Reprisal ;  coin  Money  ;  emit  Bills  of  Credit ;  make  any 

Thing  but  gold  and  silver  Coin  a  Tender  in  Payment  of  Debts ;  pass  any  Bill  of 

Attainder,  ex  post  facto  Law,  or  Lawimpairiug  the  Obligation  of  Contracts,  or 

grant  any  Title  of  Nobility.  ^  ~         ' 

.       No  State  shall,  without  the  Consent  of  the  Congress,  lay  any  Imposts  or  Duties  on 

\  Imports  or  Exports,  except  what  may  be  absolutely  necessary  for  executing  its  inspec- 

I  tiou  Laws :  and  the  net  Produce  of  all  Duties  and  Imposts,  laid  by  any  State  on 

Imports  or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the  United  States ;  and  all 

such  Laws  shall  be  subject  to  the  Revision  and  Controul  of  the  Congress. 

No  State  shall,  without  the  Consent  of  Congress,  lay  any  Duty  of  Tonnage,  keep 
Troops,  or  Ships  of  War  in  time  of  Peace,  enter  into  any  Agreement  or  Compact  witli 
another  State,  or  with  a  foreign  Power,  or  engage  in  War,  unless  actually  invaded,  or 
in  such  im.minent  Danger  as  will  not  admit  of  delay. 

ARTICLE.  IL 

Section.  I.  The  executive  Power  shall  be  vested  in  a  President  of  the  United 
States  of  America.  He  shall  hold  his  Office  during  the  Term  of  four  Years,  and, 
together  with  the  Vice  President,  chosen  for  the  same  Term,  be  elected,  as  follows 

Each  State  shall  appoint,  in  such  Manner  as  the  Legislature  thereof  may  direct,  a 
Number  of  Electors,  equal  to  the  whole  Number  of  Senators  and  Representatives 
to  which  the  State  may  be  entitled  in  the  Congress :  but  no  Senator  or  Representa- 
tive, or  Person  holding  an  Office  of  Trust  or  Profit  under  the  United  States,  shall  be 
appointed  an  Elector. 

[The  Electors  shall  meet  in  their  respective  States,  and  vote  by  Ballot  for  two  Per- 
sons, of  whom  one  at  least  shall  not  be  an  Inhabitant  of  the  same  State  with  themselves. 
And  they  shall  make  a  List  of  all  the  Persons  voted  for,  and  of  the  Number  of  Votes 
for  each  ;  which  List  they  shall  sign  and  certify,  and  transmit  sealed  to  the  Seat  of  the 
Government  of  the  United  States,  directed  to  the  President  of  the  Senate.  The  President 
of  the  Senate  shall,  in  the  Presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  Certificates,  and  the  Votes  shall  then  be  counted.  The  Person  having  the 
greatest  Number  of  Votes  shall  be  the  President,  if  such  Number  be  a  Majority  of  the 
whole  Number  of  Electors  appointed ;  and  if  there  be  more  than  one  who  have  such 
Majority,  and  have  an  equal  Number  of  Votes,  then  the  House  of  Representatives 
shall  immediately  chuse  by  Ballot  one  of  them  for  President ;  and  if  no  Person  have 
a  Majority,  then  from  the  five  highest  on  the  List  the  said  House  shall  in  like  Manner 
chuse  the  President.  But  in  chusing  the  President,  the  Votes  shall  be  taken  by  States, 
the  Representation  from  each  State  having  one  Vote ;  A  quorum  for  this  Purpose  shall 


APPENDIX  TO  PAET  L  409 


consist  of  a  Member  or  Me,„bers  from  two  thirds  of  *e  States  ^nd  a  Majority  of  d^ 
,  e  vteV;!;:i.[er°B„t  if  Lre  Luia  re,„ai„  two  or  more  who  have  e,ual  Votes, 
wS  thev^hSl  give  their  Votes;   which  Day  shall  be  the  same  throughout  the 

1„  C^    of.he  RervVfof   he  President  from  Offlce,  or  of  his  Death  Resignat.ou 
or  ^nS.y  to  discharge  the  Powers  and  Duties  of  the  said  Offlce,  the  Same  shal 

f  1  fi,<rr>w"Kilitv  hp  removed  or  a  President  shall  be  elected. 

"'1  PrrsSt  sLn,  rt  tated  '^^™--  ^^^^'^  '''  ""'''  '"^^^"'  ^  ''TlT''lV^:^e 
shall  ueMer  be  encreased  uor  diminished  during  the  Period  for  which  he  shall  ha^  e 
been  elected,  and  he  shall  not  receive  within  that  Period  any  other  Emolu.nent  from 

"^ret':S:;:hTElSonof  hlsOmche  shall  take  the  following  oath  or 

^^7df  sTle^nly  swear  (or  affirm)  that  I  will  faithfully  execute  the  Office  of  President 
"  of  the  LWl  States,  and  will  to  the  best  of  my  Ability,  preserve,  protect  and  defend 

"  the  Constitution  of  the  United  States."  .    nu-  *    f  ,u.  Armv  nnd  Navv  of 

Section  "  The  President  shall  be  Commander  in  Chief  of  the  Army  and  ^^^J  ^J 
the  UnTed  S'tates  and  of  the  Militia  of  the  several  States,  when  called  into  the  actua 
Ser^t  of  th  United  States  ;  he  may  require  the  Opinion,  in  writing  of  t^e  Pnn«p^ 
Officer  in  each  of  the  executive  Departments,  upon  any  Subject  ^f  ^^^  "§  ^^'^^^^^^^^^^^^ 
of  their  respective  Offices,  and  he  shall  have  Power  to  grant  Reprle^^s  and  Pardons  for 
Offences  against  the  United  States,  except  in  Cases  f  I'^P^^^^™^"*^  ,^  ^^^^ 

Mp  «hal  have  Power  by  and  with  the  Advice  and  Consent  of  the  Senate,  to  maKe 
Tr^atif  provided  two  hi  ds  of  the  Senators  present  concur  ;  and  he  shall  nominate 
Ld  y  an'd  liUi  the  Advice  and  Consent  of  the  Senate,  shall  aPP7^/'f  ^^^^^  ; 
other  public  Ministers  and  Consuls,  Judges  of  the  supreme  Court,  and  all  «the>:  Officers 
of  tL  United  States,  whose  Appointments  are  not  herein  otherwise  P;«-;[f  ^^'^^^f. 
which  shall  be  established  by  Law  :  but  the  Congress  may  by  Law  ves  ^e  Appo  nt 
ment  of  such  inferior  Officers,  as  they  think  proper,  in  the  President  alone,  in  the 
Courts  of  Law,  or  in  the  Heads  of  Departments.  ,     •       .^^ 

The  President  shall  have  Power  to  fill  up  all  Vacancies  that  may  ^^PP^" 'l^^^g  *];"^ 
Recess  of  the  Senate,  by  granting  Commissions  which  shall  expire  at  the  End  of  their 

""'f^cZTs.  He  shall  from  time  to  time  give  to  ^he  Congress  Informati^on  of  the 
State  of  the  Union,  and  recommend  to  their  Consideration  such  Measures  as  he  shall 
judge  necessary  and  expedient;  he  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and  in  Case  of  Disagreement  between  t^em  wi  h  Re.pect 
to  the  Time  of  Adjournment,  he  may  adjourn  ^hem  to  such  Time  as  he  shall  think 
proper  ;  he  shall  receive  Ambassadors  and  other  public  Mimsters  ;  he  ^^^^^  ^^^e  Care 
[haf  the  Laws  be  faithfully  executed,  and  shall  Commission  all  the  Officers  of  the 

""tc^T::  The  President,  Vice  President  and  all  civil  Officers  of  the  ^^t^^ 
States,  shall  be  removed  from  Office  on  Impeachment  for,  and  Conviction  ot, 
Treason,  Bribery,  or  other  high  Crimes  and  Misdemeanors. ^ 

1  Superseded  by  Twelfth  Amendment. 


410  APPENDIX   TO   PART  I. 


ARTICLE  III, 

Section.  1.  The  judicial  Power  of  the  United  States,  shall  be  vested  in  one  supreme 
Court,  and  in  such  inferior  Courts  as  the  Congress  may  from  time  to  time  ordaiu  and 
establish.  The  Judges,  both  of  the  supreme  and  inferior  Courts,  shall  hold  their 
Offices  during  good  Behaviour,  and  shall,  at  stated  Times,  receive  for  their  Services,  a 
Compensation,  which  shall  not  be  diminished  during  their  Continuance  in  Office. 

Section.  2.  The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and  Equity, 
arising  under  this  Constitution,  the  Laws  of  the  United  States,  and  Treaties  made, 
or  which  shall  be  made,  under  their  Authority;  —  to  all  Cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls  ;  —  to  all  Cases  of  admiralty  and  maritime  Juris- 
diction ;  —  to  Controversies  to  which  the  United  States  shall  be  a  Party  ;  —  to  Con- 
troversies between  two  or  more  States ;  —  between  a  State  and  Citizens  of  another 
State  ;  ^  —  between  Citizens  of  different  States,  —  between  Citizens  of  the  same  State 
claiming  Lands  under  Grants  of  different  States,  and  between  a  State,  or  the  Citizens 
thereof,  and  foreign  States,  Citizens  or  Subjects. 

In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls,  and  those 
in  which  a  State  shall  be  Party,  the  supreme  Court  shall  have  original  Jurisdiction. 
In  all  the  other  Cases  before  mentioned,  the  supreme  Court  shall  have  appellate 
Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions,  and  under  such  Regula- 
tions as  the  Congress  shall  make. 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall  be  by  Jury ;  and 
such  Trial  shall  be  held  in  the  State  where  the  said  Crimes  shall  have  been  committed ; 
but  when  not  committed  within  any  State,  the  Trial  shall  be  at  such  Place  or  Places 
as  the  Congress  may  by  Law  have  directed. 

Section.  3.  Treason  against  the  United  States,  shall  consist  only  in  levying  War 
against  them,  or  in  adhering  to  their  Enemies,  giving  them  Aid  and  Comfort.  No 
Person  shall  be  convicted  of  Treason  unless  on  the  Testimony  of  two  Witnesses  to 
the  same  overt  Act,  or  on  Confession  in  open  Court. 

The  Congress  shall  have  Power  to  declare  the  Punishment  of  Treason,  but  no 
Attainder  of  Treason  shall  work  Corruption  of  Blood,  or  Forfeiture  except  during 
the  Life  of  the  Person  attainted. 

ARTICLE.  IV. 

Section.  1.  Full  Faith  and  Credit  shall  be  given  in  each  State  to  the  public  Acts, 
Records,  and  judicial  Proceedings  of  every  other  State.  And  the  Congress  may  by 
general  Laws  prescribe  the  Manner  in  which  such  Acts,  Records  and  Proceedings 
shall  be  proved,  and  the  Effect  thereof. 

Section.  2.  The  Citizens  of  each  State  shall  be  entitled  to  all  Privileges  and 
Immunities  of  Citizens  in  the  several  States. 

A  Person  charged  in  any  State  with  Treason,  Felony,  or  other  Crime,  who  shall  flee 
from  Justice,  and  be  found  in  another  State,  shall  on  Demand  of  the  executive  Author- 
ity of  the  State  from  which  he  fled,  be  delivered  up,  to  be  removed  to  the  State  having 
Jurisdiction  of  the  Crime. 

No  Person  held  to  Service  or  Labour  in  one  State,  under  the  Laws  thereof,  escaping 
into  another,  shall,  in  Consequence  of  any  Law  or  Regulation  therein,  be  discharged 
from  such  Service  or  Labour,  but  shall  be  delivered  up  on  Claim  of  the  Party  to  whom 
such  Service  or  Labour  may  be  due. 

Section.  3.  New  States  may  be  admitted  by  the  Congress  into  this  Union  ;  but  no 
new  State  shall  be  formed  or  erected  within  the  Jurisdiction  of  any  other  State ;  nor 
any  State  be  formed  by  the  Junction  of  two  or  more  States,  or  Parts  of  States,  without 
the  Consent  ol  the  Legislatures  of  the  States  concerned  as  well  as  of  the  Congress. 

1  Limited  in  its  construction  by  the  Eleventh  Amendment.  (See  Hans  v.  La.,  ante, 
p.  295. )— Ed. 


APPENDIX  TO   PART   I.  411 

The  Congress  shall  have  Power  to  dispose  of  and  make  all  needful  Rules  and  Regu- 
lations respecting  the  Territory  or  other  Propert}^  belonging  to  the  United  States ; 
and  nothing  in  this  Constitution  shall  be  so  construed  as  to  Prejudice  any  Claims  of 
the  United  States,  or  of  any  particular  State. 

Section.  4.  The  United  States  shall  guarantee  to  every  State  in  this  Union  a 
Republican  Form  of  Government,  and  shall  protect  each  of  them  against  Invasion ; 
and  on  Application  of  the  Legislature,  or  of  the  Executive  (when  the  Legislature 
cannot  be  convened)  against  domestic  Violence. 

ARTICLE.  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it  necessary,  shall 
propose  Amendments  to  this  Constitution,  or,  on  the  Application  of  the  Legislatures 
of  two  thirds  of  the  several  States,  shall  call  a  Convention  for  proposing  Amendments, 
which,  in  either  Case,  shall  be  valid  to  all  Intents  and  Purposes,  as  Part  of  this  Consti- 
tution, when  ratified  by  the  Legislatures  of  three  fourths  of  the  several  States,  or  by 
Conventions  in  three  fourths  thereof,  as  the  one  or  the  other  Mode  of  Ratification  may 
be  proposed  by  the  Congress ;  Provided  that  no  Amendment  which  may  be  made  prior 
to  the  Year  One  thousand  eight  hundred  and  eight  shall  in  any  Manner  affect  the  first 
and  fourth  Clauses  in  the  Ninth  Section  of  the  first  Article ;  and  that  no  State,  without 
its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in  the  Senate. 

ARTICLE.  VI. 

All  Debts  con^racted  and  Engagements  entered  into,  before  the  Adoption  of  this 
Constitution,  shall  be  as  valid  against  the  United  States  under  this  Constitution,  as 
under  the  Confederation. 

This  Constitution,  and  the  Laws  of  the  United  States  which  shall  be  made  in  Pur- 
suance thereof;  and  all  Treaties  made,  or  which  shall  be  made,  under  the  Authority 
of  the  United  States,  shall  be  the  supreme  Law  of  the  Land  ;  and  the  Judges  in  every 
State  shall  be  bound  thereby,  any  Thing  in  the  Constitution  or  Laws  of  any  State  to 
the  Contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and  the  Members  of  the  several 
State  Legislatures,  and  all  executive  and  judicial  Officers,  both  of  the  United  States 
and  of  the  several  States,  shall  be  bound  by  Oath  or  Affirmation,  to  support  this  Con- 
stitution ;  but  no  religious  Test  shall  ever  be  required  as  a  Qualification  to  any  Office 
or  public  Trust  under  the  United  States. 

ARTICLE.  VIL 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be  sufficient  for  the  Estab- 
ishment  of  this  Constitution  between  the  States  so  ratifying  the  Same. 

Done  in  Convention  bv  the   Unanimous  Consent   of  the 

Pfote  of  the  draughtsman       States  present  the  Seventeenth  Day  of  September  in  the  Year 

as  to  interlineations  in  the       of  our  Lord  one  thousand  seven  hundred   and  Eightv  seven 

text  of  the  manuscript.]  and  of  the  Inrlependance  of  theTTnited  States  of  America  the 

Attest  Twelfth  In  Witness  whereof  We  have  hereunto  subscribed 

William  Jackson  our  names. 

Secretary.  Qq  WASHINGTON— 

Presidt  and  deputy  from  Virginia. 

[Here  follow  the  names  of  thirty-eight  deputies  representing  twelve  States.  —  Ed.] 

ARTICLES  in  addition  to  and  Amendment  of  the  Constitution  of  the  United  States 
of  America,  proposed  by  Congress,  and  ratified  by  the  Legislatures  of  the  several 
States,  pursuant  to  the  fifth  Article  of  the  original  Constitution.^ 


1  This  heading  appears  only  in  the  joint  resolution  submitting  the  first  ten  amend- 
ments. 


412  APPENDIX  TO   PART  I. 


[ARTICLE   I.] 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  prohibiting 
the  free  exercise  thereof  ;  or  abridging  the  freedom  of  speech,  or  of  the  press  ;  or  the 
right  of  the  people  peaceably  to  assemble,  and  to  petition  the  Government  for  a  redress 
of  grievances. 

[ARTICLE  n.] 

A  well  regulated  Militia,  being  necessary  to  the  security  of  a  free  State,  the  right  of 
the  people  to  keep  and  bear  Arms,  shall  not  be  infringed. 

[ARTICLE   III.] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without  the  consent  of 
the  Owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 

[ARTICLE   IV.] 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and  effects, 
against  unreasonable  searches  and  seizures,  shall  not  be  violated,  and  no  Warrants 
shall  issue,  but  upon  probable  cause,  supported  by  Oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things  to  be  seized. 

[ARTICLE   V] 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous  crime,  unless 
on  a  presentment  or  indictment  of  a  Grand  Jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  Militia,  when  in  actual  service  in  time  of  War  or  public  danger; 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of  life 
or  limb ;  nor  shall  be  compelled  in  any  criminal  case  to  be  a  witness  against  himself, 
nor  be  deprived  of  life,  liberty,  or  property,  witliout  due  process  of  law;  nor  shall 
private  property  be  taken  for  public  use,  without  just  compensation. 

[ARTICLE   VI.] 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation  ;  to  be  confronted  with  the  wit- 
nesses against  him  ;  to  have  compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  to  have  the  Assistance  of  Counsel  for  his  defence. 

[ARTICLE   VII.] 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty  dollars, 
the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall  be  other- 
wise re-examined  in  any  Court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

[ARTICLE  VIII.] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and 
unusual  punishments  inflicted. 

[ARTICLE  IX.] 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  construed  to 
deny  or  disparage  others  retained  by  the  people. 


APPENDIX  TO   PART  I.  413 


[ARTICLE  X.] 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  prohibited 
by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people.^ 

[ARTICLE  XI.] 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity,  commenced  or  prosecuted  against  one  of  the  United  States  by 
Citizens  of  another  State,  or  by  Citizens  or  Subjects  of  any  Foreign  State.^ 

[ARTICLE  XII.] 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by  ballot  for  President 
and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
state  with  themselves ;  they  shall  name  in  their  ballots  the  person  voted  for  as  Presi- 
dent, and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  government  of  the  United  States,  directed 
to  the  President  of  the  Senate ;  —  The  President  of  the  Senate  shall,  in  the  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the  certificates  and  the  votes  shall 
then  be  counted ;  —  The  person  having  the  greatest  number  of  votes  for  President, 
shall  be  the  President,  if  such  number  be  a  majority  of  the  whole  number  of  Electors 
appointed  ;  and  if  no  person  have  such  majority,  then  from  the  persons  having  the 
highest  numbers  not  exceeding  three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  states,  the  representation  from  each 
state  having  one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two-thirds  of  the  states,  and  a  majority  of  all  the  states  shall  be  necessary 
to  a  choice.  And  if  the  House  of  Representatives  shall  not  choose  a  I'resident  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day  of  March  next 
following,  then  the  Vice-President  shall  act  as  President,  as  in  the  case  of  the  death 
or  other  constitutional  disability  of  the  President. — The  person  having  the  greatest 
number  of  votes  as  Vice-President,  shall  be  the  Vice-President,  if  such  number  be 
a  majority  of  the  whole  number  of  Electors  appointed,  and  if  no  person  have  a 
majority,  then  from  the  two  highest  numbers  on  the  list,  the  Senate  shall  choose 
the  Vice-President ;  a  quorum  for  the  purpose  shall  consist  of  two-thirds  of  the  whole 
number  of  Senators,  and  a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice.  But  no  person  constitutionally  ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice-President  of  the  United  States.^ 

Article   XIII. 

Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a  punishment  for 
crime  whereof  the  party  shall  have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction.  Section  2.  Congress  shall  have 
power  to  enforce  this  article  by  appropriate  legislation.* 

1  The  first  ten  amendments  were  proposed  by  Congress  September  25,  1789,  and 
declared  in  force  December  15,  1791.  —Johnston,  Hist.  Am.  Politics.  —  Ed. 

2  Proposed  by  Congress  March  5,  1794,  and  declared  in  force  January  8,  1798. — 
Johnston,  ubi  supra.  —  Ed. 

3  Proposed  by  Congress  December  12,  1803,  and  declared  in  force  September  25, 
1804.  —  Johnston,  ubi  supra.  —  Ed. 

*  Proposed  by  Congress  February  1,  1865,  and  declared  in  force  December  18, 1865. 
—  Johnston,  ubi  supra.  —  Ed. 


414  APPENDIX   TO   PART  L 


Article  XIV. 

Section  1.  All  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  Slates  and  of  the  State  wherein  they 
reside.  No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States ;  nor  sliall  any  State  deprive  any  person  of 
life,  liberty,  or  property,  without  due  process  of  law;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned  among  the  several  States  accord- 
ing to  their  respective  numbers,  counting  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed.  But  when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  President  and  Vice-President  of  the  United  States,  Kepreseutatives  in 
Congress,  the  Executive  and  Judicial  officers  of  a  State,  or  the  members  of  the  Legis- 
lature thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one 
years  of  age,  and  citizens  of  the  United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion,  or  other  crime,  the  basis  of  representation  therein  shall  be  reduced 
in  the  proportion  which  the  number  of  such  male  citizens  shall  bear  to  the  whole  number 
of  male  citizens  twenty-one  years  of  age  in  such  State.  « 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in  Congress,  or  elector 
of  President  and  Vice  President,  or  hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who;  having  previously  takeu  an  oath,  as  a  member  of  Con- 
gress, or  as  an  officer  of  the  United  States,  or  as  a  member  of  any  State  legislature,  or  as 
an  executive  or  judicial  officer  of  any  State,  to  support  the  Constitution  of  the  United 
States,  shall  have  engaged  in  insurrection  or  rebellion  against  the  same,  or  given  aid 
or  comfort  to  the  enemies  thereof.  But  Congress  may  by  a  vote  of  two-thirds  of  each 
House,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United  States,  authorized  by  law, 
including  debts  incurred  for  payment  of  pensions  and  bounties  for  services  in  suppress- 
ing insurrection  or  rebellion,  shall  not  be  questioned.  But  neither  the  United  States 
nor  any  State  shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrection 
or  rebellion  against  the  United  States,  or  any  claim  for  the  loss  or  emancipation  of  any 
slave ;  but  all  such  debts,  obligations  and  claims  shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate  legislation, 
the  provisions  of  this  article.^ 

Article   XV. 

Section  1 ,  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any  State  on  account  of  race,  color,  or  previous 
condition  of  servitude.  — 

Section  2.  The  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 2  — 

1  Proposed  by  Congress  June  16,  1866,  and  declared  in  force  July  28,  1868.  —  John- 
ston, ubi  supra.  —  Ed. 

2  Proposed  by  Congress  February  26, 1869,  and  declared  in  force  March  30, 1870.  — 
Johnston,  ubi  supra.  —  Ed. 


APPENDIX  TO   PART   I.  415 


PASSAGES  FROM  ALL  THE  STATE  CONSTITUTIONS  (OTHER 
THAN  THAT  OF  MASSACHUSETTS)  PRECEDING  THE  FED- 
ERAL CONSTITUTION. 

CONSTITUTION  OF  NEW  HAMPSHIRE.     1776.1 

In  Congress  at  Exeter,  January  5,  1776. 

Voted,  That  this  Congress  take  up  Civil  Government  for  this  colony  in  manner 
and  form  foUovviug,  viz. 

We,  the  members  of  the  Congress  of  New  Hampshire,  chosen  and  appointed  by  the 
free  suffrages  of  the  people  of  said  colony,  and  authorized  and  empowered  by  them  to 
meet  togetlier,  and  use  such  means  and  pursue  such  measures  as  we  should  judge  best 
for  the  public  good  ;  and  in  particular  to  establish  some  form  of  government,  provided 
that  measure  should  be  recommended  by  the  Continental  Congress  :  And  a  recommen- 
dation to  that  purpose  having  l)een  transmitted  to  us  from  tlie  said  Congress  :  Have 
takeu  into  our  serious  consideration  the  unhappy  circumstances,  into  which  this  colony 
is  involved  by  means  of  many  grievous  and  oppressive  acts  of  the  British  Parliament, 
depriving  us  of  our  natural  and  constitutional  rights  and  privileges;  to  enforce  obe- 
dience to  which  acts  a  powerful  fleet  and  army  have  been  sent  to  t-his  country  by  the 
ministry  of  Great  Britain,  who  have  exercised  a  wanton  and  cruel  abuse  of  their 
power,  in  destroying  the  lives  and  properties  of  the  colonists  in  many  places  with 
fire  and  sword,  taking  the  ships  and  lading  from  many  of  the  honest  and  industrious 
inhabitants  of  this  colony  employed  in  commerce,  agreeable  to  the  laws  and  customs  a 
long  time  used  here. 

The  sudden  and  abrupt  departure  of  his  Excellency  John  Wentworth,  Esq.,  our 
late  Governor,  and  several  of  the  Council,  leaving  us  destitute  of  legislation,  and  no 
executive  courts  being  open  to  punish  criminal  offenders ;  whereby  the  lives  and  prop- 
erties of  the  honest  people  of  this  colony  are  lia])le  to  the  machinations  and  evil 
designs  of  wicked  men,  Therefbre,  for  the  preservation  of  peace  and  good  order,  and 
for  the  security  of  the  lives  and  properties  of  the  inhabitants  of  this  colony,  we  con- 
ceive ourselves  reduced  to  the  necessity  of  establishing  A  Form  of  Government  to 
continue  during  the  present  unhappy  auel  unnatural  contest  with  Great  Britain  ; 
Protesting  and  Declaring  that  we  neaver  sought  to  throw  off  our  dependauce 
upon  Great  Britain,  but  felt  ourselves  happy  under  her  protection,  while  we  could 
enjoy  our  constitutional  rights  and  privileges.  And  that  we  shall  rejoice  if  such  a 
reconciliation  between  us  and  our  parent  State  can  be  effected  as  shall  be  approved  by 
the  CONTINENTAL  CONGRESS,  in  whose  prudence  and  wisdom  we  confide. 

Accordingly  pursuant  to  the  trust  reposed  in  us.  We  do  Resolve,  that  this  Congress 
assume  the  name,  power  and  authority  of  a  house  of  Representatives  or  Assembly  for 
the  Colon//  of  New-Hampshire.  And  that  said  House  then  proceed  to  choose  twelve 
persons,  being  reputable  freeholders  and  inhabitants  within  this  colony,  in  the  follow- 
ing manner,  viz.  five  in  the  county  of  Rockingham,  two  in  tlie  county  of  Strafford,  two 
in  the  county  of  Hillsborough,  two  in  the  county  of  Cheshire,  and  one  in  the  county 
of  Grafton,  to  be  a  distinct  and  separate  branch  of  the  Legislature,  by  the  name  of  a 
Council  for  this  colony,  to  continue  as  such  until  the  third  Wednesday  in  December 
next ;  any  seven  of  whom  to  be  a  quorum  to  do  business.  That  such  Council  appoint 
their  President,  and  in  his  absence  that  the  senior  counsellor  preside ;  that  a  Secretary 
be  appointed  by  both  branches,  who  may  be  a  counssellor,  or  otherwise,  as  they  shall 
choose. 

That  no  act  or  resolve  shall  be  valid  and  put  into  execution  unless  agreed  to,  and 
passed  by  both  branches  of  the  legislature. 

That  all  public  officers  for  the  said  colony,  and  each  county,  for  the  current  year,  be 

1  See  ante,  214.     This  was  the  earliest  of  our  constitutions.  —  Ed. 


416  APPENDIX  TO   PART  I. 

appointed  by  the  Council  and  Assembly,  except  the  several  clerks  of  the  Executive 
Courts,  who  shall  be  appointed  by  the  Justices  of  the  respective  Courts. 

That  all  bills,  resolves,  or  votes  for  raising,  levying  and  collecting  money  originate 
in  the  house  of  Representatives. 

That  at  any  session  of  the  Council  and  Assembly  neither  branch  shall  adjourn 
from  any  longer  time  than  from  Saturday  till  the  next  Monday  without  consent 
of  the  other. 

And  it  is  further  resolved,  That  if  the  present  unhappy  dispute  with  Great  Britain 
should  continue  longer  than  this  present  year,  and  the  Continental  Congress  give  no 
instruction  or  direction  to  the  contrary,  the  Council  be  chosen  by  the  people  of  each 
respective  county  in  such  manner  as  the  Council  and  house  of  Representatives  shall 
order. 

That  general  and  field  officers  of  the  militia,  on  any  vacancy,  be  appointed  by  the  two 
houses,  and  all  inferior  officers  be  chosen  by  the  respective  companies. 

That  all  officers  of  the  Army  be  appointed  by  the  two  houses,  except  they  should 
direct  otherwise  in  case  of  any  emergency. 

That  all  civil  officers  for  the  colony  and  for  each  county  be  appointed,  and  the  time 
of  their  continuance  in  office  be  determined  by  the  two  houses,  except  clerks  of  Courts, 
and  county  treasurers,  and  recorders  of  deeds. 

That  a  treasurer,  and  a  recorder  of  deeds  for  each  county  be  annually  chosen  by  the 
people  of  each  county  respectively ;  the  votes  for  such  officers  to  be  returned  to  the 
respective  courts  of  General  Sessions  of  the  Peace  m  the  county,  there  to  be  ascer- 
tained as  the  Council  and  Assembly  shall  hereafter  direct. 

That  precepts  in  the  name  of  the  Council  and  Assembly,  signed  by  the  President  of 
the  Council,  and  Speaker  of  the  house  of  Representatives,  shall  issue  annually  at  or 
before  the  first  day  of  November,  for  the  choice  of  a  Council  and  house  of  Representa- 
tives to  be  returned  by  the  third  Wednesday  in  December  then  next  ensuing,  in  such 
manner  as  the  Council  and  Assembly  shall  hereafter  prescribe.  —  2  Poore's  Constitu- 
tions, 1279. 

CONSTITUTION  OF  NEW  HAMPSHIRE.     1784.1 

Part  I.  —  The  Bill  of  Rights. 

Article  I.  All  men  are  born  equally  free  and  independent ;  therefore,  all  govern- 
ment of  right  originates  from  the  people,  is  founded  in  consent,  and  instituted  for  the 
general  good. 

VIII.  AH  power  residing  originally  in,  and  being  derived  from  the  people,  all  the 
magistrates  and  officers  of  government,  are  their  substitutes  and  agents,  and  at  all 
times  accountable  to  them. 

XXIX.  The  power  of  suspending  the  laws,  or  the  execution  of  them,  ought  never 
to  be  exercised  but  by  the  legislature,  or  by  authority  derived  therefrom,  to  be  exercised 
in  such  particular  cases  only  as  the  legislature  shall  expressly  provide  for. 

XXXV.  It  is  essential  to  the  preservation  of  the  rights  of  every  individual,  his 
life,  liberty,  property  and  character,  that  there  be  an  impartial  interpretation  of  the 
laws,  and  administration  of  justice.  It  is  the  right  of  every  citizen  to  be  tried  by 
judges  as  impartial  as  the  lot  of  humanity  will  admit.  It  is  therefore  not  only  the 
best  policy,  but  for  the  security  of  the  rights  of  the  people,  that  the  judges  of  the 
supreme  ("or  superior)  judicial  court  should  hold  their  offices  so  long  as  they  behave 
well ;  and  that  they  should  have  honorable  salaries,  ascertained  and  established  by 
standing  laws. 

XXXVII.  In  the  government  of  this  state,  the  three  essential  powers  tliereof,  to 
wit,  the  legislative,  executive  and  judicial,  ought  to  be  kept  as  separate  from  and  in- 
dependent of  each  other,  as  the  nature  of  a  free  government  will  admit,  or  as  is  con- 
sistent with  that  chain  of  connection  that  binds  the  whole  fabric  of  the  constitution  in 
one  indissoluble  bond  of  union  and  amity. 


1  See  ante,  214,  215. —  Ed. 


APPENDIX  TO   PART   L  417 


Part  II.  —  The  Form  of  Government. 

THE  people  inhabiting  the  territory  formerly  called  the  Province  of  New-Hamp- 
shire, do  liereby  solemnly  and  mutually  agree  with  each  other,  to  form  themselves 
into  a  free,  sovereign,  and  independent  Body-politic,  or  State,  by  the  name  of  the 
STATE  OF  NEW  HAMPSHIRE. 

The  General  Court. 

THE  supreme  legislative  power  within  this  State  shall  be  vested  in  the  senate  and 
house  of  representatives,  each  of  which  shall  have  a  negative  on  the  otlier. 

The  senate  and  house  shall  assemble  every  year  on  the  first  Wednesday  of  June, 
and  at  such  other  times  as  they  may  judge  necessary  ;  and  shall  dissolve,  and  be  dis- 
solved, seven  davs  next  preceding  the  said  first  Wednesday  of  June;  and  shall  be 
stiled  THE  GENERAL  COURT  OF  NEW-HAMPSHIRE. 

The  general  court  shall  forever  have  full  power  and  authority  to  erect  and  consti- 
tute judicatories  and  courts  of  record,  or  other  courts,  to  be  holden  in  the  name  of  the 
State,  for  the  hearing,  trying,  and  determining  all  manner  of  crimes,  offences,  pleas, 
processes,  plaints,  actions,  causes,  matters  and  things  whatsoever,  arising,  or  hap- 
pening within  this  state,  or  between  or  concerning  persons  inhabiting  or  residing,  or 
brought  within  the  same,  wliether  the  same  be  criminal  or  civil,  or  whether  the  crimes 
be  capital  or  not  capital,  and  whether  the  said  pleas  be  real,  personal,  or  mi.xed  ;  and 
for  the  awarding  and  issuing  execution  thereon.  To  which  courts  and  judicatories  are 
hereby  given  and  granted  full  power  and  authority,  from  time  to  time  to  administer 
oaths  or  aflBrmations,  for  the  better  discovery  of  truth  in  any  matter  in  controversy,  or 
depending  before  them. 

And  farther,  full  power  and  authority  are  hereby  given  and  granted  to  the  said 
general  court,  from  time  to  time,  to  mal;e,  ordain  and  establish,  all  manner  of  whole- 
some and  rea.sonable  orders,  laws,  statutes,  ordinances,  directions  and  in.structions, 
either  with  penalties  or  without ;  so  as  the  same  be  not  repugnant,  or  contrary  to  this 
constitution,  as  they  may  judge  for  the  benefit  and  welfare  of  this  state,  and  for  tlie 
governing  and  ordering  thereof,  and  of  the  subjects  of  the  same,  for  the  necessary 
support  and  defence  of  the  government  thereof.  .  .  . 

Senate. 

THERE  shall  be  annually  elected  by  the  freeholders  and  other  inhabitants  of  this 
state,  qualified  as  in  this  constitution  is  provided,  twelve  persons  to  be  senators  for 
the  year  ensuing  their  election.  .  .  . 

The  senate  shall  be  a  court  with  full  power  and  authority  to  hear  and  determine 
all  impeachments  made  by  the  hou.se  of  representatives,  against  any  officer  or  officers 
of  the  state,  for  misconduct  or  mal-administration  in  their  offices.  But  previous  to 
the  trial  of  any  such  impeachment,  the  members  of  the  senate  shall  respectively  be 
sworn,  truly  and  impartially  to  try  and  determine  the  charge  in  question  according 
to  evidence.  Their  judgment,  however,  shall  not  extend  farther  than  removal  from 
office,  disqualification  to  hold  or  enjoy  any  place  of  honor,  trust  or  profit  under  this 
state ;  but  the  party  so  convicted,  shall  nevertheless  be  liable  to  indictment,  trial, 
judgment,  and  punishment,  according  to  laws  of  the  land. 

Hocse  of  Representatives. 

THERE  shall  be  in  the  legislature  of  this  state  a  representation  of  the  people 
annually  elected  and  founded  upon  principles  of  equality.  .  .  . 

Executive  Power.  —  President. 

THERE  shall  be  a  supreme  executive  magistrate,  who  shall  be  stiled.  The  PRES- 
IDENT OF  the  state  of  NEW-HAMPSHIRE  ;  and  whose  title  shall  be  HIS 
EXCELLENCY.  .  .  . 
VOL.  I.  —27 


418  APPENDIX   TO   PART   I. 

All  jndkial  officers  .  .  .  shall  be  nominated  and  appointed  by  the  president  and 
council ;  and  every  such  nomination  shall  be  made  at  least  seven  days  prior  to  such 
appointment,  and  no  appointment  shall  take  place,  unless  three  of  the  council  agree 
thereto.  .  .  . 

Permanent  and  honorable  salaries  shall  be  established  by  law  for  the  justices  of  the 
superior  court.  .  .  . 

Judiciary  Power. 

THE  tenure,  that  all  commission  officers  shall  have  b)'  law  in  their  offices,  shall  be 
expressed  in  their  respective  commissions.  All  judicial  officers,  duly  appointed,  com- 
missioned and  sworn,  shall  hold  their  offices  during  good  behaviour,  excepting  those 
concerning  whom  there  is  a  different  provision  made  in  this  constitution  :  Provided 
nevertheless,  the  president,  with  consent  of  council,  may  remove  them  upon  the  address 
cf  both  houses  of  the  legislature. 

Each  branch  of  the  legislature,  as  well  as  the  president  and  council,  shall  have 
authority  to  require  the  opinions  of  the  justices  of  the  superior  court  upon  important 
questions  of  law,  and  upon  solemn  occasions. 

In  order  that  the  people  may  not  suffer  from  the  long  continuance  in  place  of  any 
justice  of  the  peace,  who  shall  fail  in  discharging  the  important  duties  of  his  office 
with  ability  and  fidelity,  all  commissions  of  justices  of  tlie  peace  shall  liecome  void,  at 
the  expiration  of  five  years  from  their  respective  dates  ;  and  upon  the  expiration  of 
any  commission,  the  same  may,  if  necessary,  be  renewed,  or  another  person  appointed, 
as  shall  most  conduce  to  the  well-being  of  the  State.  .  .  . 

To  preserve  an  effectual  adherence  to  the  principles  of  the  constitution,  and  to 
correct  any  violations  thereof,  as  well  as  to  make  such  alterations  therein,  as  from 
experience  may  be  found  necessary,  the  general  court  shall  at  the  expiration  of  seven 
years  from  the  time  this  constitution  shall  take  effect,  issue  precepts,  or  direct  them 
to  be  issued  from  the  secretary's  office,  to  the  several  towns  and  incorporated  places, 
to  elect  delegates  to  meet  in  convention  for  tlie  purposes  aforesaid  :  the  said  delegates 
to  be  chosen  iu  the  same  manner,  and  proportioned  as  the  representatives  to  the  gen- 
eral assembly ;  provided  that  no  alteration  shall  be  made  in  this  constitution  before 
the  same  shall  be  laid  before  the  towns  and  unincorporated  places,  and  approved  by 
two-thirds  of  the  qualified  voters  present,  and  voting  upon  the  question.  —  2  Poore's 
Constitutions,  1280. 


CONSTITUTION  OF  SOUTH   CAROLINA.     1776.1 

.  .  .  And  whereas  the  judges  of  courts  of  law  here  have  refused  to  exercise  their 
respective  functions,  so  that  it  is  become  indispensably  necessary  that  during  the 
present  situation  of  American  affairs,  and  until  an  accommodation  of  the  unhappy 
differences  between  Great  Britain  and  America  can  be  obtained,  (an  event  which, 
though  traduced  and  treated  as  rebels,  we  still  eaniestly  desire,)  some  mode  should  be 
established  by  common  consent,  and  for  the  good  of  the  people,  the  origin  and  end  of 
all  goveniments,  for  regulating  the  internal  polity  of  this  colony.  The  congress  being 
vested  with  powers  competent  for  the  purpose,  and  having  fully  deliberated  touching 
the  premises,  do  therefore  resolve  : 

I.  That  this  congress  being  a  full  and  free  representation  of  the  people  of  this 
colony,  shall  henceforth  be  deemed  and  called  the  general  assembly  of  South  Carolina, 
and  as  such  shall  continue  until  the  twenty-first  day  of  October  next,  and  no  longer. 

II.  That  the  general  assembly  shall,  out  of  their  own  body,  elect  by  ballot  a  legis- 
lative council,  to  consist  of  thirteen  members,  (seven  of  whom  shall  be  a  quorum,)  and 
to  continue  for  the  same  time  as  the  general  assembly. 

III.  That  the  general  assembly  and  the  said  legislative  council  shall  jointly  choose 

1  This  constitution  was  framed  by  the  "  provincial  congress  "  of  South  Carolina,  and 
adopted  March  26,  1776.     It  was  not  submitted  to  the  people  for  ratification. 


APPENDIX   TO    PART   I.  419 

by  ballot  from  among  themselves,  or  from  the  people  at  large,  a  presideut  and  com- 
mander-in-chief and  a  vice-president  of  the  colony. 

VII.  That  the  legislative  authority  be  vested  in  the  president  and  commander-in- 
chief,  the  general  assembly  and  legislative  council.  All  money-bills  for  the  support 
of  government  shall  originate  in  the  general  assembly,  and  shall  not  be  altered  or 
amended  by  the  legislative  council,  but  may  be  rejected  by  them.  All  other  bills 
and  ordinances  may  take  rise  in  the  general  assembly  or  legislative  council,  and  may 
be  altered,  amended,  or  rejected  by  either.  Bills  having  passed  the  general  assembly 
and  legislative  council  may  be  assented  to  or  rejected  by  the  president  and  commander- 
in-chief.  Having  received  ins  assent,  they  shall  have  all  the  force  and  validity  of  an 
act  of  general  assembly  of  this  colony.  And  the  general  assembly  and  legislative 
council,  respectively,  sliall  enjoy  all  other  privileges  which  have  at  any  time  been 
claimed  or  exerci.sed  by  the  commons  house  of  assembly,  but  the  legislative  council 
shall  have  no  power  of  expelling  their  own  members. 

XVI.  That  the  vice-president  of  the  colony  and  the  privy  council,  or  the  vice-pres- 
ident and  a  majority  of  the  privy  council  for  tlie  time  being,  shall  exercise  the  powers 
of  a  court  of  chancery,  and  there  shall  be  an  ordinary  who  shall  exercise  the  powers 
heretofore  exercised  by  that  officer  in  this  colony. 

XIX.  That  justices  of  the  peace  shall  be  nominated  by  the  general  assembly  and 
commissioned  by  the  president  and  commander-in-chief,  during  pleasure.  They  shall 
not  be  entitled  to  fees  except  on  prosecutions  for  felony,  and  not  acting  in  the  magis- 
tracy, they  shall  not  be  entitled  to  tlie  privileges  allowed  to  them  by  law. 

XX.  That  all  other  judicial  officers  shall  be  chosen  by  ballot,  jointly  by  the  general 
assembly  and  legislative  council,  and  except  the  judges  of  the  court  of  chancery,  com- 
missioned by  the  president  and  commander-in-chief,  during  good  behavior,  but  shall  be 
removed  on  address  of  the  general  assembly  and  legislative  council. 

XXIX.  That  the  resolutions  of  this  or  any  former  congress  of  this  colony,  and  all 
laws  now  of  force  liere,  (and  not  hereby  altered,)  shall  so  continue  until  altered  or  re- 
pealed by  the  legislature  of  this  colony,  unless  where  they  are  temporary,  in  which 
case  they  shall  expire  at  the  times  respectively  limited  for  their  duration. 

XXX.  That  the  executive  authority  be  vested  in  the  president  and  commander-in- 
chief,  limited  and  restrained  as  aforesaid. 

XXXIII.  That  all  persons  who  shall  be  chosen  and  appointed  to  any  office  or  to 
any  place  of  trust,  before  entering  upon  the  execution  of  office,  shall  take  the  follow- 
ing oath  :  "  I,  A.  B.,  do  swear  that  I  will,  to  the  utmost  of  my  power,  support,  main- 
tain, and  defend  the  Constitution  of  South  Carolina,  as  established  by  Congress  on 
the  twenty-sixth  day  of  March,  one  thousand  seven  hundred  and  seventy-six,  until  an 
accommodation  of  the  differences  between  Great  Britain  and  America  shall  take  place, 
or  I  shall  be  released  from  this  oath  by  the  legislative  authority  of  the  said  colony ;  So 
help  me  God."     And  all  such  persons  shall  also  take  an  oath  of  office. 

XXXIV.  That  the  following  yearly  salaries  be  allowed  to  the  public  officers 
undermentioned  :  The  president  and  commander-in-chief,  nine  thousand  pounds  ;  the 
chief  justice  and  the  assistant  judges,  the  salaries,  respectively,  as  by  act  of  assembly 
established.  .  .  .  —  2  Poore's  Constitutions,  1615. 

CONSTITUTION  OF  SOUTH  CAROLINA.     1778.1 

An  act  for  establishing  the  constitution  of  the  State  of  South  Carolina. 

II.  That  the  legislative  authority  be  vested  in  a  general  assembly,  to  consist  of  two 
distinct  bodies,  a  senate  and  house  of  representatives,  but  that  the  legislature  of  this 

1  This  constitution  was  framed  by  the  general  assembly  of  South  Carolina,  by 
which  it  was  passed  as  an  "act"  March  19.  1778,  although  it  did  not  go  into  effect 
until  November,  1778.  It  was  soon  afterwards  declared  by  the  supreme  court  of 
South  Carolina  that  both  the  constitution  of  1776  and  the  constitution  of  1778  were 
simply  acts  of  the  general  assembly,  which  that  body  could  repeal  or  amend  at 
pleasure.     [This  constitution  was  in  force  till  1790. — Ed.] 


420  APPENDIX   TO   PART   I. 

State,  as  established  by  the  constitution  or  form  of  government  passed  the  twenty- 
sixth  of  March,  one  thousand  seveu  hundred  and  seventy-six,  shall  continue  and  be  in 
full  force  until  the  twenty-ninth  day  of  November  ensuing. 

111.  That  as  soon  as  may  be  after  the  first  meeting  of  the  senate  and  house  of 
representatives,  and  at  every  first  meeting  of  the  senate  and  house  of  representa- 
tives thereafter,  to  be  elected  by  virtue  of  this  constitution,  they  shall  jointlv  in  the 
house  of  representatives  choose  by  ballot  from  among  themselves  or  from  tlie  people 
at  large  a  governor  and  commander-in-chief,  a  lieutenant-governor,  botli  to  continue  for 
two  years,  and  a  privy  council,  all  of  the  Protestant  religion,  and  till  such  choice  shall 
be  made  the  former  president  or  governor  and  commander-in-chief,  and  vice-president 
or  lieutenant-governor,  as  the  case  may  be,  and  privy  council,  shall  continue  to  act  as 
such. 

[Art.  IX.   Provides  for  a  privy  council.] 

XI.  That  the  executive  authority  be  vested  in  the  governor  and  commander-in- 
chief,  in  manner  herein  mentioned. 

XVI.  That  all  money  bills  for  the  support  of  government  shall  originate  in  the 
house  of  representatives,  and  shall  not  be  altered  or  amended  by  the  senate,  but  may 
be  rejected  by  them,  and  that  no  money  be  drawn  out  of  the  public  treasurv  but  by 
the  legislative  authority  of  the  State.  All  other  bills  and  ordinances  may  take  rise 
in  the  senate  or  house  of  representatives,  and  be  altered,  amended,  or  rejected  by 
either.  Acts  and  ordinances  liaviug  passed  the  general  assembly  shall  have  the  great 
seal  affixed  to  them  by  a  joint  committee  of  both  houses,  who  shall  wait  upon  the  gov- 
ernor to  receive  and  return  the  seal,  and  shall  then  be  signed  by  the  president  of  the 
senate  and  speaker  of  the  house  of  representatives,  in  the  senate-house,  and  shall 
thenceforth  have  all  the  force  and  validity  of  a  law,  and  be  lodged  in  the  secretary's 
office.  And  the  senate  and  house  of  representatives,  respectively,  shall  enjoy  all 
other  privileges  which  have  at  any  time  been  claimed  or  exercised  by  the  commons 
house  of  a.sseinbly. 

XXIII.  That  the  form  of  impeaching  all  officers  of  the  State  for  mal  and  corrupt 
conduct  in  their  respective  offices,  not  amenable  to  any  other  jurisdiction,  be  vested 
in  the  house  of  representatives.  But  that  it  shall  always  be  necessary  that  two- 
third  parts  of  the  members  present  do  consent  to  and  agree  in  such  impeachment. 
That  the  senators  and  such  of  the  judges  of  this  f^tate  as  are  not  members  of  the 
house  of  representatives,  be  a  court  for  the  trial  of  impeachments,  under  such  regula- 
tions as  the  legislature  shall  establish,  and  that  previous  to  the  trial  of  every  impeach- 
ment, the  members  of  the  said  court  shall  respectively  be  sworn  truly  and  impartially 
to  trv  and  determine  the  charge  in  question  according  to  evidence,  and  no  judgment  of 
the  said  court,  except  judgment  of  acquittal,  shall  be  valid,  unless  it  shall  be  assented 
to  by  two-third  parts  of  the  members  then  present,  and  on  every  trial,  as  well  on  im- 
peachments as  others,  the  party  accused  shall  be  allowed  counsel. 

XXIV.  That  the  lieutenant-governor  of  the  State  and  a  majority  of  the  privy 
council  for  the  time  being  shall,  until  otherwise  altered  by  the  legislature,  exercise 
the  powers  of  a  court  of  chancery,  and  there  shall  be  ordinaries  appointed  in  the 
several  districts  of  this  State,  to  be  chosen  by  the  senate  and  house  of  represen- 
tatives jointly  by  ballot,  in  the  house  of  representatives,  who  shall,  within  their 
respective  districts,  exercise  the  powers  heretofore  exercised  by  the  ordinary,  and 
until  such  appointment  is  made  the  present  ordinary  in  Charleston  shall  continue 
to  exercise  that  office  as  heretofore. 

XXV.  That  the  jurisdiction  of  the  court  of  admiralty  be  confined  to  maritime 
causes. 

XXVI.  That  justices  of  the  peace  shall  be  nominated  by  the  senate  and  house  of 
representatives  jointly,  and  commissioned  by  the  governor  and  commander-in-chief 
during  pleasure.  They  shall  be  entitled  to  receive  the  fees  heretofore  established  by 
law  ;  and  not  acting  in  the  magistracy,  they  shall  not  be  entitled  to  the  privileges 
allowed  them  by  law. 

XXVII.  That  all  other  judicial  officers  shall  be  chosen  by  ballot,  jointly  by  the 
senate  and   house  of  representatives,  and,  except  the  judges  of  the  court  of  chan- 


APPENDIX  TO   PART  L  421 

eery,  commissioned  by  the  governor  and  commander-in-chief  during  good  behavior, 
but  shall  be  removed  on  address  of  the  senate  and  house  of  representatives. 

XLIV.  That  no  part  of  this  constitution  shall  be  altered  without  notice  being  pre- 
viously given  of  ninety  days,  nor  shall  any  part  of  the  same  be  changed  without  tho 
consent  of  a  majority  of  the  members  of  the  senate  and  house  of  representatives.  — 
2  Poore's  Constitutions,  1620. 

VIRGINIA  BILL  OF  RIGHTS.     1776.1 

A  declaration  of  rights  made  by  the  representatives  of  the  good  people  of  Virginia, 
assembled  in  full  and  free  convention ;  which  rights  do  pertain  to  them  and  their 
posterity,  as  the  basts  and  foundation  of  government. 

Sec.  2.  That  all  power  is  vested  in,  and  consequently  derived  from,  the  people ; 
that  magistrates  are  their  trustees  and  servants,  and  at  all  times  amenable  to  them. 

Sec.  5.  That  the  legislative  and  executive  powers  of  the  State  should  be  separate 
and  distinct  from  the  judiciary ;  and  that  tlie  members  of  the  two  first  may  be  re- 
strained from  oppression,  by  feeling  and  participating  the  burdens  of  the  people,  they 
should,  at  fixed  periods,  be  reduced  to  a  private  station,  return  into  that  body  from 
which  they  were  originally  taken,  and  the  vacancies  be  supplied  by  frequent,  certain, 
and  regular  elections,  in  which  all,  or  any  part  of  the  former  members,  to  be  again 
eligible,  or  ineligible,  as  the  laws  shall  direct. 

Sec.  7.  That  all  power  of  suspending  laws,  or  the  execution  of  laws,  by  any  author- 
ity,  without  consent  of  the  representatives  of  the  people,  is  injurious  to  their  rights, 
and  ought  not  to  be  exercised.  —  2  Poore's  Constitutions,  1908. 

CONSTITUTION  OF  VIRGINIA.     1776.2 

The  legislative,  executive,  and  judiciary  departments,  shall  be  separate  and  distinct, 
80  that  neither  exercise  the  powers  properly  belonging  to  the  other :  nor  shall  any 
person  exercise  the  powers  of  more  than  one  of  them,  at  the  same  time  ;  except  that 
the  .Justices  of  the  County  Courts  shall  be  eligible  to  either  House  of  Assembly. 

Tlie  two  Houses  of  Assembly  shall,  by  joint  ballot,  appoint  Judges  of  the  Supreme 
Court  of  Appeals,  and  General  Court,  Judges  in  Chancery,  Judges  of  Admiralty,  Sec- 
retary, and  the  Attorney-General,  to  be  commissioned  by  the  Governor,  and  continue 
ill  office  during  good  behaviour.  In  case  of  death,  incapacity,  or  resignation,  the  Gov- 
ernor, with  the  advice  of  the  Privy  Council,  shall  aj)point  persons  to  succeed  in  office, 
to  be  approved  or  displaced  by  both  Houses.  These  officers  shall  have  fixed  and  ade- 
quate salaries,  and,  together  with  all  others,  holding  lucrative  offices,  and  all  ministers 
of  the  gospel,  of  every  denomination,  be  incapable  of  being  elected  members  of  either 
House  of  Assembly  or  the  Privy  Council. 

The  Governor,  when  he  is  out  of  office,  and  others,  offending  against  the  State, 
either  by  mal-administration,  corruption,  or  other  means,  by  which  the  safety  of  the 
State  may.  be  endangered,  shall  be  impeachable  by  the  House  of  Delegates.  Such 
impeachment  to  be  prosecuted  by  the  Attorney-General,  or  such  other  person  or  per- 
sons, as  the  House  may  appoint  in  the  General  Court,  according  to  the  laws  of  the 
laud.  If  found  guilty,  he  or  they  shall  be  either  forever  disabled  to  hold  any  office 
under  government,  or  be  removed  from  such  office  pro  tempore,  or  subjected  to  such 
pains  or  penalties  as  the  laws  shall  direct. 

If  all  or  any  of  the  Judges  of  the  General  Court  should  on  good  grounds  (to  be 

1  This  declaration  of  rights  was  framed  by  a  convention,  composed  of  forty-five 
members  of  the  colonial  house  of  burgesses,  which  met  at  Williamsburgh  May  6, 
1776,  and  adopted  this  declaration  June  12,  1776. 

■•^  This  constitution  was  framed  by  the  convention  which  issued  the  preceding  decla- 
ration of  rights,  and  was  adopted  June  29,  1776.  It  was  not  submitted  to  the  people 
for  ratification.     [This  constitution  continued  till  1830.  —  Ed.] 


422  APPENDIX   TO   PART   I. 

judged  of  by  the  House  of  Delegates)  be  accused  of  any  of  the  crimes  or  offences 
above  meutioiied,  such  House  of  Delegates  may,  iu  like  manner,  impeach  the  Judge  or 
Judges  so  accused,  to  be  prosecuted  iu  the  Court  of  Appeals ;  and  he  or  they,  if  found 
guilty,  shall  be  punished  iu  the  same  niauner  as  is  prescribed  iu  the  preceding  clause- 
—  2  Foore's  Constitutions,  1910. 

CONSTITUTION  OF  NEW  JERSEY.     1776.1 

I.  That  the  government  of  tliis  Province  shall  be  vested  in  a  Governor,  Legisla- 
tive Council,  and  General  Assembly. 

VII.  That  the  Council  and  Assembly  jointly,  at  their  first  meeting  after  each  an- 
nual election,  shall,  by  a  majority  of  votes,  elect  some  fit  person  within  the  Colony,  to 
be  Governor  for  one  year,  who  shall  be  constant  President  of  the  Council,  and  have  a 
casting  vote  in  their  proceedings ;  and  that  the  Council  themselves  shall  choose  a 
Vice-Presideut  who  shall  act  as  such  iu  the  absence  of  the  Governor. 

VIII.  That  the  Governor,  or,  in  his  absence,  the  \' ice-President  of  the  Council, 
shall  have  the  supreme  executive  power,  be  Chancellor  of  the  Colony,  and  act  as  cap- 
tain-general and  commander  in  chief  of  all  the  militia,  and  other  military  force  in  this 
Colony ;  and  that  any  three  or  more  of  the  Council  shall,  at  all  times,  be  a  privy-coun- 
cil, to  consult  them  ;  and  that  the  Governor  be  ordinary  or  surrogate-general. 

IX.  Ihat  the  Governor  and  Council,  (seven  whereof  sliall  be  a  quorum)  be  the 
Court  of  Appeals,  iu  the  last  resort,  in  all  clauses  of  law,  as  heretofore  ;  aud  that  they 
possess  the  power  of  granting  pardons  to  criminals,  after  condemnation,  iu  all  cases  of 
treason,  felony,  or  other  offences. 

XII.  That  the  Judges  of  the  Supreme  Court  shall  continue  in  office  for  seven 
years  :  the  Judges  of  the  Inferior  Court  of  Common  Pleas  iu  the  several  counties. 
Justices  of  the  Peace,  Clerks  of  the  Supreme  Court,  Clerks  of  the  Inferior  Court 
of  Common  Pleas  and  Quarter  Sessions,  the  Attorney-General,  and  Provincial  Sec- 
retary, shall  continue  in  ofliice  for  five  years :  aud  the  Provincial  Treasurer  shall 
continue  iu  oflice  for  one  year ;  aud  that  they  shall  be  severally  appointed  by  the 
Couucil  and  Assembly,  iu  manner  aforesaid,  and  commissioned  by  the  Governor, 
or,  in  his  absence,  the  Vice-President  of  the  Council.  Provided  always,  that  the 
said  officers,  severally,  shall  be  capable  of  being  reappointed,  at  the  end  of  the 
terms  severally  before  limited ;  aud  that  any  of  the  said  officers  shall  be  liable  to 
be  dismissed,  when  adjudged  guilty  of  misbehaviour,  by  the  Council,  on  an  impeach- 
ment of  the  Assembly. 

XX.  That  the  legislative  department  of  this  government  may,  as  much  as  possible, 
be  preserved  from  all  su.spicion  of  corruption,  none  of  the  Judges  of  the  Supreme  or 
other  Courts  Sheriffs,  or  any  other  person  or  persons  possessed  of  any  post  of  profit 
under  the  government,  other  than  Justices  of  the  Peace,  shall  be  entitled  to  a  seat  in 
the  A.ssenibly :  but  that,  on  his  being  elected,  and  taking  his  seat,  his  office  or  post 
shall  be  considered  as  vacant. 

XXI.  That  all  the  laws  of  this  Province,  contained  iu  the  edition  lately  published  by 
Mr.  Allinson,  shall  be  and  remain  in  full  force,  until  altered  by  the  Legislature  of  this 
Colony  (such  only  excepted,  as  are  incompatible  with  this  Charter)  aud  shall  be, 
according  as  heretofore,  regarded  in  all  respects,  by  all  civil  officers,  and  others,  the 
good  people  of  this  Province. 


1  This  constitution  was  framed  by  a  convention  which  assembled  in  accordance 
with  the  recommendation  of  the  Continental  Congress  that  the  people  of  the  colonies 
should  form  independent  State  goveruments,  and  which  was  in  session,  with  closed 
doors,  successively,  at  Burlington,  Trenton,  and  New  Brunswick,  from  May  26,  1776, 
until  July  2,  1776.  with  intermissions.  It  was  not  submitted  to  the  people,  but  its 
publication  was  ordered  by  the  convention,  July  3,  1776.  [This  constitution  continued 
till  1844. —  Ed.] 

The  legislature  of  New  Jersey  amended  this  constitution  September  20,  1777,  by 
substituting  the  words  "  State  "  and  "  States  "  for  "  colony  "  and  "  colonies." 


APPENDIX  TO   PART  L  423 

XXII.  That  the  common  law  of  England,  as  well  as  so  raach  of  the  statute  law,  as 
have  been  heretofore  practised  in  this  Colony,  shall  still  remain  in  force,  nutil  they 
shall  be  altered  by  a  future  law  of  the  Legislature ;  such  parts  only  excepted,  as  are 
repugnant  to  tlie  rights  and  privileges  contained  in  this  Charter  ;  and  that  the  inesti- 
mable riglit  of  trial  by  jury  shall  remain  coudrmed  as  a  part  of  the  law  of  this  Colony, 
without  repeal,  forever. 

Provided  always,  and  it  is  the  true  intent  and  meaning  of  this  Congress,  that  if  a 
reconciliation  between  Great- Britain  and  these  Colonies  should  take  place,  and  the 
latter  be  taken  again  under  the  protection  and  government  of  the  crown  of  Britain, 
this  Charter  shall  be  null  and  void  —  otherwise  to  remain  firm  and  inviolable. — 2 
Poore's   Constitutions,  1311. 

CONSTITUTION  OF  DELAWARE.     1776.1 

The  constitution,  or  system  of  government,  agreed  to  and  resolved  upon  by  the  representa- 
tives in  full  convention  of  the  Delaware  State,  formerly  styled  "  The  government  of 
the  counties  of  New  Castle,  Kent,  and  Sussex,  ujjon  Delaware,"  the  said  representa- 
tives being  chosen  by  the  freemen  of  the  said  State  for  that  express  purpose. 

Art.  12.  The  president  and  general  assembly  shall  by  joint  ballot  appoint  three 
justices  of  the  supreme  court  for  the  State,  one  of  whom  shall  be  chief  justice,  and  a 
judge  of  admiralty,  and  also  four  justices  of  the  courts  of  common  pleas  and  orphans' 
courts  for  each  county,  one  of  whom  in  each  court  shall  be  styled  "  chief  justice,"  (and 
in  case  of  division  on  the  ballot  the  president  shall  have  an  additional  casting  voice,) 
to  be  commissioned  by  the  president  under  the  great  seal,  who  shall  continue  in  office 
during  good  behavior ;  and  during  the  time  the  justices  of  the  said  supreme  court 
and  courts  of  common  pleas  remain  in  office,  they  shall  hold  none  other  except  in 
the  militia.  Any  one  of  the  justices  of  either  of  said  courts  shall  have  power,  in  case 
of  the  noncoming  of  his  brethren,  to  open  and  adjourn  the  court.  An  adequate  fixed 
but  moderate  salary  shall  he  settled  on  them  during  their  continuance  in  office.  The 
president  and  privy  council  shall  appoint  the  secretary,  the  attorney-general,  regis- 
ters for  the  proi)ate  of  wills  and  granting  letters  of  administration,  registers  in 
chancery,  clerks  of  the  courts  of  common  pleas  and  orphans'  courts,  and  clerks  of 
the  peace,  wliu  shall  be  commissioned  as  aforesaid,  and  remain  in  office  during  five 
years,  if  tiiey  behave  themselves  well ;  during  which  time  the  said  registers  in  chan- 
cery and  clerks  shall  not  be  justices  of  either  of  the  said  courts  of  which  they  are 
officers,  but  they  shall  have  authority  to  sign  all  writs  by  them  issued,  and  take  recog- 
nizances of  bail.  The  justices  of  the  peace  shall  be  nominated  by  the  house  of  as- 
sembly ;  that  is  to  say,  they  shall  name  twenty-four  persons  for  each  county,  of  whom 
the  president,  with  the  approi)ation  of  the  privy  council,  shall  appoint  twelve,  who 
shall  be  commissioned  as  aforesaid,  and  continue  in  office  during  seven  years,  if  they 
behave  themselves  well ;  and  in  case  of  vacancies,  or  if  the  legislature  shall  think 
proper  to  increase  the  number,  they  shall  be  nominated  and  appointed  in  like  manner. 
The  members  of  the  legislative  and  privy  councils  shall  be  justices  of  the  peace  for 
the  whole  State,  during  their  continuance  in  trust ;  and  the  justices  of  the  courts  of 
common  pleas  shall  be  conservators  of  the  peace  in  their  respective  counties. 

Art.  17.  There  shall  be  an  appeal  from  the  supreme  court  of  Delaware,  in  mat- 
ters of  law  and  equity,  to  a  court  of  seven  persons,  to  consist  of  the  president  for  the 
time  being,  who  shall  preside  therein,  and  six  others,  to  be  appointed,  three  by  the 
legislative  council,  and  three  by  the  house  of  assembly,  who  shall  continue  in  office 
during  good  behavior,  and  be  commissioned  by  the  president,  under  the  great  seal ; 
which  court  shall  be  styled  the  "  court  of  appeals,"  and  have  all  the  authority  and 
powers  heretofore  given  by  law  in  the  last  resort  to  the  King  in  council,  under  the  old 

'  This  constitution  was  framed  by  a  convention  which  assembled  at  New  Castle, 
August  27,  1776,  in  accordance  with  the  recommendation  of  the  Continental  Congress 
that  the  people  of  the  Colonies  should  form  independent  State  governments.  It  wae 
proclaimed  September  21,  1776.     [This  constitution  continued  till  1792.  —  Ed.] 


424  APPENDIX  TO   PART  I. 

government.  The  secretary  shall  be  the  clerk  of  this  court ;  and  vacancies  therein 
occasioned  by  death  or  incapacity,  shall  be  supplied  by  new  elections,  in  manner 
aforesaid. 

Akt.  18.  The  justices  of  the  supreme  court  and  courts  of  common  pleas,  the 
members  of  the  privy  council,  the  secretary,  the  trustees  of  the  loan  office,  and  clerks 
of  the  court  of  common  pleas,  during  their  continuance  in  office,  and  all  persons  con- 
cerned in  any  army  or  navy  contracts,  shall  be  ineligible  to  either  house  of  assembly  ; 
and  any  member  of  eitiier  house  accepting  of  any  other  of  the  offices  hereinbefore  men- 
tioned (excepting  the  office  of  a  justice  of  the  peace)  shall  have  his  seat  thereby  vacated, 
and  a  new  election  shall  be  ordered. 

Art.  22.  Every  person  who  shall  be  chosen  a  member  of  either  house,  or  appointed 
to  auv  office  or  place  of  tru.st,  before  taking  his  seat,  or  entering  upon  the  execution  of 
his  office,  shall  take  the  following  oath,  or  affirmation,  if  conscientiously  scrupulous  of 
taking  an  oath,  to  wit : 

"  I,  A  B,  will  bear  true  allegiance  to  the  Delaware  State,  submit  to  its  constitution 
and  laws,  and  do  no  act  wittingly  whereby  the  freedom  thereof  may  be  prejudiced." 
And  also  make  and  subscribe  the  following  declaration,  to  wit : 

"  I,  A  B,  do  profess  faith  in  God  the  Father,  and  in  Jesus  Christ  His  only  Son,  and 
in  the  Holy  Ghost,  one  God,  blessed  for  evermore  ;  and  I  do  acknowledge  the  holy 
scriptures  of  the  Old  and  New  Testament  to  be  given  by  divine  inspiration." 
And  all  officers  shall  also  take  an  oath  of  office. 

Art.  25.  The  common  law  of  England,  as  well  as  so  much  of  the  statute  law  as 
has  been  heretofore  adopted  in  practice  in  this  State,  shall  remain  in  force,  unless 
they  shall  be  altered  by  a  future  law  of  the  legislature  ;  such  parts  only  excepted 
as  are  repugnant  to  the  rights  and  privileges  contained  in  this  constitution,  and  tiie 
declaration  of  rights,  etc  ,  agreed  to  by  tin's  convention. 

Art.  30.  No  article  of  tiie  declaration  of  rights  and  fundamental  rules  of  this 
State,  agreed  to  by  this  convention,  nor  the  first,  second,  fifth,  (except  that  part 
thereof  that  relates  to  the  right  of  suffrage,)  twenty-sixth,  and  twenty-ninth  articles  of 
this  constitution,  ought  ever  to  be  violated  on  any  pretence  whatever.  No  other  part 
of  this  constitution  shall  be  altered,  changed,  or  diminished  without  the  consent  of 
five  ])arts  in  seven  of  the  assembly,  and  seven  members  of  the  legislative  council.  — 
1  Poore's  Constitutions,  273. 


CONSTITUTION  OF  PENNSYLVANIA.     1776.1 
A  Declaration  of  the  Rights  of  the  Inhabitants  of  the  State  of  Pennsylvania. 

IV.  That  all  power  being  originally  inherent  in,  and  consequently  derived  from, 
the  people  ;  therefore  all  officers  of  government,  whether  legislative  or  executive,  are 
tiieir  trustees  and  servants,  and  at  all  times  accountable  to  them. 

VI.  That  those  who  are  employed  in  the  legislative  and  executive  business  of  the 
State,  may  be  restrained  from  oppression,  the  people  have  a  right,  at  such  periods  as 
they  may  think  proper,  to  reduce  their  public  officers  to  a  private  station,  and  supply 
the  vacancies  by  certain  and  regular  elections. 

XIV.  That  a  frequent  recurrence  to  fundamental  principles,  and  a  firm  adherence 
to  justice,  moderation,  temperance,  industry,  and  frugality  are  absolutely  necessary 
to  preserve  the  blessings  of  liberty,  and  keep  a  government  free  :  The  people  ought 
therefore  to  pay  particular  attention  to  these  points  in  the  choice  of  officers  and  repre- 
sentatives, and  have  a  right  to  exact  a  due  and  constant  regard  to  them,  from  their 
legislators  and  magistrates,  in  the  making  and  executing  such  laws  as  are  necessary 
for  the  good  government  of  the  state. 

1  This  constitution  was  framed  by  a  convention  (called  in  accordance  with  the  ex- 
pressed wish  of  the  Continental  Congress)  which  assembled  at  Philadelphia  July  15, 
1776,  and  completed  its  labors  September  28,  1776.  It  was  not  submitted  to  the  people 
for  ratification.     [This  constitution  continued  till  1790.  —  Ed.] 


APPENDIX  TO   PAPvT   I. 


425 


Plan  or  Frame  of  Government. 
Sect  2     The  supreme  legislative  power  shall  be  vested  in  a  house  of  representa- 
tives  of  the  freemen  of  the  cummouwealth  or  state  of  Pennsylvania 

Sect  3.     The  supreme  executive  power  shall  be  vested  m  a  presiden   and  council. 
Sect.  4.     Courts  of  justice  shall  be  established  in  the  city  of  Philadelphia,  and  in 

^^%lcT\^^  To'lhe  emUhat  laws  before  they  are  enacted  may  be  more  maturely  con- 
sidered' and  the  inconvenience  of  hasty  determinations  as  much  as  possible  prevented 
a  b  lis  of  public  nature  shall  be  printed  for  the  consideration  of  the  people,  before 
they  are  read  in  general  assembly  the  last  time  for  debate  and  amendment ;  and  ex- 
dpIoToccasions^of  sudden  necessity,  shaU  not  be  passed  into  laws  unti  the  next  ses- 
2n  of  assembly ;  and  for  the  mure  perfect  satisfaction  of  the  public  the  reasons  and 
motives  for  making  such  laws  shall  be  fully  and  clearly  expressed  in  the  preambles.! 

Sect  20.  The  president,  and  in  his  absence  the  vice-president,  with  the  council, 
five  of  whom  shall  be  a  quorum,  shall  have  power  to  appoint  and  commissionate 
judges,  naval  officers,  judge  of  the  admiralty,  attorney  general,  and  all  other  officer^ 
civil  ami  military,  except  such  as  are  chosen  by  the  general  assembly  or  the  people 
They  shall  sit  as  judges,  to  hear  and  deternune  on  impeachments,  taking  to  their 
assi'stance  for  advice  onlyT  the  justices  of  the  supreme  court.  And  shall  have  power 
Tgra^t  pardons,  and  remit  fines,  in  all  cases  whatsoever,  except  in  cases  ot  impeach- 
ment;  and  in  cases  of  treason  and  murder,  shall  have  power  ''^^';^'l'J''V,'l!'2 
not  to  pardon,  until  the  end  of  the  next  sessions  of  assembly;  but  there  .1  all  be  no 
remission  or  mitigation  of  punishments  on  impeachments,  except  by  act  of  he  legisla- 
ture •  they  are  also  to  take  care  that  the  laws  be  faithfully  executed;  they  are  to 
expedite  the  execution  of  such  measures  as  may  be  resolved  upon  by  the  general 
assembly;  and  they  may  draw  upon  the  treasury  for  such  sums  as  shall  be  appro- 
priated by  the  house.  ...  .,,,,,■  1 1  ,.  i  „ 
Sect  22  Every  officer  of  state,  whether  judicial  or  executive,  shall  be  liable  to  be 
impaached  by  the  general  assembly,  either  when  in  office,  or  after  his  resignation  or 
removal  for  mal-administration  :  All  impeachments  shall  be  before  the  president  or 
vice-president  and  council,  who  shall  hear  and  determine  the  same. 

Sect.  23.  The  judges  of  the  supreme  court  of  judicature  shall  have  fixed  salaries, 
be  commissioned  for  seven  years  only,  though  capable  of  re-appointment  at  the  end  of 
that  term,  but  removable  for  misbehaviour  at  any  time  by  the  general  assemlily ;  they 
shall  not  be  allowed  to  sit  as  members  in  the  continental  congress,  executive  coun- 
cil, or  general  assembly,  nor  to  hold  any  other  office  civil  or  military,  nor  to  take  or 
receive  fees  or  perquisites  of  any  kind.'^ 

Sect.  24.  The  supreme  court,  and  the  several  coui^s  of  common  pleas  of  this 
commonwealth,  shall,  besides  the  powers  usually  exercised  by  such  courts,  have  the 
powers  of  a  court  of  chancery,  so  far  as  relates  to  the  perpetuating  testimony,  obtain- 
ing evidence  from  places  not  within  this  state,  and  the  care  of  the  persons  and  estates 
of  those  who  are  non  compotes  mentis,  and  such  other  powers  as  may  be  found  neces- 
sary by  future  general  assemblies,  not  inconsistent  with  this  constitution. 

1  To  the  end  that  laws,  before  they  are  enacted,  may  be  more  maturely  considered, 
and  the  inconveniency  of  hasty  determination  as  much  as  possible  prevented,  all  bills 
of  public  nature,  shall  be  first"^laid  before  the  Governor  and  Council,  for  their  perusal 
and  proposals  of  amendment,  and  shall  be  printed  for  the  consideration  of  the  people, 
before  they  are  read  in  General  Assembly,  for  the  Iftst  time  of  debate  and  amendment ; 
except  temporary  acts,  which,  after  being  laid  before  the  Governor  and  Council,  may 
(in  case  of  sudden  necessitv)  be  passed  into  laws;  and  no  other  shall  be  passed  into 
laws,  until  the  next  session  of  assembly.  And  for  the  more  perfect  satisfaction  of 
the  public,  the  reasons  and  motives  for  making  such  laws,  shall  be  fully^and  clearly 
expressed  and  set  forth  in  their  preambles.  —  Constitution  of  Vermont,  1777,  s.  XIV' 
—  Ed. 

'■i  Omitted  in  Vermont  Constitution.  —  Ei>. 


426  APPENDIX   TO   PART  I. 

Sect.  40.  Every  officer,  whether  judicial,  executive  or  military,  in  authority  under 
this  commouwealth,  shall  take  the  following  oath  or  affirmation  of  allegiance,  and 
general  oath  of  office  before  he  enters  on  the  execution  of  his  office. 

THE    OATH    OK    AFFIRMATION    OF    ALLEGIANCE  . 

do  swear  (or  affirm)  that  I  will  be  true  and  faithful  to  the  commonwealth  of 


Pennsyluania  :  And  that  I  will  not  directli/  or  indirectly  do  any  act  or  thing  prejudicial  or 
injurious  to  the  constitution  or  government  thereof,  as  established  by  the  convention. 


THE  OATH  OR  AFFIRMATION  OF  OFFICE  : 

/ do  swear  (or  affirm)  that  I  will  faithfullij  execute  the  office  of for  the 

of and  will  do  equal  right  and  justice  to  all  men,  to  the  best  of  my  judgment 

and  abilities,  according  to  law. 

Sect.  46.  The  declaration  of  rights  is  hereby  declared  to  be  a  part  of  the  con- 
stitution of  this  commouwealth,  and  ought  never  to  be  violated  on  any  pretence 
whatever. 

Sect.  47.  In  order  that  the  freedom  of  the  commonwealth  may  be  preserved  invio- 
late forever,  there  shall  be  chosen  by  ballot  by  the  freemen  in  each  city  and  county 
respectively,  on  the  second  Tuesday  in  October,  in  the  j'ear  one  thousand  seven  hun- 
dred and  eighty-three,  and  oo  the  second  Tuesday  in  October,  in  every  seventh  year 
thereafter,  two  persons  in  each  city  and  county  of  this  state,  to  be  called  the  Council 
OF  Censors  ;  who  shall  meet  together  on  the  second  Monday  of  November  next 
ensuing  their  election  ;  the  majority  of  whom  shall  be  a  quorum  in  every  case,  except 
as  to  calling  a  convention,  in  which  two-thirds  of  the  whole  number  elected  shall 
agree  :  And  whose  duty  it  shall  be  to  enquire  whether  the  constitution  has  been  pre- 
served inviolate  in  every  part ;  and  whether  the  legislative  and  executive  branches  of 
government  have  performed  their  duty  as  guardians  of  the  people,  or  assumed  to 
themselves,  or  exercised  other  or  greater  powers  than  they  are  intitled  to  by  the  con- 
stitution :  They  are  also  to  enquire  whether  the  public  taxes  have  been  justly  laid  and 
collected  in  all  parts  of  this  commonwealth,  in  what  manner  the  public  monies  have 
been  disposed  of,  and  whether  tlie  laws  have  been  duly  executed.  For  these  pur- 
poses they  sliall  have  power  to  send  for  persons,  papers,  and  records ;  they  shall  have 
authority  to  pass  public  censures,  to  order  impeachments,  and  to  recommend  to  the 
legislature  the  repealing  such  laws  as  appear  to  them  to  have  been  enacted  contrary 
to  the  principles  of  the  constitution.  These  powers  they  shall  continue  to  have,  for 
and  during  the  space  of  one  year  from  the  day  of  their  election  and  no  longer  :  The 
said  council  of  censors  shall  also  have  power  to  call  a  convention,  to  meet  within  two 
years  after  their  sitting,  if  #here  appear  to  them  an  absolute  necessity  of  amending 
any  article  of  the  constitution  which  may  be  defective,  explaining  such  as  may  be 
thought  not  clearly  expressed,  and  of  adding  such  as  are  necessary  for  the  preserva- 
tion of  the  rights  and  happiness  of  the  people  :  But  the  articles  to  be  amended,  and  the 
amendments  proposed,  and  such  articles  as  are  proposed  to  be  added  or  abolished,  shall 
be  promulgated  at  least  six  months  before  the  day  appointed  for  the  election  of  such 
convention,  for  the  previous  consideration  of  the  people,  that  they  may  have  an  oppor- 
tunity of  instructing  tiieir  delegates  on  the  subject. 

Passed  in  Convention  the  28th  day  of  September,  1776,  and  signed  by  their  order. 

BENJ.  FRANKLIN,  Prest.'^ 
2  Poore's  Constitutions,  1540. 

1  Vermont,  through  a  convention,  adopted  a  constitution  which  went  into  effect  in 
July,  1777.  It  was  amended  and  recast  by  the  Council  of  Censors  in  1786.  This 
instrument  of  1777  was  almost  exactly  the  same  as  the  first  constitution  of  Pennsyl- 
vania. It  had  the  same  provisions  given  above,  excepting  as  mentioned  in  notes.  In 
the  Vermont  Constitution  of  1786,  Chap.  II.  Art.  IX.,  it  was  provided  that  "The 
representatives  so  cliosen  .  .  .  shall  also,  in  conjunction  with  the  Council,  annually, 
(or  oftener  if  need  be)  elect  Judges  of  the  Supreme  and  several  County  and  Probate 


APPENDIX   TO   PART   I.  427 


CONSTITUTION   OF   MARYLAND.     1776.1 

A  Declaration  of  Rights,  and  the  Constitution  and  Form  of  Government,  agreed  to  by  the 
Delegates  of  Maryland,  in  free  and  full  Convention  assembled. 

A  Declaration  of  Rights,  &c. 

.  .  .  We,  the  Delegates  of  Marylaud,  in  free  and  full  Convention  assembled,  taking 
into  our  most  serious  consideration  the  best  means  of  establishing  a  good  Constitution 
in  this  State,  for  the  sure  foundation  and  more  permanent  security  thereof,  declare, 

I.  That  all  government  of  right  originates  from  the  people,  is  founded  in  compact 
only,  and  instituted  solely  for  the  good  of  the  whole. 

IV.  That  all  persons  invested  with  the  legislative  or  executive  powers  of  gov- 
ernment are  the  trustees  of  the  public,  and,  as  such,  accountable  for  their  conduct ; 
wherefore,  whenever  the  ends  of  government  are  perverted,  and  public  liberty  mani- 
festly endangered,  and  all  other  means  of  redress  are  ineffectual,  the  people  may,  and 
of  right  ought,  to  reform  tlie  old  or  establish  a  new  government.  The  doctrine  of 
non-resistance,  against  arbitrary  power  and  oppression,  is  absurd,  slavish,  and  destruc- 
tive of  tlie  good  and  happiness  of  mankind. 

V.  That  the  right  in  the  people  to  participate  in  the  Legislature,  is  the  best  security 
of  liberty,  anci  tlie  foundation  of  all  free  government ;  for  this  purpose,  elections  ought 
to  be  free  and  frequent,  and  every  man,  having  property  in,  a  common  interest  with, 
and  an  attaciiment  to  the  community,  ought  to  have  a  right  of  suffrage. 

VI.  That  the  legislative,  executive  and  judicial  powers  of  government,  ought  to  be 
forever  separate  and  distinct  from  each  other. 

VII.  That  no  power  of  suspending  laws,  or  the  execution  of  laws,  unless  by  or 
derived  from  the  Legislature,  ought  to  be  exercised  or  allowed. 

XXX.  That  the  independency  and  uprightness  of  Judges  are  essential  to  the  im- 
partial administration  of  justice,  and  a  great  security  to  the  riglits  and  liberties  of  the 
people  ;  wherefore  the  Chancellor  and  Judges  ought  to  hold  commissions  during  good 
behaviour  ;  and  the  said  Cliancellor  and  Judges  shall  be  removed  for  misbehaviour,  on 
conviction  in  a  court  of  law,  and  may  be  removed  by  the  (joveruor,  upon  the  address 
of  the  General  Assembly  ;  Provided,  That  two-thirtls  of  all  the  members  of  each  House 
concur  in  such  address.  That  salaries,  liberal,  but  not  profuse,  ought  to  be  secured  to 
the  Chancellor  and  the  Judges,  during  the  continuance  of  their  commissions,  in  such 
manner,  and  at  such  times,  as  the  Legislature  shall  hereafter  direct,  upon  consideration 
of  the  circumstances  of  this  State.  No  Chancellor  or  Judge  ought  to  hold  any  other 
office,  civil  or  military,  or  receive  fees  or  perquisites  of  any  kind. 

XXXI.  That  a  long  continuance,  in  the  first  executive  departments  of  power  or 
trust,  is  dangerous  to  liberty;  a  rotation,  therefore,  in  those  departments,  is  one  of  the 
best  securities  of  permanent  freedom. 

XXXV.  That  no  other  test  or  qualification  ought  to  be  required,  on  admission  to 
any  office  of  trust  or  profit,  than  such  oath  of  support  and  fidelity  to  this  State,  and 
such  oath  of  oflSce,  as  shall  be  directed  by  this  Convention,  or  the  Legislature  of  this 
State,  and  a  declaration  of  a  belief  in  the  Christian  religion. 

XLI.  That  the  subsisting  resolves  of  this  and  the  several  Conventions  held  for  this 
Colony,  ought  to  be  in  force  as  laws,  unless  altered  by  this  Convention,  or  the  Legisla- 
ture of  this  State. 

Courts,  Sheriffs  and  Justices  of  the  Peace  :  and  also  with  the  Council,  may  elect 
Major-Geuerals  and  Brigadier-Generals,  from  time  to  time,  as  often  as  there  shall 
be  occasion  ;  and  they  shall  have  all  other  powers  necessary  for  the  Legislature  of  a 
free  and  sovereign  State  :  but  they  sliall  have  no  power  to  add  to,  alter,  abolish,  or 
infringe,  any  part  of  this  Constitution." —  2  Poore's  Constitutions,  1870.  —  Ed. 

1  This  constitution  was  framed  by  a  convention  which  met  at  Annapolis  August 
14,  1776,  and  completed  its  labors  November  II,  1776.  It  was  not  submitted  to  tlie 
people.     [This  constitution  continued  till  1851.  —  Ed  ] 


428  APPENDIX  TO   PART   I. 

XLII.  That  this  Declaration  of  Rights,  or  the  Form  of  Government,  to  be  estab- 
lished by  this  Convention,  or  any  part  or  either  of  them,  ought  not  to  be  altered, 
changed  or  abolished,  by  the  Legislature  of  this  State,  but  in  such  manner  as  this 
Convention  shall  prescribe  and  direct. 

The  Constitution,  or  Form  of  Government,  &c. 

I.  THAT  the  Legislature  consist  of  two  distinct  branches,  a  Senate  and  House  of 
Delegates,  which  shall  be  styled,  The   General  Assembli/  of  Maryland. 

XXV.  Tliat  a  person  of  wisdom,  experience,  and  virtue,  shall  be  chosen  Governor, 
on  the  second  Monday  of  November,  seventeen  hundred  and  seventy-seven,  and  on 
the  second  Monday  in  every  year  forever  thereafter,  by  the  joint  ballot  of  both 
Houses.  .  .  . 

XL.  That  the  Chancellor,  all  Judges,  the  Attorney-General,  Clerks  of  the  General 
Court,  the  Clerks  of  the  County  Courts,  the  Registers  of  the  Land  Office,  and  the 
Registers  of  Wills,  shall  hold  their  commissions  during  good  behaviour,  removable  only 
for  misbehaviour,  on  conviction  in  a  Court  of  law. 

XLVIII.  That  the  Governor,  for  tlie  time  being,  with  the  advice  and  consent  of  the 
Council,  may  appoint  the  Chancellor,  and  all  Judges  and  Justices.  .  .  . 

LV.  That  every  person,  appointed  to  any  office  of  profit  or  trust,  shall,  before  he 
enters  on  the  execution  tliereof,  take  the  following  oath  ;  to  wit.  "  I,  A.  B.,  do  swear, 
that  I  do  not  hold  myself  bound  in  allegiance  to  the  King  of  Great  Britain,  and  that  I 
will  be  faithful,  and  hear  true  allegiance  to  the  State  of  Maryland  ;  "  and  shall  also 
subscrilje  a  declaration  of  his  belief  in  the  Christian  religion. 

LVL  Tiiat  there  be  a  Court  of  Appeals,  composed  of  persons  of  integrity  and 
sound  judgment  in  the  law,  whose  judgment  shall  be  final  and  conclusive,  in  all  cases 
of  appeal,  from  the  General  Court,  Court  of  Chancery,  and  Court  of  Admiralty :  that 
one  person  of  integrity  and  sound  judgment  in  the  law,  lie  appointed  Chancellor :  that 
three  persons  of  integrity  and  sound  judgment  in  the  law,  be  appointed  judges  of  the 
Court  now  called  the  Provincial  Court;  and  that  the  same  Court  be  hereafter  called 
and  known  by  the  name  of  The  General  Court ;  which  Court  shall  sit  on  the  western 
and  eastern  shores,  for  transacting  and  determining  the  business  of  the  respective 
shores,  at  such  times  and  places  as  the  future  Legislature  of  this  State  shall  direct  and 
appoint. 

LIX.  That  this  Form  of  Government,  and  the  Declaration  of  Rights,  and  no  part 
thereof,  shall  be  altered,  changed,  or  abolished,  unless  a  bill  so  to  alter,  change  or 
abolish  the  same  shall  pass  the  General  Assembly,  and  be  published  at  least  three 
months  before  a  new  election,  and  shall  be  confirmed  by  the  General  Assembly,  after 
a  new  election  of  Delegates,  in  the  first  session  after  such  new  election ;  provided  that 
nothing  in  this  form  of  government,  ■wiiich  relates  to  the  eastern  shore  particularly, 
shall  at  any  time  hereafter  be  altered,  unless  for  the  alteration  and  confirmation 
thereof  at  least  two-thirds  of  all  the  members  of  each  branch  of  the  General  Assembly 
shall  concur, 

LX.  That  every  bill  passed  by  the  General  Assembly,  when  engrossed,  shall  be 
presented  by  the  Speaker  of  the  House  of  Delegates,  in  the  Senate,  to  the  Governor 
for  the  time  being,  who  shall  sign  the  same,  and  thereto  affix  the  Great  Seal,  in  the 
presence  of  the  members  of  both  Houses  :  every  law  shall  be  recorded  in  tlie  General 
Court  office  of  the  western  shore,  and  in  due  time  printed,  published,  and  certified 
under  the  Great  Seal,  to  the  several  County  Courts,  in  the  same  manner  as  hath  been 
heretofore  used  in  this  State.  —  1  Poore's  Constitutions,  817. 


APPENDIX  TO   PART  I.  429 

CONSTITUTION  OF  NORTH  CAROLINA.     1776.1 

A  Declaration  of  Rights,  &c. 

I.     That  all  political  power  is  vested  in  aud  derived  from  the  people  only. 

IV.  That  the  legislative,  executive,  and  supreme  judicial  powers  of  government, 
ought  to  be  forever  separate  and  distinct  from  each  other. 

V.  That  all  powers  of  suspending  laws,  or  the  execution  of  laws,  by  any  authority, 
without  consent  of  tlie  Representatives  of  the  people,  is  injurious  to  tlieir  rights,  and 
ought  not  to  be  exercised. 

XXI.  That  a  frequent  recurrence  to  fundamental  principles  is  absolutely  necessary, 
to  preserve  the  blessings  of  liberty. 

The  Constitution,  or  Form  of  Government,  &c. 

1.2  That  the  legislative  authority  shall  be  vested  in  two  distinct  branches,  both 
dependent  on  the  people,  to  wit,  a  Senate  and  House  of  Commons. 

XI.  That  all  bills  shall  be  read  three  times  in  each  House,  before  they  pass  into 
laws,  and  be  signed  by  the  Speakers  of  both  Houses. 

XIII."^  That  the  General  Assembly  shall,  by  joint  ballot  of  both  houses,  appoint 
Judges  of  the  Supreme  Courts  of  Law  and  Equity,  Judges  of  Admiralty,  and  Attorney- 
General,  wlio  shall  be  commissioned  by  the  Governor,  aud  hold  their  offices  during  good- 
behaviour. 

XV.*  That  the  Senate  and  House  of  Commons,  jointly  at  their  first  meeting  after 
each  annual  election,  shall  by  ballot  elect  a  Governor  for  one  year,  who  shall  not  be 
eligible  to  that  office  longer  than  three  years,  in  si.x  successive  years.  .  .  . 

XVI.  That  the  Senate  aud  House  of  Commons,  jointly,  at  their  first  meeting  after 
each  annual  election,  shall  by  ballot  elect  seven  persons  to  be  a  Council  of  State  for 
one  year,  who  shall  advise  the  Governor  in  the  execution  of  his  office  ;  and  that  four 
members  shall  be  a  fiuorum  ;  their  advice  and  proceedings  shall  be  entered  in  a  jour- 
nal, to  be  kept  for  that  purpose  only,  aud  signed  by  the  members  present ;  to  any  part 
of  which,  any  member  present  may  enter  his  dissent.  And  such  journal  shall  be  laid 
before  the  General  Assembly  wiien  called  for  by  them. 

XXI.  That  the  Governor,  Judges  of  the  Supreme  Court  of  Law  and  Equity, 
Judges  of  Admiralty,  and  Attorney-General,  shall  have  adequate  salaries  during  their 
continuance  in  office. 

XXIII.  That  the  Governor,  and  other  officers,  offending  against  the  State,  by  vio- 
lating any  part  of  this  Constitution,  mal-administration,  or  corrujjtiou,  may  be  prose- 
cuted, on  the  impeachment  of  the  General  Assembly,  or  presentment  of  the  Grand 
Jury  of  any  court  of  supreme  jurisdiction  in  this  State. 

XXIX.  That  no  Judge  of  the  Supreme  Court  of  Law  or  Equity,  or  Judge  of  Ad- 
miralty, shall  have  a  seat  in  the  Senate,  House  of  Commons,  or  Council  of  State. 

XLIV.  That  the  Declaration  of  Rights  is  hereby  declared  to  be  part  of  the  Consti- 
tution of  this  State,  and  ought  never  to  be  violated,  on  any  pretence  whatsoever.  —  2 
Poore's  Constitutions,  1409. 

1  This  constitution  was  framed  by  a  "  congress,"  "  elected  and  chosen  for  that  par- 
ticular purpose,"  which  assembled  at  Halifax  November  12,  1776,  and  completed  its 
labors  December  18,  1776.  It  was  not  .submitted  to  the  people  for  ratification.  [This 
constitution  with  amendments  continued  till  1861.  —  Ed.] 

2  See  amendments. 
^  See  amendments. 
*  See  amendments. 


430  APPENDIX  TO   PART   I. 


CONSTITUTION  OF  GEORGIA.     1777.1 

We,  therefore,  the  representatives  of  the  people,  from  whom  all  power  originates, 
and  for  whose  benefit  all  government  is  intended,  by  virtue  of  the  power  delegated 
to  us,  do  ordain  and  declare,  and  it  is  hereby  ordained  and  declared,  that  the  following 
rules  and  regulations  be  adopted  for  the  future  government  of  this  State  : 

Article  J.  The  legislative,  executive,  and  judiciary  departments  shall  be  separate 
and  distinct,  so  that  neither  exercise  the  powers  properly  belonging  to  the  other. 

Art.  II.  The  legislature  of  this  State  shall  be  composed  of  the  representatives  of 
the  people,  as  is  hereinafter  pointed  out ;  and  the  representatives  shall  be  elected 
yearly,  and  every  year,  on  the  first  Tuesday  in  December  ;  and  the  representatives  so 
elected  shall  meet  the  first  Tuesday  in  January  following,  at  Savannah,  or  any  other 
place  or  places  where  the  house  of  assembly  for  the  time  being  shall  direct. 

On  the  first  day  of  the  meeting  of  the  representatives  so  chosen,  they  shall  proceed 
to  the  choice  of  a  governor,  who  shall  be  styled  "  honorahle  ; "  and  of  an  executive 
council,  by  ballot  out  of  their  own  body,  viz. :  two  from  each  county,  except  those 
counties  which  are  not  yet  entitled  to  send  ten  members.  One  of  each  county  shall 
always  attend,  where  the  governor  resides,  by  monthly  rotation,  unless  the  members 
of  each  county  agree  for  a  longer  or  shorter  period.  This  is  not  intended  to  exclude 
either  member  attending.  The  remaining  number  of  representatives  shall  be  called 
the  house  of  assembly  ;  and  the  majority  of  the  members  of  the  said  house  shall  have 
power  to  proceed  on  business. 

Art.  VII.  The  house  of  assembly  shall  have  power  to  make  such  laws  and  regu- 
lations as  may  be  conducive  to  the  good  order  and  well-being  of  the  State  ;  provided 
such  laws  and  regulations  be  not  repugnant  to  the  true  intent  and  meaning  of  any 
rule  or  regulation  contained  in  this  constitution. 

The  house  of  assembly  shall  also  have  power  to  repeal  all  laws  and  ordinances 
they  find  injurious  to  the  people ;  and  the  house  shall  choose  its  own  speaker,  appoint 
its  own  ofiicers,  settle  its  own  rules  of  proceeding,  and  direct  writs  of  election  for  sup- 
plying intermediate  vacancies,  and  shall  have  power  of  adjournment  to  any  time  or 
times  within  the  year. 

Art.  VIII.  All  laws  and  ordinances  shall  be  three  times  read,  and  each  reading 
shall  be  on  different  and  separate  days,  except  in  cases  of  great  necessity  and  danger ; 
and  all  laws  and  ordinances  shall  be  sent  to  the  executive  council  after  the  second 
reading,  for  their  perusal  and  advice. 

Art.  XIX.  The  governor  shall,  with  the  advice  of  the  executive  council,  exercise 
the  executive  powers  of  government,  according  to  the  laws  of  this  State  and  the  con- 
stitution thereof,  save  only  in  the  case  of  pardons  and  remission  of  fines,  which  he 
shall  in  no  instance  grant ;  but  he  may  reprieve  a  criminal,  or  suspend  a  fine,  until 
the  meeting  of  the  assembly,  who  may  determine  therein  as  they  shall  judge  fit. 

Art.  XXXVI.  There  shall  be  established  in  each  county  a  court,  to  be  called  a 
superior  coi;rt,  to  be  held  twice  in  each  year.  .  .  . 

Art.  XL.  All  causes,  of  what  nature  soever,  shall  be  tried  in  the  supreme  court, 
except  as  hereafter  mentioned  ;  which  court  shall  consist  of  the  chief-justice,  and 
three  or  more  of  the  justices  residing  in  the  county.  In  case  of  the  absence  of  the 
chief-justice,  the  senior  justice  on  the  bench  shall  act  as  chief-justice,  with  the  clerk  of 
the  county,  attorney  for  the  State,  sheriff,  coroner,  constable,  and  the  jurors ;  and  in 
case  of  the  absence  of  any  of  the  aforementioned  oflScers,  the  justices  to  appoint  others 
in  their  room  pi-o  tempore.  And  if  any  plaintiff  or  defendant  in  civil  causes  shall  be 
dissatisfied  with  the  determination  of  the  jury,  then,  and  in  that  case,  they  shall  be  at 

1  This  constitution  was  framed  by  a  convention  which  assembled  at  Savannah 
October  1,  177G,  in  accordance  with  the  recommendation  of  the  Continental  Congress 
that  the  people  ot  the  Colonies  should  form  independent  State  governments.  It  was 
unanimously  agreed  to  February  5,  1777.  [This  constitution,  with  amendments, 
vontiaued  till  178&'.  —  Ed.] 


APPEKDIX   TO   PART   I.  431 


liberty  within  three  days,  to  enter  an  appeal  from  that  verdict,  and  demand  a  new 
rHlbv  a  special  iury,  to  be  nominated  as  follows,  viz.:  each  party,  plaintiff  and 
Tf  /Jf  Xl  choose  six  six  more  names  shall  be  taken  indifferently  out  of  a  box 
^Ti^^L:^:^^^  whole  eighteen  to  be  summoned,  and  their  names  to  be 
put  together  into  Uie  box,  and  the  first  twelve  that  are  drawn  out,  being  present,  shall 
be  the%pecTal  iury  to  try  the  cause,  and  from  which  there  sha  1  be  no  appeal 

Irt  XLI      The  jury  shall  be  judges  of  law,  as  well  as  of  fact,  and  shall  not  be 

11        H  to  hnn^  in  a  special  verdict ;  but  if  all  or  any  of  the  jury  have  any  doubts 

^iTr^g  p"^s  oM^,  they  shall  'apply  to  the  bench,  who  shall  each  of  them  in 

"  A^rXUI  '''1  hetiy'lall  be  sworn  to  bring  in  a  verdict  according  to  law,  and  the 
opfnfon  They  entertai.i  of  the  evidence  ;  provided  it  be  not  repugnant  to  the  rules  and 
i-omilation^  contained  in  this  constitution. 

A^  xiin  The  special  jury  shall  be  sworn  to  bring  in  a  verdict  according  to  law. 
and  the  opinion  thev  entertaii  of  the  evidence ;  provided  it  be  not  repugnant  to  justice 
equity,  aifd  conscience,  and  the  rules  and  regulations  contained  in  this  constitution,  of 

"  Akt' XLIX'"  i^e'ry  officer  of  the  State  shall  be  liable  to  be  called  to  account  by  the 

'X'S^The   principles   of   the  hateas-corpus  act   shall  be  a  part  of  this  con- 

'' Art'^LXIII  No  alteration  shall  be  made  in  this  constitution  without  pet^itions 
from  a'maiority  of  the  counties,  and  the  petitions  from  each  county  to  be  signed  by  a 
nZi'tv  o  tot'ers  in  each  county  within  this  State  ;  at  which  time  the  assemb  y  shaU 
oX  a  convention  to  be  called  for  that  purpose,  specifying  the  alerations  to  be  made 
alcordingto  the  petitions  preferred  to  the  assembly  by  the  majority  of  the  counties  as 
aforesaid.  —  1  Poore's  Constitutions,  377. 

CONSTITUTION  OF  NEW  YORK.     1777.1 

I  This  convention,  therefore,  in  the  name  and  by  the  authority  of  the  good  people 
of  this  State,  dotli  ordain,  determine,  and  declare  that  no  authority  shall,  on  any  pre- 
tence wliatever,  be  exercised  over  the  people  or  members  of  this  State  but  such  as  shall 
be  derived  from  ami  granted  by  them.  ,      ..       j.  ^u  a 

II  This  convention  doth  further,  in  the  name  and  by  the  authority  of  the  good 
Beople  of  this  State,  or.lain,  determine,  and  declare  that  the  supreme  legislative  power 
within  this  State  shall  be  vested  in  two  separate  and  distinct  bodies  of  men ;  the  one 
II  he  calle.1  the  assembly  of  the  State  of  New  York,  the  other  to  be  cal  ed  the  senate 
of  the  State  of  New  York  ;  who  together  shall  form  the  legislature,  and  meet  once  at 
least  in  every  year  for  the  despatch  of  business.  . 

III  And  whereas  laws  inconsistent  with  the  spirit  of  tliis  constitution,  or  w.tli  the 
public  ffood  mav  be  hastilv  and  unadvisedly  passed  :  Re  it  ordained,  that  the  governor 
f„r  the  time  being,  the  chancellor,  and  the  judges  of  the  supreme  court,  or  any  two 
of  them,  together  with  the  governor,  shall  be,  and  hereby  are,  constituted  a  council  o 
revise  all  llns  about  to  be  passed  into  laws  by  the  legislature  ;  and  for  that  purpo  e 
«hall  assemble  themselves  from  time  to  time,  when  the  legislature  shall  be  convened  ; 
for  which  nevertheless,  they  shall  not  receive  any  salary  or  consideration,  under  any 
pretence  whatever.  And  that  all  bills  which  have  passed  the  senate  and  assembly 
shall  before  thev  become  laws,  be  presented  to  the  said  council  for  their  reyisal  and 
consideration  ;  and  if,  upon  such  revision  and  consideration,  it  should  appear  improper 

^1  This  constitution  was  framed  by  a  convention  which  assembled  at  White  Plains 
July  10   1776  and,  after  repeated  adjournments  and  changes  of  location,  terminated 
Its  labo'rs  at 'Kingston,  Sunday  evening,  April  20,  1777,  when  the  constitution  wa 
adopted,  with   but   one   dissenting  vote.     It  was   not   S'nbmitted   to  the   people   for 
ratification.     [This  constitution,  with  amendments,  continued  till  1821.-11-D.J 


432  APPENDIX  TO   PART   I. 

to  the  said  council,  or  a  majority  of  them,  that  the  said  bill  should  become  a  law  of 
this  State,  that  they  return  the  same,  together  with  their  objections  thereto  in  writing, 
to  tlie  senate  or  house  of  assembly  (in  whichsoever  the  same  shall  have  originated) 
who  shall  enter  the  objections  sent  down  by  the  council  at  large  in  their  minutes,  and 
proceed  to  reconsider  the  said  bill.  But  if,  after  such  reconsideration,  two-thirds  of 
the  said  senate  or  house  of  assembly  shall,  notwithstanding  the  said  objections,  agree 
to  pass  the  same,  it  shall,  together  with  the  objections,  be  sent  to  the  other  branch  of 
the  legislature,  where  it  shall  also  be  reconsidered,  and,  if  approved  by  two-thirds  of 
the  members  present,  shall  be  a  law. 

And  in  order  to  prevent  any  unnecessary  delays,  be  it  further  ordained,  that  if  any 
bill  shall  not  be  returned  by  the  council  witliin  ten  days  after  it  shall  have  been  pre- 
sented, the  same  shall  be  a  law,  unless  the  legislature  shall,  by  tlieir  adjournment, 
render  a  return  of  the  said  bill  within  ten  days  impracticable  ;  in  which  case  the  bill 
shall  be  returned  on  the  first  day  of  the  meeting  of  the  legislature  after  the  expiration 
of  the  said  ten  days.i 

XV'II.  And  this  convention  doth  further,  in  the  name  and  by  the  authority  of  the 
good  people  of  this  State,  ordain,  determine,  and  declare  that  the  supreme  executive 
power  and  authority  of  this  State  shall  be  vested  in  a  governor ;  and  that  statedly, 
once  in  every  tliree  years,  and  as  often  as  the  seat  of  government  shall  become  vacant, 
a  wise  and  discreet  freeholder  of  this  State  shall  be,  by  ballot,  elected  governor,  by  the 
freeholders  of  this  State,  qualified,  as  before  described,  to  elect  senators.  .  .  . 

XXIII.  That  all  officers,  other  than  those  who,  by  this  constitution,  are  directed 
to  be  otherwise  appointed,  shall  be  appointed  in  tlie  manner  following,  to  wit :  The 
assembly  shall,  once  in  every  year,  openly  nominate  and  appoint  one  of  the  senators 
from  eacii  great  district,  which  senators  shall  form  a  council  for  the  appointment  of 
the  said  officers,  of  which  the  governor  for  the  time  being,  or  tlie  lieutenant-governor, 
or  the  president  of  the  senate,  when  they  shall  respectively  administer  the  government, 
shall  be  president  and  have  a  casting  voice,  but  no  other  vote ;  and  with  the  advice 
and  consent  of  the  said  council,  shall  appoint  all  the  said  officers ;  and  that  a  majority 
of  tlie  said  council  be  a  quorum.  And  further,  the  said  senators  shall  not  be  eligible 
to  the  said  council  for  two  years  successively. 

XXIV.  .  .  .  That  the  chancellor,  the  judges  of  the  supreme  court,  and  first  judge 
of  the  countv  court  in  every  county,  hold  their  offices  during  good  behavior  or  until 
they  shall  have  respectively  attained  the  age  of  sixty  years. 

XXXII.  And  this  convention  doth  further,  in  the  name  and  by  the  authority  of 
the  good  people  of  this  State,  ordain,  determine,  and  declare,  that  a  court  shall  be 
instituted  for  the  trial  of  impeachments,  and  the  correction  of  errors,  under  the  regu- 
lations which  shall  be  established  by  the  legislature  ;  and  to  consist  of  the  president 
of  the  senate,  for  the  time  being,  and  the  senators,  chancellor,  and  judges  of  the 
supreme  court,  or  the  major  part  of  them ;  except  that  when  an  impeachment  shall 
be  prosecuted  against  the  chancellor,  or  either  of  the  judges  of  the  supreme  court, 
the  person  so  impeached  shall  be  suspended  from  exercising  his  office  until  his  acquit- 
tal ;  and,  in  like  manner,  when  an  appeal  from  a  decree  in  equity  shall  be  heard,  the 
chancellor  shall  inform  the  court  of  the  reasons  of  his  decree,  but  shall  not  have  a 
voice  in  the  final  sentence.  And  if  the  cause  to  be  determined  shall  be  brought  up  by 
writ  of  error,  on  a  question  of  law,  on  a  judgment  in  the  supreme  court,  the  judges  of 
that  court  shall  assign  the  reasons  of  such  their  judgment,  but  shall  not  have  a  voice 
for  its  affirmance  or  reversal. 

XXXV.  .  .  .  And  this  convention  doth  further  ordain,  that  the  resolves  or  reso- 
lutions of  the  congresses  of  the  colony  of  New  York,  and  of  the  convention  of  the 
State  of  New  York,  now  in  force,  and  not  repugnant  to  the  government  established  by 

1  The  whole  number  of  bills  pa.ssed  by  the  legislature  under  this  constitution 
was  six  thousand  five  hundred  and  ninety.  The  council  of  revision  objected  to 
one  hundred  and  twenty-eight,  of  which  seventeen  were  passed  notwithstanding  these 
objections.  —  Hough.  [See  Debates  N.  Y.  Const.  Conv.  of  1821  for  very  interesting 
discussions  as  to  the  Council  of  Revision.  —  Ed.] 


APPENDIX  TO   PART  I.  433 

this  constitution,  shall  be  considered  as  making  part  of  the  laws  of  this  State  ;  subject, 
nevertheless,  to  such  alterations  and  provisions  as  the  legislature  of  tiiis  State  may, 
from  time  to  time,  make  concerning  the  same.  —  2  Poure's  Cvnatilutions,  1323. 


CONSTITUTION  OF   CONNECTICUT.     1776.1 

An  Act  containing  an  Abstract  and  Declaration  of  the  Rights  and  Privileges  of  the 
People  of  this  State,  and  securing  the  same. 

The  People  of  this  State,  being  bij  the  Providence  of  God,  free  and  independent,  have 
the  sole  and  exclusive  Right  of  governing  themselves  as  a  free,  sovereign,  and  independent 
State;  and  having  from  their  Ancestors  derived  a  free  and  excellent  Constitution  of  Gov- 
ernment wlierehg  the  Legislature  depends  on  the  free  and  annual  Election  of  the  People, 
they  have  the  best  Security  for  the  Preservation  of  their  civil  and  religious  Rights  and 
Liberties.  And  forasmuch  as  the  free  Fruition  of  such  Liberties  and  Privileges  as 
Humanity,  Civility  and  Christianity  call  for,  as  is  due  to  every  Man  in  his  Place  and 
Proportion,  without  Impeachment  and  Infringement,  hath  ever  been,  and  will  be  the 
Trampiility  and  Stability  of  Churches  and  Commonwealths ;  and  the  Denial  thereof^ 
the  Disturbance,  if  not  .the  Ruin  of  both. 

Paragraph  1.  Be  it  enacted  and  declared  by  the  Governor,  and  Council,  and  House 
of  Representatives,  in  General  Court  assembled.  That  the  ancient  Form  of  Civil  Gov- 
ernment, contained  in  the  Charter  from  Charles  the  Second,  King  of  England,  and 
adopted  l)y  the  People  of  thi.s  State,  shall  be  and  remain  the  Civil  Constitution  of 
this  State,  under  the  sole  authority  of  the  People  thereof,  independent  of  any  King 
or  Prince  whatever.  And  that  this  Kepul)lic  is,  and  siiall  forever  be  and  remain, 
a  free,  sovereign  and  independent  State,  by  the  Name  of  the  STATE  of  CON- 
NECTICUT. 

2.  And  be  it  further  enacted  and  declared.  That  no  Man's  Life  shall  be  taken  away : 
No  Man's  Honor  or  good  Name  shall  be  stained  :  No  Man's  Person  shall  l)e  arrested, 
restrained,  banished,  dismembered,  nor  any  Ways  punished  :  No  Man  shall  be  deprived 
of  his  Wife  or  Children  :  No  Man's  Goods  or  J^state  shall  be  taken  away  from  him, 
nor  any  Ways  indamaged  under  the  Colour  of  Law,  or  Countenance  of  Authority ; 
unless  dearly  warranted  by  the  Laws  of  this  State. 

3.  That  all  the  free  Inhabitants  of  this  or  any  other  of  the  United  States  of 
America,  and  P'oreiguers  in  Amity  with  this  State,  shall  enjoy  the  same  justice  and 
Law  within  this  State,  which  is  general  for  the  State,  in  all  Cases  proper  for  the 
Cognizance  of  tiie  Civil  Authority  antl  Court  of  Judicature  within  the  same,  and  that 
without  Partiality  or  Delay. 

4.  And  that  no  Man's  Person  shall  be  restrained,  or  imprisoned,  by  any  authority 
whatsoever,  before  the  Law  hath  sentenced  him  thereunto,  if  he  can  and  will  give 
sufficient  Security,  Bail,  or  Mainprize  for  his  Appearance  and  good  Behaviour  in  the 
mean  Time,  unless  it  be  for  Capital  Crimes,  Contempt  in  open  Court,  or  in  such  Cases 
wherein  some  express  Law  doth  allow  of,  or  order  the  same.'^ —  1  Poore's  Constitutions, 
257. 

1  This  continued  the  charter  of  1662  in  force  as  the  organic  law  of  the  State. 

2  The  charter  of  Charles  II.  (1  Poore's  Const.  252)  made  certain  persons  and  "all 
such  others  as  now  are  or  hereafter  shall  be  admitted  and  made  free  of  the  company 
and  society  of  our  Colony  of  Connecticut  ...  a  body  cor])orate  and  politic,  ...  to  the 
end  the  affairs  and  business  .  .  .  concerning  the  same  (colony)  may  be  duly  ordered 
and  managed." 

The  company  was  to  be  directed  by  a  Governor,  Deputy-Governor,  and  twelve  assist- 
ants, chosen  out  of  the  freemen  of  the  company,  "  which  said  officers  shall  apply 
themselves  to  take  care  for  the  best  disposing  and  ordering  of  the  general  business 
and  affairs  of  and  concerning  the  land  and  hereditaments  hereinafter  mentioned  to  be 
VOL.  I.  —  28 


434  APPENDIX   TO   PART  L 


RHODE   ISLAND. 

This  State  lived  under  the  charter  of  Charles  II.  of  1663,  until  the  year  1842,  when 
a  constitution  was  adopted  of  its  own  making.  Several  unsuccessful  efforts  to  this  end 
had  previously  been  made.    The  charter  was  substantially  like  that  of  Connecticut. 

PASSAGES  FROM  THE   CONSTITUTION  OF  COLORADO.     1876.1 

Preamble. 

We,  the  people  of  Colorado,  with  profound  reverence  for  the  Supreme  Ruler  of  the  Uni- 
verse, in  order  to  form  a  more  independent  and  perfect  government,  establish  justice, 
insure  tranquilUty,  provide  for  the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  owselves  and  our  posterity,  do  ordain  and  establish  this 
constitution  for  the  State  of  Colorado. 

Article  I.    Boundaries. 

The  boundaries  of  the  State  of  Colorado  shall  be  as  follows  :  Commencing  on  the 
jnirty-seventh  parallel  of  north  latitude,  wliere  the  twenty-fifth  meridian  of  longitude 
west  from  Washington  crosses  the  same  ;  thence  north  on  said  meridian  to  the  forty- 
first  parallel  of  north  latitude ;  thence  along  said  parallel  west  to  tlie  thirty-second 
meridian  of  longitude  west  from  Washington  ;  then  south  on  said  meridian  to  the 
thirty-seventh  parallel  of  north  latitude ;  thence  along  said  thirty-seventh  parallel  of 
north  latitude  to  the  place  of  beginning. 

granted,  and  the  plantation  thereof,  and  the  government  of  the  people  thereof."  The 
Governor  might  call  the  company  together  at  any  time  "  to  consult  and  advise  of  the 
business  and  affairs  of  the  company."  Twice  a  year,  at  least,  there  must  be  such 
a  "  general  meeting,"  "  assembly,"  or  "  court "  of  the  freemen,  or  such  as  those  of 
"  the  respective  towns,  cities,  and  places  "  should  depute  to  act  for  them.  These  Gen- 
eral Courts  might  admit  other  freemen  or  elect  the  Governor,  Deputy-Governor,  and 
assistants. 

It  was  provided  "  tliat  all,  and  every  the  subjects  of  us,  our  heirs,  or  successors, 
whicli  shall  go  to  inhabit  v/ithin  the  said  colony,  and  every  of  their  children,  which 
shall  happen  to  be  born  there,  or  on  the  seas  in  going  thither,  or  returning  from 
theuce,  shall  have  and  enjoy  all  liberties  and  immunities  of  free  and  natural  subjects 
within  any  the  dominions  of  us,  our  heirs,  or  successors,  to  all  intents,  constructions, 
and  purposes  whatsoever,  as  if  they  and  every  of  them  were  born  within  the  realm  of 
England." 

Power  was  given  to  the  Governor,  Deputy  Governor,  and  assistants  "  to  erect  and 
make  such  judicatories,  for  the  hearing,  and  determining  of  all  actions,  causes,  mat- 
ters, and  things  happening  witiiin  the  said  colony,  or  plantation,  and  which  sliall  be  in 
dispute,  and  depending  there,  as  they  shall  think  fit,  and  convenient,  and  also  from 
time  to  time  to  make,  ordain,  and  establish  all  manner  of  wholesome,  and  reasonable 
laws,  statutes,  ordinances,  directions,  and  instructions,  not  contrary  to  the  laws  of  this 
realm  of  England,  .  .  .  ordaining  and  appointing,  that  all  such  laws,  statutes  and  or- 
dinances, instructions,  impositions  and  directions  as  shall  be  so  made  by  the  Governor, 
Deputy-Governor,  and  assistants  as  aforesaid,  and  published  in  writing  under  their 
common  seal,  shall  carefully  and  duly  be  observed,  kept,  performed,  and  put  in 
execution,  according  to  the  true  intent  and  meaning  of  the  same,  and  these  our  letters 
patents,  or  the  duplicate,  or  exemplification  thereof,  shall  be  to  all  and  every  such  offi- 
cers, superiors  and  inferiors  from  time  to  time,  for  the  putting  of  the  same  orders, 
laws,  statutes,  ordinances,  instructions,  and  directions  in  due  execution,  against  us,  our 
heirs  and  successors,  a  sufficient  warrant  and  discharge." 

Under  this  charter,  adopted  and  supplemented  in  the  brief  enactment  of  1776,  the 
State  of  Connecticut  lived  until  the  year  1818.  —  Ed. 

^  See  ante,  54.  — Ed. 


APPENDIX   TO   PART   L  435 


Article  II.    Bill  of  Rights. 

Sec.  14.  That  private  property  shall  not  be  taken  for  private  use  unless  by  consent 
of  the  owner,  except  for  private  ways  of  necessity,  and  except  for  reservoirs,  drains, 
flumes,  or  ditches  on  or  across  the  lands  of  others,  for  agricultural,  mining,  milling, 
domestic,  or  sanitary  purposes. 

Sec.  15.  That  private  property  shall  not  be  taken  or  damaged,  for  public  or  pri- 
vate use,  without  just  compensation.  Such  compensation  shall  be  ascertained  by  a 
board  of  commissioners,  of  not  less  than  three  freeholders,  or  by  a  jury,  when  required 
by  the  owner  of  the  property,  in  such  manner  as  may  be  prescribed  by  law,  and  until 
the  same  shall  be  paid  to  the  owner,  or  into  court  for  tlie  owner,  the  property  shall 
not  be  needlessly  disturbed,  or  the  proprietary  rights  of  the  owuer  therein  divested  ; 
and  whene^ier  an  attempt  is  made  to  take  private  property  for  a  use  alleged  to  be 
public,  the  question  whether  the  contemplated  use  be  really  public  shall  be  a  judicial 
question,  and  determined  as  such  without  regard  to  any  legislative  assertion  that  the 
use  is  public. 

Sec.  17.  That  no  person  shall  be  imprisoned  for  the  purpose  of  securing  his  testi- 
mony in  any  case  longer  than  may  be  necessary  in  order  to  take  his  deposition.  If  lie 
can  give  security  he  sliall  be  discharged  ;  if  he  cannot  give  security,  his  deposition 
shall  be  taken  by  some  judge  of  the  Supreme,  District,  or  County  Court,  at  the  earli- ' 
est  time  he  can  attend,  at  some  convenient  place  by  him  appointed  for  that  purpose, 
of  which  time  and  place  the  accused  and  the  attorney  prosecuting  for  the  people  shall 
have  reasonable  notice.  The  accused  shall  have  the  right  to  appear  in  person  and  by 
counsel.  If  he  have  no  counsel  the  judge  shall  assign  him  one  in  that  behalf  only. 
On  the  completion  of  such  examination  the  witness  shall  be  discharged  on  his  own 
recognizance,  entered  in  before  said  judge,  but  such  depositiou  shall  not  be  used  if,  in 
the  opinion  of  the  court,  the  personal  attendance  of  the  witness  might  be  procured  by 
the  prosecution,  or  is  procured  by  the  accused.  No  exception  shall  be  taken  to  such 
depositiou  as  to  matters  of  form. 

Sec.  18.  That  no  person  shall  be  compelled  to  testify  against  himself  in  a  criminal 
case,  nor  shall  any  person  be  twice  put  in  jeopardy  for  the  same  offence.  If  the  jury 
disagree,  or  if  the  judgment  be  arrested  after  verdict,  or  if  the  judgment  be  reversed 
for  error  in  law,  the  accused  shall  not  be  deemed  to  have  been  in  jeopardy.  . 

Sec.  23.  The  right  of  trial  by  jury  shall  remain  inviolate  in  criminal  cases  ;  but  a 
jury  in  civil  cases  in  all  courts,  or  in  criminal  cases  in  courts  not  of  record,  may  con- 
sist of  less  than  twelve  men,  as  may  be  prescribed  by  law.  Hereafter  a  grand  jury 
shall  consist  of  twelve  men,  any  nine  of  whom  concurring  may  find  an  indictment ; 
Provided,  the  General  Assembly  may  change,  regulate,  or  abolish  the  grand-jury 
system. 

Article  V.     Legislative  Department. 

Sec.  6.  Each  member  of  the  first  General  Assembly,  as  a  compensation  for  his  ser- 
vices, shall  receive  four  dollars  for  each  day's  attendance,  and  fifteen  cents  for  each 
mile  necessarily  travelled  in  going  to  and  returning  from  the  seat  of  government ;  and 
shall  receive  no  other  compensation,  perquisite,  or  allowance  whatsoever.  No  session 
of  the  General  Assembly,  after  the  first,  shall  exceed  forty  days.  After  the  first  ses- 
sion the  compensation  of  the  members  of  tlie  General  A.'ssembly  shall  be  as  provided 
by  law  :  Provided,  That  no  General  Assembly  shall  fix  its  own  compensation. 

Sec.  19.  No  Act  of  the  General  A.ssembly  shall  take  effect  until  ninety  days  after 
its  passage,  unless  in  case  of  emergency  (which  shall  be  expressed  in  the  preaml)Ie  or 
body  of  the  .Act),  the  General  Assembly  shall,  by  a  vote  of  two  thirds  of  all  the  mem- 
bers elected  to  each  House,  otherwise  direct.  No  bill,  except  the  general  appropria- 
tion for  the  expenses  of  the  gdvernmeiit  only,  introduced  in  either  House  of  the  General 
Assembly  after  the  first  twenty-five  days  of  the  session  shall  become  a  law. 

Sec.  20.  No  bill  shall  be  considered  or  become  a  law  unless  referred  to  a  coramiS 
tee,  returned  therefrom,  and  printed  for  the  use  of  the  members. 


436  .     APPENDIX   TO    PART   I. 

Sec.  21.  No  hill,  except  general  appropriation  bills,  shall  be  passed  containing 
more  than  one  subject,  which  shall  be  clearly  expressed  in  its  title  ;  but  if  any  subject 
shall  be  embraced  in  any  Act  which  shall  not  be  expressed  in  the  title,  such  Act  shall 
be  void  only  as  to  so  much  thei-eof  as  shall  not  be  so  expressed. 

kSEC.  22.  Every  bill  sliall  be  read  at  length,  on  three  different  days,  in  each  House  ; 
all  substantial  amendments  made  thereto  shall  be  printed  for  tlie  use  of  the  members, 
before  the  final  vote  is  taken  on  the  bill ;  and  no  bill  shall  become  a  law  except  by 
vote  of  a  majority  of  all  the  members  elected  to  eacii  House,  nor  unless  on  its  fiual 
passage  the  vote  be  taken  by  ayes  and  noes,  and  the  names  of  those  voting  be  entered 
on  the  jouruiil. 

Skc.  23.  No  amendment  to  any  bill  by  one  House  shall  be  concurred  in  by  the 
other,  nor  shall  the  report  of  any  committee  of  conference  be  adopted  in  either  House, 
except  by  a  vote  of  a  majority  of  the  members  elected  thereto,  taken  bv'  ayes  and 
noes,  and  the  names  of  those  voting  recorded  upon  the  journal  thereof. 

Sec.  24.  No  law  shall  be  revived,  or  amended,  or  the  provisions  thereof  extended 
or  conferred  by  reference  to  its  title  only,  but  so  much  tliereof  as  is  revived,  amended, 
extended,  or  conferred  shall  be  re-enacted  and  published  at  length. 

Sec.  25.  The  General  Assembly  shall  not  pass  local  or  special  laws  in  any  of 
the  following  enumerated  cases,  that  is  to  say  :  For  granting  divorces ;  laying  out, 
opening,  altering,  or  working  roads  or  highways  ;  vacating  roads,  town-plats,  streets, 
alleys,  and  public  grounds ;  locating  or  changing  county-seats  ;  regulating  county  or 
township  affairs  ;  regulating  the  practice  in  courts  of  justice  ;  regulating  the  jurisdic- 
tion and  duties  of  justices  of  the  peace,  police  magistrates,  and  constables ;  changing 
the  rules  of  evidence  in  any  trial  or  inquiry  ;  providing  for  changes  of  venue  in  civil 
or  criminal  cases ;  declaring  any  person  of  age  ;  for  limitation  of  civil  actions  or  giving 
effect  to  informal  or  invalid  deeds  ;  summoning  or  impanelling  grand  or  petit  juries  ; 
providing  for  the  management  of  common  schools  ;  regulating  the  rate  of  interest  on 
money ;  the  opening  or  conducting  of  any  election,  or  designating  the  ]jlace  of  voting; 
tlie  sale  or  mortgage  of  real  estate  belonging  to  minors  or  others  under  disability ;  the 
protection  of  game  or  fish  ;  chartering  or  licensing  ferries  or  toll-bridges  ;  remitting 
fines,  penalties,  or  forfeitures  ;  creating,  increasing,  or  decreasing  fees,  percentage,  or 
allowances  of  public  officers  ;  changing  the  law  of  descent ;  granting  to  any  corpora- 
tion, association,  or  individual  the  right  to  lay  down  railroad-tracks ;  granting  to  any 
corporation,  association,  or  individual  any  special  or  exclusive  privilege,  immunity,  or 
franchise  whatever.  In  all  other  cases,  where  a  general  law  can  be  made  applicable, 
no  special  law  shall  be  enacted. 

Sec.  26.  The  presiding  officer  of  each  House  shall,  in  the  presence  of  the  House 
over  which  he  presides,  sign  all  bills  and  joint  resolutions  passed  by  the  General  As- 
sembly, after  tlieir  titles  shall  have  been  publicly  read,  immediately  before  signing ; 
and  the  fact  of  signing  shall  be  entered  on  the  journal. 

Sec.  27.  The  General  Assembly  shall  prescribe  by  law  the  number,  duties,  and 
compensation  of  the  officers  and  employes  of  each  House ;  and  no  payment  shall  be 
made  from  the  State  Treasury,  or  be  in  any  way  authorized  to  any  person,  except  to 
an  acting  officer  or  employe  elected  or  appointed  in  pursuance  of  law. 

Sec.  28.  No  bill  shall  be  passed  giving  any  extra  compensation  to  any  public  officer, 
servant  or  employe,  agent  or  contractor,  after  services  shall  have  been  rendered  or 
contract  made,  nor  providing  for  the  payment  of  any  claim  made  against  the  State 
without  previous  authority  of  law. 

Sec.  29.  All  stationery,  printing,  paper,  and  fuel  used  in  the  legislative  and  other 
departments  of  government,  shall  be  furnished ;  and  the  printing  and  binding  and 
distributing  of  the  laws,  journals,  department  reports,  and  other  printing  and  binding; 
and  the  repairing  and  furnishing  the  halls  and  rooms  used  for  the  meeting  of  the  Gen- 
eral Assembly  and  its  committees,  shall  be  performed  under  contract,  to  be  given  to 
the  lowest  responsible  bidder,  below  such  maximum  price  and  under  such  regulations 
as  mav  be  prescribed  by  law.  No  member  or  officer  of  any  department  of  the  govern- 
ment shall  be  in  any  way  interested  in  any  such  contract  ;  and  all  such  contracts  shall 
be  subject  to  the  approval  of  the  Governor  and  State  Treasurer. 


APPENDIX   TO   PART   I.  437 

Sec.  30.  Except  as  otherwise  provided  in  this  Constitution,  no  Law  shall  extend  the 
term  of  any  public  officer,  or  increase  or  diminish  his  salary  or  emoluments  after  his 
election  or  a])pointment  Provided,  This  shall  not  be  construed  to  forbid  the  General 
Assembly  to  fix  the  salary  or  emoluments  of  those  first  elected  or  appointed  under  this 
Constitution. 

Sec.  31.  All  bills  for  raising  revenue  shall  originate,  in  the  House  of  Representa- 
tives ;  but  the  Senate  may  propose  amendments,  as  in  case  of  other  bills. 

Sec.  32.  The  general  aj>propriatiou  bill  shall  embrace  nothing  but  appropriations 
for  the  ordinary  expenses  of  the  executive,  legislative,  and  judicial  departments  of  the 
State,  interest  on  the  public  debt,  and  for  public  schools.  All  other  appropriations  shall 
be  made  by  separate  bills,  each  embracing  but  one  suiiject. 

Sec.  33.  No  money  shall  be  paid  out  of  the  treasury  except  upon  appropriations 
made  by  law,  and  on  warrant  drawn  by  the  proj;er  officer  in  pursuance  thereof. 

Sec.  34.  No  appropriation  shall  be  made  for  charitable,  industrial,  educational, 
or  benevolent  purposes  to  any  person,  corporation,  or  community  not  under  the 
absolute  control  of  the  State,  nor  to  any  denominational  or  sectarian  institution  or 
association. 

Sec.  33.  The  General  Assembly  shall  not  delegate  to  any  special  commission,  pri- 
vate corporation,  or  association  any  power  to  make,  supervise,  or  interfere  with  any 
municipal  improvement,  money,  property,  or  effects,  whether  held  in  trust  or  otherwise, 
or  to  levy  taxes,  or  to  perform  any  municipal  function  whatever. 

Sec.  36.  No  act  of  the  General  Assembly  shall  authorize  the  investment  of  trust- 
funds  by  executors,  administrators,  guardians,  or  other  trustees,  in  the  bonds  or  stock, 
of  any  private  corjjoration. 

Sec.  38.  No  obligation  or  liability  of  any  person,  association,  or  corporation,  held 
or  owned  by  the  State,  or  any  municipal  corporation  therein,  shall  ever  be  exchanged, 
transferred,  remitted,  released,  or  postponed,  or  in  any  way  diminished  by  the  General 
Assembly,  nor  shall  such  liability  or  obligation  be  extinguished  except  by  payment 
thereof  into  the  proper  treasury. 

Sec.  39.  Every  order,  resolution,  or  vote  to  which  the  concurrence  of  both  Houses 
mav  be  necessary,  excejit  on  the  question  of  adjournment,  or  relating  solely  to  the 
transaction  of  business  of  the  two  Houses,  shall  be  presented  to  the  Governor,  and  be- 
fore it  shall  take  effect,  be  approved  by  him,  or  being  disapproved,  shall  be  repassed 
by  two-thirds  of  both  Houses,  according  to  the  rules  and  limitations  prescribed  in  case 
of  a  bill. 

Sec.  40.  If  any  person  elected  to  either  House  of  the  General  Assembly  shall  offer 
or  promise  to  give  his  vote  or  influence  in  favor  of  or  against  any  measure  or  proposi- 
tion, pending  or  proposed  to  be  introduced  into  the  General  Assembly,  in  consideration 
or  upon  condition  that  any  other  person  elected  to  the  same  General  Assembly  will  give 
or  will  promise  or  assent  to  give  his  vote  or  influence  in  favor  of  or  against  any  other 
measure  or  proposition,  ])ending  or  proposed  to  be  introduced  in  such  General  Assembly, 
the  person  making  such  offer  or  promise  shall  be  deemed  guilty  of  solicitation  and  bri- 
bery. If  any  member  of  the  General  Assembly  shall  give  his  vote  or  influence  for  or 
against  any  measure  or  proposition  pending  in  such  General  Assembly,  or  offer,  promise, 
or  a.ssent  so  to  do,  upon  condition  that  any  other  member  will  give  or  will  promise  or 
assent  to  give  his  vote  or  influence  in  favor  of  or  against  any  other  measure  or  propo- 
sition pending  or  proposed  to  be  introduced  in  such  General  Assembly,  or  in  consider- 
ation that  any  other  member  hath  given  his  vote  or  influence  for  or  against  any  other 
measure  or  proposition  in  such  General  Assembly,  he  shall  he  deemed  guilty  of  i)ribery  ; 
and  any  member  of  the  General  Assembly,  or  person  elected  thereto,  who  shall  be  guilty 
of  either  of  such  offences  shall  be  expelled,  and  shall  not  be  thereafter  eligible  to  the 
same  General  Assembly;  and,  on  the  conviction  thereof  in  the  civil  courts,  shall  be 
liable  to  such  further  penalty  as  may  be  prescribed  by  law. 

Sec.  41.  Any  per.son  who  shall,  directly  or  indirectly,  offer,  give,  or  promise  any 
money  or  thing  of  value,  testimonial,  privilege,  or  personal  advantage  to  any  executive 
or  judicial  officer  or  member  of  the  General  A.ssembly  to  influence  him  in  the  perform- 
ance of  any  of  his  public  or  official  duties,  shall  be  deemed  guilty  of  bribery,  and  be 
punished  in  such  manner  as  shall  be  provided  by  law. 


438  APPENDIX   TO   PART   I. 

Sec.  42.  The  offence  of  corrupt  solicitation  of  members  of  the  General  Assembly,  or 
of  public  officers  of  the  State,  or  of  any  municipal  division  thereof,  and  any  occupation 
or  practice  of  solicitation  of  such  members  or  officers  to  influence  their  official  action, 
sliall  be  defined  by  law,  and  shall  be  punished  by  fiue  and  imprisonment. 

Sec.  43.  A  member  who  has  a  personal  or  private  interest  in  any  measure  or  bill 
proposed  or  pending  before  the  General  Assembly,  shall  disclose  the  fact  to  the  House 
of  which  he  is  a  member,  and  shall  not  vote  thereon. 

Article  VI.    Judicial  Department.     Supreme  Court, 

Sec.  6.  The  judges  of  the  Supreme  Court  shall  be  elected  by  electors  of  the  State 
at  large,  as  hereinafter  provided. 

Sec.  7.  The  term  of  office  of  the  judges  of  the  Supreme  Court,  except  as  in  this 
article  otherwise  provided,  shall  be  nine  years. 

Sec.  8.  The  judges  of  the  Supreme  Court  shall,  immediately  after  the  first  elec- 
tion under  this  Constitution,  be  classified  by  lot,  so  that  one  shall  hold  his  office  for 
the  term  of  three  years,  one  for  the  term  of  six  years,  and  one  for  the  term  of  nine 
years.  The  lot  shall  be  drawn  by  the  judges,  who  shall  for  that  purpose  assemble 
at  the  seat  of  government,  and  they  shall  cau.se  the  result  thereof  to  be  certified  to  the 
Secretary  of  the  Territory,  and  filed  in  his  office.  The  judge  having  the  shortest 
term  to  serve,  not  holding  his  office  by  appointment  or  election  to  fill  a  vacancy,  siiall 
be  the  chief-justice,  and  shall  preside  at  all  terras  of  the  Supreme  Court,  and,  in  case 
of  his  absence,  the  judge  having  in  like  manner  the  next  shortest  term  to  serve  shall 
preside  in  his  stead. 

District  Courts.  Sec.  18.  The  judges  of  the  Supreme  and  District  Courts  shall 
each  receive  such  salary  as  may  be  provided  by  law ;  and  no  such  judge  shall  receive 
any  other  compensation,  perquisite,  or  emolument  for  or  on  account  of  his  office,  in 
any  form  whatever,  nor  act  as  attorney  or  counsellor  at  law. 

Miscellaneous.  Sec.  27.  The  judges  of  Courts  of  Record,  inferior  to  the  Supreme 
Court,  shall,  on  or  before  the  first  day  in  July  in  each  year,  report  in  writing  to  the 
judges  of  the  Supreme  Court  such  defects  and  omissions  in  the  laws  as  their  knowledge 
and  experience  may  suggest,  and  the  judges  of  the  Supreme  Court  shall,  on  or  before 
the  first  day  of  Decemlier  of  each  year,  report  in  writing  to  the  Governor,  to  be  by 
him  transmitted  to  the  General  Assembly,  together  with  his  message,  such  defects 
and  omissions  in  the  Constitution  and  laws  as  they  may  find  to  exist,  together  with 
appropriate  bills  for  curing  the  same. 

Article  VII.    Suffrage  avi>  Elections. 

Section  1.  Every  male  person  over  the  age  of  twenty-one  years,  possessing  the 
following  qualifications,  shall  be  entitled  to  vote  at  all  elections : 

First.  He  shall  be  a  citizen  of  the  United  States,  or,  not  being  a  citizen  of  the 
United  States,  he  shall  have  declared  his  intention,  according  to  law,  to  become  such 
citizen,  not  less  than  four  months  before  he  offers  to  vote. 

Second.  He  shall  have  resided  in  the  State  six  months  immediately  preceding  the 
election  at  which  he  offers  to  vote,  and  in  the  county,  city,  town,  ward,  or  precinct, 
such  time  as  may  be  prescribed  by  law :  Provided,  That  no  person  shall  be  denied 
the  right  to  vote  at  any  school-districc  election,  nor  to  hold  any  school-district  office,  on 
account  of  sex. 

Sf.c.  2.  The  General  Assembly  shall,  at  the  first  session  thereof,  and  may  at  any 
subsequent  session,  enact  laws  to  extend  the  right  of  suffrage  to  women  of  lawful 
age,  and  otherwise  qualified  according  to  the  provisions  of  this  article.  No  such 
enactment  shall  be  of  effect  until  submitted  to  the  vote  of  the  qualified  electors  at 
a  general  election,  nor  unless  the  same  be  approved  by  a  majority  of  those  voting 
thereon. 

Sec.  3.  The  General  Assembly  may  prescribe,  by  law,  an  educational  quali- 
fication for  electors,  but  no  such  law  shall  take  effect  prior  to  the  year  of  our  Lord 
one  thousand  eight  hundred  and  ninety,  and  no  qualified  elector  shall  be  thereby 
disqualified. 


APPENDIX  TO    PART   I.  439 

Sec.  4.  For  the  purpose  of  voting  and  eligibility  to  office,  no  person  shall  be 
deemed  to  have  gained  a  residence  by  reason  of  his  presence,  or  lost  it  by  reason 
of  his  absence,  while  in  the  civil  or  military  service  of  the  State,  or  of  the  United 
States,  nor  while  a  student  at  any  institution  of  learning,  nor  while  kept  at  public 
expense  in  any  poor-house  or  other  asylum,  nor  while  confined  in  public  prison. 

Skc.  5.  Voters  sliall  in  all  cases,  except  treason,  felony,  or  breach  of  the  peace,  be 
privileged  from  arrest  during  their  attendance  at  elections,  and  in  going  to  and  return- 
ing therefrom. 

Sec.  6.  No  person  except  a  qualified  elector  shall  be  elected  or  appointed  to  any 
civil  or  military  office  in  the  State. 

Sec.  9.  In  trials  of  contested  elections,  and  for  offences  arising  under  the  elec- 
tion-law, no  person  shall  be  permitted  to  withhold  his  testimony  on  the  ground  that  it 
may  criminate  himself,  or  subject  him  to  public  infamy  ;  but  such  testimony  shall 
not  be  used  against  him  in  any  judicial  proceedings,  except  for  perjury  in  giving  such 
testimony. 

Sec  10.  No  person  while  confined  in  any  public  prison  shall  be  entitled  to  vote; 
but  every  such  person  who  was  a  (jualified  elector  prior  to  such  imprisonment,  and 
wlio  is  released  therefrom  by  virtue  of  a  pardon,  or  by  virtue  of  having  served  out  his 
full  term  of  imprisonment,  shall,  without  further  action,  be  invested  with  all  the  rights 
of  citizenship,  except  as  otherwise  provided  in  this  Constitution. 

Article  VIII.     State  Institutions. 

Sec.  2.  The  General  Assembly  shall  have  no  power  to  change  or  to  locate  the 
seat  of  government  of  the  State,  but  shall  at  its  first  session  subsequent  to  the  year  of 
our  Lord  one  thousand  eight  hundred  and  eighty,  provide  by  law  for  submitting  the 
(juestion  of  the  permanent  location  of  the  seat  of  governmenf  to  the  qualified  elec- 
tors of  the  State,  at  the  general  election  then  next  ensuing,  and  a  majority  of  all  the 
votes  upon  said  question,  cast  at  said  election,  shall  be  necessary  to  determine  the 
location  thereof.  Said  General  Assembly  shall  also  provide  that  in  case  there  shall 
be  no  choice  of  location  at  said  election,  the  question  of  choice  between  the  two  places 
for  which  the  highest  number  of  votes  shall  have  been  cast,  shall  be  submitted  in  like 
manner  to  the  qualified  electors  of  the  State,  at  the  next  general  election  :  Provided, 
That  until  the  seat  of  government  shall  have  been  permanently  located  as  herein  pro- 
vided, the  temporary  location  thereof  shall  remain  at  the  city  of  Denver. 

Sec.  3.  When  the  seat  of  government  shall  have  been  located  as  herein  provided, 
the  location  thereof  shall  not  thereafter  be  changed  except  by  a  vote  of  two-thirds  of 
all  the  qualified  electors  of  tlie  State  voting  on  that  question,  at  a  general  election,  at 
which  the  question  of  location  of  the  seat  of  government  shall  have  been  submitted  by 
the  General  Assembly. 

Sec.  4.  The  General  Assembly  shall  make  no  appropriation  or  expenditures  for 
capitol  buildings  or  grounds  until  the  seat  of  government  shall  have  been  permanently 
located  as  herein  provided. 

Sec.  5.  The  following  territorial  institutions,  to  wit,  The  University  at  Boulder, 
the  Agricultural  College  at  Fort  Collins,  the  School  of  Mines  at  Golden,  the  Institute 
for  the  Education  of  Mutes  at  Colorado  Springs,  shall,  upon  the  adoption  of  this  Con- 
stitution, become  institutions  of  the  State  of  Colorado,  and  the  management  thereof 
subject  to  the  control  of  the  State,  under  such  laws  and  regulations  as  the  General 
Assembly  shall  provide  ;  and  the  location  of  said  institutions,  as  well  as  all  gifts,  grants, 
and  appropriations  of  money  and  property,  real  and  personal,  heretofore  made  to  said 
several  institutions,  are  hereby  confirmed  to  the  use  and  benefit  of  the  same  respec- 
tively Provided,  This  section  shall  not  apply  to  any  institution,  the  property,  real  or 
personal,  of  which  is  now  vested  in  the  trustees  thereof,  until  such  property  be  trans- 
ferred by  proper  conveynnce,  together  with  the  control  thereof,  to  the  officers  provided 
for  the  management  of  said  institution  by  this  Constitution  or  by  law. 


440  APPENDIX   TO   PAKT  I. 


Article  IX.     Eddcation. 

Sec.  2.  The  General  Assembly  shall,  as  soon  as  practicable,  provide  for  the  es- 
tablishment and  maintenance  of  a  thorough  and  uniform  system  of  free  public  schools 
tliroughout  the  State  wherein  all  residents  of  the  State  between  the  ages  of  six  and 
twenty-one  years  may  be  educated  gratuitously.  One  or  more  public  schools  shall  be 
maintained  in  each  school-district  within  the  State  at  least  three  months  in  each  year ; 
any  school-district  failing  to  have  such  school  shall  not  be  entitled  to  receive  any  por- 
tion of  the  school-fund  for  that  year. 

Sec.  7.  Neither  tlie  General  A.ssembly,  nor  any  county,  city,  town,  township,  school- 
district,  or  other  public  corporation  shall  ever  make  any  appropriation,  or  pay  from 
any  public  fund  or  moneys  wliatever,  anything  in  aid  of  any  church  or  sectarian 
society,  or  for  any  sectarian  purpose,  or  to  help  support  or  sustain  any  school, 
academy,  seminary,  college,  university,  or  other  literary  or  scientific  institution  con- 
trolled by  any  churcli  or  sectarian  denomination  whatsoever ;  nor  shall  any  grant  or 
donation  of  land,  money,  or  other  personal  property  ever  be  made  by  the  State,  or  any 
such  public  corporation,  to  any  church  or  for  an}-  sectarian  purpose. 

Sec.  8  No  religious  test  or  qualification  shall  ever  be  required  of  any  person  as  a 
condition  of  admission  into  any  public  educational  institution  of  the  State,  either  as 
teacher  or  student ;  and  no  teacher  or  student  of  any  such  institution  shall  ever  be 
required  to  attend  or  participate  in  any  religious  service  whatever.  No  sectarian 
tenets  or  doctrines  shall  ever  be  taught  in  the  public  schools,  nor  shall  any  distinction 
or  classification  of  pupils  be  made  on  account  of  race  or  color. 

Sec.  10.  It  shall  be  the  duty  of  the  State  Board  of  Land  Commissioners  to  provide 
for  the  location,  protection,  sale,  or  other  disposition  of  all  the  lands  heretofore,  or 
which  may  hereafter  be,  granted  to  the  State  by  the  General  Government,  under  such 
regulations  as  may  be' prescribed  by  law,  and  in  such  manner  as  will  secure  the  maxi- 
mum possible  amount  therefor.  No  law  shall  ever  be  passed  by  the  General  As- 
sembly granting  any  privileges  to  persons  who  may  have  settled  upon  any  such  public 
lands  subsequent  to  the  survey  thereof  by  the  General  Government,  by  which  the 
amount  to  be  derived  by  the  sale,  or  other  disposition  of  such  lands,  shall  be  dimin- 
ished, directly  or  indirectly.  The  General  Assembly  shall,  at  the  earliest  practicable 
period,  provide  by  law  that  the  several  grants  of  land  made  by  Congress  to  the  State 
shall  be  judiciously  located  and  carefully  preserved  and  held  in  trust  subject  to  dis- 
posal for  the  use  and  benefit  of  the  respective  objects  for  which  said  grants  of  land 
were  made,  and  the  General  Assembly  shall  provide  for  the  sale  of  said  lands  from 
time  to  time,  and  for  the  faithful  application  of  the  proceeds  thereof  in  accordance 
with  the  terms  of  said  grants. 

Article  X.     Revenue. 

Sec.  3.  All  taxes  shrJl  be  uniform  upon  the  same  class  of  subjects  within  the  ter 
ritorial  limits  of  the  authority  levying  the  tax,  and  sliall  be  levied  and  collected  under 
general  laws,  which  shall  prescribe  such  regulations  as  shall  secure  a  just  valuation 
for  taxation  of  all  property,  real  and  personal  ■  Provided,  That  mines  and  mining- 
claims,  bearing  gold,  silver,  and  other  precious  metals  (except  the  net  proceeds  and 
surface  improvements  thereof),  shall  be  exempt  from  taxation  for  the  period  of  ten 
years  from  the  date  of  the  adoption  of  this  Constitution,  and  thereafter  may  be  taxed 
as  provided  by  law.  Ditches,  canals,  and  flumes  owned  and  used  by  individuals  or 
corporations  for  irrigating  lands  owned  by  such  individuals  or  corporations,  or  tlie  in- 
dividual members  thereof,  shall  not  be  separately  taxed  so  long  as  they  shall  be  owned 
and  used  exclusively  for  such  purpose. 

Sec.  5.  Lots,  with  the  buildings  thereon,  if  said  buildings  are  used  solely  and 
exclusively  for  religious  worship,  for  schools,  or  for  strictly  charitable  purposes, 
also  cemeteries  not  used  or  held  for  private  or  corporate  profit,  shall  be  exempt 
from  taxation,  unless  otherwise  provided  by  general  law. 

Sec.  6.  All  laws  exempting  from  taxation  property  other  than  that  hereinbefore 
mentioned  sliall  be  void. 


APPENDIX   TO    PAPvT   I.  441 

Sec.  ?.  The  General  Assembly  shall  not  impose  taxes  for  the  purposes  of  any 
county,  city,  town,  or  otlier  municipal  corporation,  but  may,  by  law,  vest  in  the  cor- 
porate authorities  thereof  respectively  the  power  to  assess  and  collect  taxes  for  ail 
purposes  of  such  corporation. 

Sec.  8.  No  county,  city,  town,  or  otlier  municipal  corporation,  the  inhabitants 
thereof,  nor  the  property  tlierein,  shall  be  released  or  discharged  from  their,  or  its, 
proportionate  share  of  taxes  to  be  levied  for  State  purposes. 

Sec.  9.  The  power  to  tax  corporations  and  corporate  property,  real  and  personal, 
shall  never  be  relinquished  or  suspended. 

Sec.  10.  All  corporations  in  this  State,  or  doing  business  tlierein,  shall  be  subject 
to  taxation  for  State,  county,  school,  municipal,  and  other  purposes,  on  the  real  and 
personal  property  owned  or  used  by  them  within  the  territorial  limits  of  the  authority 
levying  the  tax. 

Sec.  11.  The  rate  of  taxation  on  property,  for  State  purposes,  shall  never  exceed 
six  mills  on  each  dollar  of  valuation  ;  and  whenever  the  taxable  property  within  the 
State  shall  amount  to  one  hundred  million  dollars  the  rate  sh.all  not  exceed  four  mills 
on  each  dollar  of  valuation  ;  and  whenever  the  taxable  property  within  the  State  shall 
amount  to  three  hundred  million  dollars  the  rate  shall  never  thereafter  exceed  two 
mills  on  each  dollar  of  valuation,  unless  a  proposition  to  increase  such  rate,  specifying 
the  rate  proposed,  and  the  time  during  which  the  same  shall  be  levied,  be  first  sub- 
mitted to  a  vote  of  such  of  the  qualified  electors  of  the  State  as  in  the  year  next  pre- 
ceding such  election  shall  have  ])aid  a  property-tax  assessed  to  them  within  the  State, 
and  a  majority  of  those  voting  thereon  shall  vote  in  favor  thereof,  in  such  manner  as 
may  be  provided  by  law. 

Sec.  12.  The  Treasurer  shall  keep  a  separate  account  of  each  fund  in  his  hands, 
and  shall,  at  the  end  of  each  quarter  of  the  fiscal  year,  report  to  the  Governor  in 
writing,  under  oath,  the  amount  of  all  moneys  in  his  hands  to  the  credit  of  every  such 
fund,  and  the  place  where  tiie  same  are  kept  or  deposited,  and  the  number  and  amount 
of  every  warrant  received,  and  the  number  and  amount  of  every  warrant  paid  there- 
from during  the  quarter.  Swearing  falsely  to  any  such  report  shall  be  deemed  per- 
jury. The  Governor  shall  cause  every  such  report  to  be  immediately  published  in  at 
least  one  newspaper  printed  at  tlie  seat  of  government,  and  otherwise  as  the  General 
Assembly  may  require.  The  General  Assembly  may  provide  by  law  further  regu- 
lations for  the  safe-keeping  and  management  of  the  public  funds  in  the  hands  of  the 
Treasurer ;  but  notwithstanding  any  such  regulation,  the  Treasurer  and  his  sureties 
shall  in  all  cases  be  held  responsible  therefor. 

Sec.  13.  The  making  of  profit,  directly  or  indirectly,  out  of  State,  county,  city, 
town,  or  school-district  money,  or  using  the  same  for  any  purpose  not  authorized  by 
law,  by  any  public  officer,  shall  be  deemed  a  felony,  and  shall  be  punished  as  provided 
by  law. 

Sec.  14.  Private  property  shall  not  be  taken  or  sold  for  the  payment  of  the  corpo- 
rate debt  of  municipal  corporations. 

Sec.  15.  There  shall  be  a  State  Board  of  Equalization,  consisting  of  the  Governor, 
State  Auditor,  State  Treasurer,  Secretary  of  State,  and  Attorney-Gener.al ;  also,  in 
each  county  of  this  State,  a  County  Board  of  Equalization,  consisting  of  the  Board  of 
County  Commissioners  of  said  county.  The  duty  of  the  State  Board  of  Equalization 
shall  be  to  adjust  and  equalize  the  valuation  of  real  and  personal  propert}'  among  the 
several  counties  of  the  State.  The  duty  of  the  County  Board  of  Equalization  shall  be 
to  adjust  and  equalize  the  valuation  of  real  and  personal  property  within  their  respec- 
tive counties.  Each  board  shall  also  perform  such  other  duties  as  may  be  prescribed 
by  law. 

Sec.  16.  No  appropriation  shall  be  made,  nor  any  expenditure  authorized  by  the 
General  Assembly,  whereby  the  expenditure  of  the  State,  during  any  fiscal  year,  shall 
exceed  the  total  tax  then  provided  for  by  law  and  applicable  for  such  appropriation  or 
expenditure,  unless  the  General  A.ssemlily  makin  ,  such  appropriation  shall  provide  for 
levying  a  sufficient  tax,  not  exceeding  the  rates  cllowed  in  section  eleven  of  this  article, 
to  pay  such  appropriation  or  expenditure  within  such  fiscal  yeai;.  This  provision  shall 
no^  njiply  to  appropriations  or  expenditures  to  suppress  insurrection,  defend  the  State 
or  assist  in  defending  the  United  States  in  time  of  war. 


• 


442  APPENDIX   TO   PART   I. 


Article  XI.    Public  Indebtedness. 

Section  I.  Neither  the  State,  nor  any  county,  city,  town,  township,  or  school- 
district  shall  lend  or  pledge  the  credit  or  faith  thereof,  directly  or  indirectly,  in  any 
manner  to,  or  in  aid  of,  any  person,  company,  or  corporation,  public  or  private,  for 
any  amount  or  for  any  purpose  whatever,  or  become  responsible  for  any  debt,  con- 
tract, or  liability  of  any  person,  company,  or  corporation,  public  or  private,  in  or  out 
of  the  State. 

Sec.  2.  Neither  the  State,  nor  any  county,  city,  town,  township,  or  school-district 
shall  make  any  donation  or  grant  to,  or  in  aid  of,  or  become  a  subscriber  to,  or  share- 
holder in,  any  corporation  or  company,  or  a  joint  owner  with  any  person,  company, 
or  corporation,  public  or  private,  in  or  out  of  the  State,  except  as  to  such  ownership 
as  may  accrue  to  the  State  by  escheat,  or  by  forfeiture,  by  operation  or  provision  of 
law ;  and  except  as  to  such  ownership  as  may  accrue  to  the  State,  or  to  any  county, 
city,  town,  township,  or  school-district,  or  to  either  or  any  of  them,  jointly  with  any 
person,  company,  or  corporation,  by  forfeiture  or  sale  of  real  estate  for  non-payment 
of  taxes,  or  by  donation  or  devise  for  public  use,  or  by  purchase  by  or  on  behalf  of  any 
or  either  of  them,  jointly  with  any  or  either  of  them,  under  execution  in  cases  of  fine, 
penalties,  or  forfeiture  of  recognizance,  breach  of  condition  of  official  bond,  or  of  bond 
to  secure  public  moneys,  or  the  performance  of  any  contract  in  which  they  or  any  of 
them  may  be  jointly  or  severally  interested. 

Sec.  3.  The  State  shall  not  contract  any  debt  by  loan,  in  any  form,  except  to  pro- 
vide for  casual  deficiencies  of  revenue,  erect  public  buildings  for  use  of  the  State,  sup- 
press insurrection,  defend  the  State,  or,  in  time  of  war,  assist  in  defending  tlie  United 
States ;  and  the  amount  of  debt  contracted  in  any  one  year  to  provide  for  deficiencies 
of  the  revenue  shall  not  exceed  one-fourth  of  a  mill  on  each  dollar  of  valuation  of  tax- 
able property  within  the  State,  and  the  aggregate  amount  of  such  debt  shall  not  at  any 
time  exceed  three-fourtlis  of  a  mill  on  each  dollar  of  said  valuation  until  tlie  valuation 
shall  equal  one  hundred  millions  of  dollars,  and  thereafter  such  debt  shall  not  exceed 
one  hundred  thousand  dollars,  and  the  debt  incurred  in  any  one  year  for  erection  of 
public  buildings  shall  not  exceed  one-half  mill  on  each  dollar  of  said  valuation,  and  the 
aggregate  amount  of  such  debt  shall  never  at  any  time  exceed  the  sum  of  fifty  thousand 
dollars  (except  as  provided  in  section  five  of  this  article) ;  and  in  all  cases  the  valua- 
tion in  this  section  mentioned  shall  be  that  of  the  assessment  last  preceding  the  creation 
of  said  debt. 

Sec.  4.  In  no  case  shall  any  debt  above  mentioned  in  this  article  be  created,  except 
by  a  law  which  shall  be  irrepealable,  until  the  indebtedness  therein  provided  for  shall 
have  been  fully  paid  or  discharged  ;  such  law  shall  specify  the  purposes  to  which  the 
funds  so  raised  shall  be  applied,  and  provide  for  the  levy  of  a  tax  sufficient  to  pay  the 
interest  on,  and  extinguish  the  principal  of,  such  debt  within  the  time  limited  by  such 
law  for  the  payment  thereof,  which,  in  the  case  of  debts  contracted  for  the  erection  of 
public  buildings  and  supplying  deficiencies  of  revenue,  shall  not  be  less  than  ten  nor 
more  than  fifteen  years ;  and  the  funds  arising  from  the  collection  of  any  such  tax 
shall  not  be  applied  to  any  other  purpose  than  that  provided  in  the  law  levying  the 
same ;  and  when  the  debt  thereby  created  shall  be  paid  or  discharged  such  tax  shall 
cease,  and  the  balance,  if  any,  to  the  credit  of  the  fund,  shall  immediately  be  placed  to 
the  credit  of  the  general  fund  of  the  State. 

Sec.  5.  A  debt  for  the  purpose  of  erecting  public  buildings  may  be  created  by  law, 
as  provided  for  in  section  four  of  this  article,  not  exceeding  in  the  aggregate  three 
mills  on  each  dollar  of  said  valuation  :  Provided,  That  before  going  into  effect  such 
law  shall  be  ratified  by  the  vote  of  a  majority  of  such  qualified  electors  of  the  State  as 
shall  vote  thereon  at  a  general  election,  under  such  regulations  as  the  General  Assembly 
may  prescribe. 

Sec.  6.  No  county  shall  contract  any  debt  by  loan  in  any  form,  except  for  the 
purpose  of  erecting  necessary  public  buildings,  making  or  repairing  public  roads 
and  bridges ;  and  such  indebtedness  contracted  in  any  one  year  shall  not  exceed  the 
rates  upon  the  taxable  property  in  such  county  following,  to  wit :  counties  in  which 
the  assessed  valuation  of  taxable  property  shall  exceed  five  millions  of  dollars,  one 


APPENDIX  TO   PAPvT   I.  •^'^^ 


r      /     d  bL  cof^r^c  eVTeL     the  adoption  of  this  Constitution,  siiall  not  at  any 

mMmmmM 

r'u 'i  :'  '^ei;n?,,    rrslS^      .  ru:.et\>L"te„  .earaf  >„.  ..,e  aggregate 

ties  liavincr  a  valuation  of  less  than  one  million  of  dollars. 

Skp   i      No  debt  by  loan  in  any  form  shall  be  contracted  by  any  school-district  for 

such  election,  and  a  majority  of  those  voting  thereon  shall  vote  in  fax  or  ot  incurring 
"t^  NO  e.,o.  town  ^^^^^^^^l^^^^T ZZI^ 

or    Z  lufficie"      to  pay  the  annual  interest  and  extinguish  the  pnnc.pal  o    such 

bHli^  reel  d  L  less  than  ten,  years  from  the  -eation  thereof 
tax,  when  collected,  shall  be  applied  only  to  the  purposes  lu  such  -^-r;'  ^^^^^^^^^^ 
unt  1  the  indebtedness  shall  be  paid  or  discharged  ;  but  no  such  debt  shall  be  created 
"n    ss  tl  e  ^estion  of  incurring  the  same  shall,  at  a  regular  election  for  councimeu 
ardermen   or  officers  of  such  c^ty  or  town,  be  submitted  to  a  vote  of  such  qualified 
dcto-  thereof  as  shall,  in  the  year  next  preceding,  have  paid  a  P-P-^^"*-^  t^^'"' 
and  a  majority  of  those  voting  on  the  question,  by  ballot  deposited  m  a  separate  ballot- 
box   shal   vote  in  favor  of  creating  such  debt;  but  the  aggregate  amount  of  debt  so 
Lited   tolethe    with  the  debt  existing  at  the  time  of  such  election,  shall  not  at  any 
SexVeed  thr  e  per  cent  of  the  valuation  last  aforesaid.      Debts  contracted  for  sup- 
Xfugwater  to  such  city  or  town  are  excepted  from  the  operation  of  this  section 
Tir^luation  in  this  sect^n  mentioned  shall  be  in  all  cases  that  of  the  assessment  next 
preceding  the  last  assessment  before  the  adoption  of  such  ordinance 
^  Sec  9     Nothing  contained  in  this  article  shall  be  so  construed  as  to  either  impair  or 
add  to  the  obligation  of  any  -lebt  heretofore  contracted  by  any  county,  city  town  or 
chool-district  in  accordance  with  the  laws  of  Colorado  Territory,  ^^V^^^^ 
tracting  of  any  debt,  or  tlie  issuing  of  bonds  therefor,  m  accordance  XMtli  said  hv.ss 
Znly  prop'ositio^  for  that  purpose  which  may  have  been,  according  to  said    aws 
submitted  L  Z  vote  of  the  qualified  electors  of  any  county,  city,  town,  or  school-district 
before  the  day  on  which  this  Constitution  takes  effect. 

Article  XII.  Officers. 
Section  1.  Every  person  holding  any  civil  office  under  the  State  or  any  munici- 
pafity  therein  shal^iuless  removed  according  to  law,  exercise  the  duties  of  such 
S  e'untU  his  successor  is  duly  qualified  ;  but  this  shall  not  apply  to  members  of  the 
General  Assembly,  nor  to  members  of  any  board  or  assembly  two  or  more  of  whom 
are  e  :  ttd  at  thJ'same  time  ;  the  General  Assembly  may  by  law  P-vule  for  s-P-J 
ing  any  officer  iu  his  functions  pending  impeachment  or  prosecution  for  misconduct 

'"  stc '2     No  person  shall  hold  any  office  or  employment  of  trust  or  profit,  under  the 

laws  of  the  State  or  any  ordinance  of  any  municipality  therein,  without  devoting  his 

personal  attention  to  the  duties  of  the  same.  r^P^ivfr  of 

Sec  3.    No  person  who  is  now  or  hereafter  may  become  a  collector  or  receiver  of 


444  APPENDIX   TO   PART   I. 

public  money,  or  the  deputy  or  assistant  of  such  collector  or  receiver,  and  who  shall 
have  become  a  defaulter  in  his  oihce,  shall  be  eligible  to  or  assume  the  duties  of  any 
office  of  trust  or  profit  in  this  State,  under  the  laws  thereof,  or  of  auy  municipality 
therein,  until  he  shall  have  accounted  for  and  paid  over  all  public  money  for  which 
he  may  be  accountable. 

Sec.  4.  No  person  hereafter  convicted  of  embezzlement  of  public  moneys,  bribery, 
perjury,  solicitation  of  bribery,  or  subornation  of  perjur}^,  shall  be  eligible  to  the  Gen- 
eral Assembly,  or  capable  of  holding  any  office  of  trust  or  profit  in  this  State. 

Sec.  5.  The  District  Court  of  each  county  shall,  at  each  term  thereof,  specially 
give  in  charge  to  the  grand  jur}',  if  there  be  one,  the  laws  regulating  the  account- 
ability of  the  County  Treasurer,  and  shall  appoint  a  committee  of  such  grand  jury,  or 
of  other  reputable  persons,  not  exceeding  five,  to  investigate  the  official  accounts  and 
affairs  of  tlie  treasurer  of  such  county,  and  report  to  the  court  the  condition  thereof. 
The  judge  of  the  District  Court  may  appoint  a  like  committee  in  vacation  at  any  time, 
but  not  oftener  than  once  in  every  three  mouths.  The  District  Court  of  the  county 
wherein  the  seat  of  government  may  be  shall  have  the  like  power  to  appoint  commit- 
tees to  investigate  the  official  accounts  and  affairs  of  the  State  Treasurer  and  the 
Auditor  of  State. 

Sec.  6.  Any  civil  officer  or  mem-ber  of  the  General  Assembly  who  shall  solicit, 
demand,  or  receive,  or  consent  to  receive,  directly  or  indirectly,  for  himself  or  for 
another,  from  any  company,  corporation,  or  person,  any  money,  office,  appointment, 
employment,  testimonial,  reward,  thing  of  value  or  enjoyment,  or  of  personal  advan- 
tage or  promise  thereof,  for  his  vote,  official  influence,  or  action,  or  for  withholding 
the  same,  or  Avitli  an  understanding  that  his  official  influence  or  action  shall  be  in  any 
way  influenced  therein',  or  who  shall  solicit  or  demand  any  such  money  or  advantage, 
matter,  or  thing  aforesaid  for  another,  as  tiie  consideration  of  his  vote,  official  influ- 
ence, or  action,  or  for  withholding  the  same,  or  shall  give  or  withhold' his  vote,  official 
influence,  or  action  in  consideration  of  the  payment  or  promise  of  such  money,  advan- 
tage, matter,  or  thing  to  another,  shall  be  held  guilty  of  briber^',  or  solicitation  of 
bribery,  as  the  case  may  be,  within  the  meaning  of  this  Constitution,  and  shall  incur 
the  disabilities  provided  thereby  for  such  offence,  and  such  additional  punishment  as 
is  or  shall  be  prescribed  by  law. 

Article  XIV.     Counties. 

Section  1.  The  several  counties  of  the  Territory  of  Colorado,  as  they  now  exist, 
are  hereby  declared  to  be  counties  of  the  State. 

Sec.  2.  The  General  Assembly  shall  have  no  power  to  remove  the  county-seat  of 
any  county,  but  the  removal  of  county-seats  shall  be  provided  for  by  general  law,  and 
no  county-seat  shall  be  removed  unless  a  majority  of  the  qualified  electors  of  the 
county,  voting  on  the  proposition  at  a  general  election,  vote  therefor ;  and  no  such 
proposition  shall  be  submitted  oftener  than  once  in  four  years,  and  no  person  shall 
vote  on  such  proposition  who  shall  not  have  resided  in  the  county  six  months  and  in 
the  election-precinct  ninety  days  next  preceding  such  election. 

Sec.  3.  No  part  of  the  territory  of  any  county  shall  be  stricken  off  and  added  to  an 
adjoining  county  without  first  submitting  the  question  to  the  qualified  voters  of  the 
county  from  which  the  territory  is  proposed  to  be  stricken  off ;  nor  unless  a  majority 
of  all  the  qualified  voters  of  said  county  voting  on  the  question  shall  vote  therefor. 

Sec  4.  In  all  cases  of  the  establishment  of  any  new  county,  the  new  county  shall 
be  held  to  pay  its  ratable  proportion  of  all  then  existing  liabilities  of  the  county  or 
counties  from  which  such  new  county  shall  be  formed. 

Sec.  5.  AVhen  any  part  of  a  county  is  stricken  off  and  attached  to  another  county, 
the  part  stricken  off  shall  be  held  to  pay  its  ratable  proportion  of  all  then  existing 
liabilities  of  the  county  from  which  it  is  taken. 

County  Officers. 

Sec.  11.  There  shall,  at  the  first  election  at  which  county  officers  are  chosen,  and 
annually  thereafter,  be  elected  in  each  precinct  one  justice  of  the  peace  and  one 


APPENDIX   TO   PART   L  445 

constable,  who  shall  each  hold  his  office  for  the  term  of  two  years  :  Provided,  That 
iu  precincts  coutaiuing  five  thousand  or  more  inhabitants,  the  number  of  justices  and 
constables  may  be  increased  as  provided  by  law. 

Sec.  12.  The  General  Assembly  shall  provide  for  the  election  or  appointment  of 
such  otlier  county,  townsliip,  precinct,  and  municipal  officers  as  public  convenience 
may  re(iuire  ;  and  their  terms  of  office  shall  be  as  prescribed  by  law,  not  in  any  case  to 
exceed  two  years. 

Sec.  13.  The  General  Assembly  shall  provide,  by  general  laws,  for  the  organi- 
zation and  classification  of  cities  and  towns.  The  number  of  such  classes  shall  not 
exceed  four,  and  the  powers  of  each  class  shall  be  defined  by  general  laws,  so  that  all 
municipal  corporations  of  tiie  same  class  shall  possess  the  same  jjowers,  and  be  sub- 
ject to  the  same  restrictions. 

Akticle  XV.    Corporations. 

Sec.  3.  The  General  As.sembly  shall  have  the  power  to  alter,  revoke,  or  annul  any 
charter  of  incorporation  now  existing  and  revocable  at  the  adoption  of  this  Constitu- 
tion, or  any  tliat  may  hereafter  be  created,  whenever  in  their  opinion  it  may  be  inju- 
rious to  the  citizens  of  the  State,  in  such  manner,  however,  that  no  injustice  shall  be 
done  to  the  corporators. 

Sec.  4.  All  railroads  shall  be  public  highways,  and  all  railroad  companies  shall  be 
common  carriers.  Any  association  or  corporation  organized  for  the  purpose  sliall 
have  the  right  to  construct  and  operate  a  railroad  between  any  designated  points 
within  tliis  State,  and  to  connect  at  the  State  line  with  railroads  of  other  States  and 
Territories.  Every  railroad  company  shall  iiave  the  right  witli  its  road  to  intersect, 
connect  with,  or  cross  any  other  railroad. 

Sec.  5.  No  railroad  corporation,  or  the  lessees  or  managers  thereof,  shall  consoli- 
date its  stock,  property,  or  franchises  with  any  other  railroad  corporation  owning  or 
having  under  its  control  a  parallel  or  competing  line. 

Sec.  6.  All  individuals,  associations,  and  corporations  shall  have  equal  rights  to 
have  persons  and  property  transported  over  any  railroad  in  tliis  State,  and  no  undue 
or  unreasonable  discrimination  shall  be  made  in  charges  or  iu  facilities  for  transporta- 
tion of  freiglit  or  passengers  within  the  State,  and  no  railroad  company,  nor  any  lessee, 
manager,  or  employe'  thereof,  shall  give  any  preference  to  individuals,  associations,  or 
corporations  in  furnishing  cars  or  motive-power. 

Sec.  7.  No  railroad  or  other  transportation  company  in  existence  at  the  time  of  the 
adoption  of  this  Constitution  shall  have  the  benefit  of  any  future  legislation  without 
first  filing  in  the  office  of  the  Secretary  of  State  an  acceptance  of  the  provisions  of  this 
Constitution  iu  binding  form. 

Sec.  8.  The  right  of  eminent  domain  shall  never  be  abridged,  nor  so  construed  as 
to  prevent  the  General  Assembly  from  taking  the  property  and  franchises  of  incor- 
porated companies  and  subjecting  them  to  public  use,  the  same  as  the  property  of 
individuals ;  and  the  police  powers  of  tlie  State  shall  never  be  abridged,  or  so  con- 
strued as  to  permit  corporations  to  conduct  their  business  in  such  manner  as  to  infringe 
the  equal  rights  of  individuals  or  the  general  well-being  of  the  State. 

Sec.  9.  No  corporation  shall  issue  stocks  or  bonds,  except  for  labor  done,  services 
performed,  or  money  or  property  actually  received,  and  all  fictitious  increase  of  stock 
and  indebtedness  shall  be  void.  The  stock  of  corporations  shall  not  be  increased  ex- 
cept in  pursuance  of  general  law,  nor  without  the  consent  of  the  persons  holding  a 
majority  of  the  stock,  first  obtained  at  a  meeting  held  after  at  least  thirty  days'  notice 
given  in  pursuance  of  law. 

Sec.  10.  No  foreign  corporation  shall  do  any  business  in  this  State  without  having 
cue  or  more  known  places  of  business,  and  an  authorized  agent  or  agents  in  the  same 
upon  whom  process  may  be  served. 

Sec.  11.  No  street  railroad  shall  be  constructed  within  any  city,  town,  or  incor- 
porated village  without  the  consent  of  the  local  authorities  having  tlie  control  of  the 
street  or  highway  proposed  to  be  occupied  by  such  street-railroad. 

Sec.  12.  The  General  Assembly  shall  pass  no  law  for  tlie  benefit  of  a  railroad  or 
other  corporation,  or  any  individual  or  association  of  individuals,  retrospective  iu  its 


446  APPENDIX   TO   PART   I. 

operation,  or  wliich  imposes  on  the  people  of  any  county  or  municipal  subdivision  ol 
the  State  a  new  liability  in  respect  to  transactions  or  considerations  already  past. 

Sec.  13.  Any  association  or  corporation,  or  tlie  lessees  or  managers  thereof,  organ- 
ized fur  the  purpose,  or  any  individual,  shall  have  the  right  to  construct  and  maintain 
lines  of  telegraph  within  this  State,  and  to  connect  the  same  with  other  lines ;  and 
the  General  Assembly  shall,  by  general  law  of  uniform  operation,  provide  reasonable 
regulations  to  give  full  effect  to  this  section.  No  telegraph  company  shall  consoli- 
date with,  or  hold  a  controlling  interest  in,  the  stock  or  bonds  of  any  other  telegraph 
company  owning  or  having  the  control  of  a  competing  line,  or  acquire,  by  purchase  or 
otlierwise,  any  other  competing  line  of  telegraph. 

Sec.  14.  If  any  railroad,  telegraph,  express,  or  other  corporation  organized  under 
any  of  the  laws  of  this  State  shall  consolidate,  by  sale  or  otherwise,  with  any  railroad, 
telegraph,  express,  or  other  corporation  organized  under  any  laws  of  any  other  State 
or  Territory,  or  of  the  United  States,  the  same  shall  not  thereby  become  a  foreign 
corporation,  but  the  courts  of  this  State  shall  retain  jurisdiction  over  that  part  of  the 
corporate  property  within  the  limits  of  the  State  in  all  matters  which  may  arise,  as  if 
said  consolidation  had  not  taken  place. 

Sec.  15.  It  shall  be  unlawful  for  any  person,  company,  or  corporation  to  require  of 
its  servants  or  employe's,  as  a  condition  of  their  employment  or  otherwise,  any  con- 
tract or  agreement  wliereby  such  person,  company,  or  corporation  shall  be  released  or 
discharged  from  liability  or  responsibility  on  account  of  personal  injuries  received  by 
such  servants  or  employe's  while  in  the  service  of  such  person,  company,  or  corporation 
by  reason  of  the  negligence  of  such  person,  company,  or  corporation,  or  the  agents  or 
employe's  thereof ;  and  such  contracts  shall  be  absolutely  null  and  void. 

Article  XVI.     Mining  and  Irrigation. 

Milling. 

Sec.  2.  The  General  Assembly  shall  provide  by  law  for  the  proper  ventilation  of 
mines,  the  construction  of  escapement-shafts,  and  such  other  appliances  as  may  be 
necessary  to  protect  the  health  and  secure  tlie  safety  of  the  workmen  therein,  and 
shall  prohibit  the  employment  in  the  mines  of  children  under  twelve  years  of  age. 

Sec.  3.  The  General  Assembly  may  make  such  regulations  from  time  to  time  as 
may  be  necessary  for  the  proper  and  equitable  drainage  of  mines. 

Sec.  4.  The  General  Assembly  may  provide  that  the  science  of  raining  and  metal- 
lurgy be  taught  in  one  or  more  of  the  institutions  of  learning  under  the  patronage  of 
the  State. 

IiTigation. 

Sec.  5.  The  water  of  every  natural  stream  not  heretofore  appropriated  within  the 
State  of  Colorado  is  hereby  declared  to  be  the  property  of  the  public  ;  and  the  same 
is  dedicated  to  the  use  of  tlie  people  of  the  State,  subject  to  appropriation  as  herein- 
after provided. 

Sec.  6.  The  right  to  divert  the  unappropriated  waters  of  any  natural  stream  to 
beneficial  uses  shall  never  be  denied.  Priority  of  appropriation  shall  give  the  better 
right  as  between  those  using  the  water  for  the  same  purpose  ;  but  when  the  waters  of 
any  natural  stream  are  not  sufficient  for  the  service  of  all  those  desiring  the  use  of  the 
same,  those  using  the  water  for  domestic  purposes  shall  have  the  preference  over  those 
claiming  for  any  other  purpose,  and  those  using  the  water  for  agricultural  purposes 
shall  have  preference  over  those  using  the  same  for  manufacturing  purposes. 

Sec.  7.  All  persons  and  corporations  shall  have  the  right  of  way  across  public,  pri- 
vate, and  corporate  lands  for  the  construction  of  ditches,  canals,  and  flumes  for  the 
purpose  of  conveying  water  for  domestic  purposes,  for  the  irrigation  of  agricultural 
lands,  and  for  mining  and  manufacturing  purposes,  and  for  drainage,  upon  payment  of 
just  compensation. 

Sec.  8.  The  General  Assembly  shall  provide  by  law  that  the  board  of  county  com- 
missioners,  in  their  respective  counties,  shall  have  power,  when  application  is  made  to 
them  by  either  party  interested,  to  establish  reasonable  maximum  rates  to  be  charged 
for  the  use  of  water,  whether  furnished  by  individuals  or  corporations. 


APPENDIX   TO   PART   I.  447 


Article   XVII.    Militia. 

Sec.  4.  The  General  Assembly  shall  provide  for  the  safe-keeping  of  the  public  arms, 
military  records,  relics,  and  banners  of  the  State. 

Sec.  5.  No  person  having  conscientious  scruples  against  bearing  arms  shall  be 
compelled  to  do  militia  duty  in  time  of  peace  :  Provided,  Such  person  shall  pay  an 
equivalent  for  such  exemption. 

Article  XVIII.    Miscellaneous. 

Section  1.     The  General  Assembly  shall  pass  liberal  homestead  and  exemption  laws. 

Sec.  2.  The  General  Assembly  shall  have  no  power  to  authorize  lotteries  or  gift 
enterprise*  for  any  purpose,  and  shall  pass  laws  to  prohibit  the  sale  of  lottery  or  gift- 
enterprise  tickets  iu  tiiis  State. 

Sec.  3.  It  sliall  be  the  duty  of  the  General  Assembly  to  pass  such  laws  as  may  be 
necessary  and  proper  to  decide  differences  by  arbitrators,  to  be  appointed  by  mutual 
agreement  of  the  parties  to  any  controversy,  who  may  choose  that  mode  of  adjustment. 
The  powers  and  duties  of  such  arbitrators  shall  be  as  prescribed  by  law. 

Sec.  5.  The  General  Assembly  shall  prohibit  by  law  the  importation  into  this  State, 
for  the  purpose  of  sale,  of  any  spurious,  poisonous,  or  drugged  spirituous  liquors,  or 
spirituous  liquors  adulterated  with  any  poisonous  or  deleterious  substance,  mixture,  or 
compound  ;  and  shall  prohibit  the  compounding  or  manufacture  within  this  State, 
except  for  chemical  or  mechanical  purposes,  of  any  of  said  liquors,  whether  they  be 
denominated  spirituous,  vinous,  malt,  or  otherwise  ;  antl  shall  also  prohibit  the  sale  of 
any  such  liquors  to  be  used  as  a  beverage  ;  and  any  violation  of  either  of  said  prohibi- 
tions shall  be  punished  by  fine  and  imprisonment.  The  General  Assembly  sliall  pro- 
vide by  law  for  the  condemnation  and  destruction  of  all  spurious,  poisonous,  or  drugged 
liquors  herein  prohibited. 

Sec.  6.  The  General  Assembly  shall  enact  laws  in  order  to  prevent  the  destruction 
of,  and  to  keep  in  good  preservation,  the  forests  upon  the  lands  of  the  State,  or  upon 
lauds  of  the  public  domain,  the  control  of  which  shall  be  conferred  by  Congress  upon 
the  State. 

Sec.  7.  The  General  Assembly  may  provide  that  the  increase  in  the  value  of  pri- 
vate lands,  caused  by  the  planting  of  hedges,  orchards,  and  forests  thereon,  shall  not, 
for  a  limited  time,  to  be  fixed  by  law,  be  taken  into  account  in  assessing  such  lands  for 
taxation. 

Sec.  8.  The  General  Assembly  shall  provide  for  the  publication  of  the  laws  passed 
at  each  .session  thereof;  and,  until  the  year  1900,  they  shall  cause  to  be  published  iu 
Spanish  and  German  a  sufficient  number  of  copies  of  said  laws  to  supply  that  portion 
of  the  inhabitants  of  the  State  who  speak  those  languages,  and  who  may  be  unable  to 
read  and  understand  the  English  language. 

Article  XIX.    Future  Amendments. 

Section  1.  The  General  Assembly  may,  at  any  time,  by  a  vote  of  two-thirds  of  the 
members  elected  to  each  House,  recommend  to  the  electors  of  the  State  to  vote  at  the 
next  general  election  for  or  against  a  convention  to  revise,  alter,  and  amend  this  Con- 
stitution ;  and  if  a  majority  of  those  voting  on  the  question  shall  declare  in  favor  of 
such  convention,  the  General  Assembly  shall,  at  its  next  session,  provide  for  the  calling 
thereof.  The  number  of  members  of  the  convention  shall  be  t\vice  that  of  the  Senate, 
and  they  shall  be  elected  in  the  same  manner,  at  the  same  places,  and  in  the  same 
districts.  The  General  Assembly  shall,  in  the  act  calling  the  convention,  designate 
the  day,  hour,  and  place  of  its  meeting ;  fix  the  pay  of  its  members  and  officers, 
and  provide  for  the  payment  of  the  same,  together  with  the  necessary  expenses  of  the  ' 
convention.  Before  proceeding  the  members  shall  take  an  oath  to  support  the  Consti- 
tution of  the  United  States  and  of  the  State  of  Colorado,  and  to  faithfully  discharge 
their  duties  as  members  of  the  convention.  The  qualifications  of  members  shall  be 
the  same  as  of  members  of  the  Senate,  and  vacancies  occurring  shall  be  filled  in  tlie 


448  APPENDIX   TO   PART  I. 

manner  provided  for  filling  vacancies  in  the  General  Assembly.  Said  convention  shall 
meet  within  three  months  after  such  election,  and  prepare  such  revisions,  alterations, 
or  amendments  to  the  Constitution  as  may  be  deemed  necessary,  which  shall  be  sub- 
mitted to  electors  for  their  ratification  or  rejection  at  an  election  appointed  by  the 
convention  for  tliat  purpose,  not  less  than  two  nor  more  than  six  moutlis  after  the  ad- 
journment thereof;  and  unless  so  submitted  and  approved  by  a  majority  of  the  electors 
voting  at  the  election,  no  such  revision,  alteration,  or  amendment  shall  take  effect. 

Sec.  2.  Any  amendment  or  amendments  to  this  Constitution  may  be  proposed  in 
either  House  of  the  General  Assembly,  and  if  the  same  shall  be  voted  for  by  two- 
thirds  of  all  the  members  elected  to  each  House,  such  proposed  amendments,  together 
with  the  ayes  and  noes  of  each  House  thereon,  shall  be  entered  in  full  on  their  respec- 
tive journals ;  and  the  Secretary  of  State  shall  cause  the  said  amendment  or  amend- 
ments to  be  published  in  full  in  at  least  one  newspaper  in  each  county,  (if  such  there 
be,)  for  three  months  previous  to  the  next  general  election  for  members  to  the  General 
Assembly  ;  and  at  said  election  the  said  ameudment  or  amendments  shall  be  submitted 
to  the  qualified  electors  of  the  State  for  their  approval  or  rejection,  and  such  as  are 
approved  by  a  majority  of  those  voting  thereon  shall  become  part  of  this  Constitution  ; 
but  the  General  Assembly  shall  have  no  power  to  propose  amendments  to  more  than 
'   ft^  one  article  of  this  Constitution  at  the  same  session. 

[The  instrument  closes  with  a  long  "  Schedule,"  of  the  sort  which  was  appended  to 
the  Pennsylvania  Constitution  of  1790,  providing  for  certain  details,  "  that  no  inconve- 
nience may  arise  by  reason  of  the  change  in  the  form  of  government."]  —  2  Poore's 
\  Constitutions,  219. 

V) 


*\ 


(V/  PASSAGES  FROM  THE   CONSTITUTION  OF  COLOMBIA.i 

Title  V.  Art.  59. — Tlie  President  and  the  ministers,  and  in  each  particular  trans- 
action the  President  with  the  ministers  of  the  respective  departments,  shall  constitute 
the  government. 

Title  VII.  Art.  81.  —  No  legislative  Act  shall  become  a  law  unless  : 

I.  It  shall  have  passed  three  readings  and  been  adopted  in  each  House,  on  three 
different  days,  by  a  majority  of  the  members  thereof. 

II.  It  shall  have  obtained  the  approval  of  the  government. 

lb.  Art.  83.  —  The  government,  by  means  of  its  ministers,  may  take  part  in  legis- 
lative debates. 

lb.  Art.  84.  —  The  judges  of  the  Supreme  Court  shall  be  entitled  to  be  heard  in  the 
discussion  of  bills  relating  to  civil  matters  and  judicial  procedure. 

lb.  Art.  8.5.  —  After  a  bill  shall  have  passed  both  Houses,  it  shall  be  sent  to  the 
government,  and  if  approved  by  the  government,  it  shall  be  promulgated  as  a  law. 

[The  President  may  return  a  bill  with  objections.] 

lb.  Art.  88.  —  The  President  of  the  Republic  shall  approve,  without  power  to  pre- 
sent new  objections,  any  bill  which  shall  have  been  reconsidered  and  adopted  by  two- 
thirds  of  the  members  in  each  House. 

lb.  Art.  90  —  If  a  bill  should  be  objected  to  on  the  ground  that  it  is  unconstitu- 
tional, it  shall  be  excepted  from  the  provision  of  Article  88.  In  this  case,  if  the 
House  insist,  the  bill  shall  pass  to  the  Supreme  Court,  in  order  that  this  body,  within 
six  days,  may  decide  upon  its  constitutionality.  If  the  decision  of  the  court  should  be 
favorable  to  the  bill,  the  President  shall  give  it  his  approval.  If  the  decision  should 
be  unfavorable,  the  bill  shall  fail  and  be  removed  from  the  calendar. 

Title  XV.  Art.  151.  —  The  Supreme  Court  shall  exercise  the  following  functions 
.  .  .  IV.  To  decide  finally,  upon  the  constitutionality  of  legislative  Acts,  which  may 
-  have  been  objected  to  by  the  government  as  unconstitutional. 

1  From  the  Supplement  (January,  1893)  to  the  Annals  of  the  American  Academy 
of  Political  and  Social  Science,  in  Philadelphia.  Translated  by  Professor  Bernard 
Moses.  —  Ed. 


PART    IL 


CHAPTER    IV, 

CITIZENSHIP.  — FUNDAMENTAL  CIVIL  AND  POLITICAL  RIGHTS  — 
THE  LATER  AMENDMENTS  TO  THE  CONSTITUTION  0^  TH£ 
UNITED    STATES, 


BARRON    V.  MAYOR,   etc.   OF    BALTIMORE. 
Supreme  Court  of  the  United  States.     1833. 

[7  Pet.  243;  10  Curtis's  Decisions,  464.] 

Error  to  the  Court  of  Appeals  of  the  western  shore  of  the  State  of 
Maryland. 

Case  b}'  the  plaintiff  in  error  against  the  city  of  Baltimore,  to  recover 
damages  for  injuries  to  the  wharf-property  of  the  plaintiff,  arising  from 
the  acts  of  the  corporation. 

The  city,  in  the  asserted  exercise  of  its  corporate  authority  over  the 
harbor,  the  paving  of  streets,  and  regulating  grades  for  paving,  and 
over  the  health  of  Baltimore,  diverted  from  their  accustomed  and  nat- 
ural course,  certain  streams  of  water,  which  flow  from  the  range  of  hills 
bordering  the  city,  and  diverted  them,  so  that  they  made  deposits  of 
^--^4-.^"^  gravel  near  the  plaintiff's  wharf,  and  thereby  rendered  the 
water  shallow,  and  prevented  the  access  of  vessels.  The  decision  of 
Baltimore  County  Court  was  against  the  defendants,  and  a  verdict  for 
$4,500  was  rendered  for  the  plaintiff.  The  Court  of  Appeals  reversed 
the  judgment  of  Baltimore  County  Court,  and  difl  not  remand  the  case 
to  that  court  for  a  further  trial.  From  this  judgment  the  defendant  in 
the  Court  of  Appeals  prosecuted  a  writ  of  error  to  this  court. 

Mayer,  for  the  plaintiffs. 

Taney  and  Scott,  contra,  were  stopped  by  the  court. 

Marshail,  C.  J.,  delivered  the  opinion  of  the  court. 

The  judgment  brought  up  by  this  writ  of  error  having  been  rendered 
by  the  court  of  a  State,  this  tribunal  can  exercise  no  jurisdiction  over  it, 
unless  it  be  shown  to  come  within  the  provisions  of  The '25th  section  of 
the  Judicial  Act.     1  Stats,  at  Large,  85. 

The  plaintiff  in  error  contends  that  it  comes  within  that  clause  in  the 
VOL.  I.  —  29 


450  BARRON   V.   MAYOR,   ETC.   OF  BALTIMORE.  [CHAP.  IV. 

fifth  amendment  to  the  Constitution,  which  inhibits  the  takin^_QL4xix- 

ygf^  prnpprtv  for  public  use,  withoiit"lust_comuen&atiQn. He  insists 

that  this  amendment,  beingjnjayor  of  the  liberty  of  tbe„  citizen,  ought 
to  be  so  construed  as  to  restram_t,hp  Ippjislative  power  of  n  StntP;  na^ 
well  as  that  of  the  United  States.     If  this  proposition^ Jia-imtm£^. the 
court  can  take  no  jurisdiction  jaf-thfi-jcaase. 

The  question  thus  presented  is,  we  think,  of  great  importance,  but 
not  of  much  difficulty. 

The  Constitution  was  ordained  and  established  b}-  the  people  of  the 
United  States  for  themselves,  for  their  own  government,  and  not  for  the 
government  of  the  individual  States.  Each  State  established  a  Constitu- 
tion for  itself,  and,  in  that  Constitution,  provided  such  limitations  and 
restrictions  on  the  powers  of  its  particular  government  as  its  judgment 
dictated.  The  people  of  the  United  States  framed  such  a  government 
for  the  United  States  as  they  supposed  best  adapted  to  their  situation, 
and  best  calculated  to  promote  their  interests.  The  powers  they  con- 
ferred on  this  government  were  to  be  exercised  by  itself;  and  the  limi- 
tations on  power,  if  expressed  in  general  terms,  are  naturally,  and,  we 
think,  necessarily  applicable  to  the  government  created  by  the  instru- 
ment. They  are  limitations  of  power  granted  in  the  instrument  itself; 
not  of  distinct  governments,  framed  by  different  persons  and  for  differ- 
ent purposes. 

If  these  propositions  be  correct,  the  fifth  amendment  must  be  under- 
stood as  restraining  the  power  of  the  general  government,  not  as  appli- 
cable to  the  States.  In  their  several  constitutions  they  have  imposed 
such  restrictions  on  their  respective  governments  as  their  own  wisdom 
su^^o-ested  ;  such  as  they  deemed  most  proper  for  themselves.  It  is  a 
subject  on  which  they  judge  exclusively,  and  with  which  others  interfere 
no  further  than  they  are  supposed  to  have  a  common  interest. 

The  counsel  for  the  plaintiff  in  error  insists  that  the  Constitution  was 
intended  to  secure  the  people  of  the  several  States  against  the  undue 
exercise  of  power  by  their  respective  State  governments ;  as  well  as 
against  that  which  might  be  attempted  by  their  general  government. 
In  support  of  this  argument  he  relies  on  the  inhibitions  contained  in  the 
10th  section  of  the  1st  article. 

We  think  that  section  affords  a  strong  if  not  a  conclusive  argument 
in  support  of  the  opinfcn  already  indicated  by  the  court. 

The  preceding  section  contains  restrictions  which  are  obviously  in- 
tended for  the  exclusive  purpose  of  restraining  the  exercise  of  power  by 
the  departments  of  the  general  government.  Some  of  them  use  lan- 
guage applicable  only  to  Congress;  others  are  expressed  in  general 
terms.  The  third  clause,  for  example,  declares  that  "  no  bill  of  attain- 
der or  ex  post  facto  law  shall  be  passed."  No  language  can  be  more 
general ;  yet  the  demonstration  is  complete  that  it  applies  solely  to  the 
government  of  the  United  States.  In  addition  to  the  general  arguments 
furnished  by  the  instrument  itself,  some  of  which  have  been  already 
i   suggested,  the  succeeding  section,  the  avowed  purpose  of  which  is  to 


CHAP.  IV.]  BARRON   V.    MAYOR,   ETC.   OF   BALTIMORE.  4&1 

restrain  State  legislation,  contains  in  terms  tlie  very  prohibition.  It 
declares  that  "  no  State  shall  pass  any  bill  of  attainder  or  ex  post  facto 
law."  This  provision,  then,  of  the  9th  section,  however  comprehensive 
its  language,  contains  no  restriction  on  State  legislation. 

The  9th  section  having  enumerated,  in  the  nature  of  a  bill  of  rights, 
the  limitations  intended  to  be  imposed  on  the  powers  of  the  general 
government,  the  10th  proceeds  to  enumerate  those  which  were  to  oper- 
ate on  the  State  legislatures.  These  restrictions  are  brought  together 
in  the  same  section,  and  are  by  express  words  applied  to  the  States. 
"  No  State  shall  enter  into  any  treaty,"  &c.  Perceiving  that  in  a  con- 
stitution framed  by  the  people  of  the  United  States  for  the  government 
of  all,  no  limitation  of  the  action  of  government  on  the  people  would 
api)ly  to  the  State  government,  unless  expressed  in  terms  ;  the  restric- 
tions contained  in  the  10th  section  are  in  direct  words  so  applied  to  the 
States. 

It  is  worthy  of  remark,  too,  that  these  inhibitions  generally  restrain 
State  legislation  on  subjects  intrusted  to  the  general  government,  or  in 
which  the  people  of  all  the  States  feel  an  interest. 

A  State  is  forbidden  to  enter  into  any  treaty,  alliance,  or  confeder- 
ation. If  these  compacts  are  with  foreign  nations,  they  interfere  with 
'the  treaty-making  power,  which  is  conferred  entirely  on  the  general  gov- 
ernment ;  if  with  each  other,  for  political  purposes,  they  can  scarcely 
fail  to  interfere  with  the  general  purpose  and  intent  of  the  Constitution. 
To  grant  letters  of  marque  and  reprisal,  would  lead  directly  to  war  ;  the 
power  of  declaring  which  is  expressly  given  to  Congress.  To  coin 
money  is  also  the  exercise  of  a  power  conferred  on  Congress.  It  would 
be  tedious  to  recapitulate  tlie  several  limitations  on  the  powers  of  tlic 
States  which  are  contained  in  this  section.  They  will  be  found,  gen- 
erally, to  restrain  State  legislation  on  subjects  intrusted  to  the  govern- 
ment of  the  Union,  in  which  the  citizens  of  all  the  States  are  interested. 
In  these  alone  were  the  whole  people  concerned.  The  question  of  their 
application  to  States  is  not  left  to  construction.  It  is  averred  in  posi- 
tive words. 

If  the  original  Constitution,  in  the  9th_nnd  10th  spci.ions  of  the  l^it 
article,  draws  this  plain  and  marked  line  of  discriminatinn  hetwppn  tliR 
limitations  it  imposes  on  the  powers  of  t.hp  gpneml  ornvernment.  and  on 
those  of  the  States  ;  if  in  everv  inhibition  intended  to  act  on  State 
power,  words  are  cmploved  which  directly  express  that  intent,  ^^ome 
stmn^LIiigson  pmst  be  assigned  for  departing  from  this  safe  and  Judi- 
o\nn9f  ('onrsp  in  framing  the  amendments,  before  that  departure  can  be 
assumed. 

We  search  in  vain  for  that  reason. 

Had  the  people  of  the  several  States,  or  any  of  them,  required  changes 
in  their  constitutions  ;  had  they  required  additional  safeguards  to  lib- 
erty from  the  apprehended  encroachments  of  their  particular  govern- 
ments ;  the  remedy  was  in  their  own  hands,  and  would  have  been 
applied  by  themselves.     A  convention  would  have  been  assembled  by 


452  BARRON   V.   MAYOR,   ETC.   OF  BALTIMORE.  [CHAP,  IV. 

the  discontented  State,  and  the  required  improvements  would  have  been 
made  by  itself.  The  unwieldy  and  cumbrous  machiner}'  of  procuring  a 
recommendation  from  two  thirds  of  Congress,  and  the  assent  of  three 
fourths  of  their  sister  States,  could  never  have  occurred  to  any  human 
being  as  a  mode  of  doing  that  which  might  be  effected  b}'  the  State  it- 
self. Had  the  framers  of  these  amendments  intended  them  to  be  limita- 
tions on  the  powers  of  the  State  governments,  the}'  would  have  imitated 
the  framers  of  the  original  Constitution,  and  have  expressed  that  inten- 
tion. Had  Congress  engaged  in  the  extraordinary  occupation  of  im- 
proving the  constitutions  of  the  several  States  by  affording  the  people 
additional  protection  from  the  exercise  of  power  by  their  own  govern- 
ments in  matters  which  concerned  themselves  alone,  they  would  have 
declared  this  purpose  in  plain  and  intelligible  language. 

But  it  is  universally-  understood,  it  is  a  part  of  the  history  of  the  da)', 
that  the  great  revolution  which  established  the  Constitution  of  the 
United  States  was  not  effected  without  immense  opposition.  Serious 
fears  were  extensively'  entertained  that  those  powers  which  the  patriot 
statesmen,  who  then  watched  over  the  interests  of  our  country,  deemed 
essential  to  union,  and  to  the  attainment  of  those  invaluable  objects  for 
which  union  was  sought,  might  be  exercised  in  a  manner  dangerous  to 
libert}'.  In  almost  every  convention  by  which  the  Constitution  was 
adopted,  amendments  to  guard  against  the  abuse  of  power  were  recom- 
mended. These  amendments  deiaianded^_5ecurity  against  the  appre- 
hended  encroachments  of  the  general  government,  not  against  those  of 
the  local  governments. 

In  compliance  with  a  sentiment  thus  generallj'  expressed  to  quiet 
fears  thus  extensivel}'  entertained,  amendments  were  proposed  b}'  the 
required  majority  in  Congress,  and  adopted  b}'  the  States.  These 
amendments  contain  no  expression  indicating  an  intention  to  applj' 
them  to  the  State  governments.     This  court  cannot  so  applj'  them. 

We  are  of  opinion  that  the  provision  in  the  fifth  amendment  to  the 
ConstitutioTii  deelaring  that  private  property  shall  not  be  taken  for 
public  use  without  lust  compensation,  is  intenHpH  solply  ns  a  tlrnitation 
on  the  exercise  of  power  bv  the  government  of  the  United  States,_and 
is  not  aDp]ir>nhlp  to  the  Ipgislntion  of  the  States.  We  are  therefore  of 
opinion,  that  there  is  no  repugnanc}-  between  the  several  Acts  of  the 
General  Assembly  of  Maryland,  given  in  evidence  by  the  defendants  at 
the  trial  of  this  cause,  in  the  court  of  that  State,  and  the  Constitution 
of  the  United  States.  This  court,  therefore,  has  no  jurisdiction  of  the 
cause  ;  and  it  is  dismissed. 


CHAP.  IV.]  CORFIELD  V.    CORYELL.  453 


CORFIELD  V.  CORYELL 
Circuit  Codrt  of  the  United  States  for  Pennsylvania.      1825. 

[4  Wash.  C.  C.  371.] 

This  was  an  action  of  trespass  for  seizing,  taking,  and  carrying  away, 
and  converting  to  the  defendant's  use,  a  certain  vessel,  the  property  of 
the  plaintiff,  called  the  "  Hiram."  Plea  not  guilty,  with  leave  to  justify. 
The  case,  as  proved  at  the  trial,  was  as  follows :  .  .  .  [Here  it  is 
stated  that  the  plaintiff  was  owner  of  the  "  Hiram,"  a  vessel  licensed  as 
a  coaster,  which,  being  let  to  one  Keene,  proceeded  from  Philadelphia 
in  May,  1821,  to  certain  oyster  beds  in  the  waters  of  New  Jersey, 
and  was  there  seized  while  dredging  for  oysters ;  and  was  condemned 
and""sold  by  judicial  proceedings  under  the  laws  of  New  Jersey.  The 
defendant  acted  as  "  prize  master"  in  the  seizure.] 

Washington,  J.,  after  stating  to  the  jury  the  great  importance  of 
many  of  the  questions  involved  in  this  cause,  recommended  to  them  to 
find  for  the  plaintiff,  and  assess  the  damages  ;  subject  to  the  opinion  of 
the  court  upon  the  law  argument  of  the  facts  in  the  cause. 

Verdict  for  SoGO,  subject,  &c. 

This  case  was  argued,  on  the  points  of  law  agreed  by  the  counsel  to 
arise  on  the  facts,  at  the  October  term,  1824,  and  was  taken  under 
advisement  until  April  term,  1825,  when  the  following  opinion  was 
delivered  : 

Washington,  J.,  delivered  the  opinion  of  the  court.  The  points 
reserved  present,  for  the  consideration  of  the  court,  many  interesting 
and  difficult  questions,  which  will  be  examined  in  tlie  shape  of  objec- 
tions made  by  the  plaintiff's  counsel  to  the  seizure  of  the  "  Hiram,"  and 
the  proceedings  of  the  magistrates  of  Cumberland  County,  upon  whose 
sentence  the  defendant  rests  his  justification  of  the  alleged  trespass. 
These  objections  are,  — 

First.  That  the  Act  of  the  Legislature  of  New  Jersey  of  the  9th  of 
June,  1820,  under  which  this  vessel,  found  engaged  in  taking  oysters  in 
Morris  River  Cove  by  means  of  dredges,  was  seized,  condemned,  and 
sold,  is  repugnant  to  the  Constitution  of  the  United  States  in  the 
following  particulars : 

1.  To  the  eighth  section  of  the  first  article,  which  grants  to  Congress 
the  power  to  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes. 

2.  To  the  second  section  of  the  fourth  article,  which  declares,  that 
the  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immuni- 
ties of  citizens  in  the  several  States. 

3.  To  the  second  section  of  the  third  article,  which  declares,  that  the 
judicial  power  of  the  United  States  should  extend  to  all  cases  of  admi- 
ralty and  maritime  jurisdiction. 


454  COKFIELD   V.    CORYELL.  [CHAP.  IV. 

In  case  the  Act  should  be  considered  as  not  being  exposed  to  these 
constitutional  ol)jections,  it  is  then  insisted, 

Secondlj-.  That  the  locus  in  quo  was  not  within  the  territoiial  limits 
of  New  Jerse}'.     But  if  it  was,  then 

Thirdly.  It  was  not  within  the  jurisdiction  of  the  magistrates  of 
Cumberland  County. 

Fourthly.  We  have  to  consider  the  objection  made  by  the  defendant's 
counsel  to  the  form  of  this  action. 

The  first  section  of  the  Act  of  New  Jersey  declares,  that,  from  and 
after  the  1st  of  May,  till  the  1st  of  September  in  every  year,  no  person 
shall  rake  on  any  oyster  bed  in  this  State,  or  gather  any  oysters  on  any 
banks  or  beds  within  the  same,  under  a  penalty  of  $10. 
■  Second  section.  No  person  residing  in,  or  out  of  this  State,  shall,  at 
any  time,  dredge  for  oysters  in  any  of  the  rivers,  bays,  or  waters  of 
the  State,  under  the  penalty  of  $5.0, 

The  third  section  prescribes  the  manner  of  proceeding,  in  cases  of 
violations  of  the  preceding  sections. 

The  two  next  sections  have  nothing  to  do  with  the  present  case. 

The  sixth  section  enacts,  that  it  shall  not  be  lawful  for  any  person, 
who  is  not,  at  the  time,  an  actual  inhabitant  and  resident  of  this  State, 
to  gather  oysters  in  any  of  the  rivers,  bays,  or  waters  in  this  State,  on 
board  of  any  vessel,  not  wholly  owned  by  some  person,  inhabitant  of, 
or  actually  residing  in  this  State  ;  and  every  person  so  offending,  shall 
forfeit  $10,  and  shall  also  forfeit  the  vessel  employed  in  the  commission 
of  such  offence,  with  all  the  oysters,  rakes,  &c.,  belonging  to  the  same. 

The  seventh  section  provides,  that  it  shall  be  lawful  for  any  person 
to  seize  and  secure  such  vessel,  and  to  give  information  to  two  justices 
of  the  count}'  where  such  seizure  shall  be  made,  who  are  required  to 
meet  for  the  trial  of  the  said  case,  and  to  determine  the  same ;  and  in 
case  of  condemnation,  to  order  the  said  vessel,  &c.  to  be  sold. 

The  first  question  then  is,  whether  this  Act,  or  either  section  of  it,  is 
repugnant  to  the  power  granted  to  Congress  to  regulate  commerce?  .  .  . 

2.  Xhe  next  question  is,  whether  this  Act  infringf^  that  "^'^•ti^n  f^t 
the  Constitution  which  declares  that  "  the  citizens  of  each  State  si  mil 
be  entitled  to  all  the  privileges  and  immunities  of  citizens  in  the 
several  States  "  ? 

The  inquiiy  is,  what  are  the  privileges  and  immunities  of  citizens  in 
the  several  States?  We  feel  no  hesitation  in  confining  these  expres- 
sions to  those  privileges  and  immunities  which  are,  in  their  nature, 
fundamental ;  which  belong,  of  right,  to  the  citizens  of  all  free  govern- 
ments ;  and  which  have,  at  all  times,  been  enjoyed  b}'  the  citizens  of 
the  several  States  which  compose  this  Union,  from  the  time  of  their 
becoming  free,  independent,  and  sovereign.  What  these  fundamental 
principles  are,  it  would  perhaps  be  more  tedious  than  difficult  to  enu- 
merate. They  may,  however,  be  all  comprehended  under  the  following 
general  heads :  protection  by  the  government ;  the  enjoyment  of  life 
and  liberty,  with  the  right  to  acquire  and  possess  property  of  every 


CHAP.  IV.]  CORFIELD    V.   CORYELL.  455 

kiinl,  and  to  pursue  and  obtain  happiness  and  safety ;  subject  never- 
theless to  such  restraints  as  tlie  government  ma}-  justly  prescribe  for 
the  general  good  of  the  whole.  The  right  of  a  citizen  of  one  State  to 
pass  through,  or  to  reside  in  any  other  State,  for  purix)ses  of  trade, 
agriculture,  professional  pursuits,  or  otherwise ;  to  claim  the  benefit  ol 
the  writ  of  habeas  corpus  ;  to  institute  and  maintain  actions  of  any  kind 
in  the  courts  of  the  State ;  to  take,  hold  and  dispose  of  propert}-,  either 
real  or  personal ;  and  an  exemption  from  higher  taxes  or  impositions 
than  are  paid  by  the  other  citizens  of  the  State  ;  may  be  mentioned  as 
some  of  the  particular  privileges  and  immunities  of  citizens,  which  are 
clearly'  embraced  by  the  general  description  of  privileges  deemed  to  be 
fundamental ;  to  which  ma}'  be  added,  the  elective  franchise,  as  regu- 
lated and  established  by  the  laws  or  constitution  of  the  State  in  which 
it  is  to  be  exercised.  These,  and  many  others  which  might  be  men- 
tioned, are,  strictly  speaking,  privileges  and  immunities,  and  the  enjoy- 
ment of  them  by  the  citizens  of  each  State,  in  ever}'  other  State,  was 
manifestly  calculated  (to  use  the  expressions  of  the  preamble  of  the 
corresponding  provision  in  the  old  Articles  of  Confederation)  "  the 
better  to  secure  and  perpetuate  mutual  friendship  and  intercourse 
among  the  people  of  the  different  States  of  the  Union." 

But  we  cannot  accede  to  the  pioposltion  which  was  insisted  on  by 
the  counsel,  that,  under  this  provision  of  t.lie  CnnstitnUnn  th^  r-ifivonc 
of  the  several  States  are  permitted  to  participate  in  all  the  rights  which 
belong  exclusively  to  the  citizens  of  any  other  particular  State,  merely 
upon  the  ground_that  they  are  enjovQ^Lby  those  citizens ;  much  less, 
tliat  in  vpgiilniing  tlip  n<iP  c?  t)iP  pommnn  property  of  the  citizeus  of 
such  State,  the  legislature  is  bound  to  extend  to  the  citizens  of  all  the 
otlior  States  the  same  advantages  as  are  secured  tr>  thpjr  own  citizens. 

A  several  fishery,  either  as  the  right  to  it  respects  running  fish,  or 
such  as  are  stationary,  such  as  oysters,  clams,  and  the  like,  is  as  much 
the  property  of  the  individual  to  whom  it  belongs,  as  dry  land,  or  land 
covered  by  water ;  and  is  equally  protected  by  the  laws  of  the  State 
against  the  aggressions  of  others,  whether  citizens  or  strangers.  Where 
those  private  rights  do  not  exist  to  the  exclusion  of  the  common  right, 
that  of  fishing  belongs  to  all  the  citizens  or  subjects  of  the  State.  iLia. 
the  pi-operty  of  all ;  to  be  enjoyed  by  thejn  in  subordination  to  the  laws 
wjiich  regulaie  lis  use,  ihey  may  b&J^OTrqidpro4-a»-tAnA»iua^ijx^Kimmnn 
of  this  property  :  and  they  are^jOLexclnsively  entitl^^d  tr.  ^}i»  u5£_Qf  Jt, 
that  it  cannot  be  enjoyed  by  ntJiPi-S-wifhnnf  thn  tanit  Pnncpnf^  nv  thf> 
express  permission  of  the  sovereign  who  lias-  th€- ^ow4y:_±Q_regulal£^ 
ila_use^ 

This  powcrjn  the  Legislature  of  New  Jersey  to  exclude  the  citizens 
of  the  other  Stat55~fr©Ba_aj3articipation  in  the  right  of  taking  oysters 
within  the  waters  of  that  Statepwrrs-jlenied  by  the  plaintiffs  counsel, 
upon  principles  of  public  law,  independenj/^f  the  provision  of  the  Con- 
stitution which  we  are  considering,  ,jfp"n  the  grnnndjtbat  they  are 
incapable  of  being  appropriated  until  they  are  caught.      This  argu- 


456  CORFIELD   V.   CORYELL.  [CHAP.  IV. 

ment  is  unsupported,  we  think,  by  authority.  Rutberfoth,  b.  1,  ch.  5, 
sect.  4  and  5,  who  quotes  Grotius  as  his  authority,  lays  it  down,  that, 
although  wild  beasts,  birds,  and  fishes,  which  have  not  been  caught, 
have  never  in  fact  been  appropriated,  so  as  to  separate  them  from 
the  common  stock  to  which  all  men  are  equally  entitled,  yet  where 
the  exclusive  right  in  the  water  and  soil  which  a  person  has  occasion 
to  use  in  taking  them  is  vested  in  others,  no  other  person  can  claim 
the  liberty  of  hunting,  fishing,  or  fowling,  on  lands,  or  waters,  which 
are  so  appropriated.  '' The__sovereign,''  says  Grotius,  b.  2,  ch.  2, 
sect.  5,  "  who  has  domi^iion  over  the  land,  or  watejis^Jn  which  the  fish 
are,  may  prohibit  foreigners  [by  which  expression  we  understand  him 
to  moiin  others  than  subjects  or_citizens  of  the  State]  from  taking 

theffl/' 

That  this  exclusive  right  of  taking  oysters  in  the  waters  of  New 
Jersey  has  never  been  ceded  by  that  State,  in  express  terms,  to  the 
United  States,  is  admitted  by  the  counsel  for  the  plaintiff;  and  having 
shown,  as  we  think  we  have,  that  this  right  is  a  right  of  property, 
vested  either  in  certain  individuals,  or  in  the  State,  for  the  use  of  the 
citizens  thereof;  it  would,  in  our  opinion,  be  going  quite  too  far  to 
construe  the  grant  of  privileges  and  immunities  of  citizens,  as  amount- 
ing to  a  grant  of  a  co-tenancy  in  the  common  property  of  the  State,  to 
the  citizens  of  all  the  other  States.  Such  a  construction  would,  in 
many  instances,  be  productive  of  the  most  serious  public  inconveni- 
ence and  injury,  particularly,  in  regard  to  those  kinds  of  fish,  which, 
by  being  exposed  to  too  general  use,  may  be  exhausted.  The^o^.stcr 
beds  belonging  to  a  State  may  be  abundantly  sufficient  for  the  use  of 
the  citizens  of  that  State,  but  might  be  totally  exhausted  and  destroyed 
if  tlie  legislature  could  not  so  regulate  the  use  of  them  as  to  exclude 
the  citizens  of  the  other  States  from  taking  them,  except  under  such 
limitations  and  restrictions  as  the  laws  may  prescribe.^   .   .  . 

Fourthly.  .  .  .  The  objections  to  this  form  of  action  are  fatal.  .  .  . 
The  '■'■  Hiram  "  then,  having  been  lawfully  in  possession  of  Keene,  under 
a  contract  of  hiring  for  a  month,  which  had  not  expired  at  the  time  the 
alleged  trespass  was  committed,  the  action  cannot  be  supported. 

Let  j ltd ff ment  be  entered  for  the  defendant. 

Charles  J.  Ingersoll  and  J.  B.  Ingersoll^  for  plaintiffs. 

M'Evaine  and  Condy,  for  defendants. 

I  And  so  McCready  v.  Va.,  94  U.  S.  391.  See  also  Conner  v.  Elliott,  18  How.  591; 
Pmd\.  Va.,%  Wall.  168;  Ward  v.  Md.,  12  Wall.  418;  Slaughter  House  Cases,  16 
Wall.  36 ;  Lemmon  v.  People,  20  N.  Y.  502,  607.  —  Ed. 


CHAP.  IV.]  EOBY  V.   SMITH  ET  AIj  457 


ROBY  V.    SMITH   et  al. 
Supreme  Court  of  Indiana.     1891. 

[131   Ind.  342.] 

From  the  Steuben  Circuit  Court.  D.  H.  Best^  E.  A.  Bvatton,  and 
W.  F.  Elliott  for  appellant.  J.  A.  Woodhull  and  W.  A.  Brown  for 
appellees. 

Miller,  J.  This  action  was  brought  by  the  appellant,  Frank  S. 
Rob}-,  trustee,  to  foreclose  a  mortgage  on  real  estate  situate  in  Steuben 
Count}',  in  this  State.  .  .  .  Demurrers  filed  b}-  each  of  the  defendants 
were  sustained  to  the  complaint,  and  final  judgment  rendered  on  de- 
murrer for  the  defendants. 

The  ruling  upon  the  demurrer  is  the  only  question  in  the  record.  The 
correctness  of  this  ruling  depends  upon  the  validity  and  construction  to 
be  given  to  section  2988,  R.  S.  1881,  in  force  since  May  31,  1879,  which 
is  as  follows :  "  It  shall  be  unlawful  for  any  person,  association,  or  cor- 
poration to  nominate  or  appoint  any  person  a  trustee  in  anj*  deed, 
mortgage,  or  other  instrument  in  writing  (except  wills),  for  any  purpose 
whatever,  wljo  shall  not  be  at  the  time  a  bona  fide  resident  of  the  State 
of  Indiana ;  and  it  shall  be  unlawful  for  any  person  who  is  not  a  bona 
fide  resident  of  the  State  to  act  as  such  trustee.  And  if  any  person, 
after  his  appointment  as  such  trustee,  shall  remove  from  the  State,  then 
his  rights,  powers,  and  duties  as  such  trustee  shall  cease,  and  the  proper 
court  shall  appoint  his  successor,  pursuant  to  the  provisions  of  the  Act 
to  which  this  is  supplemental."  The  constitutionalit}-  of  this  Act  is 
vigorously  assailed  by  counsel  for  the  appellant.  Itjs  claimed  that  this 
Act  limits  the  constitutional  rights  of  citizens  of  this  State  to  select  and 
appoint  their  own  agents  in  the  control  and  management  of  their  own 
property,  which  is  one  of  the  inherent  and  inalienable  rights  of  a  citizen. 
The~facts  of  this  case  do  not  require  us  to  enter  into  a  discussion  of  this 
question.  The  contract  was  entered  into  in  the  State  of  Michigan,  by 
and  between  citizens  of  that  State,  to  secure  an  indebtedness  expressly 
payable  in  that  State.  It  was  to  all  intents  and  purposes  a  Michigan 
contract,  except  that,  the  land^being  situate  within  this  State,  the  mort- 
gage, which  is  a  qualified  conveyance  of  real  estate,  is  subject  to  the 
law  of  the  State,  so  far  as  it  affects  the  validity  and  enforcement  of  the 
lien.  1  Jones,  Mortg.  §  662.  The  rights  of  the  citizens  of  this  State  i 
to  appoint  non-resident  trustees  are  not  involved  in  this  case.  I 

Another  question  involved  in  the  consideration  of  the  constitutionality 
of  the  Act  under  consideration  may  be  excluded  from  the  present  dis- 
cussion :  that  is,  the  right  of  a  non-resident  trustee  to  prosecute  in  the 
courts  of  this  State  actions  affecting  the  trust  property.  We  infer  from 
the  last  clause  of  the  section  that  it  was  the  purpose  of  the  legislature 
in  enacting  this  statute  to  compel  trustees  to  reside  within  the  State  in 
order  to  bring  them  within  the  process  and  subject  to  the  control  of  the 


458  ROBY   V.   SMITH   ET  AL.  [cHAP.  IV. 

State  courts.  In  the  present  action  the  suit  was  brought  by  a  resident 
trustee,  who  owed  his  appointment  to  the  order  of  the  court,  and  not  to 
the  act  of  tiie  parties. 

We  have  remaining  for  determination  the  question,  does  or  does  not 
this  Act,  as  applied  to  the  facts  disclosed  in  the  record,  impairjthe  priv- 
ileges and  iininnnities  of  citizens  of  another  State,  or  ofjthe  United- 
Statcs,  as  guarnnteed  in  article  4,  §  2,  and  the  Fourtee n_th  A m endment 
of  the  Constitution  of  the  United  States?     The  constitutionality  of  this 
Act  has  never  been  passed  upon  b}'  this  court,  although  the  question 
seems  more  than  once  to  have  been  in  the  mind  of  the  court.    In  holding 
that  this  Act  did  not  appl}'  to  trustees  appointed  prior  to  the  passage 
of  the  Act,  the  court  in   Thompson  v.  Edwards^  85  Ind.  414,  said : 
''  Waiving  all  discussions  as  to  the  power  of  the  legislature  to  enact  such 
a  statute  as  applicable  to  trustees  to  be  thereafter  appointed,  it  is  mani- 
fest," etc.     In  Bryant  v.  Iiichardso?i,  126  Ind.  145-153,  it  is  said  that 
4t  "  may  well  be  doubted  "  if  that  portion  of  this  statute  which  applies 
to  natural  persons,  and  seeks  to  prohibit  them  from  naming  a  person 
who  is  a  non-resident  of  the  State  to  act  as  a  trustee  for  them,  is  valid. 
In  Farmers'  Loan  &  Trust   Co.  v.   Chicago  &  A.  Ry.  Co.,  27  Fed. 
Rep.  146,  Gresham,  J.,  said  of  this  statute:   "It  is  a  statute  which 
denies  to  residents  of  other  States  the  right  to  take  and  hold  in  trust, 
otherwise  than  by  last  will  and  testament,  real  and  personal  property  in 
Indiana.     The  right  is  asserted  to  deny  to  persons,  associations,  or  cor- 
porations, within  or  without  the  State,  power  to  convey  to  any  person 
in  trust,  not  a  resident  of  Indiana,  real  or  personal  property  within  the 
State.     This  is  a  plain  discrimination  against  the   residents  of  other 
States.     If  Indiana  may  disqualify  a  resident  of  another  State  from 
acting  as  trustee  in  a  trust  deed  or  mortgage  which  convej^s  real  or 
personal  propert}'  as  securitj'  for  a  debt  due  to  himself  alone,  or  for 
debts  due  himself  and  other  creditors,  it  would  seem  that  the  State 
might  prohibit  citizens  of  other  States  from  holding  propert}-  within  the 
State,  and  to  that  extent  from  doing  business  within  the  State.     No 
State  can  do  the  latter.     A  person  may,  and  frequently  does,  acquire  a 
property'  interest  b}'  a  conveyance  to  him  in  trust.  A  citizen  of  the  United 
States  cannot  be  denied  the  right  to  take  and  hold  absolutely  reaLaiJil 
personal  property  in  any  State  of  the  Union,  nor  can  he  be  denied  jthe 
right  to  accept  tl^p.  fionvpynnfp  of  such  property  in  trust  for  his  sole 
benefit,  or  for  the  benefit  of  himself  and  others.     This  rip;ht  is  incident 
to  national  citizenship."     Section  2,  of  article  4,  of  the  Constitution  oi 
the  United  States,  declares  that  "  the  citizens  of  each  State  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens  in  the  several 
States."     "  Attemi)t  will  not  be  made,"  say  the  Supreme  Court  of  the 
United  States  in    Ward  v.  Maryland.,  12  Wall.  418,  "to  define  the 
words  '  privilege  and  immunities,'  or  specify  the  rights  which  they  are 
intended  to  secure  and  protect,  beyond  what  may  be  necessary  to  the 
decision  of  the  case  before  the  court.     Beyond  doubt,  those  words  are 
words  of  very  comprehensive  meaning ;  but  it  will  be  sufficient  to  say 


CHAP.  IV.]  MINOR  V.    HAPPERSETT.  459 

that  the  clausejjlaiiily  and  unmistakably  secures  ami  [irotp.nts  tlie  rights 
of  a  citizen  of  one  State  to  pass  into  any  other  State  of  the  Union  for 
the  pur|)Ose  of  engaging  in  lawful  commerce,  trade,  or  lysiness,  without 
molestation,  to  acquire  personal  property,  to  take_and_^hold  real  estate." 
In  that  case,  one  of  the  trustees,  at  the  time  of  the  creation  of  the  trust, 
was  a  resident  of  the  State.  The  resident  trustee  having  died,  the 
action  was  prosecuted  by  the  surviving  and  non-resident  trustee.  The 
fact  that  the  language  above  cited  was  not  strictly  essential  to  the  de- 
termination of  the  case  before  the  court  may  impair  the  force  of  the  de- 
cision as  an  authority,  but  it  does  not  detract  from  the  potency  of  its 
reasoning. 

Reluctant  as  we  are  to  hold  a  statute  regularly  enacted  by  the  General 
Assembly  unconstitutional,  we  cannot  avoid  the  conclusion  that  the  Act 
under  consideration  is  in  conflict  with  those  provisions  of  the  Constitu- 
tion of  the  United  States  which  guarantee  to  the  citizens  of  each  State, 
and  of  the  United  States,  all  the  privileges  and  immunities  of  citizens 
of  the  several  States.  The  judgment  is  reversed,  with  costs,  and  cause 
remanded  for  further  proceedings  in  accordance  with  this  opinion. 

Elliott,  C.  J.,  did  not  sit,  and  took  no  part  in  the  decision  of  this 
case. 

In  Minor  v.  Happersett,  21  Wall.  162  (1874),  on  error  to  the 
Supreme  Court  of  Missouri,  it  was  declared  by  the  Supreme  Court  of 
the  United  States  (Waite,  C.  J.)  that  the  Fourteenth  Amendment  did 
not  secure  to  women  the  right  of  suffrage.  "  The  question  is  pre- 
sented,"  said  the  court,  "in  this  case,  whether^  since  the  adoption  of  the 
l^rtcenth  Amendjpent,  a  woman,  who  is  a  citizen  of  the  United  States 
and  of  the  State  of  Missouri,  js  a  yoter_m  that  State,  notwi_thstanding 
the  provision  of  tbe_Cpnstitntion  fl,nd  laws  of  the  State,  which  confine 
the  right  of  suffnage_ta  meii-  alone—  We  might,  perhaps,  decide  the 
case  upon  other  grounds,  but  this  question  is  fairly  made.  From  the 
opinion  we  find  that  it  was  the  onl}'  one  decided  in  the  court  below, 
and  it  is  the  only  one  which  has  been  argued  here.  The  case  was 
undoubtedl}^  brought  to  this  court  for  the  sole  purpose  of  having  that 
question  decided  by  us,  and  in  view  of  the  evident  propriet}'  there  is  of 
having  it  settled,  so  far  as  it  can  be  by  such  a  decision,  we  have  con- 
cluded to  waive  all  other  considerations,  and  proceed  at  once  to  its 
determination.  .  .  . 

"  To  determine,  then,  who  were  citizens  ^  of  the  United  States  before 

1  In  tlie  usage  of  English-speaking  people,  the  word  "  citizen,"  in  the  sense  of  mem- 
bership of  the  State,  is  quite  modern.  "  The  term  '  citizen,'  "  said  Mr.  Justice  Daniel, 
in  a  dissenting  opinion  in  Rundle  v.  Delaware  Canal  Co.,  14  Howard,  80,  97  (1852), 
"  will  be  found  rarely  occurring  in  the  writers  of  English  law."  The  word  is,  indeed, 
familiar  enough  in  our  older  reports,  law-books,  and  general  literature  as  designating 
the  member  of  a  borough.  For  instance,  in  R.  v.  Hunger,  I  RoUe.  138  (1614-15),  the 
rights  of  "  un  citlizen  de  London,"  are  elaborately  considered  by  Coke,  C.  J.,  with  many 
references  to  the  Year  Books.  "  Sont.  5  sorts  de  Citizens,"  he  says,  etc.  So  Black- 
stone  (1  Com.  174)  :  "As  for  the  [parliamentary]  electors  of  citizens  and  burgesses, 


460  MINOR  V.    HAPPERSETT.  [CHAP.  IV. 

the  adoption  of  the  amendment  it  is  nenessai-y  to  ascertain  what  per- 
sons originally  associated  thpmst^lvps  togetlier  to  form  the  nation,  .and 
'^Ifl'-  "^"'-^  ^^tPr'Ynrd'T  ^'flmit.tpd  to    mpmhersliip. 

"  Looking  at  the  Constitution  itself,  we  find  that  it  was  ordained  and 
established  by  '  the  people  of  the  United  States '  (Preamble,  1  Stat,  at 
Large,  10)  ;  and  then  going  further  back,  we  find  that  these  were  the 
people  of  the  several  States  that  had  before  dissolved  the  political  bands 
which  connected  them  with  Great  Britain,  and  assumed  a  separate  and 
equal  station  among  the  powers  of  the  earth  (Declaration  of  Inde- 
pendence, 1  Stat,  at  Large,  1),  and  that  had  by  Articles  of  Confederation 
and  Perpetual  Union,  in  which  they  took  the  name  of  'the  United 
States  of  America,'  entered  into  a  firm  league  of  friendship  with  each 
other  for  their  common  defence,  the  security  of  their  Uberties  and  their 
mutual  and  general  welfare,  binding  themselves  to  assist  each  other 
against  all  force  offered  to  or  attack  made  upon  them,  or  any  of  them, 
on  account  of  religion,  sovereignty,  trade,  or  any  other  pretence  what- 
ever.    Articles  of  Confederation,  §  3  ;  1  Stat,  at  Large,  4. 

<'  WhnPVHr^  thpn^  wns  onp  of  th^  pPOpIri  of  f^H'^^''  '''^  Hipgf  Stntps  wl^pn 

these  are  supposed  to  be  the  mercantile  part  or  trading  interest  of  the  kingdom." 
And  in  Shakespeare  (As  You  Like  It,  Act  11.,  sc.  1),  when  the  banished  Duke,  having 
proposed  to  "  go  and  kill  us  venison,"  adds,  — 

"And  yet  it  irks  me  the  poor  dappled  fools, 

Being  native  burghers  in  this  desert  city, 

Should  in  their  own  confines,"  etc.,  — 
we  hear  just  afterwards  of  Jaques  moralizing  in  the  forest  over  a  wounded  deer,  "  left 
and  abandoned  of  his  velvet  friends  " :  — 

"  Ay,  quoth  Jaques, 

Sweep  on,  j'ou  fat  and  greasy  citizens." 

The  proper  English  meaning  of  the  term  "  citizen  "  imported  membership  of  a  bor- 
ough or  local  municipal  corporation.  The  usual  word  for  a  man's  political  relation 
to  the  monarch  or  the  State  was  "  subject."  In  P'rance,  the  corresponding  phrase 
citoi/en,  concitoypti,  seems  to  have  long  been  familiar,  in  the  modern  sense  of  the 
word  ''citizen." 

The  word  "  citizen  "  is  not  found  in  any  of  our  State  constitutions  before  that  of 
Massachusetts  (1780);  and  it  was  not  in  the  rejected  Massachusetts  Constitution  of 
1778.  In  the  Declaration  of  Independence  (1776),  we  read  it  once:  "He  has  con- 
strained our  fellow-citizens,"  etc.,  and  once  in  the  Articles  of  Confederation  (1781). 
In  the  treaty  with  France  of  1778,  the  usual  phrase  is  "subjects,"  "people,"  or 
"  inhabitants ;  "  but  "  citizens  "  does  occur  as  applicable  to  the  United  States.  In 
the  treaty  with  Great  Britain  of  1782,  it  is  used  in  a  marked  way:  "There  shall  be  a 
.  .  .  peace  between  his  British  majesty  and  the  said  States,  and  between  the  sulijects 
of  the  one  and  the  citizens  of  the  other." 

In  the  Massachusetts  Constitution  (1780),  the  word  occurs,  but  more  sparingly  than 
would  be  expected  in  a  similar  document  now.  In  the  Federal  Constitution,  prepared 
in  1787,  it  is  freely  used. 

It  seems,  then,  to  have  been  the  events  which  happened  in  this  country  in  the 
eighth  and  ninth  decades  of  the  last  century  which  first  brought  the  word  "  citizen,"  in 
our  modern  sense  of  it,  into  familiar  English  speech.  See  Minor  v.  Hnppersett,  21 
Wall.  162,  166.  For  interesting  indications  of  a  certain  per})lexity  felt  in  Europe,  in 
1784,  as  to  our  understanding  of  the  term,  see  8  Works  of  John  Adams,  213. 

Compare  Blackstone,  infra,  p.  464,  note.  —  Ed. 


CHAP.  IV.]  MINOR   V.   HAPPERSETT.  461 

tbe  Constitution  of  the  United  States  was  adopted,  became  ipso  facto  a 
citizen,  —  a  member  oftbe  nation  created  by  its  adoption.  He  was  one 
ot  tbe  persons  associating  together  to  form  the  nation,  and  was,  conse- 
quently', one  of  its  original  citizens.  As  to  this  there  has  never  been  a 
doubt.  Disputes  have  arisen  as  to  wliether  or  not  certain  persons  or 
certain  classes  of  persons  were  part  of  the  people  at  the  time,  but  never 
as  to  their  citizenship  if  they  were. 

"  Additions  might  alwaj's  be  made  to  the  citizenship  of  the  United 
States  in  two  ways,  —  first,  b}'  birth,  and  second,  by  naturalization. 
This  is  apparent  from  the  Constitution  itself,  for  it  provides  (Article  2, 
§  1 )  that  '  no  person  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  the  Constitution,  shall  be 
eligible  to  the  office  of  President'  (Article  1,  §  8),  and  that  Congress 
shall  have  power  '  to  establish  a  uniform  rule  of  naturalization.'  Thus 
new  citizens  may  be  born  or  the}'  ma}'  be  created  b}'  naturalization. 

^'The  Constitution  does  not,  i_n  words,  sny  who  .sthall  be  natural-born 
citizens.  Resort  must  be  had  elsewhere  to  ascertain  that.  At  com- 
mon  law,  with  the  nomenclature  of  which  the  framers  of  the  Constitu- 
tion were  familiar,  it  was  never  doubted  that  all  children  born  in  a 
countr}'  of  parents  who  were  its  citizens  became  themselves,  upon  their 
birth,  citizens  also.  These  were  natives,  or  natural-born  citizens,  as 
distinguished  from  aliens  or  foreigners.  Some  authorities  go  further 
and  include  as  citizens  children  born  within  the  jurisdiction  without 
reference  to  the  citizenship  of  their  parents.  As  to  this  class  there  have 
been  doubts,  but  never  as  to  the  first.  For  the  purposes  of  this  case  it 
is  not  necessary  to  solve  these  doubts.  It  is  sufficient  for  everything 
we  have  now  to  consider  that  all  children  born  of  citizen  parents  within 
the  jurisdiction  are  themselves  citizens.  The  words  'all  children  '  are 
certainl}'  as  comprehensive,  when  used  in  this  connection,  as  '  all  per- 
sons,' and  if  females  are  included  in  the  last  thej'^  must  be  in  the  first. 
That  they  are  included  in  the  last  is  not  denied.  In  fact,  the  whole 
argument  of  the  plaintiffs  proceeds  upon  that  idea. 

"  Under  the  power  to  adopt  a  uniform  s^'stem  of  naturalization  Con- 
gress, as  early  as  1790,  provided  'that  any  alien,  being  a  free  white 
person,'  might  be  admitted  as  a  citizen  of  the  United  States,  and  that 
the  children  of  such  persons  so  naturalized,  dwelling  within  the  United 
States,  being  under  twenty-one  years  of  age  at  the  time  of  such  natural- 
ization, should  also  be  considered  citizens  of  the  United  States,  and 
that  the  children  of  citizens  of  the  United  States  that  might  be  born 
be3'ond  the  sea,  or  out  of  the  limits  of  the  United  States,  should  be  con- 
sidered as  natural-born  citizens.  1  Stat,  at  Large,  103.  These  provisions 
thus  enacted  have,  in  substance,  been  retained  in  all  the  naturalization 
laws  adopted  since.  In  1855,  however,  the  last  provision  was  some- 
what extended,  and  all  persons  theretofore  born,  or  thereafter  to  be  born, 
out  of  the  limits  of  the  jurisdiction  of  the  United  States,  whose  fathers 
were,  or  should  be  at  the  time  of  their  birth,  citizens  of  the  United 
States,  were  declared  to  be  citizens  also.     10  Stat,  at  Large,  604. 


462  MINOR   V.   HAPPERSETT.  [CHAP.  IV. 

"  As  earl}'  as  1804  it  was  enacted  by  Congress  that  when  an}-  alien 
who  had  declared  his  intention  to  become  a  citizen  in  the  manner  pro- 
vided by  law  died  before  he  was  actually  naturalized,  his  widow  and 
children  should  be  considered  as  citizens  of  the  United  States,  and 
entitled  to  all  rights  and  privileges  as  such  upon  taking  the  necessary 
oath  (2  Stat,  at  Large,  293)  ;  and  in  1855  it  was  further  provided  that 
any  woman  who  might  lawfully  be  naturalized  under  the  existing  laws, 
married,  or  who  should  be  married,  to  a  citizen  of  the  United  States, 
should  be  deemed  and  taken  to  be  a  citizen.  10  Stat,  at  Large, 
604.  .  .  . 

^^J^  th"  ^''g^'t  of  suffrage  is  one  of  the  necessary  privilegps  r>f  a  fiti- 
zen  of  the  United  States,  then  the  Constitution  and  laws  of  Missouri 
confining  it  to  men  are  in  vloiatioTi  of  the  Constitution  of  theJInited 
States,  as  amended,  and  cotisequently__voidf  The  direct  question  is, 
therefore,  presented  whether  all  citizens  are  necessarUy  voters.  .  .   . 

''  Tl^is  nlear.  therefore,  we  think,  that  the  Constitution  has  not 
added  the  right  of  suffrage  to  the  privileges  and  immunities  of  citizen- 
ship as  they  existed  at  the  time  it  was  adopted.  This  makes  it  proper 
to  inquire  whether  suffrage  was  co-extensive  with  th^  r-iti'^PncViip  r>f__^ 
the  States  at  the  time  of  its  adoption..  If  it  was,  then  it  maj*  with  force 
be  argued  that  suffrage  was  one  of  the  rights  which  belonged  to  citizen- 
ship, and  in  the  enjoyment  of  which  every  citizen  nnist  be  protected. 
But  if  it  was  not,  the  contrar}'  ma}'  with  propriety  be  assumed. 

"  When  the  P"'ederal  Constitution  was  adopted,  all  tlip  Stntps,  with  the 
exception  of  Rhode  Island  andjConneiJtie«%^ra;d~'coiistitutions  of  their 
own.  These  twojaintimred'To  act  under  their  charters  from  the  Crown. 
T1pna--ai-r-T^vfvmTnntinn  ^f  <^'^'->g'^  '^'^""^^'tiitiftps.  we  find  that  in  no  State 
were  all  fjfjypnft  pprmittpd  to  vote.  Each  State  determined  for  itself 
who  should  have  that  power.  Thus,  in  New  Hampshire,  'every  male 
inhabitant  of  each  town  and  parish  with  town  privileges,  and  places 
unincorporated  m  the  State,  of  twenty-one  years  of  age  and  upwards, 
excepting  paupers  and  persons  excused  from  paying  taxes  at  their  own 
request,'  were  its  voters;  in  Massachusetts,  i^ver}'  male  inhabitant  of 
twenty-one  years  of  age  and  upwards,  having  a  freehold  estate  within 
the  commonwealth  of  the  annual  income  of  three  pounds,  or  any  estate 
of  the  value  of  sixty  pounds  ; '  in  Rhode  Island,  '  such  as  are  admitted 
free  of  the  company  and  society  '  of  the  colony ;  in  Connecticut,  such 
persons  as  had  '  maturity  in  years,  quiet  and  peaceable  behavior,  a 
civil  conversation,  and  forty  shillings  freehold  or  fort}'  pounds  per- 
sonal estate,'  if  so  certified  by  the  selectmen  ;  in  New  York,  '  every 
male  inhabitant  of  full  age  who  shall  have  personally  resided  within 
one  of  the  counties  of  the  State  for  six  months  immediately  preceding 
the  day  of  election,  ...  if  during  the  time  aforesaid  he  shall  have 
been  a  freeholder,  possessing  a  freehold  of  the  value  of  twenty  pounds 
within  the  county,  or  have  rented  a  tenement  therein  of  the  yearly 
value  of  forty  shillings,  and  been  rated  and  actually  paid  taxes  to  the 
State ; '  in   New  Jersey,   '  all  inhabitants   ...  of  full  age  who  are 


CHAP.  IV.]  MINOR   V.   HAPPERSETT.  463 

worth  fifty  pounds,  proclamation  money,  clear  estate  in  the  same,  and 
have  resided  in  the  county  in  which  they  claim  a  vote  for  twelve 
months  immediately  preceding  the  election ; '  in  Pennsylvania,  '  every 
freeman  of  the  age  of  twenty-one  years,  having  resided  in  the  State 
two  years  next  before  the  election,  and  within  that  time  paid  a  State 
or  county  tax  which  shall  have  been  assessed  at  least  six  months 
before  the  election  ; '  in  Delaware  and  Virginia,  '  as  exercised  by  law 
at  present ; '  in  Maryland,  '  all  freemen  above  twentj'-one  3'ears  of  age 
having  a  freehold  of  fifty  acres  of  land  in  the  county  in  which  they  offer 
to  vote  and  residing  therein,  and  all  freemen  having  property  in  the 
State  above  the  value  of  thirty  pounds  current  money,  and  having  re- 
sided in  the  county  in  which  the}'  offer  to  vote  one  whole  3'ear  next 
preceding  the  election  ; '  in  North  Carolina,  for  Senators,  '  all  freemen 
of  the  age  of  twenty-one  years  who  have  been  inhabitants  of  anj-  one 
county  within  the  State  twelve  months  immediately  preceding  the  daj' 
of  election,  and  possessed  of  a  freehold  within  the  same  count}'  of  fift}'' 
acres  of  land  for  six  months  next  before  and  at  the  day  of  election,' 
and  for  members  of  the  House  of  Commons,  '  all  freemen  of  the  age  of 
twent3'-one  years  who  have  been  inhabitants  in  any  one  county  within 
the  State  twelve  months  immediately  preceding  the  da}'  of  any  election, 
and  shall  have  paid  public  taxes  ; '  in  South  Carolina,  'every  free  white 
man  of  the  ago  of  twent3'-one  years,  being  a  citizen  of  the  State  and 
having  resided  therein  two  3'ears  previous  to  the  day  of  election,  and 
who  hath  a  freehold  of  fifty  acres  of  land,  or  a  town  lot  of  which  he  hath 
been  legally  seised  and  possessed  at  least  six  months  before  such  elec- 
tion, or  (not  having  such  freehold  or  town  lot)  hath  been  a  resident 
within  the  election  district  in  which  he  offers  to  give  his  vote  six  months 
before  said  election,  and  hath  paid  a  tax  the  preceding  year  of  three 
sliillings  sterling  towards  tlie  support  of  the  government ; '  and  in 
Georgia,  such  '  citizens  and  inhabitants  of  the  State  as  shall  have 
attained  to  the  age  of  twenty-one  years,  and  shall  have  paid  tax  for  the 
year  next  preceding  the  election,  and  shall  have  resided  six  months 
within  the  county.' 

"  In  this  condition  of  the  law  in  respect  to  snfl'rnge  in  the  several_ 
Stntes  it,  rnnnot.  for  n.  mompnt  bp  d^'ibfed  thnt  jf  it  had  been  intended 
to  make  all  citizens  of  thp  TTnitpfl  Stnfps  vol-pi-s.  the  framers  of  the  Con- 
stitution would  not  have  left  it  to  implinntinn  So  important  a  change 
in  the  condition  of  citizenship  as  it  actually  existed,  if  intended,  would 
have  been  expressl}^  declared.  .  .  . 

"The  Constitution  was  submitted  to  the  States  for  adoption  in  1787, 
and  was  ratified  by  nine  States  in  1788,  and  finally  by  the  thirteen 
original  States  in  1790.  Vermont  was  the  first  new  State  admitted  to 
the  Union,  and  it  came  in  under  a  constitution  which  conferred  the  right 
of  suffrage  only  upon  men  of  the  full  age  of  twenty-one  years,  having 
resided  in  the  State  for  the  space  of  one  whole  year  next  before  the 
election,  and  who  were  of  quiet  and  peaceable  behavior.  This  was  in' 
1791.    The  next  year,  1792,  Kentucky  followed  with  a  constitution 


464  NATIVES,   ALIENS,   CITIZENS.  [CHAP.  IV. 

confining  the  right  of  suffrage  to  free  male  citizens  of  the  age  of  twenty- 
one  years,  who  had  resided  in  the  State  two  years,  or  in  the  county  in 
which  they  offered  to  vote  one  year  next  before  the  election.  Tlien  fol- 
lowed Tennessee,  in  1796,  with  voters  of  freemen  of  the  age  of  twenty- 
one  years  and  upwards,  possessing  a  freehold  in  the  county  wherein 
they  may  vote,  and  being  inhabitants  of  the  State,  or  freemen  being 
inhabitants  of  any  one  county  in  the  State  six  months  immediately  pre- 
cedino-  the  day  of  election.  But  we  need  not  particularize  further. 
Nojitiffl_State  has  ever  been  adinittpd  to  the  TTnion  wJiighhas  conferj:ed 
the  right  of  suffrage  upon  women,  and  this  has  never  been  considered  a 
valid  objection  to  her  admission.  On  the  contrary,  as  is  claimed  in  the 
argument,  the  right  of  suffrage  was  withdrawn  from  women  as  early  as 
1807  in  the  State  of  New  Jersey,  without  any  attempt  to  obtain  the 
interference  of  the  United  States  to  prevent  it.  Since  then  the  govern- 
ments of  the  insurgent  States  have  been  reorganized  under  a  require- 
ment that  before  their  representatives  could  be  admitted  to  seats  in 
Congress  they  must  have  adopted  new  constitutions,  republican  in 
form.  In  no  one  of  these  constitutions  was  suffrage  conferred  upon 
women,  and  yet  the  States  have  all  been  restored  to  their  original  posi- 
tion as  States  in  the  Union. 

"  Besides  this,  citizenship  has  not  in  all  cases  been  made  a  condition 
jQrpnftdpnt  to  the  enjovmeut  of  the  right  of  suffrage^  Thus,  in  Missouri, 
persons  of  foreign  birth,  who  have  declared  their  intention  to  become 
citizens  of  the  United  States,  may,  under  certain  circumstances,  vote. 
The  same  provision  is  to  be  found  in  the  constitutions  of  Alabama, 
Arkansas,  Florida,  Georgia,  Indiana,  Kansas,  Minnesota,  and  Texas.  .  .  . 

"  Being  unanimously  of  the  oj2imoii_that  the  Constitution  of  the 
United  States  docs  not  confer  the  right  of  suffrage  upon  anv  one,  and 
that  the  constitutions  and  laws  of  the  several  States  which  commit  that 
important  trust  to  men  aloup  are  not  necessarily  void,  we 

Affirm  the  judgment. ^^ 


NOTE. 

Natives,  Aliens,  Citizens. 

"  The  first  and  most  obvious  division  of  the  people  is  into  aliens  and  natural-horn 
subjects.  Natural-born  sn])jects  are  such  as  are  born  within  the  dominions  of  tlie  crown 
of  England ;  that  is,_vvithin  the  ligeance.  or,  as  it  is  generally  called,  the  allegiance  .of 
the  king ;  and  aliensTsuch  as  are  bornout  of  JL  Allegiance  is  the  tie,  or  liqamen, 
which  binds  the  subject  to  the  king,  in  return  for  that  protection  which  the  king 
affords  the  subject.  The  thing  itself,  or  substantial  part  of  it,  is  founded  in  reason 
and  the  nature  of  government ;  the  name  and  the  form  are  derived  to  us  from  our 
Gothic  ancestors.  Under  the  feudal  sy.stem,  every  owner  of  lands  held  them  in  subjec- 
tion to  some  superior  or  lord,  from  whom  or  whose  ancestors  the  tenant  or  vassal  had 
received  them ;  and  there  was  a  mutual  trust  or  confidence  subsisting  between  the  lord 
and  vassal,  that  the  lord  should  protect  the  vassal  in  the  enjoyment  of  the  territory  he 
had  granted  him,  and,  on  the  other  hand,  that  the  vassal  should  be  faithful  to  the  lord, 
and  defend  him  against  all  his  enemies.  .  .  . 


CHAP.  IV.]  NATIVES,   ALIENS,   CITIZENS.  465 

"  But,  besides  these  express  engagements,  the  law  also  holds  that  there  is  an  implied, 
original,  and  virtual  allegiance,  owing  from  every  subject  to  his  sovereign,  antecedently 
to  any  express  promise ;  and  although  the  subject  never  swore  any  faith  or  allegiance 
in  form.  For  as  the  king,  by  the  very  descent  of  the  crown,  is  fully  invested  with  all 
the  rights,  and  bound  to  all  the  duties,  of  sovereignty,  before  his  coronation;  so  the 
subject  is  bound  to  his  prince  by  an  intrinsic  allegiance,  before  the  superiuduction  of 
those  outward  bonds  of  oath,  homage,  and  fealty  ;  which  were  only  instituted  to  remind 
the  subject  of  this  his  previous  duty,  and  for  the  better  securing  its  performance.  .  .  . 

"  Allegiance,  both  express  and  implied,  is  however  distinguished  by  the  law  into  two 
sorts  or  species,  the  one  uaturaLJhe  otJieFIocal  i  tlie  forineijj^ing_al.so  perpptiial,  tliff 
lattertemporarj^__NaturaLallfigiaucfiJs_ _sucli  as  is  due  from  all  men  born  within  the 
king's  dominionsimmediately  upon  their  birth.  For,  immediately  upon  their  birth, 
they  are  under  the  king's  protection:  at  a  time,  too,  when  (during  their  infancy)  they 
are  incapable  of  protecting  themselves.  Natural  allegiance  is  therefore  a  debt  of 
gratitude  ;  which  cannot  be  forfeited,  cancelled,  or  altered  by  any  change  of  time, 
place,  or  circumstance,  nor  by  anything  but  the  united  concurrence  of  the  legislature. 
An  Englishman  who  removes  to  France,  or  to  China,  owes  the  same  allegiance  to  the 
King  of  England  there  as  at  home,  and  twenty  years  hence  as  well  as  now.  .   .  . 

"  Local  allegiance  is  SUcll_as  1,1  dflP!  f^'^"^  an-alie-n_Qr  strnngpr  horn,  for  so  lonp;  time 

^s  he  continues  within  tlieking|s_doininion  aniLprotectiou^  and  it  ceases  Ihaiaataut 
such  stranger  transfers  himself  froni  this  kingdom  to  another.  .  .  . 

"  When  I  say,  that  an  alien  is  one  who  is  born  out  of  the  king's  dominions,  or  alle- 
giance, this  alsoTimsrbe  understood  with  so me~restfictTons^  Tbe  common  law,  indeed, 
stood  absolutely  so,  with  only  a  very  tew  exceplTons  ;/iO  that  a  particular  Act  of  Par- 
liameiit  became  necessary  after  tlie  Restoration,  *  for  the  naturalization  of  children  of 
his  iMajesty's  English  subjects,  born  in  foreign  countries" Huring  "tiTe  late  trouljles.' 
And  this  inaxira  of  theTaw  proceeded  upon  a  general  prruciple7that  every  man  owes 
natural  allegiance  where  he  is  born,  and  cannot  owe  two  such  allegiances,  or  serve  two 
masters,  at  once.  Yet  the  children  of  the  king's  ambassadors  born  abroad  were  always 
held  to  be  natural  subjects :  for  as  the  father,  tliough  in  a  foreign  country,  owes  not 
even  a  local  allegiance  to  the  prince  to  whom  he  is  sent ;  so,  with  regard  to  the  son 
also,  he  was  held  (by  a  kind  of  postliinuuum]  to  be  born  under  the  King  of  England's 
allegiance,  represented  by  his  father  the  ambassador.  .  .  . 

"  A  denizen  is  an  alien  born,  but  who  has  obtained  ex  donatione  regis  letters-patent 
to  make  him  an  English  subject :  a  high  and  incommunicable  branch  of  the  royal  pre- 
rogative.    A  denizen  is  in  a  Icind  of  middle  state,  between  an  alien  and  natural-born_ 
subject,  and  partakes  of  both  of  them.  .  .  . 

"  Naturalization  cannot  be  performed  but  by  Act  of  Parliament :  for  by  this  an  alien 
is  put  in  exactly  the  same  state  as  if  he  had  been  born  in  the  king's  ligeance ;  except 
only  that  he  is  incapable,  as  well  as  a  denizen,  of  being  a  member  of  the  Privy  Council, 
or  Parliament,  holding  offices,  grants,  &c.  .  .  . 

"  These  are  the  principal  distinctions  between  aliens,  denizens,  and  natives  :  distinc- 
tions, which  it  hath  been  frequently  endeavored  since  the  commencement  of  tliis  cen- 
tury to  lay  almost  totally  aside,  by  one  general  Naturalization  Act  for  all  foreign 
Protestants.  An  attempt  which  was  once  carried  into  execution  by  the  statute  7  Ann. 
c.  5 ;  but  this,  after  three  years'  experience  of  it,  was  repealed  by  the  statute  10  Ann. 
c.  5,  except  one  clause,  which  was  just  now  mentioned,  for  naturalizing  the  children  of 
English  parents  born  abroad." —  1  Blackstone's  Com.  366. 

See  also  Sir  Thomas  Smith's  Com.  of  England,  book  i.  cc.  16,  22-24  (1565). 

"  I.  Natives  and  Aliens.  .  .  .  We  have  to  consider  (i)  tba  diffprenrp  Ht'"°°" 
natives,  or  members  of  the  State  or  nation,  and  forei/yppra;  (9)  the  difference  hetwppn 
citizens  and  other  members  of  the  nation.  We  need  not  consider  the  different  grades 
within  the  citizen  Doay  tiH  we  di.scuss  the  Constitution  in  detail.  .  .  . 

"  Nationality  may  be  determined  by  — 

"  (a)  Place  of  birth  (^iV/ii/rt.'sowT^  This  is  in  the  main  the  later  mediaeval  view,  and 
is  still  the^rinciple  of  English  law,  which  distinguishes  '  natural-born '  subjects  from 
VOL.  I.  —  30 


466  NATIVES,   ALIENS,   CITIZENS.  [CHAP.  IV. 

'aliens.*  Birth  on  an  English  ship  or  in  an  English  embassy  is  equivalent  to  birth  in 
England.  But  the  principle  has  been  so  far  modified  that  the  children  of  English- 
men, born  abroad,  become  English  citizens :  and  naturalization  has  become  much 
easier.     The  law  of  the  United  States  goes  on  the  same  principles. 

"  (b]  Domicil.  This  form  of  the  territorial  principle  is  more  in  keeping  with  modern 
ideas,  because  it  lays  stress  not  on  the  casual  place  of  birth,  but  on  the  permanent 
dumicil  of  the  parents,  and  subsequently  of  the  man  himself.  But  here  differences 
arise,  according  as  settlement  is  made  ea.sy  or  difficult.  This  was  the  principle  par- 
tially followed  by  Austria  in  earlier  times  and  by  individual  German  States.  But 
there,  too,  it  was  modified  by  the  forms  of  a  pei*sonal  grant  of  native  rights. 

"  (c)  Midway  between  thesp  f.tmog  thA  Swiss  principle  of  rnpmhprship  jn  the  com- 
mune, which  forms  the  basis  of  membership  of  the  Canton  {Cantonsbiirgerrecht),  and  of 
the  Swiss  confederation  (Scha-eizerbib-yerrecht).  The  rights  in  the  commune  depend 
not  on  place  of  birth  or  domicil,  but  on  descent  from  parents  who  are  citizens  of  the 
commune,  even  though  they  live  outside  it.  It  is  not  unlike  the  old  Roman  municipal 
law,  which  was  also  based  on  ori</o  from  a  particular  mtinicipium. 

"  ((/)  Modern  States,  generally,  recognize  nationality  as  i^  personal  relation,  not 
mainly  dependent  on  place  ot  birth  or  domicil.  but  on  descent  from  members  of  tlie 

nation  and  personal  rpceptlnn  into  \t,f^  n^ftn^hprship Plap^    r>f    hirth  and  dnmifil    pnmo 

in  to  compleje  the  notion . 

"  This,  in  the  main,  is  the  principle  for  France,  Prussia,  and  the  German  Empire. 
This  system  best  corresponds  to  modern  political  ideas,  which  regard  the  personal 
relation  to  the  nation  as  the  essential  germ  of  the  conception  of  the  State. 

"  But  the  different  systems  tend  to  approach  and  supplement  one  another.  Descent, 
birthplace,  domicil  and  naturalization,  marriage  and  legitimation,  thus  all  combine, 
directly  or  indirectly,  to  constitute  the  qualification  for  citizenship.  .  .  . 

"  It  is  quite  possible  for  one  person  to  have  the  rights  of  a  native  (Heimatsreckte)  in 
two  States  at  once,  and  modern  conditions  indeed  encoiir.ige  this  in  the  rare  case  ot 
a^couflict  of  duties  it  may  be  hard  to  reconcile  them'  It  is  not  always  a  safe  principle 
tiiat  the  earlier  right  should  take  precedence,  especially  where  it  is  dormant,  while  the 
later  right  is  actual.  In  such  cases  the  first  duty,  e.  g.,  of  military  service,  is  to  the 
country  in  which  a  man  is  living.  .  .  . 

"  In  private  law  the  distinction  between  citizen  and  alien  used  to  be  far  more  import- 
ant than  now.  The  spheres  of  private  and  public  law  are  now  much  more  sharply  dis- 
tjntrnJgiiAti,  fltul  >ipnr'f»  nationality,  which  is  essentially  a  political  ideajjias  no  placejn 
private  law.  As  a  rule  natives  and  aliens  are  alike  regarded  as  both  possessing  fiyll 
riglits  in  private  law.  .  .  ~  ~ 

"  But  in  the  sphere  of  public  law  the  distinction  betweenjeitizen  and^ienjemains 
in  full  force.  The  following  rights,  except  in  case  of  special  grant,  are  confined  to 
natives :  — 

"  (aJThe  right  of  permanent  residence  in  the  country.  A  native  cannot  be  handed 
over  to  a  foreign  State,  or  banished,  without  grave  political  reasons. 

"  (b)  The  right  to  the  protection  of  his  State,  even  if  he  is  staying  abroad. 

"  (c)  The  exercise  of  the  franchise  and  of  the  rights  of  a  full  citizen. 

"  (d)  The  right  to  hold  a  public  office. 

"  (e)  Sometimes  such  general  politicaTrights  as  those  of  association,  petition,  or  free 
publication.  This  does  not  mean  that  foreigner  are  ab50luterv~excluded  trom  tliese 
rights,  but  that  they  only  enjoy  them  on  sufferance. 

"...  IT.  Gtttzf.xs.     The  body  of  full  citizens  rise  above  the  general  mass  of  the 
members  of  a  country  or  nation.     Full  citizenship  implies  membership  in  the  nation.^ 
but,  more  than  that,  it  implies  complete  political  rights :  it  is  thus  the  fullest  expr^- 
sion  of  the  relation  '^^  ^^'"  >"d1v1ihiitl  to  the  State. 

"  Its  conditions  have  varied  from  time  to  time :  in  ancient  Greece  and  Rome  it  de- 
pended  on  citizenship  in  the  governing  city,  in  the  Middle  Ages  on  freedom  (  Volksfrei- 
heit),  and  later  on  the  rights  of  a  privileged  class,  and  on  landed  property.  In  modern 
States  it  has  often  become  almost  coextensive  with  membership  in  the  nation  ( Volks- 
genossenschajl). 


CHAP.  IV.l  NATIVES,   ALIENS,   CITIZENS.  467 

"  The  followiug  limitations  are  now  generally  recognized :  — 

Italy  politfeal  and  ""I -"'""'/^'J^^t'hfuerirCpirSpain  and  FortugaUhe 
States  a  ,o,  ,  ,  l^'^^  X:^,JZ::CX  in  Austria  twentyloar.  In  S»itzeda„d 
Zfrto:.  fil  rrolSclTn^aU  -««'  '»»  •!■«  civil,  generally  a.  the  couple- 

"  ■"a'^^SnS^^lSexdnd.d  whose ,i.il  .tat._,ha^eentoHlgl,^Llg^^ 
.rin.1^s.  declaml  spendth,-iSjgn_k,upts,  .r  p.rjonsm  lece.ptJ^LiaMSto^ 

::f^^S^£r'^ni-dtd3^;^arionsly  defined  in  di«erent  State. 

,.et3tri=^fi^;r-,uarific.ion^^^^^^^^^^ 

i::r:^i;'i„-a^zL:°;Tr^?^^^^^ 

Stt?:n^e4°"S'S;yaT:i"?rw-^     .,fe  sa„ede„».tio  tendency  of 
'^!  ^^^V         o  ^t.tP,  -•M-.^r.  r;>ri.f«  =»rp  conditional  onth&jiQSSPssion  of  a  rntmn  amount 

i:'d  llall   :^^^^^^^^^    of  ta\ing  part  in  public  duties,  and  ^2:^:^^^^^  ^:::Z 
Tf  nrooertv   s  interpreted  to  mean  income  or  earnings,  and  the  limit  is  put  at  a  moaesi 

Senc-:  thl  il  no  objection  to  it,  but  it  is  t'-"  equivalent  to  the^^^^^^^^^^^^^ 
fi.-ition      The  result  is  the  same  in  constitutions  such  as  those  of  the  United  states,  ine 
Bavrrian  of  IsIs!  and  to  some  extent  those  of  Austria  and  Prussia,  where  the  franchise 

^^r;:rch^ra::statrtm^  j-:: 

Mohammedans  and  othe?^;WugTrtmefateir;^i?il^^^  ^"l"' 

^^^  the  Middle  Ages  religion  and  law,  Church  and  State.  wereehJsely  associated.     Ex- 
c  fs  on  from  the  felgiou!  society  meant  exclusion  from  the  political.     Toleration  wa. 

rutmoXt  unbelievers  coul'd  hope  for.     Even  within  the  C^^^^ian  pa^e^^^^^^^^^ 
of  faith  carried  with  it  political  consequences.     In  some  countries  only  Catho  ics  in 
o  hers  only  Protestants,  acquired  full-rights.     The  peace  of  Westphalia  pu    Catholics 
Tml  ProteLiits.  in  Germany,  oa  an  equality  of  civil  rights  but  not  ^oj  P«l'^;-;^^      ^^^ 

"  The  German  Confederation  of  1815  established  political  equality  for  the  recognize 
reli^ous  pardes  ia^^rmany.  Catholics.  Lutherans,  and  Calvinists  (Reforn..rten),  but 
Ipft  thp  nositietTof  other  sects  uncertain.  .  ^i.-fi^oi 

"  1; ^.^STq^o...  .....  is  a  decided  tendency  to  rn^kej^^e_ejsevc^^^ 

riHi^^Si^eWindepenrnt..^^  'T^^^^^^^^?!^^  f 

religious  indifference.     When  the  American  Congress  of  /Jf  .f^'^^f."  ^^^^'^P^T 
any  law  establishing  a  dominant  religion,  it  did  not  mean  that  ^^^^'^J/'f  ;„'°*  \',^^ 
poLr.of  Christianity,  nor  did  ^^^^^^^  ^T^S.^.:LSrS:i 
Christian   institutions.     ...  —  Uluntschli,   j.  nttFig    j 
Translation  (1885),  195.  —  Ed. 


468  PEMBINA   MINING   AND   MILLING   CO.   V.   PA.  [cHaP.  IV. 

In  Pembina  Mining  and  Milling  Co.  v.  Pa.  125  U.  S.  181  (1887), 
the  question  was  on  the  validitj'  of  a  Pennsylvania  statute  requiring  an 
annual  license  fee  from  a  foreign  corporation  which  "  does  not  invest 
and  use  its  capital  in  this  Commonwealth."  In  holding  it  good,  Field, 
J.,  for  the  court,  said:  "The  clauses  of  the  Federal  Constitution, 
with  which  it  was  urged  in  the  State  Supreme  Court  that  the  statute 
conflicts,  are  the  one  vesting  in  Congress  the  power  to  regulate  foreign 
and  interstate  commerce,  the  one  declaring  that  the  citizens  of  eacli 
State  are  entitled  to  the  privileges  and  immunities  of  citizens  in  the 
several  States,  and  the  one  embodied  in  the  Fourteenth  Amendment 
declaring  that  no  State  shall  denj*  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws. 

"1.  It  is  not  perceived  in  what  way  the  statute  impinges  upon  the 
commercial  clause  of  the  Federal  Constitution.  .  .   . 

"  2.  Nor  does  the  clause  of  the  Constitution  declaring  that  the  '  citi- 
zens of  each  State  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  several  States '  have  any  bearing  upon  the  question  of 
the  validit}'  of  the  license  tax  in  question.  Corporations  are  not  citi- 
zens within  the  meaning  of  that  clause.  This  was  expressly  held  in 
Paul  V.  Virginia.  In  that  case  it  appeared  that  a  statute  of  Virginia, 
passed  in  February,  18G6,  declared  that  no  insurance  company  not  in- 
corporated under  the  laws  of  the  State  should  carry  on  business  within 
her  limits  without  previously  obtaining  a  license  for  that  purpose,  and 
that  no  license  should  be  received  by  the  corporation  until  it  had  depos- 
ited with  tlie  treasurer  of  the  State  bonds  of  a  designated  character  and 
amount,  the  latter  varying  according  to  the  extent  of  the  capital  em- 
ployed. No  such  deposit  was  required  of  insurance  companies  incor- 
porated b}'  the  State  for  carrying  on  their  business  within  her  limits. 
A  subsequent  statute  of  Virginia  made  it  a  penal  offence  for  a  person 
to  act  in  the  State  as  an  agent  of  a  foreign  insurance  compan}-  without 
such  license.  One  Samuel  Paul,  having  acted  in  the  State  as  an  agent 
for  a  New  York  insurance  compau}'  without  a  license,  was  indicted  and 
convicted  in  a  Circuit  Court  of  Virginia,  and  sentenced  to  pay  a  fine  of 
$50.  On  error  to  the  Court  of  Appeals  of  the  State  the  judgment  was 
affirmed,  and  to  review  that  judgment  the  case  was  brought  to  this  court. 
Here  it  was  contended,  as  in  the  present  case,  that  the  statute  of  Vir- 
ginia was  invalid  bj-  reason  of  its  discriminating  provisions  between  her 
corporations  and  corporations  of  other  States  ;  that  in  this  particular  it 
was  in  conflict  with  tlie  clause  of  the  Constitution  mentioned,  that  the 
citizens  of  each  State  shall  be  entitled  to  all  the  privileges  and  immuni- 
ties of  citizens  in  the  several  ^States.  But  the  court  answered,  thnt  onr- 
porations^jjifi.  not  riti/ens  within  tho  menni'-'g  <^f  the  cinuse;  that  the 
term  citizens,  as  used  in  the  clause,  applies  onlv  to  natural  persons, 
members  of  the  body  politic  owing  allegiance  to  the  State,  not  to  arti- 
ficial persons  created  by  the  legislature,  and  possessing  only  such 
attributes  as  the  1e,tris1flture  has  pvpscribed  ;  that  the  privileges  and 
immunities  secured  to  citizens  of  each  State  in  the  several  States  by  the 


CHAP.  IV.]  PEMBINA   MINING   AND   MILLING   CO.   V.   PA.  469 

c-lause  in  question  ai;eJhosej2nvileges_MLdJmmunities  which  are  coui: 
inon  to  the  citizens  liTthe  latterStates  under  their  Constitution  anil 
laws  by  virt_ue_on,heir_citizenship_:  that  special  nrlvileot^S  enjoyecl  by 
citizens  in  their_gwn_Slates  axe_nQl.  secured  in  other  States  by  that 
provision;  that  i^wasjiotjn tended  that  the  laws  of  one  State  should 
th^^^^JFTh^^^T^y  operatiorTin  other  State_s  ^that  thex_can_  have  such 
operation  only  by  the  permission,  express  or  iinj^lied^f  those  States ; 
tiiat  special  privileges  wliTch  are  conferred  must  be  ejvLoyed  at  honie^ 
unless  the  assent  of  other  States  to  their  enjoyment  ^herein  be  given  ; 
and  that  a  gi^anfoF  corporMgJg?^^^^"^^  ^^"^^^  ^  ^^'^-  ^-  ^^^^^^^  privileges 
to"tlie  corporators,  ^i^^Hbg^them  to  act  for  certain_specifiedjnimo^ 
as  a  single  individual,  and  exempting  them,  unless  otherwise  provided, 
!ToHrmdh¥lual  liabijity,_which  could  therefore  be  enjoyed  in  other 
States  onlv  by  their  assent.  In  the  subsequent  case  of  Ducat  v.  Chi- 
cciffo,  10  Wall.  410,  the  court  followed  this  decision,  and  observed  that 
the  power  of  the  State  to  discriminate  between  her  own  domestic  cor- 
porations and  those  of  other  States,  desirous  of  transacting  business 
within  her  jurisdiction,  was  clearly  established  by  it  and  the  previous 
case  o^  Augusta  v.  Earle,  13  Pet.  519,  and  added  that  'as  to  the  na- 
ture or  degree  of  discrimination,  it  belongs  to  the  State  to  determine, 
sul)ject  onTy  to  such  limitations  on  her  sovereignty  as  may  be  found  in 
the  fundamental  law  of  the  Union.'  Philadelphia  Fire  Association  v. 
Mw  To)-k,  119  U.  S.  110,  120. 

"  3.  The  application  of  the  Fourteenth  Amendment  of  the  Constitu- 
tion to  the  statute  imposing  the  license  tax  in  question  is  not  more 
apparent  than  the  application  of  the  clause  of  the  Constitution  [as]  to  the 
rights  of  citizens  of  one  State  to  the  privileges  and  immunities  of  citi- 
ze°ns  in  other  States.  The  inhibition  of  the  amendment  that  no  State 
shall  deprive  any  person  within  jtglunsdictao^ 

of  the  laws  was  designed  to  prevent  any  pej;son_or  class,i2i!43£rsmJsJlQm 
Beino-  singled  out  as  a  sj)ecial_  subject  for  discjuminatj ng  and  hostile 
fegisUition.  Under_the~designation  of  person  there  is  no  doubt  that  a_ 
g^^Ktrcori5oration_is  Included.  Such  corporations  are  merely  associa- 
tions  of  individuals  united  for  a  special  purpose,  and  permitted  to  do 
business  under  a  particular  name,  and  have  a  succession  of  members 
without  dissolution.  As  said  by  Chief  Justice  Marshall,  'The  great 
object  of  a  corporation  is  to  bestow  the  character  and  properties  of 
individuality  on  a  collective  and  changing  body  of  men.'  Providence 
Bank  v.  Billings,  4  Pet.  514,  562.  The  equal  protection  of  the  laws 
which  these  bodies  may  claim  is  only  such  as  is  accorded  to  similar 
associations  within  the  jurisdiction  of  the  State.  The  plaintiff  in  error 
is  not  a  corporation  within  the  jurisdiction  of  Pennsylvania.  The  office 
it  hires  is  within  such  jurisdiction,  and  on  condition  that  it  pays  the 
required  license  tax  it  can  claim  the  same  protection  in  the  use  of  the 
office  that  any  other  corporation  having  a  similar  office  may  claim.  ^  It 
would  then  have  the  equal  protection  of  the  law  so  far  as  it  had  anything 
within  the  jurisdiction  of  the  State,  and  the  constitutional  amendment 


470  NOTE   ON   CORPORATIONS.  [CHAP.  IV- 

requires  nothing  more.  The  State  is  not  prohibited  from  discriminating 
in  the  privileges  it  may  grant  to  foreign  corjaorations  as  a  conditionlof 
their  doing  business  or  hiring  offices  within  its  limits, ^provided  always 
such  discrimination  does  not  interfere  with  any  _transaction  by  such 
corporations  of  interstate  or  foreign  commerce.  It  is  not  every  corpo- 
ration, lawful  in  the  State  of  its  creation,  that  other  States  may  be  will- 
ing to  admit  within  their  jurisdiction  or  consent  that  it  have  offices  in 
them  ;  such,  for  example,  as  a  corporation  for  lotteries.  And  even 
where  the  business  of  a  foreign  corporation  is  not  unlawful  in  other 
States  the  latter  may  wish  to  limit  the  number  of  such  corporations,  or 
to  subject  their  business  to  such  control  as  would  be  in  accordance  with 
the  policy  governing  domestic  corporations  of  a  similar  character.  The 
States  may,  therefore,  require  for  the  admission  within  their  limits  of 
the  corporations  of  other  States,  or  of  any  number  of  them,  such  con- 
ditions as  the3'  may  choose,  without  acting  in  conflict  with  the  conclud- 
ing provision  of  the  first  section  of  the  Fourteenth  Amendment.  As  to 
the  meaning  and  extent  of  that  section  of  the  amendment  see  Barbier 
\.  Connolly,  113  U.S.  27;  Soon  Hing  y.  Crowley,  113  U.S.  703; 
Missouri  v.  Lewis,  101  U.  S.  22,  30 ;  Missouri  Pacific  Baihcay  Co. 
V.  Humes,  115  U.  S.  512  ;  Yick  Wo  v.  Hopkins,  118  U.  S.  356  ;  Hayes 
V.  Missouri,  120  U.  S.  68. 

"  The  only  limitation  upon  this  power  of  the  State  to  exclude  a  foreign 
corporation  from  doing  business  within  its  limits,  or  hiring  offices  for 
that  purpose,  or  to  exact  conditions,  for  allowing  the  corporation  to  do 
business  or  hire  offices  there,  arises  where  the  corporation  is  in  the 
employ  of  the  Federal  government,  or  where  its  business  is  strictly 
commerce,  interstate  or  foreign.  The  control  of  such  commerce,  being 
in  the  Federal  government,  is  not  to  be  restricted  by  State  authority." 

Judgment  affirmed.^ 

Mr.  Justice  Bradley  was  not  present  at  the  argument  of  this  cause 
and  took  no  part  in  its  decision. 


NOTE. 

"  This  eleventh  sectionjof  the  Judiciary  Act  of  1789]deals  only  with  citizens,  and  it 
has  been  from  first  toTasFadmitjAd  that  cnrpnration&are.nor-wtkcTJB.-  Tliby'are  politl: 
cal  beings,  created  by  the  law,  an(\  cannot-siistain  the  character  of  citi^fifla..  .  .  . 

"  I  suppose  it  may  fairly  be  said,  that  neither  the  framers  of  the  Constitution  nor  tlie 
framers  of  the  Judiciary  Act  had  corporations  in  view.  .  .  .  When  this  subject  first 
came  before  the  Supreme  Court,  they  took  a  pretty  rigid  view  of  it.  They  considered 
that  a  corporation  created  by  the  law  of  a  particular  State  was  like  a  partnership ;  it 
had  some  privileges  which  partnerships  had  not,  but  in  substance  they  considered  it  to 
be  a  partnership,  and  they  went  on  from  that  view  to  this  inference :  that  if  all  the 
members  of  a  corporation  were  citizens  of  one  State,  and  the  party  on  the  other  side 
■was  a  citizen  of  a  different  State,  by  alleging  that  fact  jurisdiction  could  be  obtained. 
This  was  held  in  the  case  of  The  Bank  of  the  United  States  v.  Deveaux,  5  Cranch,  61 

1  Compare  Horn  Silver  Mining  Co.  v.  N.  Y.  143  U.  S.  305.  —  Ed. 


CHAP.  IV.]  NOTE.  471 

and  in  the  case  of  The  Hope  Tnsnuince  Company  v.  Boardman,  in  the  same  book,  page  57. 
The  two  cases  were  considered  together ;  and  it  was  repeated  afterwards,  so  late  as  the 
case  of  The  BanJc  of  Vicksburg  v.  Slocumb,  14  Teters,  60,  Now,  you  will  readily  see 
that  there  were  very  few  cases  of  large  corporations  where  all  the  members  were  citi- 
zens of  one  State,  and  that,  if  it  were  necessary  to  aver  that  fact  on  the  record,  the 
jurisdiction  of  the  courts  of  the  United  States  would  have  a  very  narrow  application  to 
corporations,  I  suppose  there  is  no  considerable  corporation  created  by  either  of  the 
States  in  wliich  there  are  not  one  or  more  persons  who  are  stockholders  outside  of  th« 
State.  Well,  this  was  a  difficulty  which  had  been  encountered  before  in  the  history  of 
the  law.  If  you  should  take  the  trouble  to  look  into  Mr.  Maine's  admirable  book  oa 
the  History  of  Ancient  Law,  you  will  find  mentioned  there  three  cases  of  an  analogous 
character.  The  first  arose  under  the  Koman  law,  where  it  was  necessary,  in  order  to 
give  their  important  courts  jurisdiction,  to  allege  that  the  plaintiff  was  a  Koman  citi- 
zen ;  but  after  the  commerce  of  the  city  and  the  empire  became  so  extended,  and  such 
a  number  of  foreigners  had  important  rights  and  interests  to  be  vindicated  in  the 
courts,  they  introduced  what  they  called  'a  fiction'  (Jictio),  which  meant  that  any- 
body who  had  a  proper  cause  of  complaint  might  allege  that  he  was  a  Roman  citizen, 
and  that  allegation  should  not  be  denied.  In  other  words,  they  introduced,  by  their 
own  authority,  a  rule  that  a  falsehood  might  be  stated  on  the  record,  and  that  the  other 
party  could  not  allege  the  truth.  Well,  there  were  two  instances  in  England  like  this. 
One  was  where  the  Court  of  Exchequer  obtained  a  great  amount  of  jurisdiction  by  aa 
allegation  in  the  declaration  that  tlie  plaintiff  was  a  debtor  to  the  king,  and  could  not 
pay  his  debt  unless  the  court  would  help  him  to  recover  what  he  demanded  in  that 
action  ;  and  that  allegation  was  held  not  to  be  traversable.  A  similar  allegation  was 
permitted  by  the  Court  of  King's  Bench,  in  order  to  obtain  jurisdiction  as  against  the 
Common  Pleas;  that  tlie  plaintiff  was  in  the  custody  of  the  marshal  of  the  Court  of 
King's  Bench,  and  con.sequeutly  could  not  go  into  any  other  court  and  prosecute  his 
rights.  That  was  held  not  to  be  traversable.  Now,  I  want  to  bring  your  attention  to 
the  case  of  The  Ohio  and  Mississippi  Railroad  Company  v.  Wheeler,  I  Black,  286,  and 
you  will  see  how  this  decision  corresponds  with  the  progress  made  by  the  Roman  and 
English  courts  on  similar  subjects.  Some  parts  of  the  marginal  note  express  clearly 
what  I  wish  to  bring  to  your  attention:  'A  corporation  exists  only  in  contemplation 
of  law  and  by  force  of  law,  and  can  have  no  legal  existence  beyond  the  bounds  of  the 
sovereignty  by  which  it  is  created,  and  it  must  dwell  in  the  place  of  its  creation.'  All 
that  had  been  previously  settled,  and  is  unquestioned  law.  'A  corporation  is  not  a 
citizen  within  the  meaning  of  the  Constitution,  and  cannot  maintain  a  suit  in  the  courts 
of  the  United  States  against  a  citizen  of  a  different  State  from  that  by  which  it  was 
created,  unless  the  persons  who  comprise  the  corporate  body  are  all  citizens  of  that 
State.'  That  is  the  old  law.  '  In  such  cases,  they  may  sue  by  their  corporate  name, 
averring  the  citizenship  of  all  the  members,  and  such  a  suit  would  be  regarded  as  the 
joint  suit  of  individual  persons,  united  together  in  a  corporate  body,  and  acting  under 
the  authority  conferred  upon  them  for  the  more  convenient  transaction  of  business, 
and  consequently  entitled  to  maintain  a  suit  in  the  courts  of  the  United  States  against 
the  citizen  of  any  State.'     That  is  the  old  law  also. 

" '  Where  a  corporation  is  created  by  the  laws  of  a  State  '  (we  now  advance  to  some 
new  doctrine),  'the  legal  presumption  is  that  its  members  are  citizens  of  the  State  in 
which  alone  the  corporate  body  has  a  legal  existence.'  That  is  laid  down  as  a  legal 
presumption. 

" '  A  suit  by  or  against  a  corporation  in  its  corporate  name  may  be  presumed  to  be  a 
suit  by  or  against  citizens  of  the  State  whi<h  created  the  corporate  body,  and  no  aver- 
ment or  denial  to  the  contrary  is  admissible  for  the  purpose  of  withdrawing  the  suit 
from  the  jurisdiction  of  a  court  of  the  United  States.'     There  is  the  Roman  '  fiction.' 

The    court    first    decides    thp    law    prpgnmpe    all    thp    momhrprg    -xre-  Htiypn^^    r»f    thf    SfafA 

yhich  created  the  corporation,  and  then  says  you  shall  not  traverse  that  presumption  ; 
and  that  Is  tlie  law  now.  Under  it,  the  courts  of  the  United  States  constantly  entertain 
suits  by  or  against  corporations.  It  has  been  so  frequently  settled,  that  there  is  not 
the  slightest  reason  to  suppose  that  it  will  ever  be  departed  from  by  the  court.  It  has 
been  repeated  over  and  over  again  in  subsequent  decisions ;  and  the  Supreme  Court 


472  FREE   NEGROES,   SLAVES.  [cHAP.  IV. 

seems  entirely  satisfied  that  it  is  the  right  ground  to  stand  npon ;  and,  as  I  am  now 
going  to  state  to  you,  they  have  applied  it  in  some  cases  which  go  beyond,  much  be- 
yond, these  decisions  to  which  I  have  referred.  So  that  when  a  suit  is  to  be  brought 
in  a  court  of  the  United  States  by  or  against  a  corporation,  by  reason  of  the  character 
of  the  parties,  you  have  only  to  say  that  this  corporation  (after  naming  it  correctly) 
was  created  by  a  law  of  the  State  of  Massachusetts,  and  has  its  principal  place  of  busi- 
ness in  that  State ;  and  that  is  exactly  the  same  in  its  consequences  as  if  you  could 
allege,  and  did  allege,  that  the  corporation  was  a  citizen  of  that  State.  According  to, 
the  present  decisions,  it  is  not  necessary  you  should  say  that  the  members  of  that  coj- 
poration  are  citizens  of  Massachusetts.  I'hey  have  passed  beyond  that.  You  iiave 
only  to  say  tliat  the  corporation  was  created  by  a  law  of  the  State  of  Massachusetts. 
aud  has  its  principal  place  of  business  in  that  State :  and  that  makes  it,  ffli-  the  pur- 
poses 01  lurisaiction.  the  same  as  if  it  were  a  citizen  of  that  State."  —  Curtis,  Junsd. 
U.  S.  Courts,  127-133.1 

"It  is  certain  that  the  Constitution  and  statute  law  of  New  York 
(Const,  art.  2,  N.  Y.  Revised  Statutes,  i,  126,  sec.  2)  speaks  of  men  of 
color  as  being  citizens,  and  capable  of  being  freeholders,  and  entitled 
to  vote.  And  if,  at  common  law,  all  human  beings  born  within  the 
legiance  of  the  king,  and  under  the  king's  obedience,  were  natural-born 
subjects,  and  not  aliens,  I  do  not  perceive  why  this  doctrine  does  not 
apply  to  the  United  States,  in  all  cases  in  which  there  is  no  express 
constitutional  or  statute  declaration  to  the  contrary.  Blacks,  whether 
born  free  or  in  bondage,  if  born  under  the  jurisdiction  and  allegiance  of 
the  United  States,  are  natives,  and  not  aliens.  The}'  are  what  the  com- 
mon law  terms  natural-born  subjects.  Subjects  and  citizens  are,  in  a 
degree,  convertible  terms  as  applied  to  natives ;  and  though  the  term 
citizen  seems  to  be  appropriate  to  republican  freemen,  yet  we  are,  equally 
with  the  inhabitants  of  all  other  countries,  subjects,  for  we  are  equally 
bound  by  allegiance  and  subjection  to  the  government  and  law  of  the 
land.  The  privilege  of  voting,  and  the  legal  capacit}'  for  office,  are  not 
essential  to  the  character  of  a  citizen,  for  women  are  citizens  without 
either  ;  and  free  people  of  color  ma^-  enjoy  the  one,  and  may  acquire  and 
hold  and  devise  and  transmit,  b}-  hereditarj-  descent,  real  and  personal 
estates.  The  better  opinion,  I  should  think,  was,  that  negroes  or  other 
slaves,  born  within  and  under  the  allegiance  of  the  TTnited  Stntpg,  nrp 
natuval-born  subjects,  but  not  citizens.  Citizens.  Tiprlpr  nnr  rnnctitn. 
tion  and  laws,  mean  free  inhabitants,  born  within  the  United  States,  or 
naturalized  under  the  law  of  Congress.  If  a  slave,  born  in  t\]P  iJn'it^f] 
jljtates,  be  manumitted,  or  otherwise  lawfully  discharged  from  bondage. 
or  if  a  black  man  be  born  within  the  United  States^  and  born  frt^o  1^^ 
bpf>nmps  thpnnpforwnvd  !\.  citizen,  but  under  such  disabilities  as  the  laws 
of  the  States  respectively  may  deem  it  expedient  to  prescribe  to  free 
persons  of  color."  —  2  Kent's  Com.  258,  n. 

1  Reprinted  by  permission.     This  hook,  published  in  1880,  consists  of  a  course  of 
lectures  given  by  Judge  Curtis  at  the  Harvard  Law  School  in  1872-73.  —  Ed. 


CHAP.  IV.T  STATE  V.   MANN.  473 


STATE  V.   MANN. 
Supreme  Court  of  North  Carolina.     1829. 

[2  Dev.  263.] 

The  defendant  was  indicted  for  an  assault  and  battery  upon  Lydia, 
the  slave  of  one  Elizabetli  Jones. 

On  tlie  trial  it  appeared  that  the  defendant  bad  hired  the  slave  for  a 
year  —  that  during  the  term,  the  slave  had  committed  some  small 
offence,  for  which  the  defendant  undertook  to  chastise  her  —  that  while 
in  the  act  of  so  doing,  the  slave  ran  off,  whereupon  the  defendant  called 
upon  her  to  stop,  which  being  refused,  he  shot  at  and  wounded  her. 

His  Honor,  Judge  Daniel,  charged  the  jury,  that  if  they  believed 
the  punishment  inflicted  by  the  defendant  was  cruel  and  unwarrantable, 
and  disproportionate  to  the  offence  committed  by  the  slave,  that  in  law 
the  defendant  was  guilty,  as  he  had  only  a  special  property  in  the 
slave. 

A  verdict  was  returned  for  the  State,  and  the  defendant  appealed. 

No  counsel  appeared  for  the  defendant.  The  Attorney-  General  con- 
tended, that  no  difference  existed  between  this  case  and  that  of  The 
State  V.  Hall,  2  Hawks,  582.  In  this  case  the  weapon  used  was  one 
calculated  to  produce  doath.  He  assimilated  the  relation  between  a 
master  and  a  slave,  to  those  existing  between  parents  and  children, 
masters  and  apprentices,  and  tutors  and  scholars,  and  upon  the  limita- 
tions to  the  right  of  the  superiors  in  these  relations,  he  cited  Russell  on 
Crimes,  866. 

RuFFiN,  J.  A  judge  cannot  but  lament,  when  such  cases  as  the 
present  are  brought  into  judgment.  It  is  impossible  that  the  reasons 
on  which  they  go  can  be  appreciated,  but  where  institutions  similar  to 
our  own,  exist  and  are  thoroughly  understood.  The  struggle,  too,  in 
the  judge's  own  breast  between  the  feelings  of  the  man,  and  the  duty 
of  the  magistrate  is  a  severe  one,  presenting  strong  temptation  to  put 
aside  such  questions,  if  it  be  possible.  It  is  useless,  however,  to  com- 
plain of  things  inherent  in  our  political  state.  And  it  is  criminal  in  a 
court  to  avoid  any  responsibility  which  the  laws  impose.  With  what- 
ever reluctance,  therefore,  it  is  done,  the  court  is  compelled  to  express 
an  opinion  upon  the  extent  of  the  dominion  of  the  master  over  the 
slave  in  North  Carolina. 

The  indictment  charges  a  battery  on  Lydia,  a  slave  of  Elizabeth 
Jones.  Upon  the  face  of  the  indictment,  the  case  is  the  same  as  The 
State  v.  Hall,  2  Hawks,  582. 

No  fault  is  found  with  the  rule  there  adopted ;  nor  would  be,  if  it 
were  now  open.  But  it  is  not  open  ;  for  the  question,  as  it  relates  to  a 
battery  on  a  slave  by  a  stranger,  is  considered  as  settled  by  that  case. 
But  the  evidence  makes  this  a  different  case.     Here  the  slave  had  been 


474  STATE  V.   MANN.  [CHAP.  IV. 

hired  by  the  defendant,  and  was  in  his  possession  ;  and  the  batter}' 
was  committed  during  the  period  of  liiring.  With  the  liabilities  of  the 
hirer  to  the  general  owner,  for  an  injury  permanently'  impairing  the 
value  of  the  slave,  no  rule  now  laid  down  is  intended  to  interfere. 
That  is  left  upon  the  general  doctrine  of  bailment.  The  inquiry  here 
is,  whether  a  cruel  and  unreasonable  battery  on  a  slave,  by  the  hirer, 
is  indictable.  The  judge  below  instructed  the  jur^'  that  it  is.  He 
seems  to  have  put  it  on  the  ground,  that  the  defendant  had  but  a 
special  property.  Our  laws  uniformlj*  treat  the  master  or  other  person 
having  the  possession  and  command  of  the  slave,  as  entitled  to  the 
same  extent  of  authority.  The  object  is  the  same  —  the  services  of 
the  slave  ;  and  the  same  powers  must  be  confided.  In  a  criminal  pro- 
ceeding, and  indeed  in  reference  to  all  other  persons  but  the  general 
owner,  the  hirer  and  possessor  of  a  slave,  in  relation  to  both  rights  and 
duties,  is  for  the  time  being,  the  owner.  This  opinion  would,  perhaps, 
dispose  of  this  particular  case ;  because  the  indictment,  which  charges 
a  batter}'  upon  the  slave  of  Elizabeth  Jones,  is  not  supported  b}-  proof 
of  a  batter}'  upon  defendant's  own  slave  ;  since  different  justifications 
may  be  applicable  to  the  two  cases.  But  upon  the  general  question, 
whether  the  owner  is  answerable  criminaliter,  for  a  battery  upon  his 
own  slave,  or  other  exercise  of  authorit}'  or  force,  not  forbidden  by 
statute,  the  court  entertains  but  little  doubt. 

That  he  is  so  liable,  has  yet  never  been  decided  ;  nor,  as  is  known, 
been  hitherto  contended.  There  have  been  no  prosecutions  of  the  sort. 
The  established  habits  and  uniform  practice  of  the  country  in  this 
respect,  is  the  best  evidence  of  the  portion  of  power  deemed  by  the 
whole  community  requisite  to  the  preservation  of  the  master's  dominion. 
If  we  thought  differentl}',  we  could  not  set  our  notions  in  arraj'  against 
the  judgment  of  ever^'body  else,  and  saj-  that  this,  or  that  authority, 
ma}'  be  safely  lopped  off.  This  has  indeed  been  assimilated  at  the  bar 
to  the  other  domestic  relations;  and  arguments  drawn  from  the  well- 
established  principles,  which  confer  and  restrain  the  authority  of  the 
parent  over  the  child,  the  tutor  over  the  pupil,  the  master  over  the 
apprentice,  have  been  pressed  on  us.  The  court  does  not  recognize 
their  application.  There  is  no  likeness  between  the  cases.  They  are 
in  opposition  to  each  other,  and  there  is  an  impassable  gulf  between 
them,  —  the  difference  is  that  which  exists  between  freedom  and  slavery 
—  and  a  greater  cannot  be  imagined.  In  the  one  the  end  in  view  is  the 
happiness  of  the  youth,  born  to  equal  rights  with  that  governor,  on 
whom  the  duty  devolves  of  training  the  young  to  usefulness,  in  a  sta- 
tion which  he  is  afterward  to  assume  among  freemen.  To  such  an  end, 
and  with  such  a  subject,  moral  and  intellectual  instruction  seem  the 
natural  means  ;  and  for  the  most  part,  they  are  found  to  suffice.  Mod- 
erate force  is  superadded,  only  to  make  the  others  effectual.  If  that 
fail,  it  is  better  to  leave  the  party  to  his  own  headstrong  passions,  and 
the  ultimate  correction  of  the  law,  than  to  allow  it  to  be  immoderately 
inflicted  by  a  private  person.     With  slavery  it  is  far  otherwise.     The 


CHAP.  IV.]  STATE   V.   MANN.  475 

end  is  the  profit  of  the  master,  his  security'  and  the  public  safet}' ;  the 
subject,  one  doomed  in  his  own  person,  and  his  posterity,  to  live  with- 
out knowledge,  and  without  the  capacit}'  to  make  anything  his  own,  and 
to  toil  that  another  may  reap  tlie  fruits.  What  moral  considerations 
shall  be  addressed  to  such  a  being,  to  convince  him  what,  it  is  impos- 
sible but  that  the  most  stupid  must  feel  and  know  can  never  be  true  — 
that  he  is  thus  to  labor  upon  a  principle  of  natural  duty,  or  for  the  sake 
of  his  own  personal  happiness ;  such  services  can  only  be  expected 
from  one  who  has  no  will  of  his  own  ;  who  surrenders  his  will  in  im- 
plicit obedience  to  that  of  another.  Such  obedience  is  the  consequence 
only  of  uncontrolled  authority  over  the  bod}'.  There  is  nothing  else 
which  can  operate  to  produce  the  effect.  The  power  of  the  master 
must  be  absolute,  to  render  the  submission  of  the  slave  perfect.  I 
most  freel}'  confess  my  sense  of  the  harshness  of  this  proposition  :  I 
feel  jt  as  deeply  as  an}'  man  can.  And  as  a  principle  of  moral  right, 
every  person  in  his  retirement  must  repudiate  it.  But  in  the  actual 
condition  of  things,  it  must  be  so.  There  is  no  remedy.  This  disci- 
pline belongs  to  the  state  of  slaver}-.  They  cannot  be  disunited, 
without  abrogating  at  once  the  rights  of  the  master,  and  absolving 
the  slave  from  his  subjection.  It  constitutes  the  curse  of  slavery  to 
both  the  bond  and  free  portions  of  our  population.  -  But  it  is  inherent 
in  the  relation  of  master  and  slave. 

That  there  may  be  particular  instances  of  cruelty  and  deliberate 
barbarity,  where,  in  conscience  the  law  might  properly  interfere,  is 
most  probable.  The  difficulty  is  to  determine,  where  a  court  may  prop- 
erly begin.  Merely  in  the  abstract  it  may  well  be  asked,  which  power 
of  the  master  accords  with  right.  The  answer  will  probably  sweep 
away  all  of  them.  But  we  cannot  look  at  the  matter  in  that  light. 
The  truth  is,  that  we  are  forbidden  to  enter  upon  a  train  of  general 
reasoning  on  the  subject.  We  cannot  allow  the  riglit  of  the  master  to 
be  brought  into  discussion  in  the  courts  of  justice.  The  slave,  to 
remain  a  slave,  must  be  made  sensible,  that  there  is  no  appeal  from  his 
master  ;  that  his  power  is  in  no  instance,  usurped  ;  but  is  conferred  by 
the  laws  of  man  at  least,  if  not  by  the  law  of  God.  The  danger  would 
be  great  indeed,  if  the  tribunals  of  justice  should  be  called  on  to  grad- 
uate the  punishment  appropriate  to  every  temper,  and  every  dereliction 
of  menial  duty.  No  man  can  anticipate  the  many  and  aggravated 
provocations  of  the  master,  which  the  slave  would  be  constantly  stimu- 
lated by  his  own  passions,  or  the  instigation  of  others  to  give  ;  or  the 
consequent  wrath  of  the  master,  prompting  him  to  bloody  vengeance, 
upon  the  turbulent  traitor  —  a  vengeance  generally  practised  with 
impunity,  by  reason  of  its  privacy.  The  court,  therefore,  disclaims; 
the  power  of  changing  the  relation,  in  which  these  parts  of  our  people 
stand  to  each  other. 

We  are  happy  to  see,  that  there  is  daily  less  and  less  occasion  for 
the  interposition  of  the  courts.  The  protection  already  afforded  by 
several  statutes,  that  all-powerful  motive,  the  private  interest  of  the 


476  PRIGG   V.   COMMONWEALTH   OF   PA.  [CHAP.  IV. 

owner,  the  benevolences  toward  each  other,  seated  in  the  hearts  of 
those  who  have  been  born  and  bred  together,  the  frowns  and  deep  exe- 
crations of  the  community  upon  the  barbarian,  who  is  guilty  of  exces- 
sive and  brutal  cruelty  to  his  unprotected  slave,  all  combined,  have 
produced  a  mildness  of  treatment,  and  attention  to  the  comforts  of  the 
unfortunate  class  of  slaves,  greatly  mitigating  the  rigors  of  servitude, 
and  ameliorating  the  condition  of  the  slaves.  The  same  causes  are 
operating,  and  will  continue  to  operate  with  increased  action,  until  the 
disparity  in  numbers  between  the  whites  and  blacks  shall  have  ren- 
dered the  latter  in  no  degree  dangerous  to  the  former,  when  the  police 
now  existing  may  be  further  relaxed.  This  result,  greatly  to  be 
desired,  may  be  much  more  rationally  expected  from  the  events  alluded 
to,  and  now  in  progress,  than  from  an}'  rash  expositions  of  abstract 
truths,  by  a  judiciary  tainted  with  a  false  and  fanatical  philanthrop}', 
seeking  to  redress  an  acknowledged  evil,  by  means  still  more  wicked 
and  appalling  than  even  that  evil. 

I  repeat  that  I  would  gladly  have  avoided  this  ungrateful  question. 
But  being  brought  to  it,  the  court  is  compelled  to  declare,  that  while 
\   slavery  exists  amongst  us  in  its  present  state,  or  until  it  shall  seem  fit 
1  to  the  legislature  to  interpose  express  enactments  to  the  contrary,  it 
I  will  be  the  imperative  duty  of  the  judges  to  recognize  the  full  dominion 
'  of  tlie  owner  over  tlie  slave,  except  where  the  exercise  of  it  is  forbidden 
by  statute.     And  this  we  do  upon  the  ground,  that  this  dominion  is 
essential  to  the  value  of  slaves  as  property,  to  the  security  of  the  mas- 
ter, and  the  public  tranquillity,  greatly  dependent  upon  their  subordina- 
tion ;  and  in  fine,  as  most  effectually  securing  the  general  protection 
and  comfort  of  the  slaves  themselves. 

Per  Curiam.     Let  the  judgment  below  be  reversed^  and  judgment 
entered  for  the  defendant. 

In  Prigg  v.  Com.  of  Pa.,  16  Pet.  539  (1842),  on  a  writ  of  error  to  the 
f  Supreme  Court  of  Pennsylvania,  the  plaintiff  had  been  indicted  under  a 
'  statute  of  that  State,  of  1826,  for  forcibly  seizing  and  removing  a  negro 
woman  to  be  kept  as  a  slave.  (Tn  a'prea  of  not  guilty  the  jury  found  a 
special  verdict  that  the  woman  was  held  to  service  as  a  slave  under  the 
laws  of  Maryland  and  escaped  into  Pennsylvania  in  1832  ;  that  Prlgg  as 
the  owner's  agent,  in  1837,  caused  the  woman  to  be  arrested  as  a  fugitive 
from  labor,  un^r  a  warrant  by  a  Pennsylvania  magistrate  and  to  be 
brought  before  the  same  magistrate,  who  refused  to  take  further  cogni- 
zance of  the  case,  whereupon  Prlgg  removed  her  and  her  children  and 
gave  them  up  to  her  owTiiFuTTilaryland.  Prlgg  was  found  guilty,  and 
the  judgment,  on  error,  was  sustained  by  the  Supreme  Court  of  the  State. 
In  reversing  the  judgment,  the  Supreme  Court  of  the  United  States 
(Story,  J.)  said:  "  There  are  two  clauses  in  the  Constitution  upon  the 
subject  of  fugitives,  which  stand  in  juxtaposition  with  each  other,  Jjnd 
have  been  thought  mutually  to  illustrate  each  other.  They  are  both 
contained  in  the  2d  section  of  the  4th  article,  and  are  in  the  following 


CHAP.  IV.]  PRIGG   V.    COMMONWEALTH   OF   PA.  477 

words  :  '  A  person  charged  in  any  State  with  treason,  felon \-,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  State,  shall, 
on  demand  of  the  executive  authority  of  the  State  from  which  he  fled, 
be  deUvered  up,  to  be  removed  to  the  State  having  jurisdiction  of  the 
crime.' 

''  '•  No  person  held  to  service  or  labor  in  one  State  under  the  laws 
thereof,  escaping  into  another,  shall  in  consequence  of  any  law  or  regu- 
l:ition  therein,  be  discharged  from  such  service  or  labor;  but  shall  be 
(iLlivered  up,  on  claim  of  the  party  to  whom  such  service  or  labor  may 
be  due.' 

"  The  last  clause  is  that,  the  true  interpretation  whereof  is  directly  in 
judgment  before  us.  Historically,  it  is  well  known  that  the  object  of 
this  clause  was  to  secure  to  the  citizens  of  the  slaveholding  States  the 
complete  riglit  and  title  of  ownership  in  their  slaves,  as  property,  in 
every  State  in  the  Union  into  which  they  might  escape  from  the  State 
wliere  they  wcie  held  in  servitude.  The  full  recognition  of  this  right 
and  title  was  indispensable  to  the  security  of  this  species  of  property' in 
all  tlie  slaveholding  States ;  and,  indeed,  was  so  vital  to  the  preserva- 
tion of  their  domestic  interests  and  institutions,  that  it  cannot  be 
doubted  that  it  constituted  a  fundamental  article,  without  the  adoption 
of  which  the  Union  could  not  have  been  formed.  Its  true  design  was 
to  guard  against  the  doctrines  and  principles  prevalent  in  the  non-slave- 
holding  States,  by  preventing  them  from  intermeddling  with,  or  obstruct- 
ing, or  abolishing  the  rights  of  the  owners  of  slaves. 

"  By  the  general  law  of  nations,  no  nation  is  bound  to  recognize  the 
state  of  slaver}-,  as  to  foreign  slaves  found  within  its  territorial  domin- 
ions, when  it  is  in  opposition  to  its  own  policy  and  institutions,  in  favor 
of  the  suVtjects  of  other  nations  where  slavery  is  recognized.  If  it  does 
it,  it  is  as  a  matter  of  comit}-,  and  not  as  a  matter  of  international  right. 
The  state  of  slavery  is  deemed  to  be  a  mere  municipal  regulation, 
founded  upon  and  limited  to  the  range  of  the  territorial  laws.  This 
was  fully  recognized  in  Somerset's  Case,  Lofft's  Rep.  1  ;  s.  c.  11  State 
Trials  by  Harg,  340  ;  8.  c.  20  Howell's  State  Trials,  79  ;  which  was 
decided  before  the  American  Revolution.  It  is  manifest  from  this  con- 
sideration, that  if  the  Constitution  had  not  contained  this  clause,  every 
non-slaveholding  State  in  the  Union  would  have  been  at  liberty  to  have 
declared  free  all  runaway  slaves  coming  within  its  limits,  and  to  have 
given  them  entire  immunity  and  protection  against  the  claims  of  their 
masters  ;  a  course  which  would  have  created  the  most  bitter  animosities, 
and  engendered  perpetual  strife  between  the  different  States.  The 
clause  was,  therefore,  of  the  last  importance  to  the  safety  and  security 
of  the  Southern  States,  and  could  not  have  been  surrendered  b}'  them 
without  endangering  their  whole  propert}'  in  slaves.  The  clause  was 
accordingly  adopted  into  the  Constitution  by  the  unanimous  consent 
of  the  framers  of  it;  a  proof  at  once  of  its  intrinsic  and  practical 
necessit}'.  .  .  . 

"  We  have  said  that  the  clause  contains  a  positive  and  unqualifled 


478  PRIGG   V.   COMMONWEALTH   OF   PA.  [iJHAP.  IV. 

recognition  of  the  right  of  the  owner  in  the  slave,  unaffected  by  any- 
State  law  or  regulation  whatsoever,  because  there  is  no  qualification  or 
restriction  of  it  to  be  found  therein  ;  and  we  have  no  right  to  insert  any, 
which  is  not  expressed,  and  cannot  be  fairly  implied.  Especially  are 
we  estopped  from  so  doing,  when  the  clause  puts  the  right  to  the  service 
or  labor  upon  the  same  ground  and  to  the  same  extent  in  every  other 
State  as  in  the  State  from  which  the  slave  escaped,  and  in  which  he 
was  held  to  the  service  or  labor.  If  this  be  so,  then  all  the  incidents  to 
that  right  attach  also.  The  owner  must,  therefore,  have  the  right  to 
seize  and  repossess  the  slave,  which  the  local  laws  of  his  own  State  con- 
fer upon  him  as  property  ;  and  we  all  know  that  this  right  of  seizure 
and  recaption  is  universally  acknowledged  in  all  the  slaveholding  States. 
Indeed,  this  is  no  more  than  a  mere  affirmance  of  the  principles  of  the 
common  law  applicable  to  this  very  subject.  Blackstone,  J.,  3  Bl. 
Cora.  4,  lays  it  down  as  unquestionable  doctrine.  'Recaption  or  re- 
prisal '  (says  he)  '  is  another  species  of  remedy  by  the  mere  act  of  the 
party  injured.  This  happens  when  any  one  hath  deprived  another  of 
his  property  in  goods  or  chattels  personal,  or  wrongfully  detains  one's 
wife,  child,  or  servant ;  in  which  case  the  owner  of  tlie  goods,  and  the 
husband,  parent,  or  master  may  lawfull}-  claim  and  retake  them,  wher- 
ever he  happens  to  find  them,  so  it  be  not  in  a  riotous  manner,  or 
attended  with  a  breach  of  the  peace.'  Upon  this  ground  we  have  not 
the  sHghtest  hesitation  in  holding,  that,  under  and  in  virtue  of  the  Con- 
stitution, the  owner  of  a  slave  is  clothed  with  entire  authority,  in  every 
State  in  the  Union,  to  seize  and  recapture  his  slave,  whenever  he  can 
do  it  without  any  breach  of  the  peace  or  any  illegal  violence.  In  this 
sense,  and  to  this  extent  this  clause  of  the  constitution  may  properly  be 
said  to  execute  itself,  and  to  require  no  aid  from  legislation,  State  or 
national. 

"  But  the  clause  of  the  Constitution  does  not  stop  here.  .  .  .  It  says: 
'  But  he  (the  slave)  shall  be  delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labor  may  be  due.'  Now,  we  think  it  exceed- 
ingly difficult,  if  not  impracticable,  to  read  this  language  and  not  to 
feel  that  it  contemplated  some  further  remedial  redress  than  that  which 
might  be  administered  at  the  hands  of  the  owner  himself.  A  claim  is 
to  be  made.  What  is  a  claim  ?  It  is,  in  a  just  juridical  sense,  a  de- 
mand of  some  matter  as  of  right  made  by  one  person  upon  another,  to 
do  or  to  forbear  to  do  some  act  or  thing  as  a  matter  of  dut}'.  .   .   . 

"  It  is  plain,  then,  that  where  a  claim  is  made  by  the  owner,  out  of  pos- 
session, for  the  delivery  of  a  slave,  it  must  be  made,  if  at  all,  against 
some  other  person ;  and  inasmuch  as  the  right  is  a  right  of  property 
capable  of  being  recognized  and  asserted  by  proceedings  before  a  court 
of  justice,  between  parties  adverse  to  each  other,  it  constitutes,  in  the 
strictest  sense,  a  controversy  between  the  parties,  and  a  case  '  arising 
under  the  Constitution '  of  the  United  States  ;  within  the  express  dele- 
gation of  judicial  power  given  by  that  instrument.  Congress,  then,  may 
call  that  power  into  activity  for  the  very  purpose  of  giving  effect  to  that 


CHAP.  IV.]  PRIGG   V.    COMMONWEALTH   OF   PA.  479 

right ;  and  if  so,  then  it  may  prescribe  the  mode  and  extent  in  which 
it°shall  be  applied,  and  liow,  and  under  what  circumstances  the  proceed- 
ings shall  afford  a  complete  protection  and  guarantee  to  the  right. 

°'  Congress  has  taken  this  very  view  of  the  power  and  duty  of  the 
national  government.  As  early  as  the  year  1 79 1 ,  the  attention  of  Con- 
gress was  drawn  to  it  (as  we  shall  hereafter  more  fully  see),  in  conse- 
quence of  some  practical  difficulties  arising  under  the  other  clause 
respecting  fugitives  from  justice  escaping  into  other  States.  The 
result  of  their  deliberations  was  the  passage  of  the  Act  of  the  12th  of 
February,  1793,  c.  51  (7)."  [This  Act  provided  for  the  arrest  of  fugi- 
tives from  service,  for  carrying  them  before  a  judge  or  magistrate,  and, 
upon  proof  to  his  satisfaction  of  the  master's  right  under  the  laws  of 
the  State  or  Territory  from  which  the  fugitive  came,  for  the  issuing  of  a 
certificate  which  should  warrant  the  removal  of  the  fugitive.  The  court 
go  on  to  hold  this  Act  valid,  to  declare  the  power  of  Congress  over  the  sub- 
ject to  be  exclusive,  and  the  statute  of  Pennsylvania  unconstitutional.]^ 

1  "  I  have  always  thought  that  the  Constitution  addressed  itself  to  the  legislatures  of 
the  States  or  to  the  States  themselves.  It  says  that  those  persons  escaping  to  other 
States  '  sliall  be  delivered  up,'  and  I  confess  I  have  always  been  of  the  opinion  that  it 
was  an  injunction  upon  the  States  themselves. 

"  When  it  is  said  that  a  person  escaping  into  another  State,  and  coming  within  the 
jurisdiction  of  that  State,  shall  be  delivered  up,  it  seems  to  me  the  import  of  the  clause 
is,  that  the  State  itself,  in  obedience  to  the  Constitution,  shall  cause  him  to  be  deliv- 
ered up.  That  is  my  judgment.  I  have  always  entertained  that  opinion,  and  I  enter- 
tain it  now.  But  when  the  subject,  some  years  ago,  was  before  the  Supreme  Court  of 
the  United  States,  the  majority  of  the  judges  held  that  tiie  power  to  cause  fugitives 
from  service  to  be  delivered  up  was  a  power  to  be  e.xercised  under  the  authority  of 
this  government.  I  do  not  know,  on  the  whole,  that  it  may  not  have  been  a  fortunate 
decision.  My  habit  is  to  respect  the  result  of  judicial  deliberations  and  the  solemnity 
of  judicial  decisions.  As  it  now  stands,  the  business  of  .seeing  that  these  fugitives  are 
delivered  up  resides  in  the  power  of  Congress  and  the  national  judicature,  and  my 
friend  at  tiie  head  of  the  Judiciary  Committee  has  a  bill  on  the  subject  now  before  the 
Senate,  which,  with  some  amendments  to  it,  I  propose  to  support,  with  all  its  pro- 
visions, to  the  fullest  extent."  —  Daniel  Webster,  Speech  of  the  7th  of  March, 
1850,   Works,  vi.  354. 

In  Ableman  v.  Booth,  21  How.  506,  526  (1859),  the  case  grew  out  of  resistance  to 
the  second  Federal  law  for  the  rendition  of  fugitive  slaves,  — that  of  September  18, 
1850,  to  which  Mr.  Webster  alluded  in  the  passage  above  quoted.  Near  the  end  of 
the  opinion,  Taney,  C.  J.,  for  the  court,  said  :  "  Although  we  think  it  unnecessary  to 
discuss  these  questions,  yet,  as  they  have  been  decided  by  the  State  court,  and  are  be- 
fore us  on  the  record,  and  we  are  not  willing  to  be  misunderstood,  it  is  proper  to  say 
that,  in  the  judgment  of  this  court,  the  Act  of  Congress  commonly  called  the  Fugitive 
Slave  Law  is,  in  all  of  its  provisions,  fully  authorized  by  the  Constitution  of  the  United 
States ;  that  the  commissioner  had  lawful  authority  to  issue  the  warrant  and  commit 
the  party,  and  that  his  proceedings  were  regular  and  conformable  to  law." 

See  Groves  v.  Slaughter,  15  Pet.  449  (1841)  ;  Strader  et  al  v.  Graham,  10  How.  82 
(1850);  Kentucky  v.  Dennison,  24  How.  66  (I860).  — Ed. 


480  SCOTT   V.    SANDFORD.  [CHAP.  IV. 

DRED  SCOTT  v.  SANDFORD. 
Supreme  Court  of  the  United  States.     1857. 

[19  How.  393  ] 

[Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Missouri.  Tlie  facts  are  stated  in  the  opinion  printed  below.  All  the 
judges  gave  opinions  ;  that  of  Mr.  Justice  Nelson  is  here  presented,  be- 
cause a  selection  must  be  made,  and  because  this  opinion  alone  limits 
itself  to  grounds  agreed  upon  bv  a  majority  of  the  court  and  necessary 
to  the  disposition  of  the  case.^  M.  Blair  and  Geo.  T.  Curtis,  for  plain- 
tiff ;   Geyer  and  Reverdy  Johnson^  for  defendant.] 

Nelson,  J.  I  shall  proceed  to  state  the  grounds  upon  which  I  have 
arrived  at  the  conclusion,  that  the  judgment  of  the  court  below  should 
be  affirmed.  The  suit  was  brought  in  the  court  below  by  the  plaintitf, 
for  the  purpose  of  asserting  his  freedom,  and  that  of  Harriet,  his  wife, 
and  two  children. 

The  defendant  plead,  in  abatement  to  the  suit,  that  the  cause  of 
action,  if  any,  accrued  to  the  plaintiff  out  of  the  jurisdiction  of  the 
court,  and  exclusivel}'  within  the  jurisdiction  of  the  courts  of  the  State 
of  Missouri ;  for,  that  the  said  plaintiff  is  not  a  citizen  of  the  State  of 
Missouri,  as  alleged  in  the  declaration,  because  he  is  a  negro  of  African 
descent ;  his  ancestors  were  of  pure  African  blood,  and  were  brought 
into  this  country  and  sold  as  negro  slaves. 

To  this  plea  the  plaintiff  demurred,  and  the  defendant  joined  in 
demurrer.  The  court  below  sustained  the  demurrer,  holding  that  the 
plea  was  insufficient  in  law  to  abate  the  suit. 

The  defendant  then  plead  over  in  bar  of  the  action : 

1.  The  general  issue.  2.  That  the  plaintiff  was  a  negro  slave,  the 
lawful  property  of  the  defendant.  And  3.  That  Harriet,  the  wife  of 
said  plaintiff,  and  the  two  children,  were  the  lawful  slaves  of  the  said 
defendant.  Issue  was  taken  upon  these  pleas,  and  the  cause  went 
down  to  trial  before  the  court  and  jury,  and  an  agreed  state  of  facts 
was  presented,  upon  which  the  trial  proceeded,  and  resulted  in  a  ver- 
dict for  the  defendant,  under  the  instructions  of  the  court. 

The  facts  agreed  upon  were  substantial!}-  as  follows : 

That  in  the  year  1834,  the  plaintiff,  Scott,  was  a  negro  slave  of  Dr. 
Emerson,  who  was  a  surgeon  in  the  army  of  the  United  States ;  and  in 
that  year  he  took  the  plaintiff  from  the  State  of  Missouri  to  the  military 
post  at  Rock  Island,  in  the  State  of  Illinois,  and  held  him  there  as  a 
slave  until  the  month  of  April  or  May,  1836.  At  this  date.  Dr.  Emer- 
son removed,  with  the  plaintiff,  from  the  Rock  Island  post  to  the 
military  post  at  Fort  Snelling,  situate  on  the  west  bank  of  the  Missis- 
sippi River,  in  the  Territory  of  Upper   Louisiana,  and   north   of  the 

1  It  was  originally  prepared,  by  direction  of  the  majority,  to  stand  as  the  opinion  of 
the  court.     See  note,  p.  494,  infra ;  also  Tyler's  "  Life  of  Taney,"  384.  — En. 


CHAP.  IV.]  SCOTT   V.   SANDFORD.  481 

latitude  thirty-six  degrees  thirty  minutes,  and  north  of  the  State  of 
Missouri.  That  he  held  the  plaintiff  in  slaver}',  at  Fort  Snelling,  from 
the  last-mentioned  date  until  the  year  1838. 

That  in  the  3^ear  1835,  Harriet,  mentioned  in  the  declaration,  was  a 
negro  slave  of  Major  Taliaferro,  who  belonged  to  the  army  of  the 
United  States ;  and  in  that  year  he  took  her  to  Fort  Snelling,  already 
mentioned,  and  kept  her  there  as  a  slave  until  the  j'ear  1836,  and  then 
sold  and  delivered  her  to  Dr.  Emerson,  who  held  her  in  slaver}-,  at 
Fort  Snelling,  until  the  year  1838.  That  in  the  year  1836,  the  plaintiff 
and  Harriet  were  married,  at  Fort  Snelling,  with  the  consent  of  their 
master.  The  two  children,  Eliza  and  Lizzie,  are  the  fruit  of  this  mar- 
riage. The  first  is  about  fourteen  years  of  age,  and  was  born  on  board 
the  steamboat  "  Gipsey,"  north  of  the  State  of  Missouri,  and  upon  the 
Mississippi  River ;  the  other,  about  seven  years  of  age,  was  born  in 
the  State  of  Missouri,  at  the  military  post  called  Jefferson  Barracks. 

In  1838,  Dr.  Emerson  removed  the  plaintiff,  Harriet,  and  their 
daughter  Eliza,  from  Fort  Snelling  to  the  State  of  Missouri,  where 
they  have  ever  since  resided.  AjkI  that,  before  the  commencement  of 
tliis""Surt,  they  were  sold  by  the  doctor  to  Sandford,  the  defendant,  who 
has  claimed  and  held  them  as  slaves  ever  since. 

The  agreed  case  also  states  that  the  plaintiff  brought  a  suit  for  his 
freedom,  in  the  Circuit  Court  of  the  State  of  Missouri,  on  which  a  judg- 
ment was  rendered  in  his  favor ;  but  that,  on  a  writ  of  error  from  the 
Supreme  Court  of  the  State,  the  judgment  of  the  court  below  was  re- 
versed, and  the  cause  remanded  to  the  circuit  for  a  new  trial. 

On  closing  the  testimony  in  the  court  below,  the  counsel  for  the 
plaintiff  prayed  the  court  to  instruct  the  jur}',  upon  the  agreed  state  of 
facts,  that  they  ought  to  find  for  the  plaintiff ;  when  the  court  refused, 
and  instructed  them  that,  upon  the  facts,  the  law  was  with  the  de- 
fendant. . 

With  respect  to  the  plea  in  abatement,  which  went  to  the  citizenship 
of  the  plaintiff,  and  his  competency  to  bring  a  suit  in  the  Federal  courts, 
the  common-law  rule  of  pleading  is,  that  upon  a  judgment  against  the 
plea  on  demurrer,  and  that  the  defendant  answer  over,  and  the  defend- 
ant submits  to  the  judgment,  and  pleads  over  to  the  merits,  the  plea  in 
abatement  is  deemed  to  be  waived,  and  is  not  afterwards  to  be  regarded 
as  a  part  of  the  record  in  deciding  upon  the  rights  of  the  parties.  There 
is  some  question,  however,  whether  this  rule  of  pleading  applies  to  the 
peculiar  system  and  jurisdiction  of  the  Federal  courts.  As,  in  these 
courts,  if  the  facts  appearing  on  the  record  show  that  the  Circuit  Court 
had  no  jurisdiction,  its  judgment  will  be  reversed  in  the  appellate  court 
for  that  cause,  and  the  case  remanded  with  directions  to  be  dismissed. 

in  the  view  we  have  taken  of  the  case,  it  will  not  be  necessar}'  to 
pass  upon  this  question,  and  we  shall  therefore  proceed  at  once  to  an 
examination  of  the  case  upon  its  merits.  The  question  upon  the  merits, 
in  general  terms,  is,  whether  or  not  the  removal  of  the  plaintiff,  who 
was  a  slave,  with  his  master^  from  the  State  of  Missouri  to  the  State  of^ 

VOL.  I.   —31 


482 


SCOTT   V.   SANDFORD. 


[chap.  IV. 


jlUiuois,  with  a  view  to  a  temporary  residence,  and  after  such  residence 
and  return  to  the  slave  State,  such  residence  in,the  free  8tate„works  an 
emancipation. 

As  appears  from  an  agreed  statement  of  facts,  this  question  has  been 
before  the  highest  court  of  the  State  of  Missouri,  and  a  judgment 
rendered  that  this  residence  in  the  free  State  has  no  such  effect ;  but, 
on  the  contrar3',  that  his  original  condition  continued  unchanged. 

The  court  below,  the  Circuit  Court  of  the  United  States  for  Missouri, 
in  which  this  suit  was  afterwards  brought,  followed  the  decision  of  the 
State  court,  and  rendered  a  like  judgment  against  the  plaintiff. 

The  argument  against  these  decisions  is,  that  the  laws  of  Illinois, 
forbidding  slavery  within  her  territory,  had  the  effect  to  set  the  slave 
free  while  residing  in  that  State,  and  to  impress  upon  him  the  condi- 
tion and  status  of  a  freeman ;  and  that,  b}'  force  of  these  laws, 
this  status  and  condition  accompanied  him  on  his  return  to  the  slave 
State,  and  of  consequence  he  could  not  be  there  held  as  a  slave. 

This  question  has  been  examined  in  the  courts  of  several  of  the 
slaveholding  States,  and  different  opinions  expressed  and  conclusions 
arrived  at.  We  shall  hereafter  refer  to  some  of  them,  and  to  the  prin- 
ciples upon  which  they  are  founded.  Our  opinion  is,  that  the  question 
is  one  which  belongs  to  each  State  to  decide  for  itself,  either  by  its 
legislature  or  courts  of  justice ;  and  hence,  in  respect  to  the  case 
before  us,  to  the  State  of  Missouri  —  a  question  exclusivel}'  of  Missouri 
law,  and  which,  when  determined  by  that  State,  it  is  the  duty  of  the 
Federal  courts  to  follow  it.  In  other  words,  except  in  cases  where  the 
power  is  restrained  by  the  Constitution  of  the  United  States,  the  law  of 
the  State_Ls-&mtfet^'P  "^'er  the  subject  of  slavery  within  itsjurisdiction. 

As  a  practical  illustration  of  the  principle,  we  ma}'  refer  to  the  legis- 
lation of  the  free  States  in  abolishing  slaver}',  and  prohibiting  its 
introduction  into  their  territories.  Confessedly,  except  as  restrained 
by  the  Federal  Constitution,  they  exercised,  and  rightfull}',  complete 
and  absolute  power  over  the  subject.  Upon  what  principle,  then,  can 
it  be  denied  to  the  State  of  Missouri?  The  power  flows  from  the 
sovereign  character  of  the  States  of  this  Union  ;  sovereign,  not  mereh- 
as  respects  the  Federal  government  —  except  as  they  have  consented 
to  its  limitation  —  but  sovereign  as  respects  each  other.  Whether. 
tlierefore,.tlie  State  of  Missouri  will  recognize  or  give  effect  to  the 
laws  of  Illinois  within  her  territories  on  the  subject  of  slavery,  is  a 
question  for  her  to  determine.  Nor  is  there  any  pon>;tifntionn1  pott-PC 
ia  this  government  that  can  rightfully  control  her. 

Every  State  or  nation  possesses  an  exclusive  sovereignty  and  juris- 
diction within  her  own  territory ;  and,  her  laws  affect  and  bind  all 
property  and  persons  residing  within  it.  It  may  regulate  the  manner 
and  circumstances  under  which  property'  is  held,  and  the  condition, 
capacity,  and  state,  of  all  persons  therein ;  and,  also,  the  remedy  and 
modes  of  administering  justice.  And  it  is  equally  true,  that  no  State 
or  nation  can  affect  or  bind  property  out  of  its  territory,  or  persons  not 


CHAP.  IV.]  SCOTT   V.    SANDFORD.  483 

residing  within  it.  No  State,  tbereforej^can  enact  laws  to  ^i2erata-b£.- 
yond  jtsjowndominions,  and,  if  i^^ttempts  to  dojo,  it  may  be  lawfully 
refused  obedience .  S ucli  laws  can  have  no  inherent  authoiity  extra- 
territoriall}'.  This  is  the  necessary  result  of  the  independence  of  dis- 
tinct  and  separate  sovereignties.  , 

Now,  it  follows  from  these  principles,  that  whatever  force  or  effect  l 
the  laws  of  one  State  or  nation  may  have  in  the  territories  of  another? 
must  depend  solely  upon  the  laws  and  municipal  regulations  of  the 
latter,  upon  its  own  jurisprudence  and  polity,  and  upon  its  own  express 
or  tacit  consent. 

Judge  Story  observes,  in  his  Conflict  of  Laws  (p.  24),  ''that  a  State 
may  prohibit  the  operation  of  all  foreign  laws,  and  the  rights  growing 
out  of  them,  within  its  territories."  "And  that  when  its  code  speaks 
positively  on  the  subject,  it  must  be  obeyed  by  all  persons  who  are 
within  reach  of  its  sovereignty ;  when  its  customary  unwritten  or  com- 
mon law  speaks  directly  on  the  subject,  it  is  equally  to  be  obejed." 

NniJnna,  frnm  cnnvpiiioncp  and  comity,  and  from  mutuaiinteiest^and 
a  sort  of  moral  necessity  to  do  justice,  recognize  and  administer  the 
laws  of  other  countries.  But,  of  the  nature,  extent,  and  utUity,  of 
them.  rcspectiiTgjjrppprty,  or  Wp.  state  fl.nd  condition  of  persons, within 
her  territories,  each  nntinn  jndgps  for  itself:  and  is  never  bound,  eveii- 
UDon  the"~ground  of  comity,  to  recognize  them,  if  prejudicial  to  her 
own  interests.  T^^^*  rppngnitinn  is  pi^r^ly  from  comitv.  and  not  from  ': 
any  absolute  or  paramount  obliofation. 

Judge  Story  again  observes  (398),  "that  the  true  foundation  and 
extent  of  the  obligation  of  the  laws  of  one  nation  within  another  is  the 
voluntary  consent  of  the  latter,  and  is  inadmissible  when  they  are 
contrary  to  its  known  interests."  And  he  adds,  "in  the  silence  of  any 
positive  rule  affirming  or  denying  or  restraining  the  operation  of  the 
foreign  laws,  courts  of  justice  presume  the  tacit  adoption  of  them  by 
their  own  government,  unless  they  are  repugnant  to  its  policy  or  pre- 
judicial to  its  interests."  See  also  2  Kent  Com.,  p.  457;  13  Peters, 
519,  589. 

These  principles  fully  establish,  that  it  belon^s^to  the  sovereign  State 
of-  Missouri  to  determine  by  her  laws~TEe"question  of  slavery  wifhlii 
heijimsilictioni  suliject  onl}'  to  such  limitations  as  may  be  found  in  the 
Federal  Constitution  ;  and,  further,  that  the  laws  of  other  States  of 
the  Confederac}',  whether  enacted  by  their  legislatures  or  expounded 
by  their  courts,  can  have  no  operation  within  her  territory,  or  affect 
rights  growing  out  of  her  own  laws  on  the  subject.  This  is  the  neces- 
sary result  of  the  independent  and  sovereign  character  of  the  State. 
The  principle  is  not  peculiar  to  the  State  of  Missouri,  but  is  equally 
applicable  to  each  State  belonging  to  the  Confederacy-  The  laws  of 
each  have  no  extra-territorial  operation  within  the  jurisdiction  of  an- 
other, except  such  as  may  be  voluntarily  conceded  by  her  laws  or  courts 
of  justice.  To  the  extent  of  such  concession  upon  the  rule  of  comJtSL- 
of  nations,  the  foreign  law  may  operate^  as  it  then  becomes  a  part  of 


484  SCOTT  V.    SANDFORD.  [CHAP.  IV. 

the  municipal  law  of  the  State.  "When  determined  that_the  foreign 
law  shall  have"ettectTthe  municipal  law  of  the  State -retirea^^nd  gives 
place  to  the  foreign  law. 

In  view  of  these  principles,  let  us  examine  a  little  more  closel}'  the 

doctrine   of  those   who  maintain  that  the  law  of  Missouri  is  not  to 

govern  the  status  and  condition  of  the  plaintiff.     They  insist  that  the 

removal  and  temporary  residence  with  his  master  in  Illinois,  where 

slavery  is  inhibited,  had  the  effect  to  set  him  free,  and  that  the  same 

effect  is  to  be  given  to  the  law  of  Illinois,  within  the  State  of  Missouri, 

,  after  his  return.     AVjiy  ■a-a«  Hp  set  freeJn  Illinois?     Because  the  law 

I  of  Missouri,  under jvhich  he  was  held  as  a  sjave,  had  no  operatioD_by 

■  its  own  force  exti-a-territodallY,;  and  the  State  of  Illmbis  refused  to 

recognize  its  effect  within^hefnmits,  upon  principles  of  comit}',  as  a 

state  of  slavery  was^^iiconsistent  with  her  laws,  and  contrary  to  her 

policy,    fivrtr,  how  iq  tb*^  rase  different  on  the  return_of  the  plaintiff^ 

to  the  State  of  Missouri?     Is  she  bound  to  recognize  and  enforce  the 

-  law  of  Illinois?    For,  unless  she  is,  the  status  and  condition  of  the_slave 

\  upon  his  return  remains  the  same"~a3  originally  existed^  Has^  the  _law. 

of  Illinois  anygreater  force  within  the  jurisdiction  of  Missouri,  than_ 

tiielaws  of  thelatter  withinjbat  of  the  former?     Certainly  not.     Thov 

stand  upon  an  equal  footlng^^ Neither  has  a«y  force  extra -tern'torinlly, 

except  jvhat_ma3'„be  voluntaril3-_jconceded  to  tluLm. 

It  has  been  supposed,  by  the  counsel  for  the  plaintiff,  that  a  rule 
laid  down  by  Huberus  had  some  bearing  upon  this  question.  Huberus 
observes  that  "  personal  qualities,  impressed  by  the  laws  of  any  place, 
surround  and  accompany  the  person  wherever  he  goes,  with  this  effect : 
that  in  every  place  he  enjoys  and  is  subject  to  the  same  law  which  other 
persons  of  his  class  elsewhere  enjoy  or  are  subject  to."  De  Confl. 
Leg.,  lib.  1,  tit.  3,  sec.  12;  4  Dallas,  375  n.  ;  1  Story  Con.  Laws,  pp. 
59,  60. 

The  application  sought  to  be  given  to  the  rule  was  this :  that  as  Dred 
Scott  was  free  while  residing  in  the  State  of  Illinois,  by  the  laws  of 
that  State,  on  his  return  to  the  State  of  Missouri  he  carried  with  him 
the  personal  qualities  of  freedom,  and  that  the  same  effect  must  be 
given  to  his  status  there  as  in  the  former  State.  But  the  difficulty  in 
the  case  is  in  the  total  misapplication  of  the  rule. 

These  personal  qualities,  to  which  Huberus  refers,  are  those  im- 
pressed upon  the  individual  by  the  law  of  the  domicil ;  it  is  this  that 
the  author  claims  should  be  permitted  to  accompany  the  person  into 
whatever  country  he  might  go,  and  should  supersede  the  law  of  the 
place  where  he  had  taken  up  a  temporary  residence. 

Now,  as  the  domicil  of  Scott  was  in  the  State  of  Missouri,  where  he 
was  a  slave,  and  from  whence  he  was  taken  by  his  master  into  Illinois 
for  a  temporary  residence,  according  to  the  doctrine  of  Huberus,  the 
law  of  his  domicil  would  have  accompanied  him,  and  during  his  resi- 
dence there  he  would  remain  in  the  same  condition  as  in  the  State  of 
Missouri.    In  order  to  have  given  effect  to  the  rule,  as  claimed  in  the 


CHAP.  IV.]  SCOTT   V.   SANDFOED.  485 

argil m e n t,  it  should  have  boen  first  shown  that  a  jdmaicil  itad  hegn^ 
acquired  in  the  free  State^  which  cannot  be  pretende^l  upon  the  agreed^ 
facts  in  the  (;ase.  But  the  true  answer  to  the  doctrine  of  Huberus  is, 
that  the  rule,  in  any  aspect  in  which  it  may  be  viewed,  has  no  bearing 
upon  either  side  of  the  question  before  us,  even  if  conceded  to  the 
extent  laid  down  by  the  author;  for  he  admits  that  foreign  govern- 
ments give  effect  to  these  laws  of  the  domicil  no  further  than  they  are 
consistent  with  their  own  laws,  and  not  prejudicial  to  their  own  sub- 
jects ;  in  other  words,  their  force  and  eft'ect  depend  upon  the  law  of 
comit}'  of  the  foreign  government.  We  should  add,  also,  that  this 
general  rule  of  Huberus,  referred  to,  has  not  been  admitted  in  the 
practice  of  nations,  nor  is  it  sanctioned  by  the  most  approved  jurists 
of  international  law.  Story  Con.,  sees.  91,  96,  103,  104  ;  2  Kent 
Cora.,  p.  457,  458;  1  Burge  Con.  Laws,  pp.  12,  127. 

We  come  now  to  the  decision  of  this  court  in  the  case  of  Strader  et 
al.  V.  Graham,  10  How.  p.  2.  The  case  came  up  from  the  Court  of 
Appeals,  in  the  State  of  Kentucky.  The  question  in  the  case  was, 
whether  certain  slaves  of  Graham,  a  resident  of  Kentucky-,  who  had 
been  employed  temporarily  at  several  places  in  the  State  of  Ohio,  with 
"their  master's  consent,  and  had  returned  to  Kentuck}'  into  his  service, 
had  thereby  become  entitled  to  their  freedom.  The  Court  of  Appeals 
held  that  they  had  not.  The  case  was  brought  to  this  court  under  the 
twenty-fifth  section  of  the  Judiciary  Act.  This  court  held  that  it  had 
no  jurisdiction,  for  the  reason,  the  question  was  one  that  belonged 
exclusivel}'  to  the  State  of  Kentuck}'.  The  Chief  Justice,  in  deliver- 
ing the  opinion  of  the  court,  observed  that  ''every  State  has  an 
undoubted  right  to  determine  the  status  or  domestic  and  social  con- 
dition of  the  persons  domiciled  within  its  territory,  except  in  so  far 
as  the  powers  of  the  States  in  this  respect  are  restrained,  or  duties  and 
obligations  imposed  upon  them,  by  the  Constitution  of  the  United 
States.  There  is  nothing  in  the  Constitution  of  the  United  States,  he 
observes,  that  can  in  any  degree  control  the  law  of  Kentucky  upon 
this  subject.  And  the  condition  of  the  negroes,  therefore,  as  to  free- 
dom or  slavery,  after  their  return,  depended  altogether  upon  the  laws 
of  that  State,  and  could  not  be  influenced  by  the  laws  of  Ohio.  It  was 
exclusively  in  the  power  of  Kentucky  to  determine,  for  herself,  whether 
their  employment  in  another  State  should  or  should  not  make  them  free 
on  their  return." 

I_t_has_been_supposed,  in  the  argument  onjthe  part  of  the  plaintiff^ 
thaltheeighth  section  of  the  Act.  ,£)iLCx)ngr^s9-^assed  March  6,  1820. 

C3    St.    at   Large,   p    •'^44),  whi^h    prnhihitprl    clnrniy   nnrth    r^f , thil%-six 

degrees  thirty  minutes,  witlijn  wVnVh  tim  ploinfiflr  an^  hie  wif^  tt»tap<>- 
rarily  resided  at  Fort  Snelling.  possessed  some  superior  virtue  and  eflfejcL 
extra-territorially,  and  within  the  ftfi^"  "^f  Mi°°"un')  ^^<^y^nd  IhflJi  fiL 
the  la^pi  <^f  THinnig  r>r  thosc  of  Ohio  in  the  case  of  Strader  et  al.  v. 
Graham.  A  similar  ground  was  taken  and  urged  upon  the  court  in  the 
case  just  mentioned,  under  the  ordinance  of  1787,  which  was  enacted 


486  SCOTT   V.   SANDFORD.  [CHAP.  IV. 

duiing  the  time  of  the  Confederation,  and  re-enacted  by  Congress  after 
tlie  adoption  of  the  Constitution,  with  some  amendments  adapting  it  to 
the  new  government.     1  St.  at  Large,  p.  50. 

In  answer  to  this  ground,  the  Chief  Justice,  in  delivering  the  opinion 
of  the  court,  observed:  '^  The  argument  assumes  that  the  six  articles 
which  that  ordinance  declares  to  be  perpetual,  are  still  in  force  in  the 
States  since  formed  within  the  Territory,  and  admitted  into  the  Union. 
If  this  proposition  could  be  maintained,  it  would  not  alter  the  question  ; 
for  the  regulations  of  Congress,  under  the  old  Confederation  or  the 
present  Constitution,  for  the  government  of  a  particular  Territory, 
could  have  no  force  be3'ond  its  limits.  It  certainly  could  not  restrict 
the  power  of  the  States,  within  their  respective  territories,  nor  in  any 
manner  interfere  with  their  laws  and  institutions,  nor  give  this  court 
control  over  them. 

"The  ordinance  in  question,"  he  observes,  "if  still  in  force,  could 
have  no  more  operation  than  the  laws  of  Ohio  in  the  State  of  Ken- 
tucky, and  could  not  influence  the  decision  upon  the  rights  of  the 
master  or  the  slaves  in  that  State." 

This  view,  thus  authoritativel}'  declared,  furnishes  a  conclusive  answer 
to  the  distinction  attempted  to  be  set  up  between  the  extra-territorial 
effect  of  a  State  law  and  the  Act  of  Congress  in  question. 

It  must  be  admitted  that  Congress  possesses  no  power  to  regulate  or 
abolish  slaver}'  within  the  States ;  and  that,  if  this  Act  had  attempted 
any  such  legislation,  it  would  have  been  a  nullity.  And  3'et  the  argu- 
ment here,  if  there  be  an^'  force  in  it,  leads  to  the  result,  that  effect 
ma}'  be  given  to  such  legislation  ;  for  it  is  only  by  giving  the  Act  of 
Congress  operation  within  the  State  of  Missouri,  that  it  can  have  any 
effect  upon  the  question  between  the  parties.  Having  no  such  effect 
directly,  it  will  be  difficult  to  maintain,  upon  any  consistent  reasoning, 
that  it  can  be  made  to  operate  indirectly  upon  the  subject. 

The  argument,  we  think,  in  an}'  aspect  in  which  jt  may  be  viewed, 
is  utterly  destitute  oFsupport  upon  an}-  principles  of  constitutional 
law7jg^ccordTng~Io  that;^ongress_  basing  power  whatever  over  the 
subject  of  slavery  within  the  Statej  _and  is  also  subversive  of  the 
established  doctrine  of  international  jurisprudence,  as,  according  to 
that,  it  is  an  axiom  that  the  laws  of  one  goygrnment  have  no  force 
\yithin  the  limits  of  another,  or  extra-territoriallj',  except  from  the 
consent  of  the  latter. 

It  is  perhaps  not  unfit  to  notice,  in  this  connection,  that  man}'  of  the 
most  eminent  statesmen  and  jurists  of  the  country  entertain  the  opinion 
that  this  provision  of  the  Act  of  Congress,  even  within  the  territory 
to  which  it  relates,  was  not  authorized  by  any  power  under  the  Consti- 
tution. The  doctrine  here  contended  for,  not  only  upholds  its  validity 
in  the  territory,  but  claims  for  it  effect  beyond  and  within  the  limits  of 
a  sovereign  State  —  an  effect,  as  insisted,  that  displaces  the  laws  of  the 
State,  and  substitutes  its  own  provisions  in  their  place. 

The  consequences  of  any  such  construction  are  apparent.     If  Con- 


CHAP.  IV.]  SCOTT  V.    SANDFOED.  487 

gress  possesses  the  power,  under  the  Constitution,  to  abolish  slavery 
in  a  Territory,  it  must  necessarily  possess  the  like  power  to  establish 
it.     It  cannot  be  a  one-sided  power,  as  may  suit  the  convenience  or 
particular  views  of  the  advocates.     It  is  a  power,  if  it  exists  at  all, 
over  the  whole  subject ;  and  then,  upon  the  process  of  reasoning  which 
seeks   to   extend   its  influence  beyond  the  Territory,  and  within  the 
limits  of  a  State,  if  Congress   should   establish,   instead   of  abolish, 
slavery,  we  do  not  see  but  that,  if  a  slave  should  be  removed  from  the 
Territory  into  a  free  State,  his  status  would  accompany  him,  and  con- 
tinue, notwithstanding  its  laws  against  slavery.     The  laws  of  the  free 
State,  according  to  the  argument,  would  be  displaced,  and  the  Act  of 
Congress,  in  its  effect,  be  substituted  in  their  place.     We  do  not  see 
how°this  conclusion  could  be  avoided,  if  the  construction  against  which 
we  are  contending  should  prevail.      We  are  satisfied^ JiQV££jrer,  it  is. 
unsound,  and  that  the  true  answer  to  it  is,  that  jven_conceding,  for  the 
p'urposes  of  the  argument,  that  this  provisioiijTtlie  Act  of  ^Congress  is 
valid  within  the  Territory  Tor  which   it  was  enacted^t  can  have  no 
operation  or  etfecOjeyoiicTits  limits^  or  within  the'jirrisdiction   of  a_ 
State.      It  can  neither  dLsp]ace   its   laws^  nor   change   the   status_or_ 
condition  of  its  inhabitants^ 

Our  conclusion,  therefore,  is,  upon  this  branch  of  the  case,  that  the 
question  involved  is  one  depending  solely  upon  the  law  of  Missouri, 
and  that  the  Federal  court  sitting  in  the  State,  and  trying  the  case 
before  us,  was  bound  to  follow  it. 

'rhrremrtlrnhg  question  for  consideration  is.  What  is  the  law  ofjhe 
State  of_ Missouri  on  this  subjejit?  And  it  would  be  a  sufficient  answer 
toTefeTto  the  judgment  of  the  highest  court  of  the  State  in  the  very 
case,  were  it  not  due  to  that  tribunal  to  state  somewhat  at  large  the 
course  of  decision  and  the  principles  involved,  on  account  of  some 
diversity  of  opinion  in  the  cases.  As  we  have  already  stated,  this 
case  was  originally  brought  in  the  Circuit  Court  of  the  State,  which 
resulted  in  a  judgment  for  the  plaintiff.  The  case  was  carried  up  to 
the  Supreme  Court  for  revision.  That  court  reversed  the  judgment 
below,  and  remanded  the  cause  to  the  circuit,  for  a  new  trial.  In  that 
state  of  the  proceeding,  a  new  suit  was  brought  by  the  plaintiflT  in  the 
Circuit  Court  of  the  United  States,  and  tried  upon  the  issues  and 
agreed  case  before  us,  and  a  verdict  and  judgment  for  the  defendant, 
that  court  following  the  decision  of  the  Supreme  Court  of  the  State. 
The  judgment  of  the  Supreme  Court  is  reported  in  the  15  Misso.  R.,  p. 
576.  The  court  placed  the  decision  upon  the  temporary  residence  of 
the  master  with  the  slaves  in  the  State  and  Territory  to  which  they 
removed,  and  their  return  to  the  slave  State  ;  and  upon  the  principles 
of  international  law,  that  foreign  laws  have  no  extra-territorial  force, 
except  such  as  the  State  within  which  they  are  sought  to  be  enforced 
may  see  fit  to  extend  to  them,  upon  the  doctrine  of  comity  of  nations. 
This  is  the  substance  of  the  grounds  of  the  decision. 
The  same  question  has  been  twice  before  that  court  since,  and  the 


488  SCOTT  V.   SANDFORD.  [CHAP.  IV. 

same  judgment  given.  15  Misso.  R.  595;  17  lb.  434.  It  must  be 
admitted,  therefore,  as  the  settled  law  of  the  State,  and  according  to 
the  decision  in  the  case  of  Strader  et  al.  v.  Graham^  is  conclusive  of 
the  case  in  this  court. 

It  is  said,  however,  that  the  previous  cases  and  course  of  decision 
in  the  State  of  Missouri  on  this  subject  were  different,  and  that  the 
courts  had  held  the  slave  to  be  free  on  his  return  from  a  temporar}- 
residence  in  the  free  State.  We  do  not  see,  were  this  to  be  admitted, 
that  the  circumstance  would  show  that  the  settled  course  of  decision, 
at  the  time  this  case  was  tried  in  the  court  below,  was  not  to  be  con- 
sidered the  law  of  the  State.  Certainl}-,  it  must  be,  unless  the  first 
decision  of  a  principle  of  law  by  a  State  court  is  to  be  permanent  and 
irrevocable.  The  idea  seems  to  be,  that  the  courts  of  a  State  are  not 
to  change  their  opinions,  or,  if  they  do,  the  first  decision  is^jQ^J^ 
regarded  lyv__this_court  as  the  law  of  the  State.  It  is  certain,  if  this  be 
so,  in  the  case  before  us,  it  is  an  excepti()n_to_the  rule  governing  this 
court  in  all  other  cases.  But  w_hat_court  has  not  changed  its  opinions? 
What  judge  has  not  changed  his? 

Waiving,  however,  this  view,  and  turning  to  the  decisions  _ofjLlifi. 
courts  of  jjIissQiiri,  it  will  be  found  iliatlthere  is  no  discrepancy^ be- 
tween the  earlier  and  the  present  cases  upon  this  subject.  There  are 
some  eight  of  them  reported  previous  to  the  decisioinn~the  case  be- 
fore us,  which  was  decided  in  1852.  The  last  of  the  earlier  cases  was 
decided  in  1836.  In  each  one  of  these,  with  two  exceptions,  the  master 
or  mistress  removed  into  the  free  State  with  the  slave,  with  a  view  to 
a  permanent  residence  —  in  other  words,  to  make  that  his  or  her  domicil. 
And  in  several  of  the  cases,  this  removal  and  permanent  residence  wore 
relied  on,  as  the  ground  of  the  decision  in  favor  of  the  plaintiff.  All 
these  cases,  therefore,  are  not  necessaril}-  in  conflict  with  the  decision 
in  the  case  before  us,  but  consistent  with.it.  In  one  of  the  two  ex- 
cepted cases,  the  master  had  hired  the  slave  in  the  State  of  Illinois 
from  1817  to  1825.  In  the  other,  the  master  was  an  officer  in  the 
army,  and  removed  with  his  slave  to  the  military  post  of  Fort  Snelling, 
and  at  Prairie  du  Chien,  in  Michigan,  temporarily,  while  acting  under 
the  orders  of  his  government.  It  is  conceded  the  decision  in  this  case 
was  departed  from  in  the  case  before  us,  and  in  those  that  have  fol- 
lowed it.  But  it  is  to  be  observed  that  these  subsequent  cases  are  in 
conformity  with  those  in  all  the  slave  States  bordering  on  the  free  — 
in  Kentucky,  2  Marsh.  476;  5  B.  Munroe,  176;  9  lb.  565;  in 
Virginia,  1  Rand.  15;  1  Leigh,  172;  10  Grattan,  495 ;  in  Mary- 
land, 4  Harris  and  McHenry,  295,  322,  325.  In  conformity,  also, 
with  the  law  of  England  on  this  subject.  Ex  parte  Grace,  2  Hagg. 
Adm.  R.  94,  and  with  tlie  opinions  of  the  most  eminent  jurists  of  the 
country.  Story's  Confl.  396  a ;  2  Kent  Com.  258  n. ;  18  Pick.  193, 
Chief  Justice  Shaw.  See  Corresp.  between  Lord  Stowell  and  Judge 
Story,  1  vol.  Life  of  Story,  p.  552,  558. 

Lord  Stowell,  in  communicating  his  opinion  in  the  case  of  the  slave 


CHAP.  IV,]  SCOTT  V.   SANDFOKD,  489 

Grace  to  Judge  Story,  states,  in  his  letter,  what  the  question  was  be- 
fore him,  namely:  "  Wliether  the  emancipation  of  a  slave  brought  to 
England  insured  a  complete  emancipation  to  him  on  his  return  to  his 
own  countr}',  or  whether  it  only  operated  as  a  suspension  of -slaver^'  in 
England,  and  his  original  character  devolved  on  him  again  upon  his 
return."  He  observed,  "the  question  had  never  been  examined  since 
an  end  was  put  to  slavery  lift}'  3'ears  ago,"  having  reference  to  the 
decision  of  Lord  Mansfield  in  the  case  of  Somersett ;  but  the  practice, 
he  observed,  "  has  regularl}'  been,  that  on  his  return  to  his  own  country, 
the  slave  resumed  his  original  character  of  slave."  And  so  Lord 
Stowell  held  in  the  case. 

Judge  Story,  in  his  letter  in  repl^-,  observes :  "I  have  read  with 
great  attention  your  judgment  in  the  slave  case,  &c.  Upon  the  fullest 
consideration  which  I  have  been  able  to  give  the  subject,  1  entirely  con- 
cur in  your  views.  If  I  had  been  called  upon  to  pronounce  a  judgment 
in  a  like  case,  I  should  have  certainly  arrived  at  the  same  result." 
Again  he  observes:  "In  my  native  State  (Massachusetts),  the  state 
of  slaver}-  is  not  recognized  as  legal;  and  yet,  if  a  slave  should  come 
hither,  and  afterwards  return  to  his  own  home,  we  should  certainly 
think  that  the  local  law  attached  upon  him,  and  that  his  servile  char- 
acter would  be  redintegrated." 

We  may  remark,  in  this  connection,  that  the  case  before  the  Mary- 
land court,  already  referred  to,  and  which  was  decided  in  1799,  pre- 
sented the  same  question  as  that  before  Lord  Stowell,  and  received  a 
similar  decision.  This  was  nearly'  thirty  years  before  the  decision  in 
that  case,  which  was  in  1828.  The  Court  of  Appeals  observed,  in  de- 
ciding the  Maryland  case,  that  "  however  the  laws  of  Great  Britain  in 
such  instances,  operating  upon  such  persons  there,  might  interfere  so 
as  to  prevent  the  exercise  of  certain  acts  by  the  masters,  not  permitted, 
as  in  the  case  of  Somersett,  yet,  upon  the  bringing  Ann  Joice  into 
this  State  (then  the  province  of  Maryland),  the  relation  of  master 
and  slave  continued  in  its  extent,  as  authorized  by  the  laws  of  this 
State."  And  Lutlier  Martin,  one  of  the  counsel  in  that  case,  stated, 
on  the  argument,  that  the  question  had  been  previously  decided  the 
same  wa^'  in  the  case  of  slaves  returning  from  a  residence  in  Pennsyl- 
vania, where  they  had  become  free  under  her  laws. 

The  State  of  Louisiana,  whose  courts  had  gone  further  in  holding  the 
slave  free  on  his  return  from  a  residence  in  a  free  State  than  the  courts 
of  her  sister  States,  has  settled  the  law,  by  an  Act  of  her  Legislature, 
in  conformity  with  the  law  of  the  court  of  Missouri  in  the  case  before 
us.     Sess.  Law,  1846. 

The  case  before  Lord  Stowell  presented  much  stronger  features  for 
giving  effect  to  the  law  of  England  in  the  case  of  the  slave  Grace  than 
exists  in  the  cases  that  have  arisen  in  this  country,  for  in  that  case  the 
slave  returned  to  a  colony  of  England,  over  which  the  imperial  govern- 
ment exercised  supreme  authority.  Yet,  on  the  return  of  the  slave  to 
the  colony,  from  a  temporary  residence  in  England,  he  held  that  the 


490  SCOTT   V.   SANDFOED  [CHAP.  IV. 

original  condition  of  the  slave  attached.  The  question  presented  in 
cases  arising  here  is  as  to  the  effect  and  operation  to  be  given  to  the 
laws  of  a  foreign  State,  on  the  return  of  the  slave  within  an  independent 
sovereignt}-. 

Upon  tlie  whole,  it  must  be  admitted  that  the  current  of  authoritj', 
bothTrTEngland  andjn  this  cauntrjV-iaJji  "accordan^ce  jvith  the  law  as 
Tleclared  bj'  the  courts  of  Missouri  in  the  case  before  us,  and  we  think 
the  court  below  was_ao±  only  right,  hnf.  bnnnd  to  foUow  it. 

Some  question  has  been  made  as  to  the  character  of  the  residence  in 
this  case  in  the  free  State.  But  we  regard  the  facts  as  set  forth  in  the 
agreed  case  as  decisive.  The  removal  of  Dr.  Emerson  from  Missouri 
to  the  military  posts  was  in  the  discharge  of  his  duties  as  surgeon  in 
the  arm}',  and  under  the  orders  of  his  government.  lie  was  liable  at 
any  moment  to  be  recalled,  as  he  was  in  1838,  and  ordered  to  another 
post.  The  same  is  also  true  as  it  respects  Major  Taliaferro.  In  sucii 
a  case,  the  officer  goes  to  hia430st_for  a  temporary  purpose,  to  remain 
there  for  an  uncertain  time  ai^d  not  for  tlie  piirpose^  of  fixings  his  peij 
manent  abode.  The  question  we  think  too  plain  to  require  argument. 
The  case  of  the  Attorney- General  v.  JVapier,  6  Welsh,  Hurlst.  and 
Gordon  Exch.  Rep.  217,  illustrates  and  applies  the  principle  in  the 
case  of  an  officer  of  tlie  English  arm}'. 

A  question  has  been  alluded  to,  on  the  argument,  namely :  the  right 
of  the  master  with  his  slave  of  transit  into  or  through  a  free  State,  on 
business  or  commercial  pursuits,  or  in  the  exercise  of  a  Federal  right, 
or  the  discharge  of  a  Federal  dut}',  being  a  citizen  of  the  United  States, 
which  is  not  before  us.  Tbis  question  depends  upon  different  considera- 
tions and  principles  from  the  one  in  hand,  and  turns  upon  the  rights 
and  privileges  secured  to  a  common  citizen  of  the  republic  under  the 
Constitution  of  the  United  States.  When  that  question  arises,  we  shall 
be  prepared  to  decide  it. 

Our  conclusion  is,  that  the  judgment  of  the  court  below  should  be 
affirmed. 

[What  is  reported  as  the  "Opinion  of  the  Court,"  in  this  case  was  in 
fact  onl}'  the  Opinion  of  the  Chief  Justice  announcing  the  Judgment  of 
the  Court. ^  It  proceeds  upon  the  following  grounds:  1.  The  plea  in 
abatement  is  before  the  court  and  raises  the  question  whetlier  a  negro 
whose  ancestors  were  brought  to  this  countr}-  and  sold  as  slaves  "  can 
become  a  member  of  the  political  community  formed  and  brought  into 
existence  b}^  the  Constitution  of  the  United  States  and  so  entitled  to  sue 
in  a  court  of  the  United  States,  as  being  a  citizen  of  one  of  the  States." 
Such  persons,  although  free,  cannot  become  citizens,  within  the  meaning 
of  the  Federal  Constitution,  by  the  action  of  an^'  State,  or  even  through 
naturalization  b}'  Congress  —  Dred  Scott  was  not  a  citizen.  The  Cir- 
cuit Court  had  therefore  no  jurisdiction,  and  the  judgment  on  the  plea 
in  abatement  was  erroneous.  2.  The  record  discloses  also  that  Scott 
^  See  itifra,  pp.  491  n.  and  493  n.  —  Ed. 


CHAP.  IV.]  SCOTT   V.   SANDFOKD.  491 

is  not  even  a  free  negro  of  the  kind  above  named,  but  a  slave,  (a) 
Because  the  eighth  section  of  the  Act  for  the  admission  of  Missouri  as 
a  State,  March  6,  1820  (3  Stat,  at  Large,  545),  purporting  the  prohibi- 
tion of  slavery  in  a  Territory  of  the  United  States  was  unconstitutional 
and  did  not  make  Scott  or  the  members  of  his  family  free  at  Fort  Snel- 
ling.  (b)  Nor  is  he  free  by  reason  of  living  in  Illinois,  because  upon 
his  return  to  Missouri  his  status  there  was  fixed,  b}'  the  law  of  Missouri, 
as  being  that  of  a  slave.  "Upon  the  whole,  therefore,  it  is  the  judg- 
ment of  this  court,  that  it  appears  by  the  record  before  us  that  the 
plaintiff  in  error  is  not  a  citizen  of  Missouri,  in  the  sense  in  which  that 
word  is  used  in  the  Constitution  ;  and  that  the  Circuit  Court  of  the 
United  States,  for  tbat  reason,  had  no  jurisdiction  in  the  case,  and 
could  give  no  judgment  in  it.  Its  judgment  for  the  defendant  must, 
consequently,  be  reversed,  and  a  mandate  issued,  directing  the  suit  to 
be  dismissed  for  want  of  jurisdiction." 

Wayne,  J.  (p.  454),  in  a  brief  statement  agreed  entirely  in  this  opinion. 

Daniel,  J.,  also  supported  all  its  positions.  But  after  disposing  of 
the  plea  in  abatement  he  made  the  following  observations  —  "  Ac- 
cording to  the  view  taken  of  the  law,  as  applicable  to  the  demurrer  to 
the  plea  in  abatement  in  this  cause,  the  questions  subsequently  raised 
upon  the  several  pleas  in  bar  might  be  passed  b}-,  as  requiring  neither 
a  particular  examination,  nor  an  adjudication  directly  upon  them.  But 
as  these  questions  are  intrinsicall}'  of  primary  interest  and  magnitude, 
and  have  been  elaboratelj'  discussed  in  argument,  and  as  with  respect 
to  them  the  opinions  of  a  majority  of  the  court,  including  my  own,  are 
perfectly  coincident,  to  me  it  seems  proper  that  they  siiould  here  be 
fully  considered,  and,  so  far  as  it  is  practicable  for  this  court  to  accom- 
plish such  an  end,  finally  put  to  rest." 

Gkiek,  J.  (p.  469),  briefly  concurred  with  Nelson,  J.,  "on  the  ques- 
tions discussed  by  him."  He  also  concurred  with  the  opinion  delivered 
by  the  Chief  Justice,  "  that  the  Act  of  Congress  of  6th  of  March,  1820, 
is  unconstitutional  and  void."  The  form  of  the  judgment  he  regarded 
as  of  little  importance  "  as  the  decision  of  the  pleas  in  bar  shows  tliat 
the  plaintiff"  is  a  slave ;  "  and  so  "whether  the  judgment  be  affirmed, 
or  dismissed  for  want  of  jurisdiction,  it  is  justified  by  the  decision  of 
the  court  and  is  the  same  in  effect  between  the  parties  to  the  suit."  He 
said  nothing  of  the  plea  in  abatement. 

Campbell,  J.  (p.  493),  concurred  "  in  the  judgment  pronounced  by 
the  Chief  Justice."  He  passed  over  the  plea  in  abatement,  expressly 
declining  to  consider  it,^  and  held  that  neither  the  law  of  Illinois  nor 

1  See  liis  own  statement  in  20  Wall.  p.  xi.,  that  "the  plea  in  abatement  and  the 
questions  arising  upon  it,  in  the  opinion  of  a  majority  of  the  court,  were  not  before 
the  court.  The  case  as  reported  in  19  Howard  discloses  that  each  member  of  this 
majority  held  to  this  opinion,  and  that  neither  of  tliem  in  their  separate  or  concurring 
opinions  examined  the  merits  of  the  plea  or  passed  an  opinion  on  it."  The  names  of 
this  majority  he  gives  as  McLean,  Catron,  Nelson,  Grier,  and  Campbell.  At 
the  first  argument  Nelson,  J.,  had  doubted  on  this  point,  but  had  then  voted  with 
the  other  party.  —  Ed. 


492  SCOTT   V.    SANDFORD.  [CIUP.  IV. 

that  of  the  Territory  of  Minnesota  affected  the  status  of  the  parties 
after  their  return  to  Missouri.  The  law  of  that  State  made  them  slaves. 
2.  Tiiat  the  Missouri  Compromise  Act  was  unconstitutional.  He  con- 
cluded by  saying  that  "  the  judgment  should  be  affirmed  on  the  ground 
that  the  Circuit  Court  had  no  jurisdiction,  or  that  the  case  should  be 
reversed  and  remanded,  that  the  suit  may  be  dismissed." 

Catron,  J.  (p.  518),  held  that  the  plea  in  abatement  was  not  open. 
As  regarded  the  residence  in  Illinois,  he  agreed  with  the  opinion  of  Mr. 
Justice  Nelson,  —  "  with  which  I  not  onlj-  concur  but  think  his  opinion 
is  the  most  conclusive  argument  on  the  subject  within  ray  knowledge." 
As  regarded  the  residence  at  Fort  Snelling  he  declared  that  the  Act 
of  Congress  was  unconstitutional.  He  said  nothing  as  to  the  form  of 
the  judgment;  and  closed  his  opinion  thus:  "For  the  reasons  above 
stated  I  concur  with  m}'  brother  judges  that  the  plaintiff  Scott  is  a 
slave  and  was  so  when  this  suit  was  brought." 

Of  these  seven  judges  composing  the  majority  who  agreed,  in  sub- 
stance, as  to  the  disposition  of  the  case,  only  three  passed  upon  the  plea 
in  abatement,  and  so  upon  the  status  of  free  negroes.  Six  agreed  in 
declaring  the  Missouri  Compromise  Act  unconstitutional.  But  all,  with- 
out exception,  also  agreed  in  the  doctrine  of  Mr.  Justice  Nelson's 
opinion,  which,  as  the  majority  had  formerl}-  all  agreed,  and  none  after- 
wards denied,  was  enough  to  dispose  of  the  case  without  raising  any 
question  on  that  Act. 

McLean,  J.,  and  Curtis,  J.,  dissented. 

The  former  (p.  529)  held,  1.  That  the  plea  in  abatement  was  not 
open.  2.  Tha*  slaver^'  existed  onl}-  by  local  law,  and  that  Scott  and 
his  family  were  freed  by  being  taken  into  the  free  State  of  Illinois, 
and  also  into  the  Territor}'  of  Minnesota,  where  b}'  a  law  of  Congress 
^the  Act  of  1820  above  named)  slaver}-  was  prohibited.  3.  That  there 
was  nothing  on  the  record  to  show  a  voluntar}-  return  of  Scott  and  his 
famil}'  to  Missouri.  4.  That  it  was  not  the  settled  law  of  Missouri 
that  the  slave  status  revived  on  returning  there,  but  the  contrary. 
5.  That  the  court  below  erred  in  refusing  to  take  notice  of  the  Act  of 
Congress  or  the  Constitution  of  Illinois. 

Curtis,  J.,  began  by  saying  "  I  dissent  from  the  opinion  pronounced 
by  the  Chief  Justice,  and  from  the  judgment  which  the  majority  of 
the  court  think  it  proper  to  render  in  this  case."  He  held,  1.  That  the 
plea  in  abatement  was  now  open,  but  that  below  it  was  rightly  held 
insufficient,  since  negroes  the  descendants  of  ancestors  brought  here 
and  sold  as  slaves  ma}-  well  be  citizens  of  the  States  and  of  the  United 
States.  2.  That  inasmuch  as  the  law  of  the  Territory  where  Scott  and  his 
wife  had  been  married,  had  a  special  and  decisive  application  to  the 
case,  it  was  necessarj-  to  consider  the  effect  of  that  law.  3.  That  the 
Act  of  Congress  prohibiting  slavery  there  was  valid  and  operated  to 
give  freedom  to  Scott  and  his  family.  4.  That  the  consent  of  the 
master  to  the  marriage  was  an  act  of  emancipation.  5.  That  the  law 
of  Missouri  did  not  in  fact,  and  could  not  in  law,  restore  the  status  of 
slavery. 


oHAP.  IV.]  SCOTT  V.   SANDFORD.  493 

Mr.  Justice  Curtis  did  not  consider  specifically  the  effect  of  the 
residence  in  Illinois;  on  his  view,  it  was  not  necessarj'.  "I  have 
touched,"  he  said,  "no  question  which,  in  the  view  I  have  taken,  it 
was  not  absolutely  necessary  for  me  to  pass  upon,  to  ascertain  whether 
the  judgment  of  the  Circuit  Court  should  stand  or  be  reversed.  I 
have  avoided  no  question  on  which  the  validity  of  that  judgment 
depends.  To  have  done  either  more  or  less  would  have  been  incon- 
sistent with  my  views  of  my  dut}'."]  i 

*  The  great  historical  importance  of  this  case  will  justify  the  quotation  of  the  fol- 
lowing passages  relating  to  the  manner  in  which  the  result  was  arrived  at.  Tyler's 
''Life  of  Chief  Justice  Taney"  (pp.  382-385),  preserves  a  letter  from  Hon.  John  A. 
Campbell,  formerly  Mr.  Justice  Campbell,  of  Nov.  24,  1870,  and  anotlier  confirm- 
ing it,  from  Mr.  Justice  Nelson,  of  May  13,  1871.  The  former  letter  says:  "The 
case  of  Dred  Scott  was  argued  for  the  first  time  in  the  spring  of  1856.  There  were 
several  discussions  at  the  conferences  of  the  judges  upon  the  case.  There  was  much 
division  of  opinion  among  them,  and  especially  upon  the  first  question  presented. 
.  .  .  The  minority  of  the  court,  at  that  time,  were  of  opinion  that  this  plea  was  not 
open  for  examination,  nor  the  judgment  on  it  for  review,  because  a  demurrer  had  been 
filed  to  it  and  sustained.  .  .  .  This  minority  was  composed  of  Justices  McLean, 
Catrox,  Grier,  and  Campbell.  The  majority  were  Chief  Justice  Taney,  Justices 
Wayne,  Nelson,  Daniel,  and  Curtis.  Justice  Nelson  hesitated  and  proposed  a 
reargument  of  that  and  other  questions  to  be  had  at  the  next  term,  and  this  was 
assented  to,  none  objecting.  At  the  next  term  these  questions  were  again  argued 
[in  December,  1856].  Upon  the  reargument  Justice  Nelson's  opinion  concurred  with 
that  of  the  minority  above  mentioned,  and  they,  by  this  addition,  became  the  majority. 
Each  of  these  judges  has  recorded  in  his  opinion  that  there  was  nothing  in  the  plea  in 
abatement  before  the  court  for  review."  In  his  address  as  chairman  of  a  meeting  of 
the  Bar  of  the  Supreme  Court  of  the  United  States,  September  15,  1874,  on  occasion 
of  the  death  of  Hon.  B.  R.  Curtis,  formerly  Mr.  Justice  Curtis,  Mr.  Campbell  repeated 
the  foregoing  statements,  and  in  allusion  to  the  irregular  nature  of  the  opinion  of  the 
Chief  Justice  and  to  Mr.  Justice  Curtis's  comments  upon  it,  he  added  (20  Wall,  xi.), 
"  It  was  agreed  at  a  day  in  the  term  that  the  questions  should  be  considered,  and  each 
justice  might  deal  with  them  as  his  judgment  dictated.  The  abstinence  of  a  portion 
of  the  court,  on  the  one  side,  and  the  discussion  by  the  others,  was  regulated  by  their 
own  opinion  as  before  expressed.  And  the  facts  being  understood,  no  censure  was 
deserved  by  any.  My  belief  is  that  Justice  Curtis  misconceived  the  facts  and  sup- 
posed a  portion  of  the  court  had  concurred  in  deciding  a  case  which  they  had  before 
determined  was  not  before  the  court.  I  make  this  statement  in  justice  to  him  as  well 
as  to  my  other  brethren." 

This  remark  indicates  the  true  character  of  the  opinion  given  by  the  Chief 
Justice.  It  was  his  own  and  not  that  of  the  court.  In  substance  the  situation 
is  identical  with  that  in  Barnes  v.  The  Railroads,  17  Wall.  294,  in  which  the  Re- 
porter accurately  states  (p.  299)  in  introducing  the  opinions,  that  "  Mr.  Justice 
Clifford  now,  March  3,  1873,  delivered  the  judgment  of  the  court;"  and,  in  his 
headnote,  that  it  was  "held  (by  a  court  nearly  equally  divided,  and  the  majority 
who  agreed  in  the  judgment  not  agreeing  in  the  grounds  of  it)  that,"  &c.  In  that 
case,  also,  the  opinion  of  the  individual  justice  who  delivered  the  judgment  of  the 
court  was  erroneously  assumed,  even  by  the  counsel  in  the  case,  to  be  the  opinion  of 
the  court  itself ;  although  this  opinion  had  not,  as  in  the  Dred  Scott  Cane,  been  so 
called  by  any  of  the  judges  of  the  court.  See  the  Reporter's  "  note  "  and  footnote 
in  17  Wallace,  335  In  sub.stance  also  it  was  the  same  situation  as  in  the  License 
Cases  (5  How.  504),  where,  ten  years  before,  the  judges  agreed  in  the  judgment,  but 
"  no  opinion  of  the  court  was  pronounced.  Each  justice  gave  his  own  reasons  for 
affirming  the  decisions  of  the  State  courts"  (16  Curtis's  Decisions,  514).  How  im- 
perfectly an  opinion,  which  is  allowed  to  be  called  that  of  the  court,  may  represent  the 


494:  SCOTT  V.    SANDFORD.  [CHAP,  IV. 

majority  of  tlie  tribunal  in  anything  but  the  final  judgment  which  it  renders,  is  further 
illustrated  by  Mr.  Justice  Wayne's  narrative,  given  in  the  Passenger  C:\ses,  7  Hovs-. 
429-4-J6,  as  to  the  "Opinion  of  the  court,"  in  Sew  York  v.  M'dn,  11  Pet.  102.  "Thus 
there  were  left,"  he  says,  "of  the  seven  judges  but  two,  the  Ciiief  Justice  and  Mr. 
Justice  Barbour,  in  favor  of  the  opinion  as  a  wliole."  Compare,  also,  the  "opinion  of 
the  court"  in  Boyd  v.  Nebraska,  143  U.  S.  135,  with  the  Reporter's  headuote  showing 
the  actual  difference  among  the  judges. 

In  tlie  "  Memoir  of  B.  R.  Curtis,"  written  by  his  brother,  George  T.  Curtis,  one  of 
the  counsel  for  Scott  (vol.  i.201,e<  seq),  it.  is  said.  "The  Chief  JcsricEaud  Justices 
Wayne,  Catron,  Daniel,  and  Campbell  were  from  slaveholding  States;  Justices 
McLean,  Nelson,  Grier,  and  Curtis  were  from  non-slaveholding  States.  The  case 
of  Dred  Scott  was  first  argued  at  the  December  term,  1855.  After  consideration  and 
comparison  of  views,  it  was  determined  by  a  majority  of  the  judges  tliat  it  was  not 
necessary  to  decide  the  question  of  Scott's  citizenship  under  the  plea  to  the  jurisdic- 
tion, but  that  the  case  should  be  disposed  of  by  an  examination  of  the  merits ;  that  is 
to  say,  by  deciding  whether  he  was  a  freeman  or  a  slave,  upon  tiie  facts  agreetl  upon 
by  the  parties  under  the  plea  in  bar  of  the  action.  One  of  the  questions  thus  arising 
was,  as  the  reader  has  seen,  whether  a  temporary  residence  of  a  slave  in  the  State  of 
Illinois  worked  an  emancipation,  notwithstanding  his  return  to  Missouri.  If  it  did  not, 
it  might  be  unnecessary  to  act  upon  the  question  of  the  power  of  Congress  to  prohiliit 
slavery  in  the  territory  of  the  United  States,  into  which  Scott  had  been  taken  from 
Illinois,  unless  there  were  circumstances  in  his  residence  in  the  Federal  territory 
which  ought  to  lead  to  a  different  conclusion.  It  was  assigned  to  Judge  Nelson  to 
write  the  opinion  of  the  court  upon  this  view  of  the  case ;  in  which  view,  however, 
Judge  McLean  and  Judge  Curtis  did  not  concur.  Judge  Nelson  wrote  an  opinion, 
which,  from  its  internal  evidence,  was  manifestly  designed  to  stand  and  be  delivered  as 
the  opinion  of  a  majority  of  the  bench.  .  .  ,  The  conclusion  reached  by  this  opinion 
was,  not,  as  was  afterwards  directed,  that  the  case  should  be  dismissed  for  want  of 
jurisdiction,  but  that  the  judgment  of  the  Circuit  Court,  which  had  held  Scott  to  be 
still  a  slave,  should  be  affirmed. 

"  The  astuteness  with  which  this  opinion  avoided  a  decision  of  the  question  arising 
out  of  the  residence  of  Scott  in  a  Territory  of  the  United  States  where  slavery  was  pro- 
hibited by  an  Act  of  Congress,  and  the  remarkable  subtilty  of  the  reasoning  that  tliis, 
too,  was  a  matter  for  the  State  court  to  decide,  because  the  law  of  the  Territory  could 
have  no  extra-territorial  force  except  such  as  the  State  of  Missouri  might  extend  to  it 
under  the  comity  of  nations,  —  show  very  distinctly  that,  after  the  first  argument  of  the 
case  in  the  Supreme  Court,  it  was  not  deemed,  by  a  majority  of  the  bencli,  to  be  cither 
necessary  or  prudent  to  express  any  opinion  upon  the  constitutional  power  of  Congress 
to  prohibit  slavery  in  the  Territories  of  the  United  States.  .  .  . 

"  At  some  time  after  the  first  argument  of  the  case,  but  during  the  same  term,  and 
after  Judge  Nelson's  opinion  had  been  written,  a  motion  was  made  in  a  conference  of 
tlie  court  for  a  re-argument  of  the  case  at  the  next  term.  This  motion  prevailed,  and 
Judge  Nelson's  opinion  was  consequently  set  aside.  Two  questions  were  then  care- 
fully framed  by  the  Chief  Justice,  to  be  argued  de  novo  at  tlie  bar,  in  the  following 
terms :  — 

"  1.  Whether,  after  the  plaintiff  had  demurred  to  the  defendant's  first  plea  to  the 
jurisdiction  of  the  court  below,  and  the  court  had  given  judgment  on  that  demurrer  in 
favor  of  the  plaintiff,  and  had  ordered  the  defendant  to  answer  over,  and  the  defend- 
ant had  submitted  to  that  judgment  and  pleaded  over  to  the  merits,  the  appellate  court 
can  take  notice  of  the  facts  admitted  on  the  record  by  the  demurrer,  which  were 
pleaded  in  bar  of  the  jurisdiction  of  the  court  below,  so  as  to  decide  whether  that  court 
had  jurisdiction  to  hear  and  determine  the  cause  ? 

"  2.  Whether  or  not,  assuming  that  the  appellate  court  is  bound  to  take  notice  of 
the  facts  appearing  upon  the  record,  the  plaintiff  is  a  citizen  of  the  State  of  Missouri, 
within  the  meaning  of  the  eleventh  section  of  the  Judiciary  Act  of  1789  '  .  .  . 

"  After  this  second  argument,  and  at  some  time  during  the  same  term.  Mr.  Justice 
Wayne  became  convinced  that  it  was  practicable  for  the  Supreme  Court  of  the  United 


CHAP.  IV.]  SCOTT   V.   SANDFORD.  495 

States  to  quiet  all  agitation  on  the  question  of  slavery  in  the  Territories^  by  affirming 
t"hat  Con.gTgsThad  no  coT!STtruTioiial_power  to  pro^i'-i^  its  introrlnptinn.  VVith  the  beat 
inteiitions.  with  entirely  yatri.jtic  motives,  and  believing  thorouelilv  tbnt  ^llfb  was  tU^ 
"[^^n  tliiri  constitutional  question^he  regarded  it  as  eminently  expedient  that  it  should 
be  so  determined  by  tiie  co"u?t.  In  the  short  observations  which  he  read  in  the  court, 
referring  to  the  constitutional  questions  involved,  he  said  that  *  the  peace  and  harmony 
of  the  country  required  the  settlement  of  them  by  judicial  decision ; '  and  it  is  well 
known,  from'his  frank  avowals  in  conversation  at  the  time,  that  he  regarded  it  as  a 
matter' of  great  good  fortune  to  his  own  section  of  the  country,  that  he  had  succeeded 
in  producing  a  determination,  on  the  part  of  a  sufficient  number  of  his  brethreu,  to  act 
upon  the  constitutional  question  which  had  so  divided  the  people  of  the  United  States, 
lie  persuaded  the  Ciiief  Justice,  Judge  Grier,  and  Judge  Catron  of  the  public  expe- 
diency of  this  course ;  and  being  perfectly  convinced,  as  he  somehow  had  convinced 
himself,  that  the  appellate  court  could  hold  that  the  Circuit  Court  had  no  jurisdiction 
of  the  case,  because  a  free  negro  could  not  be  a  '  citizen,'  and  yet  could  go  on  and 
decide  all  questions  arising  upon  the  merits,  he  could  conscientiously  concur,  as  he  did, 
in  every  part  of  the  opinion  which  the  Chief  Justice,  after  the  second  argument,  felt 
called  upon  to  write,  and  which  was  denominated  the  opinion  of  the  court,  although  no 
other  judge,  excepting  Mr.  Justice  Wayne,  concurred  in  all  its  points,  reasonings,  and 

conclusions."  •    /  n 

The  same  writer,  in  speaking  of  the  dissenting  opinion  of  Judge  Curtis  {lb.  231), 
savs  :  "  In  my  judgment,  its  permanent  importance  consists  in  the  demonstration 
which  it  made  of  this  proposition  :  tWjM.p  Supreme  Court  of  thp  T^niteiL States,  sit- 
ting as  an  appellate  tribunal  to  correct  the  errors  of  a  Circuil£(mik^ailM2kuuder_a 
ggjTrru;  j,.rU,|j,.f;nn,  d^H^Ii~tharthe  lower  court  had  no  Jurisdjctjfin -tQ  hear  and 
determine  the  cause,  and  then  proceed  to  decide  a  question  of  constituti_onal  law  which 
arises  onlv  on  a  plea,  in  bar  to  the  merits  of  the  coction^  The  following  impressive 
close  of  Judge  Curtls's  discussion  ol  tins  part  ot  tbeTubject  comprehends  the  whole 
substance  of  his  objection  to  the  course  of  a  majority  of  his  brethren  :  '  I  do  not  con- 
sider it  to  be  within  the  scope  of  the  judicial  power  of  the  majority  of  the  court  to  pass 
upon  any  question  respecting  the  plaintiff's  citizenship  in  Missouri,  save  that  raised 
by  the  plea  to  the  jurisdiction ;  and  I  do  not  hold  any  opinion  of  this  court,  or  any 
court,  binding,  when  expressed  on  a  question  not  legitimately  before  it.  The  judgment 
of  this  court  is,  that  the  case  is  to  be  dismissed  for  want  of  jurisdiction,  because  the 
plaintiff  was  not  a  citizen  of  Missouri,  as  he  alleged  in  his  declaration.  Into  that 
judgment,  according  to  the  settled  course  of  this  court,  nothing  appearing  after  a 
plea  to  the  merits  can  enter.  A  great  question  of  constitutional  law,  deeply  affect- 
ing the  peace  and  welfare  of  the  country,  is  not,  in  my  opinion,  a  fit  subject  to  be  thus 

"  To  those  who  do  not  fully  appreciate  the  judicial  functions  of  the  Supreme  Court 
of  the  United  States,  or  who  do  not  fully  understand  the  limits  within  which  it  should 
carefully  act,  this  may  seem  to  have  been  hypercritical  in  its  technicality.  But  to  the 
instructed  and  enlightened  student  of  our  national  jurisprudence,  who  contemplates 
the  true  function  of  the  Supreme  Court  as  the  judicial  arbiter  of  constitutional  ques- 
tions, these  apparent  technicalities  will  be  recognized  as  pregnant  with  most  important 
substance ;  for  it  cannot  be  doubted  that  the  temptation  to  be  drawn  into  the  expres- 
sion of  opinions  on  constitutional  questions,  because  they  are  entering  into  the  politics 
of  the  time,  is  one  against  which  that  court  should  be  hedged  by  the  strict  and  logical 
order  of  judicial  action,  which  can  alone  produce  a  judicial,  and  therefore  a  binding, 
determination." 

In  a  very  careful  and  valuable  discussion  of  this  case  ("  A  Legal  Eeview  of  the  Case 
of  Dred  Scott,"  Boston,  Crosby,  Nichols  &  Co.,  18.57,  reprinted,  with  some  alterations, 
from  the  [Boston]  "  Law  Reporter  "  for  June,  18.57),  by  Messrs.  John  Lowell  and  Horace 
Gray,  better  known  afterwards  as  Judge  Lowell,  of  the  United  States  Circuit  Court 
for  Massachusetts,  and  Mr.  Justice  Gray,  of  the  Supreme  Court  of  the  United  States, 
it  is  said  (p.  25)  :  "The  court,  as  we  have  shown,  undoubtedly  did  decide  that  the 


496  LEMMON   V.    THE   PEOPLE.  [CHAP.  IV. 

plaintiff  was  a  slave  when  this  suit  was  brought ;  and  in  order  to  arrive  at  this  conclusion, 
the\'  must  have  held,  either  that  lie  never  became  entitled  to  his  freedom,  or  that,  hav- 
ing acquired  such  a  right,  he  lost  it  by  his  return  to  Missouri.  But  iu  order  to  determine 
the  case  upon  the  first  ground,  it  must  have  been  held,  not  only  that  the  plaintiff  did 
not  become  entitled  to  freedom  in  the  Territory,  but  also  that  he  could  not  have 
asserted  such  a  right  in  Illinois,  —  a  position  which  most  of  the  judges  do  not  even 
suggest.  On  the  contrary,  the  decision,  so  far  as  the  residence  in  Illinois  is  concerned, 
is  put  distinctly  upon  the  ground  that  the  laws  of  Illinois  could  not  operate  on  the 
plaintiff  after  his  return  to  Missouri.  This  decision  disposes  equally  of  his  residence 
in  the  Territory,  for  his  stay  in  each  place  was  for  an  equal  time,  and  for  similar  pur- 
poses. The  whole  case  being  thus  disposed  of,  the  opinion  on  the  Missouri  Compro- 
mise Act  was  clearly  extra-judicial." 

And  later  on  (p.  51),  it  is  added  :  "  Measuring  the  point  adjudged,  therefore,  by  all 
the  material  facts  of  the  case,  it  is  set  forth  at  length  in  our  headnote,  or  may  be 
briefly  stated  thus :  A  slave  taken  by  his  master  into  a  State  or  Territory  where 
slavery  is  prohibited  by  law,  and  afterwards  returning  with  his  master  into  a  slave 
State,  and  acquiring  a  residence  there,  if  deemed  by  the  highest  court  of  that  State, 
after  his  return,  to  be  a  slave,  must  be  deemed  a  slave  by  the  courts  of  the  United 
States,  and  therefore  not  entitled  to  sue  in  one  of  those  courts  as  a  citizen  of  that 
State.  In  this  conclusion  seven  of  the  nine  judges  concur;  and  it  is  best  stated  by 
Mr.  Justice  Nelson,  whose  opinion  is  wholly  devoted  to  the  question  of  the  plaintiff's 
condition  iu  Missouri  after  his  return,  and  is  the  ablest  in  reasoning,  and  most  judicial 
in  tone  of  all  the  opinions  of  the  majority." 

Compare  Bryce,  Am.  Com.  i.  256,  257  (1st  ed.)  :  "Occasionally  it  [the  Supreme 
Court  of  the  United  States]  has  been  required  to  give  decisions  which  have  worked 
with  tremendous  force  on  politics.  The  most  famous  of  these  was  the  Dred  Scott  Case, 
in  which  the  Supreme  Court,  on  an  action  by  a  negro  for  assault  and  battery  against 
the  person  claiming  to  be  his  master,  declared  that  a  slave  taken  temporarily  to  a  free 
State  and  to  a  Territory  in  which  Congress  had  forbidden  slavery,  and  afterwards 
returning  into  a  slave  State  and  resuming  residence  there,  was  not  a  citizen  capable  of 
suing  in  the  federal  courts  if  by  the  law  of  the  slave  State  he  was  still  a  slave.  Tl.is 
was  the  point  which  actually  called  for  decision;  but  the  majority  of  the  court  —  for 
there  wa«  a  dissentient  minority  —  went  further,  and  delivered  a  variety  of  dicta  on 
various  other  points  touching  the  legal  status  of  negroes  and  the  constitutional  views 
of  slavery.  This  judgment,  since  the  language  used  in  it  seemed  to  cut  off  the  hope  of 
a  settlement  by  the  authority  of  Congress  of  the  then  (1857)  pending  disputes  over 
slavery  and  its  extension,  did  much  to  precipitate  the  Cinl  War." 

See  Hohhs  v.  Fogg,  6  Watts,  553  (1837)  ;  West  Chester,  ^c.  R.  R.  Co.  v.  Miles,  55 
Pa.  St.  209  (1867) ;  and  Cory  v.  Carter,  48  Ind.  327,  338  (1874).  See  also,  generally, 
Cobb  on  Slavery  (1858),  and  Stroud  on  Slavery  (1827).  —  Ed. 


LEMMON  V.  THE  PEOPLE. 
New  York  Court  of  Appeals.     1860. 

[20  N.  Y.  562.] 

[Appeal  from  a  judgment  of  the  Supreme  Court  (Dec.  1857),  affirm- 
ing an  order  of  a  justice  of  the  Superior  Court  of  the  city  of  New  York 
(Nov.  13,  1852)  discharging  on  habeas  corpus  eight  negroes  claimed 


CHAP.  IV.]  LEMMON  'v.    THE   PEOPLE.  497 

as  the  slaves  of  Juliet  Lemmon.]     Charles  0'  Conor, ^  for  the  appellants  ; 
Joseph  Blunt  and  Wm.  31.  Evarts,  for  the  respondents. 

Denio,  J.  The  petition  upon  which  the  writ  of  habeas  corpus  was 
issued,  states  that  the  colored  persons  sought  to  be  discharged  from 
impiisonnient  were,  on  the  preceding  night,  taken  from  the  steamer 
"  City  of  Richmond,"  in  the  harbor  of  New  York,  and  at  the  time  of  pre- 
senting the  petition,  were  confined  in  a  certain  house  in  Carlisle  Street 
in  that  city^  The  writ  is  directed  to  the  appellant  by  the  name  of 
"  Lemmings,"  as  the  person  having  in  charge  "eight  colored  persons 
lately  taken  from  the  steamer  'City  of  Richmond,'  and  to  the  man  in 
whose  house  in  Carlisle  Street  they  were  confined."  The  return  is 
made  by  Lemmon,  the  appellant,  and  it  speaks  of  the  colored  persons 
who  are  therein  alleged  to  be  slaves,  and  the  property  of  Juliet  Lem- 
mon, as  "  the  eight  slaves  or  persons  named  in  the  said  writ  of  habeas 
corpus'*  It  alleges  that  they  were  taken  out  of  the  possession  of  Mrs. 
Lemmon,  while  in  transitu  between  Norfolk,  in  Virginia,  and  the  State 
of  Texas,  and  that  both  Virginia  and  Texas  are  slaveholding  States ; 
that  she  had  no  intention  of  bringing  the  slaves  into  this  State  to 
remain  therein,  or  in  any  manner  except  on  their  transit  as  aforesaid 
through  the  port  of  New  York ;  that  she  was  compelled  by  necessity 
to  touch  or  land,  but  did  not  intend  to  remain  longer  than  necessary, 
and  that  such  landing  was  for  the  purpose  of  passage  and  transit  and 
not  otherwise,  and  that  she  did  not  intend  to  sell  the  slaves.  It  is 
also  stated  that  she  was  compelled  by  "  necessity  or  accident"  to  take 
passage  from  Norfolk  in  the  above-mentioned  steamship,  and  that 
Texas  was  her  ultimate  place  of  destination. 

I  understand  the  effect  of  these  statements  to  be  that  Mrs.  Lemmon, 
being  the  owner  of  these  slaves,  desired  to  take  them  from  her  resi- 
dence in  Norfolk  to  the  State  of  Texas  ;  and,  as  a  means  of  effecting 
that  purpose,  she  embarked,  in  the  steamship  mentioned,  for  New 
York,  with  a  view  to  secure  a  passage  from  thence  to  her  place  of  des- 
tination. As  nothing  is  said  of  an}'  stress  of  weather,  and  no  marine 
casualty  is  mentioned,  the  necessity  of  landing,  which  is  spoken  of, 
refers,  no  doubt,  to  the  exigency  of  that  mode  of  prosecuting  her 
journey.  If  the  ship  in  which  she  arrived  was  not  bound  for  the  Gulf 
of  Mexico,  she  would  be  under  the  necessity  of  landing  at  New  York 
to  re-embark  in  some  other  vessel  sailing  for  that  part  of  the  United 
States ;  and  this,  I  suppose,  is  what  it  was  intended  to  state.  The 
necessity  or  accident  which  is  -mentioned  as  having  compelled  her  to 
embark  at  Norfolk  in  the  "  City  of  Richmond,"  is  understood  to  refer 
to  some  circumstance  which  prevented  her  making  a  direct  voyage  from 
Virginia  to  Texas.  The  question  to  be  decided  is  whether  the  bringing 
the  slaves  into  this  State  under  these  circumstances  entitled  them  to 
their^  freedom. 

1  The  extraordinary  argument  of  this  distinguished  lawyer  is  fully  reported.     It  can- 
not find  a  place  here,  but  it  is  well  worth  attention,  —  whatever  may  be  thought  of  the 
soundness  of  its  positions.  —  Ed. 
VOL.  I.  —  32 


498  .       LEMMOy   V.   THE   PEOPLE.  [CHAP.  IV. 

The  intention,  and  the  effect,  of  the  statutes  of  this  State  bearing 
upon  the  point  are  very  plain  and  unequivocal.  By  an  Act  passed  in 
1817,  it  was  declared  that  no  person  held  as  a  slave  should  be  imported, 
introduced  or  brought  into  this  State  on  any  pretence  whatever,  except 
in  the  cases  afterwards  mentioned  in  the  Act,  and  any  slave  brought 
here  contrary  to  the  Act  was  declared  to  be  free.  Among  the  excepted 
cases  was  that  of  a  person,  not  an  inhabitant  of  the  State,  passing 
through  it,  who  was  allowed  to  bring  his  slaves  with  him ;  but  they 
were  not  to  remain  in  the  State  longer  than  nine  months.  Laws  of 
1817,  ch.  187,  §§  9,  15.  The  portions  of  this  Act  which  concern  the 
present  question  were  re-enacted  at  the  revision  of  the  laws  in  1830. 
The  first  and  last  sections  of  the  title  are  in  the  following  language  :  — 

"  §  1.  No  person  held  as  a  slave  shall  be  imported,  introduced  or 
brought  into  this  State  on  any  pretence  whatsoever,  except  in  the 
cases  hereinafter  specified.  Every  such  person  shall  be  free.  Every 
person  held  as  a  slave  who  hath  been  introduced  or  brought  in  this 
State  contrary  to  the  laws  in  force  at  the  time,  shall  be  free." 

"  §  16.  Every  person  born  in  this  State,  whether  white  or  colored, 
is  free.  Every  person  who  shall  hereafter  be  born  within  this  State 
shall  be  free ;  and  every  person  brought  into  this  State  as  a  slave, 
except  as  authorized  by  this  title,  shall  be  free."  R.  S.,  part  1,  ch. 
20,  tit.  7. 

The  intermediate  sections,  three  to  seven  inclusive,  contain  the  ex- 
ceptions. Section  6  is  as  follows  :  "  An}-  person,  not  being  an  inhabi- 
tant of  this  State,  who  shall  be  travelling  to  or  from,  or  passing  through 
this  State,  may  bring  with  him  any  person  lawfully-  held  in  slavery, 
and  may  take  such  person  w^ith  him  from  this  State ;  but  the  person  so 
held  in  slaver}-  shall  not  reside  or  continue  in  this  State  more  than  nine 
months ;  if  such  residence  be  continued  beyond  that  time  such  person 
shall  be  free."  In  the  year  1841,  the  legislature  repealed  this  section, 
together  with  the  four  containing  other  exceptions  to  the  general  pro- 
visions above  mentioned.  Ch.  247.  The  effect  of  this  repeal  was 
to  render  the  1st  and  16th  sections  absolute  and  unqualified.  If  any 
doubt  of  this  could  be  entertained  upon  the  perusal  of  the  part  of  the 
title  left  unrepealed,  the  rules  of  construction  would  oblige  us  to  look 
at  the  repealed  portions  in  order  to  ascertain  the  sense  of  the  residue. 
Bussey  V.  Story,  4  Barn.  &  Adolph.  98.  Thus  examined,  the  mean- 
ing of  the  statute  is  as  plain  as  though  the  legislature  had  declared  in 
terms  that  if  any  person  should  introduce  a  slave  into  this  State,  in  the 
course  of  a  journey  to  or  from  it,  or  in  passing  through  it,  the  slave 
shall  be  free. 

If.  therefore,  the  legislature  had  the  constitutional  power  to  enact 
this  statute,  the  law  of  the  State  precisely  meets  the  case  of  the  persons 
who  were  brought  before  the  judge  on  the  writ  of  habeas  corpus^  and 
his  order  discharging  them  from  constraint  was  unquestionably  correct. 
Every  sovereign  State  has  a  right  to  determine  by  its  laws  the  condi- 
tion of  all  persons  who  may  at  any  time  be  within  its  jurisdiction ;  to 


CHAP.  IV.]  LEMMON   V.  THE  PEOPLE.  499 

exclude  therefrom  those  whose  introduction  would  contravene  its  policy, 
or  to  declare  the  conditions  upon  whicli  they  may  be  received,  and 
what  subordination  or  restraint  may  lawfully  be  allowed  by  one  class 
or  description  of  persons  over  another.  Each  State  has,  moreover, 
the  right  to  enact  such  rules  as  it  ma}'  see  fit  respecting  the  title  to 
property,  and  to  declare  what  subjects  shall,  within  the  State,  possess 
the  attributes  of  propert}',  and  what  shall  be  incapable  of  a  proprietary 
right.  These  powers  may  of  course  be  variously  limited  or  modified  by 
its  own  constitutional  or  fundamental  laws  ;  but  independently'  of  such 
restraints  (and  none  are  alleged  to  exist  afiecting  this  case)  the  legis- 
lative authority  of  the  State  over  these  subjects  is  without  limit  or 
control,  except  so  far  as  the  State  has  voluntarily  abridged  her  juris- 
diction b}'^  arrangements  with  other  States.  There  are,  it  is  true,  many 
cases  where  the  conditions  impressed  upon  persons  and  property  by  the 
laws  of  other  friendly  States  ma}'  and  ouglit  to  be  recognized  within 
our  own  jurisdiction.  These  are  defined,  in  the  absence  of  express 
legislation,  by  the  general  assent  and  by  the  practice  and  usage  of 
civilized  countries,  and  being  considered  as  incorporated  into  the  muni- 
cipal law,  are  freel}'  administered  by  the  courts.  They  are  not,  how- 
ever, thus  allowed  on  account  of  any  supposed  power  residing  in 
another  State  to  enact  laws  which  should  be  binding  on  our  tribunals, 
but  from  the  presumed  assent  of  the  law-making  power  to  abide  by 
the  usages  of  otiier  civilized  States.  Hence  it  follows  that  where  the  | 
legislature  of  the  State,  in  which  a  right  or  privilege  is  claimed  on  [ 
the  ground  of  comity,  has  by  its  laws  spoken  upon  the  subject  of  the 
alleged  right,  the  tribunals  are  not  at  liberty  to  search  for  the  rule  of 
decision  among  the  doctrines  of  international  comity,  but  are  bound  to 
adopt  the  directions  laid  down  by  the  political  government  of  their  own 
State.  We  liave  not,  therefore,  considered  it  necessary  to  inquire 
whether  by  the  law  of  nations,  a  country  where  negro  slavery  is  estab- 
lished has  generally  a  right  to  claim  of  a  neighboring  State,  in  which 
it  is  not  allowed,  the  right  to  have  that  species  of  property  recognized 
and  protected  in  the  course  of  a  lawful  journey  taken  by  the  owner 
through  the  last-mentioned  country,  as  would  undoubtedly  be  the  case 
with  a  subject  recognized  as  property  everywhere  ;  and  it  is  proper  to 
say  that  the  counsel  for  the  appellant  has  not  urged  that  principle  in 
support  of  the  claim  of  Mrs.  Lemmon. 

What  has  been  said  as  to  the  right  of  a  sovereign  State  to  determine 
the  status  of  persons  within  its  jurisdiction  applies  to  the  States  of  this 
Union,  except  as  it  has  been  modified  or  restrained  by  the  Constitution 
of  the  United  States.  Groves  v.  Slaughter,  15  Pet.  419  ;  Moore  v. 
The  People  of  Illinois,  14  IIow.  13;  City  of  New  York  v.  Miln,  11 
Pet.  131,  139.  There  are  undoubtedl}'  reasons,  independently'  of  the 
provisions  of  the  Federal  Constitution,  for  conciliatory  legislation  on 
the  part  of  the  several  States,  towards  the  polit}',  institutions  and 
interests  of  each  other,  of  a  much  more  persuasive  character  than  those 
Which  prevail  even  between  the  most  friendly  States  unconnected  by 


500  LEMMON   V.   THE   PEOPLE.  [CHAP.  IV. 

any  political  union ;  but  these  are  addressed  exclusively  to  the  politic-al 
power  of  the  respective  States  ;  so  that  whatever  opinion  we  uiiizht 
entertain  as  to  the  reasonableness,  or  policy,  or  even  of  the  moral  obli- 
gation of  the  non-slaveholding  States  to  establish  provisions  similar  to 
those  which  have  been  stricken  out  of  the  Revised  Statutes,  it  is  not  in 
our  power,  while  administering  the  laws  of  this  State  in  one  of  its 
tribunals  of  justice,  to  act  at  all  upon  those  sentiments,  when  we  see, 
as  we  cannot  fail  to  do,  that  the  legislature  has  deliberately  repudiated 
them. 

The  power  which  has  been  mentioned  as  residing  in  the  States  is 
assumed  by  the  Constitution  itself  to  extend  to  persons  held  as  slaves 
by  such  of  the  States  as  allow  the  condition  of  slavery,  and  to  apply 
also  to  a  slave  in  the  territor}'  of  another  State,  which  did  not  allow 
slaver\',  even  unaccompanied  with  an  intention  on  the  part  of  the  owner 
to  hold  him  in  a  state  of  slaver}'  in  such  other  State.  The  provision 
respecting  the  return  of  fugitives  from  service  contains  a  verj'  strong 
implication  to  that  effect.  It  declares  that  no  person  held  to  service 
or  labor  in  one  State,  under  the  laws  thereof,  escaping  into  another, 
shall  in  consequence  of  an}'  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  &c.  There  was  at  least  one  State  which 
at  the  adoption  of  the  Constitution  did  not  tolerate  slaver}' ;  and  in 
several  of  the  other  States  the  numl)er  of  slaves  was  so  small  and  the 
prevailing  sentiment  in  favor  of  emancipation  so  strong,  that  it  was 
morally  certain  that  slaver}'  would  be  speedily  abolished.  It  was  as- 
sumed by  the  authors  of  the  Constitution,  that  the  fact  of  a  Federative 
Union  would  not  of  itself  create  a  duty  on  the  part  of  the  States  which 
should  abolish  slavery  to  respect  the  rights  of  the  owners  of  slaves 
escaping  thence  from  the  States  where  it  continued  to  exist.  Tiie 
apprehension  was  not  that  any  of  the  States  would  establish  rules  or 
regulations  looking  primarily  to  the  emancipation  of  fugitives  from 
labor,  but  that  the  abolition  of  slavery  in  any  State  would  draw  after 
it  the  principle  that  a  person  held  in  slavery  would  immediately  become 
free  on  arriving,  in  any  manner,  within  the  limits  of  such  State.  That 
principle  had  then  recently  been  acted  upon  in  P^ngland  in  a  case  of 
great  notoriety,  which  could  not  fail  to  be  well  known  to  the  cultivated 
and  intelligent  men  who  were  the  principal  actors  in  framing  the  Fed- 
eral Constitution.  A  Virginia  gentleman  of  the  name  of  Stewart  had 
occasion  to  make  a  voyage  from  his  home  in  that  colony  to  Flngland, 
on  his  own  affairs,  with  the  intention  of  returning  as  soon  as  they  were 
transacted ;  and  he  took  with  him  as  his  personal  servant  his  negro 
slave,  Somerset,  whom  he  had  purchased  in  Virginia  and  was  entitled 
to  hold  in  a  state  of  slavery  by  the  laws  prevailing  there.  While  they 
were  iii^  London,  the  negro  absconded  from  the  service  of  his  master, 
but  was  re-taken  and  put  on  board  a  vessel  lying  in  the  Thames  bound 
to  Jamaica,  where  slavery  also  prevailed,  for  the  purpose  of  being  there 
sold  as  a  slave.  On  application  to  Lord  Mansfield,  Chief  Justice  of 
the  King's  Bench,  a  writ  of  habeas  corpus  was  issued  to  Knowles  as 


CHAP.  IV.]  LEMMON   V.    THE   PEOPLE.  501 

master  of  the  vessel,  whose  return  to  the  writ  disclosed  the  foregoing 
facts.  Lord  Mansfield  referred  the  case  to  the  decision  of  the  Court  of 
King's  Bench,  where  it  was  held,  by  the  unanimous  opinion  of  the 
judges,  that  the  restraint  was  illegal,  and  the  negro  was  discharged. 
The  Negro  Case^  11  Harg.  S.  T.  340;  Somerset  v.  Stewart^  Lofft,  1.^ 
It  was  the  opinion  of  the  court  that  a  state  of  slavery  could  not  exist 
except  b}'  force  of  positive  law,  and  it  being  considered  that  there  was 
no  law  to  upliold  it  in  England,  the  principles  of  the  law  respecting  the 
writ  o^  habeas  corpus  immediately  applied  themselves  to  the  case,  and 
it  became  impossible  to  continue  the  imprisonment  of  the  negro.  The 
case  was  decided  in  1772,  and  from  that  time  it  became  a  maxim  that 
slaves  could  not  exist  in  England.  The  idea  was  reiterated  in  the  pop- 
ular literature  of  the  language,  and  fixed  in  the  public  mind  by  a  strik- 
ing metaphor  which  attributed  to  the  atmosphere  of  the  British  Islands 
a  quality  which  caused  the  shackles  of  the  slave  to  fall  off.  The  laws 
of  England  respecting  personal  rights  were  in  general  the  laws  of  the 
colonics,  and  the}'  continued  the  same  system  after  the  Revolution  by 
provisions  in  their  constitutions,  adopting  the  common  law  subject  to 
alterations  by  their  own  statutes.  The  literature  of  the  colonies  was 
that  of  the  mother  countr}-. 

The  aspect  in  which  the  case  of  fugitive  slaves  was  presented  to  the 
authors  of  the  Constitution  therefore  was  this  :  A  number  of  the  States 
had  ver}'  little  interest  in  continuing  tlie  institution  of  slavery,  and 
were  likely  soon  to  abolish  it  within  their  limits.  When  the}'  should 
do  so,  the  principle  of  the  laws  of  England  as  to  personal  rights  and 
the  remedies  for  illegal  imprisonment,  would  immediately  prevail  in 
such  States.  The  judgment  in  Somerset's  case  and  the  principles  an- 
nounced by  Lord  Mansfield,  were  standing  admonitions  that  even  a 
temporary  restraint  of  personal  liberty  by  virtue  of  a  title  derived  under 
the  laws  of  slavery,  could  not  be  sustained  where  that  institution  did 
not  exist  by  positive  law,  and  where  the  remedy  by  habeas  corpus, 
w^iich  was  a  cherished  institution  of  this  country  as  well  as  in  England, 
was  established.  Reading  the  provision  for  the  rendition  of  fugitive 
slaves,  in  the  light  which  these  considerations  afford,  it  is  impossible 
not  to  perceive  that  the  convention  assumed  the  general  principle  to  be 
that  the  escape  of  a  slave  from  a  State  in  which  he  was  lawfully  held 
to  service  into  one  which  had  abolished  slavery  would  ipso  facto  trans- 
form him  into  a  free  man.  This  was  recognized  as  the  legal  conse- 
quence of  a  slave  going  into  a  State  where  slavery  did  not  exist,  even 
though  it  were  without  the  consent  and  against  the  will  of  the  owner. 
A  fortiori  he  would  be  free  if  the  master  voluntarily  brought  him  into 
a  free  State  for  any  purpose  of  his  own.  But  the  provision  in  the  Con- 
stitution extended  no  further  thaH  the  case  of  fugitives.  As  to  such 
cases,  the  admitted  general  consequence  of  the  presence  of  a  slave  in  a 

1  For  a  striking  passage  from  an  unpublished  report  of  this  case  by  Tilghman,  after- 
wards Cliief  Justice  of  Pennsylvauia,  then  a  student  of  law  in  England,  see  the  London 
Times  for  October  20,  1883,  in  a  letter  entitled  "American  Law  and  Lawyers."  —  Ed. 


502  LEMMON   V.   THE   PEOPLE.  [CHAP.  IV. 

free  State  was  not  to  prevail,  but  he  was  by  an  express  provision  in 
the  Federal  compact  to  be  returned  to  the  party  to  wlioiu  the  service 
was  due.  Other  cases  were  left  to  be  governed  b}'  the  general  laws 
applicable  to  the  in.  This  was  not  unreasonable,  as  the  owner  was  free 
to  determine  whether  he  would  voluntarily  permit  his  slave  to  go  within 
a  jurisdiction  which  did  not  allow  him  to  be  held  in  bondage.  That 
was  within  his  own  power,  but  he  could  not  always  prevent  his  slaves 
from  escaping  out  of  the  State  in  which  their  servile  condition  was 
recognized.  The  provision  was  preciselj-  suited  to  the  exigency  of  the 
case,  and  it  went  no  further. 

In  examining  other  arrangements  of  the  Constitution,  apparently 
inserted  for  purposes  having  no  reference  to  slavery,  we  ought  to  bear 
in  mind  that  when  passing  the  fugitive  slave  provision  the  convention 
was  contemplating  the  future  existence  of  States  which  should  have 
abolished  slavery,  in  a  political  union  with  other  States  where  the  insti- 
tution would  still  remain  in  force.  It  would  naturally  be  supposed  that 
if  there  were  other  cases  in  which  the  rights  of  slave-owners  ought  to 
be  protected  in  the  States  which  should  abolish  slavery,  thej'  would  be 
adjusted  in  connection  with  the  provision  looking  specially  to  that  case, 
instead  of  being  left  to  be  deduced  b}'  construction  from  clauses 
intended  primarily  for  cases  to  which  slaverj-  had  no  necessar}-  relation. 
It  has  been  decided  that  the  fugitive  clause  does  not  extend  beyond 
the  case  of  the  actual  escape  of  a  slave  from  one  State  to  another. 
£x  parte  Simmons,  4  Wash.  C.  C.  R.  396.  But  the  provision  is 
plainly  so  limited  by  its  own  language. 

The  Constitution  declares  that  the  citizens  of  each  State  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the  several  States. 
Art.  4,  §  2.  No  provision  in  that  instrument  has  so  strongly  tended  to 
constitute  the  citizens  of  the  United  States  one  people  as  this.  Its 
influence  in  that  direction  cannot  be  fully  estimated  without  a  consider- 
ation of  what  would  have  been  the  condition  of  the  people  if  it  or  some 
similar  provision  had  not  been  inserted.  Prior  to  the  adoption  of  the 
Articles  of  Confederation,  the  British  colonies  on  this  continent  had  no 
political  connection,  except  that  they  were  severall}*  dependencies  of 
the  British  crown.  Their  relation  to  each  other  was  the  same  which 
they  respectively  bore  to  the  other  English  colonies,  whether  on  this 
continent  or  in  Europe  or  Asia.  "When,  in  consequence  of  the  Revolu- 
tion, they  severally  became  independent  and  sovereign  States,  the  citi- 
zens of  each  State  would  have  been  under  all  the  disabilities  of  alienage 
in  every  other,  but  for  a  provision  in  the  compacts  into  which  they 
entered  whereby  that  consequence  was  avoided.  The  articles  adopted 
during  the  Revolution  formed  essentially  a  league  for  mutual  protection 
against  external  force ;  but  in  passing  them  it  was  felt  to  be  necessar}' 
to  secure  a  community  of  intercourse  which  would  not  necessarily  obtain 
even  among  closely  allied  States.  This  was  effected  by  the  fourth  article 
of  that  instrument,  which  declared  that  the  free  inhabitants  of  each  of 
the  States  (paupers,  vagabonds,  and  fugitives  from  justice  excepted) 


CHAP.  IV.]  LEMMON   V.   THE  PEOPLE.  503 

should  be  entitled  to  all  privileges  and  immunities  of  free  citizens  in 
the  several  States,  and  that  the  people  of  each  State  should  have  free 
ino-ress  and  egress  to  and  from   any  other  State,  and  should  enjoy 
therein  all  the  privileges  of  trade  and  commerce,  subject  to  the  same 
duties,  impositions  and  restrictions  as  the  inhabitants  thereof,  respec- 
tively     The  Constitution  organized  a  still  more  intimate  union,  consti- 
tulincr  the  States,  for  all  external  purposes  and  for  certain  enumerated 
dome"  tic  objects,  a  single  nation  ;  but  still  the  principle  of  State  sover- 
eignty was  retained  as  to  all  subjects,  except  such  as  were  embraced  in 
the  delegations  of  power  to  the  general  government  or  prohibited   o  the 
States      The  social  status  of  tlie  people,  and  their  personal  and  relative 
ricrhts  as  respects  each  other,  the  definition  and  arrangements  of  pro- 
perty, were  among  the  reserved  powers  of  the  States.     The  provision 
conferrincT  ri-hts  of  citizenship  upon  the  citizens  of  every  State  in  every 
other  Sta°te,°was    inserted    substantially   as  it   stood   in   the   Artides 
of  Confederation.     The  question  now  to  be  considered  is,  how  far    he 
State  jurisdiction  over  the  subjects  just  mentioned  is  restricted  by  the 
provision  we  are  considering;  or,  to  come  at  once  to  the  precise  point 
in  controversy,  whether  it  obliges  the  State  governments  to  recognize, 
in  any  way,  withiiTthdrowif  jurisdiction,  the  property  in  slaves  which 
the  dtizens  of  States  in   which   slavery   prevails  may  lawfully  claim 
within   their  own   States  -  beyond   the  case  of  fugitive^  slaves      IM- 
hn-ua-e    is   that   they  shall    have  the   privileges  and  immunities  of 
citizens  in  the  several  States.     In  my  opinion  the  meaii.ing  is,  that  in  a    | 
^iV^-State,  every  citizen  of  every  other  State  shall  have  the  same    | 
m^mleges  and  immunities  -that  is,  the  same  rights  -  which  the  citizens 
of  that  State  possess.     In  the  first  place,  they  are  not  to  be  subjected 
to  any  of  the  disabilities  of  alienage.     They  can  hold  property  by  the 
same  titles  by  which  every  other  citizen  may  hold  it,  and  by  no  other. 
A<^ain,  any  "discriminating  legislation   which  should  place  them  in   a 
worse  situation  than  a  proper  citizen  of  the  particular  State  would  be  ^ 
unlawful.     But   the   clause    has  nothing   to  do  with   the   distinctions 
fQunded  on  domicil.     A  citizen  of  Virginia,  having  his  home  in  that 
State,  and  never  having  been  within  the  State  of  New  lork,  has  the 
same  rio-hts  under  our  laws  wh'ich  a  native-born  citizen,  domiciled  else- 
where, would  have,  and  no  other  rights.     Either  can  be  the  proprietor 
of  property  here,  but  neither  can  claim  any  rights  which  under  our  laws 
belon-  only  to  residents  of  the  State.     But  where  the  laws  of  the  sev- 
eral  States  differ,  a  citizen  of  one  StaTe  asserting  rights  in  another, 
must  claim  them  according  to  the  laws  of  the  last-mentioned  State, 
tiot  according  to  those  wliich  obtain  in  his  own. 

The  position  that  a  citizen  carries  with  him,  into  every  State  into 
which  he  may  go,  the  legal  institutions  of  the  one  in  which  he  was  born 
cannot  be  supported.  A  very  little  reflection  will  show  the  fallac  of 
the  idea.  Our  laws  declare  contracts  depending  upon  games  of  chance 
or  skill,  lotteries,  wagering  policies  of  insurance,  bargains  for  more 
than  7  per  cent  per  annum  of  interest,  and  many  others,  void.     In 


504  LEMMON   V.   THE   PEOPLE.  [CHAP.  IV. 

Other  States  such  contracts,  or  some  of  tliern,  ma}'  be  lawful.  But  no 
one  would  contend  that  if  made  within  this  State  b}'  a  citizen  of  another 
State  where  they  would  have  been  lawful,  they  would  be  enforced  in  our 
courts.  Certain  of  them,  if  made  in  another  State  and  in  conformity 
with  the  laws  there,  would  be  executed  by  our  tribunals  upon  the  prin- 
ciples of  comity  ;  and  the  case  would  be  the  same  if  they  were  made  in 
Europe  or  in  an}-  other  foreign  country.  The  clause  has  nothing  to  do 
with  the  doctrine  of  international  comity.  That  doctrine,  as  has  been 
remarlced,  depends  upon  the  usage  of  civilized  nations  and  the  pre- 
sumed assent  of  the  legislative  anthority  of  the  particular  State  in 
which  the  right  is  claimed  ;  and  an  express  denial  of  the  right  by  that 
autliority  is  decisive  against  the  claim.  How  then,  is  the  case  of  the 
appellant  aided  by  the  provision  under  consideration  ? 

The  legislature  has  declared,  in  effect,  that  no  person  shall  bring  a  slave 
into  this  State,  even  in  the  course  of  a  journey  between  two  slavehold- 
ing  States,  and  that  if  he  does,  the  slave  shall  be  free.  Our  own  citi- 
zens are  of  course  bound  by  this  regulation.  If  the  owner  of  these 
slaves  is  not  in  like  manner  bound  it  is  because,  in  her  quality  of  citizen 
of  another  State,  she  lias  rights  superior  to  those  of  any  citizen  of  New 
York,  and  because,  in  coming  here,  or  sending  her  slaves  here  for  a 
temporary  purpose,  she  has  brought  with  her,  or  sent  wnth  them,  the 
laws  of  Virginia,  and  is  entitled  to  have  those  laws  enforced  in  the 
courts,  notwithstanding  the  mandate  of  our  own  laws  to  the  contrary. 
But  the  position  of  the  appellant  proves  too  much.  The  privileges  and 
immunities  secured  to  the  citizens  of  each  State  by  the  Constitution  are 
not  limited  by  time,  or  by  the  purpose  for  which,  in  a  particular  case, 
they  may  be  desired,  but  are  permanent  and  absolute  in  their  character. 
Hence,  if  the  appellant  can  claim  exemption  from  the  operation  of  the 
statute  on  which  the  respondent  relies,  on  the  ground  that  she  is  a 
citizen  of  a  State  where  slavery  is  allowed,  and  that  our  courts  are 
obliged  to  respect  the  title  which  those  laws  confer,  she  may  retain 
slaves  here  during  her  pleasure ;  and,  as  one  of  the  chief  attributes  of 
property  is  the  power  to  use  it,  and  to  sell  or  dispose  of  it,  I  do  not 
see  how  she  could  be  debarred  of  these  rights  within  our  jurisdiction  as 
long  as  she  may  choose  to  exercise  them.*  She  could  not,  perhaps,  sell 
them  to  a  citizen  of  New  York,  who  would  at  all  events  be  bound  by 
our  laws,  but  any  other  citizen  of  a  slave  State  —  who  would  equally 
bring  with  him  the  immunities  and  privileges  of  his  own  State  —  might 
lawfully  traffic  in  the  slave  property.  But  my  opinion  is  that  she  has 
no  more  right  to  the  protection  of  this  property  than  one  of  the  citizens 
of  this  State  would  have  upon  bringing  them  here  under  the  same  cir- 
cumstances, and  that  the  clause  of  the  Constitution  referred  to  has  no 
application  to  the  case.  I  concede  that  this  clause  gives  to  citizens  of 
each  State  entire  freedom  of  intercourse  with  every  other  State,  and 
that  any  law  which  should  attempt  to  deny  them  free  ingress  or  egress 
would  be  void.  But  it  is  citizens  only  who  possess  these  rights,  and 
slaves  certainly  are  not  citizens.     Even  free  negroes,  as  is  well  known. 


CHAP.  IV.]  LEMMON   V.   THE  PEOPLE.  505 

have 'been  alleged  not  to  possess  that  quality.  In  Moore  v.  The  State 
of  Illinois,  alread}'  referred  to,  the  Supreme  Court  of  the  United  States, 
in  its  published  opinion,  declared  that  the  States  retained  the  power  to 
forbid  the  introduction  into  their  territory  of  paupers,  criminals  or  fugi- 
tive slaves.  The  case  was  a  conviction  under  a  statute  of  Illinois, 
making  it  penal  to  harbor  or  secrete  an^'  negro,  mulatto  or  person  ot 
color  being  a  slave  or  servant  owing  service  or  labor  to  any  other 
person.  The  indictment  was  for  secreting  a  fugitive  slave  who  had  fled 
from  his  owner  in  Missouri.  The  owner  had  not  intervened  to  reclaim 
him  so  as  to  bring  the  fugitive  law  into  operation,  and  the  case  was 
placed  by  the  court  on  the  ground  that  it  was  within  the  legitimate 
power  of  State  legislation,  in  the  promotion  of  its  policy,  to  exclude  an 
unacceptable  population.  I  do  not  at  all  doubt  the  right  to  exclude  a 
slave  as  I  do  not  consider  him  embraced  under  the  provision  securing 
a  common  citizenship  ;  but  it  does  not  seem  to  me  clear  that  one  who 
is  trul}'  a  citizen  of  another  State  can  be  thus  excluded,  though  he  may 
be  a  pauper  or  a  criminal,  unless  he  be  a  fugitive  from  justice.  The 
fourth  article  of  confederation  contained  an  exception  to  the  provision 
for  a  common  citizenship,  excluding  from  its  benefits  paupers  and 
vagabonds  as  well  as  fugitives  from  justice ;  but  this  exception 
was  omitted  in  the  corresponding  provision  of  the  Constitution. 
If  a  slave  attempting  to  come  into  a  State  of  his  own  acco2"d  can 
be  excluded  on  the  ground  mentioned,  namely,  because  as  a  slave 
he  is  jin  unacceptable  inhabitant,  as  it  is  very  clear  he  may  be,  it 
would  seem  to  follow  that  he  might  be  expelled  if  accompanied  by 
his  master.  It  might,  it  is  true,  be  less  mischievous  to  permit  the 
residence  of  such  a  person  when  under  the  restraint  of  his  owner ; 
but  of  this  the  legislature  must  judge.  But  it  is  not  the  right  of  the 
slave  but  of  the  master  which  is  supposed  to  be  protected  under  the 
clause  respecting  citizenship.  The  answer  to  the  claim  in  that  aspect 
has  been  already  given.  It  is  that  the  owner  cannot  lawfully  do  anj'- 
thiug  which  our  laws  do  not  permit  to  be  done  b}'  one  of  our  own 
citizens ;  and  as  a  citizen  of  this  State  cannot  bring  a  slave  within  its 
limits  except  under  the  condition  that  he  shall  immediately  become 
free,  the  owner  of  these  slaves  could  not  do  it  without  involving  herself 
in  the  same  consequences.  .  .  . 

Upon  the  whole  case,  I  have  come  to  the  conclusion  that  there  is 
nothing  in  the  National  Constitution  or  the  laws  of  Congress  to  pre- 
clude the  State  judicial  authorities  from  declaring  these  slaves  thus 
introduced  into  the  territory  of  this  State,  free,  and  setting  them  at  lib- 
erty, according  to  the  direction  of  the  statute  referred  to.  For  the 
foregoing  reasons,  I  am  in  favor  of  affirming  the  judgment  of  the 
Supreme  Court. 

[The  concurring  opinion  of  Wright,  J.,  and  the  dissenting  opinion 
of  Clerke,  J.,  are  omitted.  With  the  first  two  judges  above  named 
concurred  Davies,  Bacon,  and  Welles,  JJ.  ;  Clerke,  J.,  and  Comstock, 
C.  J.,  dissenting,  and  Selden,  J.,  doubting.] 


506  UNITED   STATES   V.    RHODES.  [CHAP.  IV. 

NOTE. 
See,  at  this  point,  the  amendments  to  the  Constitution  of  the  United 
States,  XIII.-XV.  inclusive,  ante,  pp.  413,  414.      Compare  Pomero}', 
Const.  Law  (Bennett's  ed.),  ss.  231-239,  and  2  Stor}-,  Const.  Law, 
«s.  1959-1963,  an  addition  by  Judge  Cooley. 


UNITED  STATES  v.   RHODES. 

Circuit   Court   of    the    United    States,   District    of    Kentucky. 

1866. 
[1  Ahhott,  U.  S.  28.] 

Motion  in  arrest  of  judgment. 

Swayne.  J.  This  is  a  prosecution  under  the  Act  of  Congress  of  the 
9th  of  April,  18C6,  entitled  "  An  Act  to  protect  all  Persons  in  the  L^nited 
States  in  their  Civil  Rights,  and  to  furnish  the  Means  for  their  Vindica- 
tion." The  defendants  having  been  found  guilty  by  a  jury,  the  case  is 
now  before  us  upon  a  motion  in  arrest  of  judgment. 

Three  grounds  are  relied  upon  in  support  of  the  motion.  It  is  in- 
sisted :  — 

I.  That  the  indictment  is  fatally  defective. 

II.  That  the  case  which  it  makes,  or  was  intended  to  make,  is  not 
within  the  Act  of  Congress  upon  which  it  is  founded. 

III.  That  the  Act  itself  is  unconstitutional  and  void. 

I.  As  to  the  indictment,  if  either  count  be  sufficient,  it  will  support 
the  judgment  of  the  court  upon  the  verdict.  Our  attention  will  be  con- 
fined to  the  second  count.  That  count  alleges  that  the  defendants,  be- 
ing white  persons,  "  on  the  1st  of  May,  1866,  at  the  county  of  Nelson, 
in  the  State  and  District  of  Kentucky,  at  the  hour  of  eleven  of  the  clock 
in  the  night  of  the  same  day,  feloniously  and  burglariously  did  break 
and  enter  the  dwelling-house  there  situate  of  Nancy  Talbot,  a  citizen 
of  the  United  States  of  the  African  race,  having'  been  born  in  the 
United  States,  and  not  subject  to  any  foreign  power,  who  was  then  and 
there,  and  is  now,  denied  the  right  to  testify  against  the  said  defend- 
ants, in  the  courts  of  the  State  of  Kentucky,  and  of  the  said  county  of 
Nelson,  with  intent  the  goods  and  chattels,  moneys  and  property  of  the 
said  Nancy  Talbot,  in  the  said  dwelling-house  then  and  there  being, 
feloniously  and  burglariously  to  steal,  take,  and  carry  away,  contrary  to 
the  statute  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States." 

The  objection  urged  against  this  count  is,  that  it  does  not  aver  that 
"  white  citizens  "  enjoy  the  right  which  it  is  alleged  is  denied  to  Nancy 
Talbot.  This  fact  is  vital  in  the  case.  Without  it  our  jurisdiction  can- 
not be  maintained.  It  is  averred  that  she  is  a  citizen  of  the  United 
States,  of  the  African  race,  and  that  she  is  denied  the  right  to  testify' 
against  the  defendants,  they  being  white  persons.     Section  669  of  the 


CHAP.  IV.]  UNITED   STATES   V.   RHODES.  507 

Code  of  Civil  Practice  of  Kentucky  gives  this  right  to  white  persons 
under  the  same  circumstances.  This  is  a  public  statute,  and  we  are 
bound  to  take  judicial  cognizance  of  it.  It  is  never  necessarj-  to  set 
forth  matters  of  law  in  a  criminal  pleading.  The  indictment  is,  in  legal 
effect,  as  if  it  averred  the  existence  and  provisions  of  the  statute.  The 
enjoyment  of  the  right  in  question  by  white  citizens  is  a  conclusion  of 
law  from  the  facts  stated.  Averment  and  proof  could  not  bring  it  into 
the  case  more  effectually  for  any  purpose  than  it  is  there  already.  1 
Chitt.  Cr.  Law,  188  ;  2  Bos.  and  P.  127  ;  2  Leach,  942  ;  1  Bishop  Crim. 
Pro.,  §§  52,  53. 

This  right  is  one  of  those  secured  to  Nancy  Talbot  by  the  first  section 
of  this  Act.     The  objection  to  this  count  cannot  be  sustained. 

II.    Is  the  offence  charged,  within  the  statute? 

The  first  section  enacts  :  "  That  all  persons  born  in  the  United  States, 
and  not  subject  to  any  foreign  power,  excluding  Indians  not  taxed,  are 
hereby  declared  to  be  citizens  of  the  United  States ;  and  such  citizens, 
of  every  race  and  color,  without  regard  to  any  previous  condition  of 
slaver}',  .  .  .  shall  have  the  same  right  in  every  State  and  Terri- 
tory in  the  United  States,  to  make  and  enforce  contracts,  to  sue,  be 
parties,  and  give  evidence,  to  inherit,  purchase,  sell  and  convey  real  and 
personal  property  ;  and  to  full  and  equal  benefit  of  all  laws  and  proceed- 
ings for  the  security  of  person  and  property  as  is  enjoyed  by  white  cit- 
izens, and  shall  be  subject  to  like  punishment,  pains,  and  penalties,  and 
to  none  other,  any  law,  statute,  ordinance,  regulation,  or  custom,  to  the 
contrary  notwithstanding." 

The  second  section  provides  :  "  That  any  person,  who  under  color  of 
any  law,  statute,  ordinance,  regulation,  or  custom,  shall  subject,  or  cause 
to  be  subjected,  any  inhabitant  of  any  State  or  Territory  to  the  depriva- 
tion of  any  right  secured  or  protected  by  this  Act,  or  to  different  punish- 
ment, pains,  or  penalties  on  account  of  such  person  having  at  any  time 
been  held  in  the  condition  of  slavery,  ...  or  by  reason  of  his  color 
or  race,  than  is  prescribed  for  the  punishment  of  white  persons,  shall 
be  deemed  guilty  of  a  misdemeanor,"  &c. 

The  third  section  declares  :  "That  the  District  Courts  of  the  United 
States  within  their  respective  districts,  shall  have,  exclusiveh'  of  the 
courts  of  the  several  States,  cognizance  of  all  crimes  and  offences  com- 
mitted against  the  provisions  of  this  Act,  and  also,  concurrently  with 
the  Circuit  Courts  of  the  United  States,  of  all  causes,  civil  and  criminal, 
affecting  persons  wlio  are  denied  or  cannot  enforce  in  the  courts  or 
judicial  tribunals  of  the  State  where  they  may  be,  any  of  the  rights  se- 
cured to  them  by  the  first  section  of  this  Act ;  and  if  any  suit  or  prose- 
cution, civil  or  criminal,  shall  be  commenced  in  any  State  court  against 
such  person,  for  any  cause  whatsoever,  .  .  .  such  defendant  shall 
have  the  right  to  remove  such  cause  for  trial  to  the  proper  District  or 
Circuit  Court  in  the  manner  prescribed  by  the  Act  relating  to  habeas 
corpus,  and  regulating  judicial  proceedings  in  certain  cases,  approved 
March  3,  1863,  and  all  Acts  amendatory  thereof."  .  .  . 


503  UNITED   STATES   V.    RHODES.  [CHAP.  IV. 

When  the  Act  was  passed  there  was  no  State  where  ample  provision 
did  not  exist  for  the  trial  and  punishment  of  persons  of  color  for  all 
offences  ;  and  no  locality  where  there  was  any  difficulty  in  enforcing  the 
law  against  them.  Tliere  was  no  complaint  upon  the  subject.  The  aid 
of  Congress  was  not  invoked  in  that  direction.  It  is  not  denied  that 
the  first  and  second  sections  were  designed  solely  for  their  beneGt.  The 
third  section,  giving  the  jurisdiction  to  which  this  question  relates,  pro- 
vides expressly  that  if  sued  or  prosecuted  in  a  State  court  under  the 
circumstances  mentioned,  they  may  at  once  have  the  cause  certified  into 
a  proper  Federal  court.  ... 

It  is  incredible  that  all  this  machinery,  including  the  agency  of  the 
freedmen's  bureau,  would  have  been  provided,  if  the  intention  were  to 
limit  the  criminal  jurisdiction  conferred  by  the  third  section  to  colored 
persons,  and  exclude  all  white  persons  from  its  operation. 

The  title  of  the  Act  is  in  harmony  with  this  view  of  the  subject. 

The  construction  contended  for  would  obviously  defeat  the  main  object 
which  Congress  had  in  view  in  passing  the  Act,  and  produce  results  the 
opposite  of  those  intended. 

The  difficulty  was  that  where  a  white  man  was  sued  b}-  a  colored  man, 
or  was  prosecuted  for  a  crime  against  a  colored  man,  colored  witnesses 
were  excluded.  This  in  many  cases  involved  a  denial  of  justice. 
Crimes  of  the  deepest  dye  were  committed  Irj-  white  men  with  impunity. 
Courts  and  juries  were  frequently  hostile  to  the  colored  man,  and  admin- 
istered justice,  both  civil  and  ci'iminal,  in  a  corresponding  spirit.  Con- 
gress met  these  evils  by  giving  to  the  colored  man  everywhere  the  same 
right  to  testify  "  as  is  enjoyed  by  white  citizens,"  abolishing  the  distinc- 
tion between  white  and  colored  witnesses,  and  by  giving  to  the  courts 
of  the  United  States  jurisdiction  of  all  causes,  civil  and  criminal,  which 
concern  him,  wherever  the  right  to  testify  as  if  he  were  white  is  denied 
to  him  or  cannot  be  enforced  in  the  local  tribunals  of  the  State. 

The  context  and  the  rules  of  interpretation  to  be  applied  permit  of  no 
other  construction.  Such  was  clearlj'  the  intention  of  Congress,  and 
that  intention  constitutes  the  law. 

This,  with  the  provision  which  authorizes  colored  defendants  in  the 
State  courts  to  have  their  causes  certified  into  the  Federal  courts,  and 
the  other  provisions  referred  to,  renders  the  protection  which  Congress 
has  given  as  eflfectual  as  it  can  well  be  made  b}'  legislation.  It  is  one 
system,  all  the  parts  looking  to  the  same  end. 

Where  crime  is  committed  with  impunitj-  by  anj- class. of  persons, 
society,  so  far  as  the}"  are  concerned,  is  reduced  to  that  condition  of 
barbarism  which  compels  those  unprotected  by  other  sanctions  to  rely 
upon  physical  force  for  the  vindication  of  their  natural  rights.  There  is 
no  other  remedy,  and  no  other  securit}*. 

It  is  said  there  can  be  no  such  thing  as  a  right  to  testify,  and  that  if 
Congress  conferred  it  by  this  Act,  a  cloud  of  colored  witnesses  may 
appear  m  every  case  and  claim  to  exercise  it. 

There  is  no  force  in  this  argument.     The  statute  is  to  be  construed 


CHAP.  IV.]  UNITED   STATES   V.   RHODES.  509 

reasonably.  Like  the  right  to  sue  and  to  contract,  it  is  to  be  exercised 
only  on  proper  occasions  and  within  proper  limits.  Every  right  given 
is  to  be  the  same  "  as  is  enjoyed  by  white  citizens." 

It  is  urged  that  this  is  a  penal  statute,  and  to  be  construed  strictly. 
We  regard  it  as  remedial  in  its  character,  and  to  be  construed  liberally, 
to  cany  out  the  wise  and  beneflcent  purposes  of  Congress  in  enacting 
it.     Bacon's  Abr.  tit.  Statute,  1. 

But  if  the  Act  were  a  penal  statute,  the  canons  of  interpretation  to  be 
applied  would  not  affect  the  conclusion  at  which  we  have  arrived. 
United  States  v.  Wiltberger,  5  Wheat.  96  ;  Commonwealth  v.  Lowry, 
8  Pick.  374;  United  States  v.  Morris,  14  Pet.  475  ;  United  States  v. 
Winn,  3  Sumn.  211  ;  1  Bish.  Cr.  Law,  236. 

This  objection  to  the  indictment  cannot  avail  the  defendants. 

in.    Is  the  Act  warranted  by  the  Constitution? 

The  first  eleven  amendments  of  the  Constitution  were  intended  to  limit 
the  powers  of  the  government  which  it  created,  and  to  protect  the  peo- 
ple of  the  States.  Though  earnestly  sustained  by  the  friends  of  the 
Constitution,  they  originated  in  the  hostile  feelings  with  which  it  was 
regarded  by  a  large  portion  of  the  people,  and  were  shaped*  by  the  jeal- 
ou's  policy  which  those  feelings  inspired.  The  enemies  of  the  Constitu- 
tion saw  many  perils  of  evil  in  the  centre,  but  none  elsewhere.  They 
feared  tyranny  in  the  head,  not  anarchy  in  the  members,  and  they  took 
their  measures  accordnigl}'.  The  friends  of  the  Constitution  desired  to 
obviate  all  just  grounds  of  apprehension,  and  to  give  repose  to  the  pub- 
lic mind.  It  was  important  to  unite,  as  far  as  possible,  the  entire  people 
in  support  of  the  new  system  which  had  been  adopted.  They  felt  the 
necessity  of  doing  all  in  their  power  to  remove  every  obstacle  in  the 
way  of  its  success.  The  most  momentous  consequences  for  good  or  evil 
to  the  country  were  to  follow  in  the  results  of  the  experiment.  Hence 
the  spirit  of  concession  which  animated  the  Convention,  and  hence  the 
adoption  of  these  amendments  after  the  work  of  the  Convention  was 
done  and  had  been  approved  by  the  people. 

The  Twelfth  Amendment  grew  out  of  the  contest  between  Jefferson 
and  Burr  for  the  presidency. 

The  Thirteenth  Amendment  is  the  last  one  made.  It  trenches  directly 
upon  the  power  of  the  States  and  of  the  people  of  the  States.  It  is  the 
first  and  only  instance  of  a  change  of  this  character  in  the  organic  law. 
It  destroyed  the  most  important  relation  between  capital  and  labor  in  all 
the  States  where  slavery  existed.  It  affected  deeply  the  fortunes  of  a 
large  portion  of  their  people.  It  struck  out  of  existence  millions  of 
property.  The  measure  was  the  consequence  of  a  strife  of  opinions, 
and  a  conflict  of  interests,  real  or  imaginary,  as  old  as  the  Constitution 
itself.  These  elements  of  discord  grew  in  intensity.  Their  violence  was 
increased  by  the  throes  and  convulsions  of  a  civil  war.  The  impetuous 
vortex  finally  swallowed  up  the  evil,  and  with  it  forever  the  power  to 
restore  it.  Those  who  insisted  upon  the  adoption  of  this  amendment 
were  animated  by  no  spirit  of  vengeance.     They  sought  security  against 


510  UNITED   STATES   V.    RHODES.  [CHAP.  IV. 

the  recurrence  of  a  sectional  conflict.  The}*  felt  that  much  was  due  to 
the  African  race  for  the  part  it  had  borne  during  the  war.  The}'  were 
also  impelled  b}'  a  sense  of  right  and  b}'  a  strong  sense  of  justice  to  an 
unoffending  and  long-suffering  people.  These  considerations  must  not 
be  lost  sight  of  when  we  come  to  examine  the  amendment  in  order  to 
ascertain  its  proper  construction. 

The  Act  of  Congress  confers  citizenship.  Who  are  citizens,  and  what 
are  their  rights?  Tlie  Constitution  uses  the  words  "citizen"  and 
"natural-born  citizens;"  but  neither  that  instrument  nor  anj' Act  of 
Congress  has  attempted  to  define  their  meaning.  British  jurispru- 
dence, whence  so  much  of  our  own  is  drawn,  throws  little  light  upon  the 
subject.  .  .  . 

All  persons  born  in  the  allegiance  of  the  king  are  natural-born  sub- 
jects, and  all  persons  born  in  the  .allegiance  of  the  United  States  are 
natural-born  citizens.  Birth  and  allegiance  go  togetlier.  Such  is  the 
rule  of  the  common  law,  and  it  is  the  common  law  of  this  country,  as 
well  as  of  England.  Tliere  are  two  exceptions,  and  onl}'  two,  to  the 
universality  of  its  application.  The  children  of  ambassadors  are  in 
theor}'  born* in  the  allegiance  of  the  powers  the  ambassadors  represent, 
and  slaves,  in  legal  contemplation,  are  propert}',  and  not  persons.  2 
Kent  Com.  1  ;  Calven's  Case,  7  Coke,  1 ;  4  Black.  Com.  366  ;  Lynch  v. 
Clark,  1  Sandf.  Ch.  139. 

The  common  law  has  made  no  distinction  on  account  of  race  or  color. 
None  is  now  made  in  England,  nor  in  an}-  other  Christian  country  of 
Europe. 

The  fourth  of  the  Articles  of  Confederation  declared  that  the  "  free 
inhabitants  of  each  of  these  States,  [)aupers,  vagabonds,  and  fugitives 
from  justice  excepted,  shall  be  entitled  to  all  the  privileges  and  immu- 
nities of  free  citizens  in  the  United  States,"  &c.  On  the  25th  of  June, 
1778,  -when  these  Articles  were  under  consideration  by  the  Congress, 
South  Carolina  moved  to  amend  this  fourth  Article  by  inserting  after  the 
word  "■  free,"  and  before  the  word  "inhabitants,"  the  word  "  white." 
Two  States  voted  for  the  amendment  and  eight  against  it.  The  vote  of 
one  was  divided.  Scott  v.  Sanford,  19  How.  575.  When  the  Consti- 
tution was  adopted,  free  men  of  color  were  clothed  with  the  franchise  of 
voting  in  at  least  five  States,  and  were  a  part  of  the  people  whose  sanc- 
tion breathed  into  it  the  breath  of  life.  Scott  v.  San/ord,  19  How.  573  ; 
State  v.  Manuel,  2  Dev.  &  Batt.  24,  25. 

"  'Citizens'  under  our  Constitution  and  laws  means  free  inhabitants 
born  within  the  United  States  or  naturalized  under  the  laws  of  Con- 
gress."    1  Kent  Com.  292,  note. 

We  find  no  warrant  for  the  opinion  that  this  great  principle  of  the 
common  law  has  ever  been  changed  in  the  United  States.  It  has  always 
obtained  here  with  the  same  vigor,  and  subject  only  to  the  same  excep- 
tions, since  as  before  the  Revolution. 

It  is  further  said  in  the  note  in  1  Kent's  Commentaries,  before  referred 
to:  — 


CHAP.  I  v.]  UNITED   STATES   V.    RHODES.  511 

"  If  a  slave  born  in  the  United  States  be  manumitted  or  otherwise 
lawfully  discharged  from  bondage,  or  if  a  black  man  born  in  the  United 
States  becomes  free,  he  becomes  thenceforward  a  citizen,  but  under  such 
disabilities  as  the  laws  of  the  several  States  may  deem  it  expedient  to 
prescribe  to  persons  of  color." 

In  the  case  of  /State  v.  Manuel,  supra,  it  was  remarked :  — 

"  It  has  been  said  that,  by  the  Constitution  of  the  United  States,  the 
power  of  naturalization  has  been  conferred  exclusively  upon  Congress, 
and  therefore  it  cannot  be  competent  for  any  State  by  its  municipal  reg- 
ulations to  make  a  citizen.  But  what  is  naturalization?  It  is  the  re- 
moval of  the  disabilities  of  alienage.  Emancipation  is  the  removal  of 
tlie  incapacity  of  slaverj'.  The  latter  depends  wholly  upon  the  internal 
regulations  of  the  State.  The  former  belongs  to  the  government  of  the 
United  States.     It  would  be  dangerous  to  confound  them."     p.  25. 

This  was  a  decision  of  the  Supreme  Court  of  North  Carolina,  made 
in  the  year  1836.  The  opinion  was  delivered  by  Judge  Gaston.  He 
was  one  of  the  most  able  and  learned  judges  this  country  has  produced. 
The  same  court,  in  1848,  Chief  Justice  Ruffin  delivering  the  opinion, 
referred  to  the  case  of  State  v.  Manuel,  and  said  :  — 

"  That  case  underwent  a  very  laborious  investigation  b}-  both  the  Bench 
and  the  Bar.  The  case  was  brought  here  by  appeal,  and  was  felt  to  be 
one  of  ver}'  great  importance  in  principle.  It  was  considered  with  an 
anxiety  and  care  worth}-  of  the  principle  involved,  and  which  give  it  a 
controlling  influence  upon  all  questions  of  similar  nature."  State  v. 
Newcomh,  5  Ired.  253. 

We  cannot  deny  the  assent  of  our  judgment  to  the  soundness  of  the 
proposition  that  the  emancipation  of  a  native-born  slave  by  removing 
the  disabilit}'  of  slavery  made  him  a  citizen.  If  these  views  be  correct, 
the  provision  in  the  Act  of  Congress  conferring  citizenship  was  unneces- 
sary, and  is  inoperative.  Granting  this  to  be  so,  it  was  well,  if  Con- 
gress had  the  power,  to  insert  it,  in  order  to  prevent  doubts  and  differ- 
ences of  opinion  which  might  otherwise  have  existed  upon  the  subject. 
We  are  aware  that  a  majority  of  the  court,  in  the  case  of  Scott  v.  San- 
ford,  arrived  at  conclusions  different  from  those  we  have  expressed. 
But  in  our  judgment  these  points  were  not  before  them.  The}'  decided 
that  the  whole  case,  including  the  agreed  facts,  was  open  to  their  exam- 
ination, and  that  Scott  was  a  slave.  This  central  and  controlling  fact 
excluded  all  other  questions,  and  what  was  said  upon  them  by  those  of 
the  majority,  with  whatever  learning  and  ability  the  argument  was  con- 
ducted, is  no  more  binding  upon  this  court  as  authority  than  the  views 
of  the  minority  upon  the  same  subjects.  Carroll  v.  Carroll,  16  How. 
287. 

The  fact  that  one  is  a  subject  or  citizen  determines  nothing  as  to  his 
rights  as  such.  They  vary  in  different  localities  and  according  to  cir- 
cumstances. 

Citizenship  has  no  necessary  connection  with  the  franchise  of  voting, 
eligibility  to  office,  or  indeed  with  any  other  rights,  civil  or  political. 


512  UNITED   STATES   V.   RHODES.  [CHAP.  IV. 

Women,  minors,  and  persons  non  compos  are  citizens,  and  not  the  less 
so  on  account  of  their  disabilities.  In  England,  not  to  advert  to  tlie 
various  local  regulations,  the  new  reform  bill  gives  the  right  of  voting 
for  members  of  Parliament  to  about  eight  hundred  thousand  persons 
from  whom  it  was  before  withheld.  There,  the  subject  is  who%  within 
the  control  of  Parliament.  Here,  until  the  Thirteenth  Amendment  was 
adopted,  the  power  belonged  entirely  to  the  States,  and  the}-  exercised 
it  without  question  from  any  quarter,  as  absolutely  as  if  they  were  not 
members  of  the  Union. 

The  first  ten  amendments  to  the  Constitution,  which  are  in  the  nature 
of  a  bill  of  rights,  appl}^  only  to  the  national  government.  They 
were  not  intended  to  restrict  the  power  of  the  States.  Barrows  v. 
Mayor,  &c.,  7  Pet.  247  ;  Withers  v.  Buckley,  20  How.  84  ;  Murphy 
V.  People,  2  Cow.  818. 

Our  attention  has  been  called  to  several  treaties  by  which  Indians 
were  made  citizens  ;  to  those  b}-  which  Louisiana,  Florida,  and  California 
were  acquired,  and  to  the  Act  passed  in  relation  to  Texas.  All  this  was 
done  under  the  war  and  treat}-  making  powers  of  the  Constitution,  and 
those  which  authorize  the  national  government  to  regulate  the  territory 
and  other  property  of  the  United  States,  and  to  admit  new  States  into 
the  Union.  American  Lis.  Co.  v.  Canter,  1  Pet.  511  ;  Cross  \ .  Harri- 
son, 16  How.  164 ;  2  Story  Const.  158. 

These  powers  are  not  involved  in  the  question  before  us,  and  it  is  not 
necessar}'  particularly  to  consider  them.  A  few  remarks,  however,  in 
this  connection  will  not  be  out  of  place.  A  treaty  is  declared  by  the 
Constitution  to  be  the  "  law  of  the  land."  What  is  unwarranted  or  for- 
bidden b}-  the  Constitution  can  no  more  be  done  in  one  waj-  than  in  an- 
other. The  authority  of  the  national  government  is  limited,  though 
supreme  in  the  sphere  of  its  operation.  As  compared  with  the  State 
governments,  the  subjects  upon  which  it  operates  are  few  in  number. 
Its  objects  are  all  national.  It  is  one  wholl}-  of  delegated  powers.  The 
States  possess  all  which  the}'  have  not  surrendered  ;  the  government  of 
the  Union  only  such  as  the  Constitution  has  given  to  it,  expressly  or 
.incidentally,  and  b}'  reasonable  intendment.  Whenever  an  act  of  that 
government  is  challenged  a  grant  of  power  must  be  shown,  or  the  act  is 
void. 

"  The  power  to  make  colored  persons  citizens  has  been  actual!}-  exer- 
cised in  repeated  and  important  instances.  See  the  treaty  with  the 
Choctaws  of  September  27,  1830,  art.  14  ;  with  the  Cherokees  of  May 
20,  1836,  art.  12;  and  the  treaty  of  Guadeloupe  Hidalgo,  of  February 
2,  1848,  art.  8."     Scott  v.  Sanford,  19  How.  486,  opinion  of  Curtis,  J. 

See,  also,  the  treaty  with  France  of  April  30,  1803,  by  which  Louisiana 
was  acquired,  art.  3  ;  and  the  treaty  with  Spain  of  the  23d  of  February, 
1819,  by  which  Florida  was  acquired,  art.  3. 

The  article  referred  to  in  the  treaty  with  France  and  in  the  treaty  with 
Spain  is  in  the  same  language.  In  both  the  phrase  "inhabitants"  is 
used.     No  discrimination  is  made  against  those,  in  whole  or  in  part,  of 


CHAP.  IV.] 


UNITED   STATES   V.   RHODES.  ^l^ 


the  African  race.     So  in  the  treaty  of  Guadeloupe  Hidalgo  (articles  8 

and  9),  no  reference  is  ma'de  to  color.  ..  .  -,        ^      if 

This  brings  us  to  the  examination  of  the  Thirteenth  Amendment.     It 

is  as  follows :  —  .       ,     .  •-„/]« 

"  Article  XIII.    Section  1.   Neither  slavery  nor  involuntary  ser\ilude, 

excoptas  a  punishment  for  crime,  whereof  the  party  shall  have  been 

duly  convicted,  shall  exist  within  the  United  States  or  any  place  subject 

to  their  jurisdiction. 

"  Section  2.   Congress  shall  have  power  to  enforce  this  article  by 

aupropriate  legislation."  .         ^  ^i       i 

Before  the  adoption  of  this  amendment,  the  Constitution,  at  the  close 

of  the  enumeration  of  the  powers  of  Congress,  authorized  that  body  - 
"  To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying 

into  execution  the  foregoing  powers,  and  all  other  powers  vested  by  this 

Constitution  in  the  government  of  the  United  States,  or  any  department 

or  officer  thereof."  ...  „  ,  i        ^ 

Without  anv  other  provision  than  the  first  section  of  the  amendment. 
Congress  would  have  had  authority  to  give  full  effect  to  the  abolition  of 
slavery  thereby  decreed.  It  would  have  been  competent  to  put  in 
requisition  the  executive  and  judicial,  as  well  as  the  legislative  power, 
with  all  the  energy  needful  for  that  purpose.  The  second  section  of  the 
amendment  was  added  out  of  abundant  caution.  It  authorizes  Congress 
to  select,  from  time  to  time,  the  means  that  might  be  deemed  appropri- 
ate  to  the  end.  It  employs  a  phrase  which  had  been  enlightened  by 
well-considered  judicial  application.  Any  exercise  of  legislative  power 
within  its  limits  involves  a  legislative,  and  not  a  judicial  qnestion.  it 
is  only  when  the  authority  given  has  been  clearly  exceeded,  that  the 
judicial  power  can  be  invoked.  Its  office,  then,  is  to  repress  and  annul 
the  excess  ;  beyond  that  it  is  powerless. 

We  will  now  proceed  to  consider  the  state  of  things  which  existed 
before  and  at  the  time  the  amendment  was  adopted,  the  mischiefs  com- 
plained of  or  apprehended,  and  the  remedy  intended  to  be  provided  for 
existing  and  anticipated  evils. 

When  the  late  Civil  War  broke  out,  slavery  of  the  African  race  sub- 
sisted in  fifteen  States  of  the  Union.  The  legal  code  relating  to  persons 
in  that  condition  was  everywhere  harsh  and  severe.  An  eminent  writer 
said  •  ' '  They  cannot  take  property  by  descent  or  purchase  ;  and  all  they 
find  and  all  they  own  belongs  to  their  master.  They  cannot  make  con- 
tracts, and  they  are  deprived  of  civil  rights.  They  are  assets  for  the 
payment  of  debts,  and  cannot  be  emancipated  by  will  or  otherwise  to 
the  prejudice  of  creditors."     2  Kent  Com.  281,  282. 

In  a  note,  it  is  added  :  ..^  ■•  ^     i.      u  „ 

"  In  Georgia,  by  an  Act  of  1829,  no  person  is  permitted  to  teach  a 
slave,  a  negro,  or  a  free  person  of  color  to  read  or  wnte.  So  in  Vir- 
ginia, by  a  statute  of  1830,  meetings  of  free  negroes  to  learn  reading  or 
writin-  are  unlawful,  and  subject  them  to  corporal  punishment ;  and  it 
is  unlawful  for  white  persons  to  assemble  with  free  negroes  or  slaves  to 
VOL.  I.  — 33 


514  UNITED   STATES   V.   RHODES.  [CHAP.  IV, 

teach  them  to  read  or  write.  The  prohibitor}-  Act  of  the  Legislature  of 
Alabama,  passed  at  the  session  of  1831-32,  relative  to  the  instruction  to 
be  given  to  the  slaves  or  free  colored  population,  or  exhortation,  or 
preaching  to  them,  or  any  mischievous  influence  attempted  to  be  exerted 
over  them,  is  sufficiently  penal.  Laws  of  similar  import  are  presumed 
to  exist  in  the  other  slaveholding  States ;  but  in  Louisiana  the  law  on 
the  subject  is  armed  with  tenfold  severity.  It  not  only  forbids  any 
person  teaching  slaves  to  read  or  write,  but  it  declares  that  any  person 
using  language  in  any  public  discourse  from  the  bar,  bench,  stage,  or 
pulpit,  or  any  other  place,  or  in  any  private  conversation,  or  making  use 
of  any  sign  or  actions  having  a  tendency  to  produce  discontent  among 
the  free  colored  population  or  insubordination  among  the  slaves,  or  who 
shall  be  knowingly  instrumental  in  bringing  into  the  State  anj'  paper, 
book,  or  pamphlet  having  a  like  tendenc}',  shall,  on  conviction,  be  pun- 
ishable with  imprisonment  or  death,  at  the  discretion  of  the  court." 

Slaves  were  imperfectly,  if  at  all,  protected  from  the  grossest  outrages 
bj'  the  whites.  Justice  was  not  for  them.  The  charities  and  rights 
of  the  domestic  relations  had  no  legal  existence  among  them.  The 
shadow  of  the  evil  fell  upon  the  free  blacks.  The}-  had  but  few  civil 
and  no  political  rights  in  the  slave  States.  Man}-  of  the  badges  of  the 
bondman's  degradation  were  fastened  upon  them.  Their  condition,  like 
his,  though  not  so  bad,  was  helpless  and  hopeless.  This  is  borne  out 
by  the  passages  we  have  given  from  Kent's  Commentaries.  Further 
research  would  darken  the  picture.  The  States  had  always  claimed  and 
exercised  the  exclusive  right  to  fix  the  status  of  all  persons  living  within 
their  jurisdiction. 

On  January  1,  1863,  President  Lincoln  issued  his  proclamation  of 
emancipation.  Missouri  and  Maryland  abolished  slavery-  by  their  own 
voluntary  action.  Throughout  the  war  the  African  race  had  evinced 
entire  sympathy  with  the  Union  cause.  At  the  close  of  the  Rebellion 
two  hundred  thousand  had  become  soldiers  in  the  Union  armies.  The 
race  had  strong  claims  upon  the  justice  and  generosit}-  of  tlie  nation. 
"Weighty  considerations  of  policy,  humanit}-,  and  right  were  superadded. 
Slavery,  in  fact,  still  subsisted  in  thirteen  States.  Its  simple  abolition, 
leaving  these  laws  and  this  exclusive  power  of  the  States  over  the  eman- 
cipated in  force,  would  have  been  a  phantom  of  delusion.  The  hostility 
of  the  dominant  class  would  have  been  animated  with  new  ardor. 
Legislative  oppression  would  have  been  increased  in  severit}'.  Under 
the  guise  of  police  and  other  regulations  slavery  would  have  been  in 
eflject  restored,  perhaps  in  a  worse  foi-m,  and  the  gift  of  freedom  would 
have  been  a  curse  instead  of  a  blessing  to  those  intended  to  be  benefited. 
They  would  have  had  no  longer  the  protection  which  the  instinct  of 
property  leads  its  possessor  to  give  in  whatever  form  the  property  may 
exist.  It  was  to  guard  against  such  evils  that  the  second  section  of  the 
amendment  was  framed.  It  was  intended  to  give  expressly  to  Congress 
the  requisite  authority,  and  to  leave  no  room  for  doubt  or  cavil  upon 
the  subject.     The  results  have  shown  the  wisdom  of  this  forecast.     Al- 


CHAP.  IV.J  UNITED   STATES  V.   RHODES.  515 

most  siimiltaneousl}'  with  the  adoption  of  the  amendment  this  course  of 
legislative  oppression  was  begun.  Hence,  doubtless,  the  passage  of  the 
Act  under  consideration.  In  the  presence  of  these  facts,  who  will  say 
it  is  not  an  ''  appropriate  "  means  of  carrying  out  the  object  of  the  first 
section  of  the  amendment,  and  a  necessary  and  proper  execution  of  the 
power  conferred  by  the  second?  Blot  out  this  Act  and  deny  the  consti- 
tutional power  to  pass  it,  and  the  w^-st  effects  of  slavery  might  speedily 
follow.     It  would  be  a  virtual  abrogation  of  the  amendment. 

It  would  be  a  remarkable  anomaly  if  the  national  government,  with- 
out this  amendment,  could  confer  citizenship  on  aliens  of  every  race  or 
color,  and  citizenship,  with  civil  and  political  rights,  on  the  "  inhabit- 
ants "  of  Louisiana  and  Florida,  without  reference  to  race  or  color,  and 
cannot,  with  the  help  of  the  amendment,  confer  on  those  of  the  African 
race,  who  have  been  born  and  always  lived  within  the  United  States,  all 
that  this  law  seeks  to  give  them. 

It  was  passed  b}'  the  Congress  succeeding  the  one  which  proposed  the 
amendment.     Many  of  the  members  of  both  Houses  were  the  same. 

This  fact  is  not  without  weight  and  significance.  McCulloch  v. 
Marykind,  4  Wheat.  401. 

The  amendment  reversed  and  annulled  the  original  policy  of  the  Con- 
stitution, which  left  it  to  each  State  to  decide  exclusively'  for  itself 
whether  slavery  should  or  should  not  exist  as  a  local  institution,  and 
what  disabilities  should  attach  to  those  of  the  servile  race  within  its 
limits.  The  whites  needed  no  relief  or  protection,  and  they  are  prac- 
tically unaffected  b}'  the  amendment.  The  emancipation  which  it 
wrought  was  an  act  of  great  national  grace,  and  was  doubtless  intended 
to  reach  further  in  its  effects  as  to  ever}-  one  within  its  scope,  than  the 
consequences  of  a  manumission  by  a  private  individual. 

We  entertain  no  doubt  of  the  constitutionality  of  the  Act  in  all  its 
provisions. 

It  gives  only  certain  civil  rights.  Whether  it  was  competent  for  Con- 
gress to  confer  political  rights  also,  involves  a  different  inquiry.  We 
have  not  found  it  necessarj'  to  consider  the  subject. 

We  are  not  unmindful  of  the  opinion  of  the  Court  of  Appeals  of  Ken- 
tucky, in  the  case  of  Brown  v.  Commonwealth.  With  all  our  respect 
for  the  eminent  tribunal  from  which  it  proceeded,  we  have  found  our- 
selves unable  to  concur  in  its  conclusions.  The  constitutionalit}^  of  the 
Act  is  sustained  by  the  Supreme  Court  of  Indiana,  and  the  Chief  Justice 
of  the  Court  of  Appeals  of  Maryland,  in  able  and  well-considered  opin- 
ions.    Smith  V.  Moody,  26  Ind.  299  ;  Re  A.  H.  Somers. 

We  are  happ}-  to  know  that  if  we  have  erred  the  Supreme  Court  of 
the  United  States  can  revise  our  judgment  and  correct  our  error. 

The  motion  is  overruled,  and  judgment  will  be  entered  upon  the 
verdict. 

Motion  overruled. 


516  SLA.UGHTER-HOUSE  CASES.  [CHAP.  IV. 


SLAUGHTER-HOUSE  CASES. 
Supreme  Court  of  the  United  States.     1873. 

[16  Wall.  36.]  1 

Mr.  John  A.  Campbell,  and  al*  Mr.  J.  Q.  A.  Fellows,  argued  the 
case  at  much  length  and  on  the  authorities,  in  behalf  of  the  plaintiffs  in 
error. 

3fessrs.  M.  IT.  Carpenter  and  J.  S.  Black  (a  brief  of  Mr.  Charles 
Allen  being  filed  on  the  same  side),  and  3Ir.  T.  J.  Durante  representing 
in  addition  the  State  of  Louisiana,  contra. 

Mr.  Justice  Miller  now,  April  14,  1873,  delivered  the  opinion  of 
the  court. 

These  cases  are  brought  here  by  writs  of  error  to  the  Supreme  Court 
of  the  State  of  Louisiana.  They  arise  out  of  the  efforts  of  the  butchers 
of  New  Orleans  to  resist  the  Crescent  Cit}'  Live-Stock  Landing  and 
Slaughter-House  Company  in  the  exercise  of  certain  powers  conferred 
by  the  charter  which  created  it,  and  which  was  granted  b^-  the  legisla- 
ture of  that  State.  .  .  . 

The  records  show  that  the  plaintiffs  in  error  relied  upon,  and  asserted 
throughout  the  entire  course  of  the  litigation  in  the  State  courts,  that 
the  grant  of  privileges  in  the  charter  of  defendant,  which  they  were 
contesting,  was  a  violation  of  the  most  important  provisions  of  the 
thirteenth  and  fourteenth  articles  of  amendment  of  the  Constitution 
of  the  United  States.  The  jurisdiction  and  the  duty  of  this  court  to 
review  the  judgment  of  the  State  court  on  those  questions  is  clear  and 
is  imperative. 

The  statute  thus  assailed  as  unconstitutional  was  passed  March  8, 
1869,  and  is  entitled  "  An  Act  to  protect  the  health  of  the  City  of  New 
Orleans,  to  locate  the  stock-landings  and  slaughter-houses,  and  to  in- 
corporate the  Crescent  City  Live-Stock  Landing  and  Slaughter-House 
Companj'." 

The  first  section  forbids  the  landing  or  slaughtering  of  animals  whose 
flesh  is  intended  for  food,  within  the  city  of  New  Orleans  and  other 
parishes  and  boundaries  named  and  defined,  or  the  keeping  or  estab- 
lishing any  slaughter-houses  or  abattoirs  within  those  limits,  except  b\- 
the  corporation  thereby  created,  which  is  also  limited  to  certain  places 
afterwards  mentioned.  Suitable  penalties  are  enacted  for  violations  of 
this  prohibition. 

The  second  section  designates  the  corporators,  gives  the  name  to  the 
corporation,  and  confers  on  it  the  usual  corporate  powers. 

The  third  and  fourth  sections  authorize  the  company  to  establish  and 
erect  within  certain  territorial  limits,  therein  defined,  one  or  more  stock- 
yards, stock-landings,  and  slaughter-houses,  and  impose  upon  it  the 

^  The  statement  of  facts  is  omitted.  —  Ed. 


CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  517 

duty  of  erecting,  on  or  before  the  first  day  of  June,  1869,  one  grand 
slaughter-house  of  sufficient  capacity  for  slaughtering  five  hundred 
animals  per  day. 

It  declares  that  the  company,  after  it  shall  have  prepared  all  the 
necessary  buildings,  yards,  and  other  conveniences  for  that  purpose, 
shall  have  the  sole  and  exclusive  privilege  of  conducting  and  carrying 
on  the  live-stock  landing  and  slaughter-house  business  within  the  limits 
and  privilege  granted  by  the  Act,  and  that  all  such  animals  shall  be 
landed  at  the  stock-landings  and  slaughtered  at  the  slaughter-houses  of 
the  company,  and  nowhere  else.  Penalties  are  enacted  for  infractions 
of  this  provision,  and  prices  fixed  for  the  maximum  charges  of  the 
company  for  each  steamboat  and  for  each  animal  landed. 

Section  five  orders  the  closing  up  of  all  other  stock-landings  and 
slaucrhter-houses  after  the  first  day  of  June,  in  the  parishes  of  Orleans, 
Jefl^rson,  and  St.  Bernard,  and  makes  it  the  duty  of  the  company  to 
permit  any  person  to  slaughter  animals  in  their  slaughter-houses  under 
a  heavy  penalty  for  each  refusal.  Another  section  fixes  a  limit  to  the 
charges  to  be  made  by  the  company  for  each  animal  so  slaughtered  in 
their"  building,  and  another  provides  for  an  inspection  of  all  anmials 
intended  to  be  so  slaughtered,  by  an  officer  appointed  by  the  Governor 
of  the  State  for  that  purpose. 

These  are  the  principal  features  of  the  statute,  and  are  all  that  have 
any  bearing  upon  the  questions  to  be  decided  by  us. 

This  statute  is  denounced  not  only  as  creating  a  monopoly  and  con- 
ferring odious  and  exclusive  privileges  upon  a  small  number  of  persons 
at  the°expense  of  the  great  body  of  the  community  of  New  Orleans,  but 
it  is  asserted  that  it  deprives  a  large  and  meritorious  class  of  citizens  — 
the  whole  of  the  butchers  of  the  city  —  of  the  right  to  exercise  their 
trade,  the  business  to  which  they  have  been  trained  and  on  which  they 
depend  for  the  support  of  themselves  and  their  families  ;  and  that  the 
unrestricted  exercise  of  the  business  of  butchering  is  necessary  to  the 
daily  subsistence  of  the  population  of  the  city. 

But  a  critical  examination  of  the  Act  hardly  justifies  these  assertions. 

It  is  true  that  it  grants,  for  a  period  of  twenty-five  years,  exclusive 
privileges.  And  whether  those  privileges  are  at  the  expense  of  the 
community  in  the  sense  of  a  curtailment  of  any  of  their  fundamental 
rights,  or  even  in  the  sense  of  doing  them  an  injury,  is  a  question  open 
to  considerations  to  be  hereafter  stated.  But  it  is  not  true  that  it  de- 
prives the  butchers  of  the  right  to  exercise  their  trade,  or  imposes  upon 
them  any  restriction  incompatible  with  its  successful  pursuit,  or  fur- 
nishing the  people  of  the  city  with  the  necessary  daily  supply  of  animal 

food. 

The  Act  divides  itself  into  two  main  grants  of  privilege,  —  the  one  in 
reference  to  stock-landings  and  stock-yards,  and  the  other  to  slaughter- 
houses. That  the  landing  of  live-stock  in  large  droves,  from  steamboats 
on  the  bank  of  the  river,  and  from  railroad  trains,  should,  for  the  safety 


518  SLAUGHTER-HOUSE   CASES.  [CHAP.  IV. 

and  comfort  of  the  people  and  the  care  of  the  animals,  be  limited  to 
proper  places,  and  those  not  numerous,  it  needs  no  argument  to  prove. 
Nor  can  it  be  injurious  to  the  general  community  that  while  the  dut}"  of 
making  ample  preparation  for  this  is  imposed  upon  a  few  men,  or  a  cor- 
poration, they  should,  to  enable  them  to  do  it  successfully,  have  the 
exclusive  right  of  providing  such  landing-places,  and  receiving  a  fair 
compensation  for  the  service. 

It  is,  however,  the  slaughter-house  privilege,  which  is  mainly  relied 
on  to  justify  the  charges  of  gross  injustice  to  the  public,  and  invasion  of 
private  right. 

It  is  not,  and  cannot  be  successfully  controverted,  that  it  is  both  the 
right  and  the  duty  of  the  legislative  bod}'  —  the  supreme  power  of  the 
State  or  municipalit}'  —  to  prescribe  and  determine  the  localities  where 
the  business  of  slaughtering  for  a  great  city  may  be  conducted.  To  do 
this  effectively  it  is  indispensable  that  all  persons  who  slaughter  animals 
for  food  shall  do  it  in  those  places  and  nowhere  else. 

The  statute  under  consideration  defines  these  localities  and  forbids 
slaughtering  in  any  other.  It  does  not,  as  has  been  asserted,  prevent 
the  butcher  from  doing  his  own  slaughtering.  On  the  contrar}-,  the 
Slaughter-House  Company  is  required,  under  a  heavy  penalt}',  to  per- 
mit anj-  person  who  wishes  to  do  so,  to  slaughter  in  their  houses  ;  and 
they  are  bound  to  make  ample  provision  for  the  convenience  of  all 
the  slaughtering  for  the  entire  city.  The  butcher  then  is  still  permitted 
to  slaughter,  to  prepare,  and  to  sell  his  own  meats ;  but  he  is  required 
to  slaughter  at  a  specified  place  and  to  pa}'  a  reasonable  compensation 
for  the  use  of  the  accommodations  furnished  him  at  that  place. 

The  wisdom  of  the  monopoh'  granted  by  the  legislature  may  be  open 
to  question,  but  it  is  difficult  to  see  a  justification  for  the  assertion  that 
the  butchers  are  deprived  of  the  right  to  labor  in  tlieir  occupation,  or 
the  people  of  their  daily  service  in  preparing  food,  or  how  this  statute, 
with  the  duties  and  guards  imposed  upon  the  compan}',  can  be  said 
to  destroy  the  business  of  the  butcher,  or  seriously  interfere  with  its 
pursuit. 

The  power  here  exercised  b}-  the  Legislature  of  Louisiana  is,  in  its 
essential  nature,  one  which  has  been,  up  to  the  present  period  in  the 
constitutional  histor}'  of  this  countr}',  alwa^'s  conceded  to  belong  to  the 
States,  however  it  ma}'  now  be  questioned  in  some  of  its  details. 

"Unwholesome  trades,  slaughter-houses,  operations  offensive  to  the 
senses,  the  deposit  of  powder,  the  application  of  steam-power  to  propel 
cars,  the  building  wnth  combustible  materials,  and  the  burial  of  the  dead, 
may  all,"  sajs  Chancellor  Kent,  2  Commentaries,  340,  "  be  interdicted 
by  law,  in  the  midst  of  dense  masses  of  population,  on  the  general  and 
rational  principle,  that  ever}-  person  ought  so  to  use  his  property  as  not 
to  injure  his  neiglibors ;  and  that  private  interests  must  be  made  sub- 
servient to  the  general  interests  of  the  community."  This  is  called  the 
police  power;  and  it  is  declared  bj'  Chief  Justice  Shaw,  Commonwealth 
V.  Alger,  7  Cush.  84,  that  it  is  much  easier  to  perceive  and  realize 


CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  519 

the  existence  and  source's  of  it  than  to  mark  its  boundaries,  or  prescribe 
limits  to  its  exercise. 

This  power  is,  and  must  be  from  its  very  nature,  incapable  of  any 
ver}'  exact  definition  or  limitation.  Upon  it  depends  the  security  of 
social  ordei,  the  life  and  health  of  the  citizen,  the  comfort  of  an  exist- 
ence in  a  thickly  populated  community,  the  enjo^-ment  of  private  and 
social  life,  and  the  beneficial  use  of  propert}'.  "  It  extends,"  says  an- 
other eminent  judge  (^Thorpe  v.  Rutland  and  Burlington  Railroad 
Co.,  27  Vt.  149),  "  to  the  protection  of  the  lives,  limbs,  health,  com- 
fort, and  quiet  of  all  persons,  and  the  protection  of  all  property  within 
the  State ;  .  .  .  and  persons  and  property  are  subjected  to  all  kinds  of 
restraints  and  burdens  in  order  to  secure  the  general  comfort,  health, 
and  prosperity  of  the  State.  Of  the  perfect  right  of  the  legislature  to 
do  this  no  question  ever  was,  or,  upon  acknowledged  general  principles, 
ever  can  be  made,  so  far  as  natural  persons  are  concerned." 

The  regulation  of  the  place  and  manner  of  conducting  the  slaughter- 
ing of  animals,  and  the  business  of  butchering  within  a  city,  and  the 
inspection  of  the  animals  to  be  killed  for  meat,  and  of  the  meat  after- 
wards, are  among  the  most  necessary  and  frequent  exercises  of  this 
power.  It  is  not,  therefore,  needed  that  we  should  seek  for  a  compre- 
hensive definition,  but  rather  look  for  the  proper  source  of  its  exercise. 
.  .  .  [Here  the  court  briefl}-  considers  Gibbons  v.  Ogden,  9  Wiieat.  1, 
New  York  v.  Miln,  11  Pet.  102,  The  License  Tax,  5  Wall.  471,  and 
United  States  v.  Dewitt,  9  Wall.  41.] 

It  cannot  be  denied  that  the  statute  under  consideration  is  aptly 
framed  to  remove  from  the  more  densely  populated  part  of  the  city  the 
noxious  slaughter-houses,  and  large  and  offensive  collections  of  animals 
necessarily'  incident  to  the  slaughtering  business  of  a  large  cit}*,  and  to 
locate  them  where  the  convenience,  health,  and  comfort  of  the  people 
require  they  shall  be  located.  And  it  must  be  conceded  that  the  means 
adopted  by  the  Act  for  this  purpose  are  appropriate,  are  stringent,  and 
effectual.  But  it  is  said  that  in  creating  a  corporation  for  this  purpose, 
and  conferring  upon  it  exclusive  privileges  —  privileges  which  it  is  said 
constitute  a  monopoly  —  the  legislature  has  exceeded  its  power.  If 
this  statute  had  imposed  on  the  cit}"  of  New  Orleans  precisely  the  same 
duties,  accompanied  by  the  same  privileges,  which  it  has  on  the  cor- 
poration which  it  created,  it  is  believed  that  no  question  would  have 
been  raised  as  to  its  constitutionalit}'.  In  that  case  the  effect  on  the 
butchers  in  pursuit  of  their  occupation  and  on  the  public  would  have 
been  the  same  as  it  is  now.  Why  cannot  the  legislature  confer  the 
same  powers  on  another  corporation,  created  for  a  lawful  and  useful 
public  object,  that  it  can  on  the  municipal  corporation  alread}^  existing? 
That  wherever  a  legislature  has  the  right  to  accomplish  a  certain  re- 
sult, and  that  result  is  best  attained  b}-  means  of  a  corporation,  it  has 
the  right  to  create  such  a  corporation,  and  to  endow  it  with  the  powers 
necessary  to  effect  the  desired  and  lawful  purpose,  seems  hardl}^  to  admit 
of  debate.    The  proposition  is  ably  discussed  and  affirmed  in  tlie  case  of 


520  SLAUGHTER-HOUSE   CASES.  [CHAP.  IV. 

McCalloch  V.  The  State  of  Maryland,  4  Wheat.  316,  iu  relation  to  the 
power  of  Congress  to  organize  tlie  Bank  of  the  United  States  to  aid  in 
the  fiscal  operations  of  the  government. 

It  can  readily  be  seen  that  the  interested  vigilance  of  the  corporation 
created  by  the  Louisiana  Legislature  will  be  more  efficient  in  enforcing 
the  limitation  prescribed  for  the  stock-landing  and  slaughtering  busi- 
ness for  the  good  of  the  oxiy  than  the  ordinary  efforts  of  the  officers  of 
the  law. 

Unless,  therefore,  it  can  be  maintained  that  the  exclusive  privilege 
granted  by  this  charter  to  the  corporation  is  be3ond  the  power  of  the 
Legislature  of  Louisiana,  there  can  be  no  just  exception  to  the  validity 
of  the  statute.  And  in  this  respect  wc  are  not  able  to  see  that  these 
privileges  are  especially  odious  or  objectionable.  The  duty  imposed  as 
a  consideration  for  the  privilege  is  well  defined,  and  its  enforcement 
well  guarded.  The  prices  or  charges  to  be  made  by  the  company  are 
limited  by  the  statute,  and  we  are  not  advised  that  they  are  on  the 
whole  exorbitant  or  unjust. 

The  proposition  is,  therefore,  reduced  to  these  terms :  Can  any  ex- 
clusive privileges  be  granted  to  any  of  its  citizens,  or  to  a  corporation, 
by  the  legislature  of  a  State? 

The  eminent  and  learned  counsel  who  has  twice  argued  the  negative 
of  this  question,  has  displaj'ed  a  research  into  the  histor}-  of  monopolies 
in  England  and  the  European  Continent,  only  equalled  by  the  eloquence 
with  which  they  are  denounced. 

But  it  is  to  be  observed,  that  all  such  references  are  to  monopolies 
established  b}-  the  monarch  in  derogation  of  the  rights  of  his  subjects, 
or  arise  out  of  transactions  in  which  the  people  were  unrepresented,  and 
their  interests  uncared  for.  The  great  Case  of  Monopolies,  reported  by 
Coke,  and  so  fully  stated  in  the  brief,  was  undoubtedl}'  a  contest  of  the 
commons  against  the  monarch.  The  decision  is  based  upon  the  ground 
that  it  was  against  common  law,  and  the  argument  was  aimed  at  the 
unlawful  assumption  of  power  by  the  Crown  ;  for  who  ever  doubted 
the  authority  of  Parliament  to  change  or  modifj*  the  common  law? 
The  discussion  in  the  House  of  Commons  cited  from  Macaula}^  cleaily 
establishes  that  the  contest,  was  between  the  Crown,  and  the  people 
represented  in  Parliament. 

But  we  think  it  may  be  safelv  affirmed,  that  the  Parliament  of 
Great  Britain,  representing  the  people  in  their  legislative  functions,  and 
the  legislative  bodies  of  this  country,  have  from  time  immemorial  to  the 
present  daj-  continued  to  grant  to  persons  and  corpoi'ations  exclusive 
l)rivileges,  —  privileges  denied  to  other  citizens,  —  privileges  which 
come  within  an^-  just  definition  of  the  word  monopol}',  as  much  as 
those  now  under  consideration  ;  and  that  the  power  to  do  this  has 
never  been  questioned  or  denied.  Nor  can  it  be  truthfuHv  denied,  that 
some  of  the  most  useful  and  beneficial  enterprises  set  on  foot  for  the 
general  good,  have  been  made  successful  by  means  of  these  exclusive 
rights,  and  could  only  have  been  conducted  to  success  in  that  way. 


CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  521 

It  ma}',  therefore,  be  cousklered  as  established,  that  the  authority  of 
the  Legislature  of  Louisiana  to  pass  the  present  statute  is  ample,  unless 
some  restraint  in  the  exercise  of  that  power  be  found  in  the  Constitution 
of  that  State  or  in  the  amendments  to  the  Constitution  of  the  United 
States,  adopted  since  the  date  of  the  decisions  we  have  already  cited. 

If  any  sucli  restraint  is  supposed  to  exist  in  the  Constitution  of  the 
State,  the  Supreme  Court  of  Louisiana  having  necessarily  passed  on  that 
question,  it  would  not  be  open  to  review  in  this  court. 

The  plaintiffs  in  error  accepting  this  issue,  allege  that  the  statute  is 
a  violation  of  the  Constitution  of  the  United  States  in  these  several 
particulars :  — 

That  it  creates  an  involuntary  servitude  forbidden  b}'  the  thirteenth 
article  of  amendment ; 

That  it  abridges  the  privileges  and  immunities  of  citizens  of  the 
United  States  ; 

That  it  denies  to  the  plaintiffs  the  equal  protection  of  the  laws  ;  and, 

That  it  deprives  them  of  their  property'  without  due  process  of  law  ; 
contrary  to  the  provisions  of  the  first  section  of  the  fourteenth  article  of 
amendment. 

This  court  is  thus  called  upon  for  the  first  time  to  give  construction  to 
these  articles. 

We  do  not  conceal  from  ourselves  the  great  responsibility  which  this 
dut}'  devolves  upon  us.  No  questions  so  far-reaching  and  pervading 
in  their  consequences,  so  profoundly  interesting  to  the  people  of  this 
countr}',  and  so  important  in  their  bearing  upon  the  relations  of  the 
United  States,  and  of  the  several  States  to  each  other  and  to  the  citi- 
zens of  the  States  and  of  the  United  States,  have  been  before  this  court 
during  the  official  life  of  an}-  of  its  present  members.^  We  have  given 
every  opportunity  for  a  full  hearing  at  the  bar ;  we  have  discussed  it 
freel}^  and  compared  views  among  ourselves ;  we  have  taken  ami)le 
time  for  careful  deliberation,  and  we  now  propose  to  announce  the 
judgments  which  we  have  formed  in  the  construction  of  those  articles, 
so  far  as  we  have  found  them  necessary  to  the  decision  of  the  cases 
before  us,  and  beyond  that  we  have  neither  the  inclination  nor  the  right 
to  go. 

Twelve  articles  of  amendment  were  added  to  the  Federal  Constitution 
soon  after  the  original  organization  of  the  government  under  it  in  1 789. 
Of  these  all  but  the  last  were  adopted  so  soon  afterwards  as  to  justify  the 
statement  that  they  were  practically  contemporaneous  with  the  adoption 
of  the  original ;  and  the  twelfth,  adopted  in  eighteen  hundred  and  three, 
was  so  nearly  so  as  to  have  become,  like  all  the  others,  historical  and  of 
another  age.     But  within  the  last  eight  3-ears  three  other  articles  of 

1  The  oldest  in  office,  Mr.  Justice  Clifford,  had  succeeded  Curtis,  J.,  in  Janu- 
ary, 1858.  No  one  of  the  bench  wlio  had  decided  the  case  of  Dred  Scott  v.  Sand  ford, 
was  now  present,  except  Mr.  Justice  Campbell,  —  and  he  was  at  the  bar  now,  and 
counsel  for  the  plaintiffs.  —  Ed. 


522  SLAUGHTER-HOUSE   CASES.  [CKAP.  IV. 

amendment  of  vast  importance  have  been  added  b}^  tlie  voice  of  the 
people  to  that  now  venerable  instrument. 

The  most  cursoiy  glance  at  these  articles  discloses  a  unit}'  of  purpose, 
when  taken  in  connection  with  the  history  of  the  times,  which  cannot 
fail  to  have  an  important  bearing  on  any  question  of  doubt  concerning 
their  true  meaning.  Nor  can  such  doubts,  when  any  reasonabh-  exist, 
be  safely  and  rationally  solved  without  a  reference  to  that  history ;  for 
in  it  is  found  the  occasion  and  the  necessity'  for  recurring  again  to  the 
great  source  of  power  in  this  country,  the  people  of  the  States,  for  ad- 
ditional guarantees  of  human  rights  ;  additional  powers  to  the  Federal 
government ;  additional  restraints  upon  those  of  the  States.  Fortu- 
natel}'  that  history  is  fresh  within  the  memory  of  us  all,  and  its  leading 
features,  as  they  bear  upon  the  matter  before  us,  free  from  doubt. 

The  institution  of  African  slavery,  as  it  existed  in  about  half  the 
States  of  the  Union,  and  the  contests  pervading  the  public  mind  for 
many  years,  between  those  who  desired  its  curtailment  and  ultimate 
extinction  and  those  who  desired  additional  safeguards  for  its  security 
and  perpetuation,  culminated  in  the  effort,  on  the  part  of  most  of  the 
States  in  which  slavery  existed,  to  separate  from  the  Federal  govern- 
ment, and  to  resist  its  authority.  This  constituted  the  War  of  the 
Rebellion,  and  whatever  auxiliary  causes  may  have  contributed  to 
bring  about  this  w^ar,  undoubtedly  the  overshadowing  and  efficient 
cause  was  African  slaver\'. 

In  that  struggle  slavery,  as  a  legalized  social  relation,  perished. 
It  perished  as  a  necessity  of  the  bitterness  and  force  of  the  conflict. 
When  the  armies  of  freedom  found  themselves  upon  the  soil  of  slavery 
they  could  do  nothing  less  than  free  the  poor  victims  whose  enforced 
servitude  was  the  foundation  of  the  quarrel.  And  when  hard  pressed 
in  the  contest  these  men  (for  the^-  proved  themselves  men  in  that  ter- 
rible crisis)  offered  their  services  and  were  accepted  by  thousands  to 
aid  in  suppressing  the  unlawful  rebellion,  slavery-  was  at  an  end  wher- 
ever the  Federal  government  succeeded  in  that  purpose.  The  procla- 
mation of  President  Lincoln  expressed  an  accomplished  fact  as  to  a 
large  portion  of  the  insurrectionary  districts,  when  he  declared  slavery 
abolished  in  them  all.  But  the  war  being  over,  those  who  had  suc- 
ceeded in  re-establishing  the  authority  of  the  Federal  government  were 
not  content  to  permit  this  great  act  of  emancipation  to  rest  on  the  actual 
results  of  the  contest  or  the  proclamation  of  the  Executive,  both  of 
which  might  have  been  questioned  in  after  times,  and  tliey  determined 
to  place  this  main  and  most  valuable  result  in  the  Constitution  of  the 
restored  Union  as  one  of  its  fundamental  articles.  Hence  the  thirteenth 
article  of  amendment  of  that  instrument.  Its  two  short  sections  seem 
hardly  to  admit  of  construction,  so  vigorous  is  their  expression  and  so 
appropriate  to  the  purpose  we  have  indicated. 

'•1.  Neither  slavery  nor  involuntar}'  servitude,  except  as  a  punish- 
ment for  crime,  whereof  the  part}'  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States  or  any  place  subject  to  their  jurisdiction. 


CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  523 

"  2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation." 

To  withdraw  the  mind  from  the  contemplation  of  this  grand  yet  sim- 
ple declaration  of  the  personal  freedom  of  all  the  human  race  within  the 
jurisdiction  of  this  government  —  a  declaration  designed  to  establish 
the  freedom  of  four  millions  of  slaves  —  and  with  a  microscopic  search 
endeavor  to  find  in  it  a  reference  to  servitudes,  which  may  have  been 
attached  to  property  in  certain  localities,  requires  an  effort,  to  say  the 
least  of  it. 

That  a  personal  servitude  was  meant  is  proved  by  the  use  of  the  word 
"  involuntary,"  which  can  only  apply  to  human  beings.  The  exception 
of  servitude  as  a  punishment  for  crime  gives  an  idea  of  the  class  of  ser- 
vitude that  is  meant.  The  word  "  servitude  "  is  of  larger  meaning  than 
slavery,  as  the  latter  is  popularly  understood  in  this  country,  and  the 
obvious  purpose  was  to  forbid  all  shades  and  conditions  of  African 
slavery.  It  was  very  well  understood  that  in  the  form  of  apprentice- 
ship for  long  terms,  as  it  had  been  practised  in  the  West  India  Islands, 
on  the  abolition  of  slavery  by  the  English  government,  or  by  reducing 
the  slaves  to  the  condition  of  serfs  attached  to  the  plantation,  the  pur- 
pose of  the  article  might  have  been  evaded,  if  only  the  word  "  slavery  ' 
had  been  used.  The  case  of  the  apprentice  slave,  held  under  a  law  of 
Maryland,  Uberated  by  Chief  Justice  Chase,  on  a  writ  of  habeas  corpus 
under  this  article,  illustrates  this  course  of  observation.  Matter  of 
Turner,  1  Abbott  United  States  Reports,  84.  And  it  is  all  that  we 
deem  necessary  to  say  on  the  application  of  that  article  to  the  statute 
of  Louisiana,  now  under  consideration. 

The  process  of  restoring  to  their  proper  relations  with  the  Federal 
government  and  with  the  other  States  those  which  had  sided  with  the 
Rebellion,  undertaken  under  the  proclamation  of  President  Johnson  in 
1865,  and  before  the  assembling  of  Congress,  developed  the  fact  that, 
notwithstanding  the  formal  recognition  by  those  States  of  the  abolition 
of  slavery,  the  condition  of  the  slave  race  would,  without  further  pro- 
tection of  the  Federal  government,  be  almost  as  bad  as  it  was  before. 
Among  the  first  acts  of  legislation  adopted  by  several  of  the  States  in 
the  legislative  bodies  which  claimed  to  be  in  their  normal  relations  with 
the  Federal  government,  were  laws  which  imposed  upon  the  colored 
race  onerous  disabilities  and  burdens,  and  curtailed  their  rights  in  the 
pursuit  of  life,  liberty,  and  property  to  such  an  extent  that  their  freedom 
was  of  little  value,  while  they  had  lost  the  protection  which  they  had 
received  from  their  former  owners  from  motives  both  of  interest  and 
humanity. 

They  were  in  some  States  forbidden  to  appear  in  the  towns  in  any 
other  character  than  menial  servants.  They  were  required  to  reside  on 
and  cultivate  the  soil  without  the  right  to  purchase  or  own  it.  They 
were  excluded  from  many  occupations  of  gain,  and  were  not  permitted 
to  give  testimony  in  the  courts  in  any  case  where  a  white  man  was  a 
party.     It  was  said  that  their  lives  were  at  the  mercy  of  bad  men, 


524  SLAUGHTER-HOUSE   CASES.  [CHAP.  IV. 

either  because  the  laws  for  their  protection  were  insufficient  or  were 
not  enfoj'ced. 

These  circumstances,  whatever  of  falsehood  or  misconception  ma}' 
have  been  mingled  with  their  presentation,  forced  upon  the  statesmen 
who  had  conducted  the  Federal  government  in  safety  through  the  crisis 
of  the  Rebellion,  and  who  supposed  that  by  the  thirteenth  article  of 
amendment  they  had  secured  the  result  of  their  labors,  the  conviction 
that  something  more  was  necessary  in  the  way  of  constitutional  protec- 
tion to  tlie  unfortunate  race  who  had  suffered  so  much.  They  accordingly 
passed  through  Congress  the  proposition  for  the  Fourteenth  Amendment, 
and  they  declined  to  treat  as  restored  to  their  full  participation  in  the 
government  of  the  Union  the  States  which  had  been  in  insurrection, 
until  they  ratified  that  article  by  a  formal  vote  of  their  legislative 
bodies. 

Before  we  proceed  to  examine  more  critically  the  provisions  of  this 
amendment,  on  which  the  plaintiffs  in  error  rel}-,  let  us  complete  and 
dismiss  the  history  of  the  recent  amendments,  as  that  history  relates 
to  the  general  purpose  which  pervades  them  all.  A  few  years'  expe- 
rience satisfied  the  thoughtful  men  who  had  been  the  authors  of  the 
other  two  amendments  that,  notwithstanding  the  restraints  of  those 
articles  on  the  States,  and  the  laws  passed  under  the  additional  powers 
granted  to  Congress,  these  were  inadequate  for  the  protection  of  life, 
liberty,  and  property',  without  which  freedom  to  the  slave  was  no  boon. 
The}-  were  in  all  those  States  denied  the  right  of  suffrage.  The  laws 
were  administered  b}-  th§  white  man  alone.  It  was  urged  that  a  race  of 
men  distinctively  marked  as  was  the  negro,  living  in  the  midst  of  another 
and  dominant  race,  could  never  be  fully  secured  in  their  person  and  their 
property  without  the  right  of  suffrage. 

Hence  the  Fifteenth  Amendment,  which  declares  that  "  the  right  of  a 
citizen  of  the  United  States  to  vote  shall  not  be  denied  or  abridged  b}' 
any  State  on  account  of  race,  color,  or  previous  condition  of  servitude." 
The  negro  having,  by  the  Fourteenth  Amendment,  been  declared  to  be  a 
citizen  of  the  United  States,  is  thus  made  a  voter  in  every  State  of  the 
Union. 

We  repeat,  then,  in  the  light  of  this  recapitulation  of  events,  almost 
too  recent  to  be  called  history,  but  which  are  familiar  to  us  all ;  and  on 
the  most  casual  examination  of  the  language  of  these  amendments,  no 
one  can  fail  to  be  impressed  with  the  one  pervading  purpose  found  in 
them  all,  lying  at  the  foundation  of  each,  and  without  which  none  of 
them  would  have  been  even  suggested ;  we  mean  the  freedom  of  the 
slave  race,  the  security  and  firm  establishment  of  that  freedom,  and 
the  protection  of  the  newly-made  freeman  and  citizen  from  the  oppres- 
sions of  those  who  had  formerly  exercised  unlimited  dominion  over  him. 
It  is  true  that  only  the  Fifteenth  Amendment,  in  terms,  mentions  the 
negro  by  speaking  of  his  color  and  his  slavery.  But  it  is  just  as  true 
that  each  of  the  other  articles  was  addressed  to  the  grievances  of  that 
race,  and  designed  to  remedy  them  as  the  Fifteenth. 


CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  525 

We  do  not  say  that  no  one  else  but  the  negro  can  share  in  this 
protection.  Both  the  language  and  spirit  of  these  articles  are  to  have 
their  fair  and  just  weight  in  any  question  of  construction.  Undoubtedly 
while  negro  slaver}*  alone  was  in  the  mind  of  the  Congress  which  pro- 
posed the  thirteentli  article,  it  forbids  any  other  kind  of  slavery,  now  or 
hereafter.  If  Mexican  peonage  or  the  Chinese  cooly  labor  system  shall 
develop  slavery  of  tho  Mexican  or  Chinese  race  within  our  territory, 
this  amendment  may  safely  be  trusted  to  make  it  void.  And  so  if  other 
rights  are  assailed  by  the  States  which  properly  and  necessarily  fall 
within  the  protection  of  these  articles,  that  protection  will  appl}-,  though 
the  party  interested  may  not  be  of  African  descent.  But  what  we  do 
say,  and  what  we  wish  to  be  understood  [as  saying]  is,  that  in  any 
fair  and  just  construction  of  any  section  or  phrase  of  these  amendments, 
it  is  necessary  to  look  to  the  purpose  which  we  have  said  was  the  per- 
vading spirit  of  them  all,  the  evil  which  they  were  designed  to  remedy, 
and  the  process  of  continued  addition  to  the  Constitution,  until  that 
purpose  was  supposed  to  be  accomplished,  as  far  as  constitutional  law 
can  accomplish  it. 

The  first  section  of  the  fourteenth  article,  to  which  our  attention  is 
more  specially  invited,  opens  witli  a  definition  of  citizenship  —  not  only 
citizenship  of  the  United  States,  but  citizenship  of  the  States.  No  such 
definition  was  previously  found  in  the  Constitution,  nor  had  any  attempt 
been  made  to  define  it  by  Act  of  Congress.  It  had  been  the  occasion  of 
much  discussion  in  the  courts,  by  the  executive  departments,  and  in  tlie 
public  journals.  It  had  been  said  by  eminent  judges  that  no  man  was 
a  citizen  of  the  United  States,  except  as  he  was  a  citizen  of  one  of  the 
States  composing  the  Union.  Those,  therefore,  who  had  been  born 
and  resided  always  in  the  District  of  Columbia  or  in  the  Territories, 
though  within  the  United  States,  were  not  citizens.  Whether  this  propo- 
sition was  sound  or  not  had  never  been  judicially  decided.  But  it  had 
been  held  by  this  court,  in  the  celebrated  Dred  Scott  Case,  only  a  few 
years  before  the  outbreak  of  the  Civil  War,  that  a  man  of  African  de- 
scent, whether  a  slave  or  not,  was  not  and  could  not  be  a  citizen  of  a 
State  or  of  the  United  States.^  This  decision,  while  it  met  tlie  con- 
demnation of  some  of  the  ablest  statesmen  and  constitutional  lawyers 
of  the  country,  had  never  been  overruled  ;  and  if  it  was  to  be  accepted 
as  a  constitutional  limitation  of  the  right  of  citizenship,  then  all  the 
negro  race  who  had  recently  been  made  freemen,  were  still,  not  only 
not  citizens,  but  were  incapable  of  becoming  so  by  anything  short  of  an 
amendment  to  the  Constitution. 

To  remove  this  difficulty  primarily,  and  to  establish  a  clear  and  com- 
prehensive definition  of  citizenship  which  should  declare  what  should 
constitute  citizenship  of  the  United  States,  and  also  citizenship  of  a 
State,  the  first  clause  of  the  first  section  was  framed. 

"  All  persons  born  or  naturalized  in  the  United  States,  and  subject 

*  An  inadvertence.     See  ante,  pp.  491  n.  and  493  n.  — Ed. 


526  SLAUGHTER-HOUSE   CASES.  [cHAP.  IV. 

to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
State  wlierein  they  reside." 

The  first  observation  we  have  to  make  on  this  clause  is,  that  il  puts 
at  rest  both  the  questions  which  we  stated  to  have  been  the  sub- 
ject of  differences  of  opinion.  It  declares  that  persons  may  be  citizens 
of  the  United  States  without  regard  to  their  citizenship  of  a  particular 
State,  and  it  overturns  the  Dred  Scott  decision  b}-  making  all  persons 
born  within  the  United  States  and  subject  to  its  jurisdiction  citizens  of 
the  United  States.  That  its  main  purpose  was  to  establish  the  citizen- 
ship of  the  negro  can  admit  of  no  doubt.  jThe  phrase,  "  subject  to  its 
jurisdiction "  was  intended  to  exclude  from  its  operation  children  of 

kJ  "xo-vwi*  ministers,   consuls,   and  citizens  or  subjects   of  foreign   States  born 

,  a*U4tutM  ok     within  the  United  StatesT^ 


V**^*Vj;;^^|jJijGJL»  J^6  ^^^^  observation  is  more  important  in  view  of  the  arguments  of 
"^^  counsel  in  the  present  case.     It  is,  that  the  distinction  between  citizen- 

^^to»^UXili.  ship  of  the  United  States  and  citizenship  of  a  State  is  clearly  recognized 
and  established.  Not  only  may  a  man  be  a  citizen  of  the  United  States 
without  being  a  citizen  of  a  State,  but  an  important  element  is  neces- 
sary to  convert  the  former  into  the  latter.  He  must  reside  within  the 
State  to  make  him  a  citizen  of  it,  but  it  is  onl}'  necessar}'  that  he  should 
be  born  or  naturalized  in  the  United  States  to  be  a  citizen  of  the  Union. 

It  is  quite  clear,  then,  that  there  is  a  citizenship  of  the  United  States, 
and  a  citizenship  of  a  State,  which  are  distinct  from  each  other,  and 
which  depend  upon  different  characteristics  or  circumstances  in  the 
individual. 

We  think  this  distinction  and  its  explicit  recognition  in  this  amend- 
ment of  great  weight  in  this  argument,  because  the  next  paragraph  of 
this  same  section,  which  is  the  one  mainh'  relied  on  by  the  plaintiffs  in 
error,  speaks  only  of  privileges  and  immunities  of  citizens  of  the  United 
States,  and  does  not  speak  of  those  of  citizens  of  the  several  States. 
The  argument,  however,  in  favor  of  the  plaintiffs  rests  wholly  on  the 
assumption  that  the*  citizenship  is  the  same,  and  the  privileges  and 
immunities  guaranteed  by  the  clause  are  the  same. 

The  language  is,  "  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States."  It  is  a  little  remarkable,  if  this  clause  was  intended  as  a  pro- 
tection to  the  citizen  of  a  State  against  the  legislative  power  of  his  own 
State,  that  the  word  citizen  of  the  State  should  be  left  out  when  it  is 
80  carefully  used,  and  used  in  contradistinction  to  citizens  of  the  United 
States,  in  the  very  sentence  which  precedes  it.  It  is  too  clear  for  argu- 
ment that  the  change  in  phraseology  was  adopted  understandinglj'  and 
with  a  purpose. 

Of  the  privileges  and  immunities  of  the  citizen  of  the  United  States, 
and  of  the  privileges  and  immunities  of  the  citizen  of  the  State,  and 
what  they  respectivel}'  are,  we  will  presently  consider ;  but  we  wish  to 
state  here  that  it  is  only  the  former  which  are  placed  by  this  clause  under 
the  protection  of  the  Federal  Constitution,  and  that  the  latter,  whatever 


CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  527 

they  ma}-  be,  are  not  intended  to  have  any  additional  protection  by 
this  paragraph  of  the  amendment. 

If,  then,  there  is  a  difference  between  the  privileges  and  immunities 
belonging  to  a  citizen  of  the  United  States  as  such,  and  those  belonging 
to  the  citizen  of  the  State  as  such,  the  latter  must  rest  for  their  security 
and  protection  where  they  have  heretofore  rested ;  for  they  are  not  em.- 
braced  b}'  this  paragraph  of  the  amendment. 

The  first  occurrence  of  the  words  "  privileges  and  immunities"  in  our 
constitutional  history,  is  to  be  found  in  the  fourth  of  the  Articles  of  the 
old  Confederation. 

It  declares  "  that  the  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  States  in  this 
Union,  the  free  inhabitants  of  each  of  these  States,  paupers,  vagabonds, 
and  fugitives  from  justice  excepted,  shall  be  entitled  to  all  the  privileges 
and  immunities  of  free  citizens  in  the  several  States  ;  and  the  people  of 
each  State  shall  have  free  ingress  and  regress  to  and  from  any  other 
State,  and  shall  enjoy  therein  all  the  privileges  of  trade  and  commerce, 
subject  to  the  same  duties,  impositions,  and  restrictions  as  the  inhabit- 
ants thereof  respectivel}-." 

In  the  Constitution  of  the  United  States,  which  superseded  the  Articles 
of  Confederation,  the  corresponding  provision  is  found  in  section  two  of 
the  fourth  article,  in  the  following  words :  "  The  citizens  of  each  State 
shall  be  entitled  to  all  the  privileges  and  immunities  of  citizens  of  the 
several  States." 

There  can  be  but  little  question  that  the  purpose  of  both  these  provi- 
sions is  the  same,  and  tliat  the  privileges  and  immunities  intended  are 
the  same  in  each.  In  the  article  of  the  Confederation  we  have  some  of 
these  specificall}'  mentioned,  and  enough  perhaps  to  give  some  general 
idea  of  the  class  of  civil  rights  meant  by  the  phrase. 

Fortunatel}'  we  are  not  without  judicial  construction  of  this  clause 
of  the  Constitution.  .  .  .  [Here  the  court  cites  and  briefly  considers 
Corfield  v.  Coryell,  4  Wash.  C.  C.  371,  Ward  v.  Maryland,  12  Wall. 
430,  and  Paul  v.  Virginia,  8  Wall.  180.] 

The  constitutional  provision  there  alluded  to  did  not  create  those 
rights,  which  jt  called  privileges  and  immunities  of  citizens  of  the 
States.  It  threw  around  them  in  that  clause  no  security  for  the  citizen 
of  the  State  in  which  they  were  claimed  or  exercised.  Nor  did  it  pro- 
fess to  control  the  power  of  the  State  governments  over  the  rights  of  its 
own  citizens. 

Its  sole  purpose  was  to  declare  to  the  several  States,  that  whatever 
those  rights,  as  you  grant  or  establish  them  to  3'our  own  citizens,  or  as 
5-ou  limit  or  qualify,  or  impose  restrictions  on  their  exercise,  the  same, 
neither  more  nor  less,  shall  be  the  measure  of  the  rights  of  citizens  of 
other  States  within  j'our  jurisdiction. 

It  would  be  the  vainest  show  of  learning  to  attempt  to  prove  bj'  cita- 
tions of  authority,  that  up  to  the  adoption  of  the  recent  amendments, 
QO  claim  or  pretence  was  set  up  that  those  rights  depended  on  the  Fed- 


528  SLAUGHTER-HOUSE   CASES.  [CHAP.  IV. 

era!  government  for  their  existence  or  protection,  beyond  the  very  few 
express  limitations  which  the  Federal  Constitution  imposed  upon  the 
States — such,  for  instance,  as  the  prohibition  against  ex  post  facto 
laws,  bills  of  attainder,  and  laws  impairing  the  obligation  of  contracts. 
But  with  the  exception  of  these  and  a  few  other  restrictions,  the  entire 
domain  of  the  privileges  and  immunities  of  citizens  of  the  States,  as 
above  defined,  lay  within  the  constitutional  and  legislative  power  of  the 
States,  and  without  that  of  the  Federal  government.  "Was  it  the  pur- 
pose of  the  Fourteenth  Amendment,  by  the  simple  declaration  that  no 
State  should  maiie  or  enforce  any  law  whicli  shall  abridge  the  piiviloges 
and  immunities  of  citizens  of  the  United  States,  to  transfer  tlie  security 
and  protection  of  all  the  civil  rights  which  we  have  mentioned,  from  the 
States  to  the  Federal  government?  And  where  it  is  declared  that 
Congress  shall  have  the  power  to  enforce  that  article,  was  it  intended 
to  bring  within  the  power  of  Congress  the  entire  domain  of  civil  rights 
heretofore  belonging  exclusively  to  the  States? 

All  this  and  more  must  follow,  if  the  proposition  of  the  plaintiffs  in 
error  be  sound.  For  not  only  are  these  rights  subject  to  the  control 
of  Congress  whenever  in  its  discretion  any  of  them  are  supposed  to 
be  abridged  by  State  legislation,  but  that  body  may  also  pass  lav\-3 
in  advance,  limiting  and  restricting  the  exercise  of  legislative  power 
by  the  States,  in  their  most  ordinary  and  usual  functions,  as  in  its 
judgment  it  may  think  proper  on  all  such  subjects.  And  still  further, 
such  a  construction  followed  by  the  reversal  of  tlie  judgments  of  tlie 
Supreme  Court  of  Louisiana  in  these  cases,  would  constitute  this  court 
a  perpetual  censor  upon  all  legislation  of  the  States,  on  the  civil  rights 
of  their  own  citizens,  with  authority  to  nullify-  such  as  it  did  not  approve 
as  consistent  with  those  rights,  as  they  existed  at  the  time  of  the  adop- 
tion of  this  amendment.  The  argument,  we  admit,  is  not  always  tlie 
most  conclusive  which  is  drawn  from  the  consequences  urged  against 
the  adoption  of  a  particular  construction  of  an  instrument.  But  when, 
as  in  the  case  before  us,  these  consequences  are  so  serious,  so  fur- 
reaching  and  pervading,  so  great  a  departure  from  the  structure  and 
spirit  of  our  institutions ;  when  the  effect  is  to  fetter  and  degrade  the 
State  governments  b}'  subjecting  them  to  the  control  ^f  Congress,  in 
the  exercise  of  powers  heretofore  universall}"  conceded  to  them  of  the 
most  ordinary  and  fundamental  character ;  when  in  fact  it  radically 
changes  the  whole  theory  of  the  relations  of  the  State  and  Federal 
governments  to  each  other  and  of  both  these  governments  to  the 
people  ;  the  argument  has  a  force  that  is  irresistible,  in  the  absence  of 
language  which  expresses  such  a  purpose  too  clearly  to  admit  of  doubt. 

We  are  convinced  that  no  such  results  were  intended  by  the  Congress 
which  proposed  these  amendments,  nor  by  the  legislatures  of  the  States 
which  ratified  them. 

Having  shown  that  the  privileges  and  immunities  relied  on  in  the 
argument  are  those  which  belong  to  citizens  of  the  States  as  such,  and 
that  they  are  left  to  the  State  governments  for  security  and  protection, 


CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  529 

and  not  by  this  article  placed  under  the  special  care  of  the  Federal  gov- 
ernment, we  ma}'  hold  ourselves  excused  from  defining  the  privileges 
and  immunities  of  citizens  of  the  United  States  which  no  State  can 
abridge,  until  some  case  involving  those  privileges  may  make  it  neces- 
sary to  do  so. 

But  lest  it  should  be  said  that  no  such  privileges  and  immunities  are 
to  be  found  if  those  we  have  been  considering  are  excluded,  we  venture 
to  suggest  some  which  owe  their  existence  to  the  Federal  government, 
its  national  character,  its  Constitution,  or  its  laws. 

One  of  these  is  well  described  in  the  case  of  Crandall  v.  Nevada,  6 
Wall.  36.  It  is  said  to  be  the  right  of  the  citizen  of  this  great  country, 
protected  bj'  implied  guarantees  of  its  Constitution,  "  to  come  to  the 
seat  of  government  to  assert  an}'  claim  he  may  have  upon  that  govern- 
ment, to  transact  an}'  business  he  may  have  with  it,  to  seek  its  protec- 
tion, to  share  its  offices,  to  engage  in  administering  its  functions.  He 
has  the  right  of  free  access  to  its  seaports,  through  which  all  operations 
of  foreign  commerce  are  conducted,  to  the  sub-treasuries,  land  offices, 
and  courts  of  justices  in  the  several  States."  And  quoting  from  the 
language  of  Chief  Justice  Taney  in  another  case,  it  is  said  "  that  for 
all  the  great  purposes  for  which  the  Federal  government  was  estab- 
lished, we  are  one  people,  with  one  common  country,  we  are  all  citizens 
of  the  United  States  ; "  and  it  is,  as  such  citizens,  that  their  rights  are 
supported  in  this  court  in  Crandall  v.  Nevada. 

Another  privilege  of  a  citizen  of  the  United  States  is  to  demand  the 
care  and  protection  of  the  Federal  government  over  his  life,  liberty,  and 
property  when  on  the  higli  seas  or  within  the  jurisdiction  of  a  foreign 
government.  Of  this  there  can  be  no  doubt,  nor  that  the  right  depends 
upon  his  character  as  a  citizen  of  the  United  States.  The  right  to 
peaceably  assemble  and  petition  for  redress  of  grievances,  the  privilege 
of  the  writ  o^  habeas  corpus,  are  rights  of  the  citizen  guaranteed  by  the 
Federal  Constitution.  The  right  to  use  fhe  navigable  waters  of  the 
United  States,  however  they  may  penetrate  the  territory  of  the  several 
States,  all  rights  secured  to  our  citizens  by  treaties  with  foreign  nations, 
are  dependent  upon  citizenship  of  the  United  States,  and  not  citizenship 
of  a  State.  One  of  these  privileges  is  conferred  by  the  very  article 
under  consideration.  It  is  that  a  citizen  of  the  United  States  can,  of 
his  own  volition,  become  a  citizen  of  any  State  of  the  Union  by  a  bot^a 
fide  residence  therein,  with  the  same  rights  as  other  citizens  of  that 
State.  To  these  may  be  added  the  rights  secured  by  the  thirteenth  and 
fifteenth  articles  of  amendment,  and  by  the  other  clause  of  the  four- 
teenth, next  to  be  considered. 

But  it  is  useless  to  pursue  this  branch  of  the  inquiry,  since  we  are  of 
opinion  that  the  rights  claimed  by  these  plaintiffs  in  error,  if  they  have 
any  existence,  are  not  privileges  and  immunities  of  citizens  of  the 
United  States  within  the  moaning  of  the  clause  of  the  Fourteenth 
Amendment  under  consideration. 

"  All  persons  born  or  naturalized  in  the  United  States,  and  subject 
VOL.  I.  —  34 


530  SLAUGHTER-HOUSE   CASES.  [CHAP.  IV. 

to  the  juiisdlction  thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States ;  nor  shall  any  State  deprive  anj'  person  of  life,  liberty, 
or  property  without  due  process  of  law,  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  its  laws." 

The  argument  has  not  been  much  pressed  in  these  cases  that  the  de- 
fendant's charter  deprives  the  plaintiffs  of  their  property  without  due 
process  of  law,  or  that  it  denies  to  them  the  equal  protection  of  the  law. 
The  first  of  these  paragraphs  has  been  in  the  Constitution  since  the 
adoption  of  the  Fifth  Amendment,  as  a  restraint  upon  the  Federal  power. 
It  is  also  to  be  found  in  some  form  of  expression  in  the  constitutions  of 
nearly  all  the  States,  as  a  restraint  upon  the  power  of  the  States.  This 
law,  then,  has  practically  been  the  same  as  it  now  is  during  the  exist- 
ence of  tlie  government,  except  so  far  as  the  present  amendment  may 
place  the  restraining  power  over  the  States  in  this  matter  in  the  hands 
of  the  Federal  government. 

We  are  not  without  judicial  interpretation,  therefore,  both  State  and 
national,  of  the  meaning  of  this  clause.  And  it  is  sufficient  to  say  that 
under  no  construction  of  that  provision  that  we  have  ever  seen,  or  an\' 
that  we  deem  admissible,  can  the  restraint  imposed  b}'  the  State  of 
Louisiana  upon  the  exercise  of  their  trade  by  the  butchers  of  New 
Orleans  be  held  to  be  a  deprivation  of  property  within  the  meaning 
of  that  provision. 

"  Nor  shall  anv  State  den}'  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws." 

In  the  light  of  the  history  of  these  amendments,  and  the  pervading 
purpose  of  them,  which  we  have  already  discussed,  it  is  not  difficult  to 
give  a  meaning  to  this  clause.  The  existence  of  laws  in  the  States 
where  the  newl}'  emancipated  negroes  resided,  which  discriminated 
with  gross  injustice  and  hardship  against  them  as  a  class,  was  the  evil 
to  be  remedied  by  this  clause,  and  by  it  such  laws  are  forbidden. 

If,  however,  the  States  did  not  conform  their  laws  to  its  requirements, 
then  by  the -fifth  section  of  the  article  of  amendment  Congress  was 
authorized  to  enforce  it  by  suitable  legislation.  We  doubt  ver}-  much 
whether  any  action  of  a  State  not  directed  b}'  wa}-  of  discrimination 
against  the  negroes  as  a  class,  or  on  account  of  their  race,  will  ever  be 
held  to  come  within  the  purview  of  this  provision.  It  is  so  clearly  a 
provision  for  that  race  and  that  emergency-,  that  a  strong  case  would 
be  necessar}'  for  its  application  to  any  other.  But  as  it  is  a  State  tiiat 
is  to  be  dealt  with,  and  not  alone  the  validity  of  its  laws,  we  ma}' 
safel}'  leave  that  matter  until  Congress  shall  have  exercised  its  power, 
or  some  case  of  State  oppression,  by  denial  of  equal  justice  in  its 
courts,  shall  have  claimed  a  decision  at  our  hands.  We  find  no  such . 
case  in  the  one  before  us,  and  do  not  deem  it  necessary  to  go  over  the 
argument  again,  as  it  may  have  relation  to  this  particular  clause  of  t'ne 
amendment. 


CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  531 

In  the  earl}'  history  of  the  organization  of  the  government,  its  states- 
men seem  to  have  divided  on  the  line  which  should  separate  the  powers 
of  the  national  government  from  those  of  the  State  governments,  and 
though  this  line  has  never  been  very  well  defined  in  public  opinion,  such 
a  division  lias  continued  from  that  day  to  this. 

The  adoption  of  the  first  eleven  amendments  to  the  Constitution  so 
soon  after  the  original  instrument  was  accepted,  shows  a  prevailing 
sense  of  danger  at  that  time  from  the  Federal  power.  And  it  cannot 
be  denied  tliat  such  a  jealousy  continued  to  exist  with  man}'  patriotic 
men  until  the  breaking  out  of  the  late  Civil  War.  It  was  then  dis- 
covered tliat  the  true  danger  to  the  perpetuity'  of  the  Union  was  in  the 
capacity  of  the  State  oi'ganizations  to  combine  and  concentrate  all  the 
powers  of  the  State,  and  of  contiguous  States,  for  a  determined  resist- 
ance to  the  general  government. 

Unquestionably  this  has  given  great  force  to  the  argument,  and  added 
largel}'  to  the  number,  of  those  who  believe  in  the  necessity  of  a  strong 
national  government. 

But,  however  pervading  this  sentiment,  and  however  it  may  have 
contributed  to  the  adoption  of  the  amendments  we  have  been  consider- 
ing, we  do  not  see  in  those  amendments  an}'  purpose  to  destroy  the 
main  features  of  tlie  general  system.  Under  the  pressure  of  all  the 
excited  feeling  growing  out  of  the  war,  our  statesmen  have  still  be- 
lieved that  the  existence  of  the  States  with  powers  for  domestic  and 
local  government,  including  the  regulation  of  civil  rights  —  the  rights 
of  person  and  of  property  —  was  essential  to  the  perfect  working  of  our 
complex  form  of  government,  though  they  have  thought  proper  to  im- 
pose additional  limitations  on  the  States,  and  to  confer  additional  power 
on  that  of  the  nation. 

But  whatever  fluctuations  may  be  seen  in  the  history  of  public  opinion 
on  this  subject  during  the  period  of  our  national  existence,  we  think  it 
will  be  found  that  this  court,  so  far  as  its  functions  required,  has  always 
held  with  a  steady  and  an  even  hand  the  balance  between  State  and 
Federal  power,  and  we  trust  that  such  may  continue  to  be  the  history 
of  its  relation  to  that  subject  so  long  as  it  shall  have  duties  to  perform 
which  demand  of  it  a  construction  of  the  Constitiition,  or  of  any  of  its 
parts. 

The  judgments  of  the  Supreme  Court  of  Louisiana  in  these  cases  are 

Affirmed.^ 

1  Chief  Justice  Chase  and  the  Justices  Field,  Bradley,  and  Swatne  dis- 
sented, and  opinions  were  given  by  the  last  three. 

Mr.  Justice  Field  argued  that  the  legislation  in  question  was  not  a  legitimate 
exercise  of  what  is  called  the  police  power,  but  was  an  attempt  to  take  from  ])rivate 
persons  and  to  vest  exclusively  in  a  corporation  the  right  to  pursue  a  lawful  and 
necessary  calling.  It  may  or  may  not,  he  said,  be  forbidden  by  the  Thirteenth  Amend- 
ment. But  it  certainly  is  by  the  Fourteenth,  for  it  denies  to  citizens  of  the  United 
States  fundamental  rights  belonging  to  the  citizens  of  all  free  governments.  The 
Fourteenth  Amendment  secures  citizens  of  the  United  States  in  the  same  fundamental 
rights  which  are  guaranteed  in  the  body  of  the  Constitution  (art.  4,  s.  2)  to  citizens  ol 


532         .        BAETEMEYER  V.   IOWA.  [CHAP.  IV. 


BARTEMEYER   v.   IOWA. 
Supreme  Court  of  the  United  States.     1873. 

[18  Wall.  129.] 

Error  to  the  Supreme  Court  of  Iowa,  the  case  being  thus : 
Bartemeyer,  the  plaintiff  in  error,  was  tried  before  a  justice  of  tlie 
peace,  on  the  charge  of  selling  intoxicating  liquors,  on  the  8th  of 
March,  1870,  to  one  Timoth}'  Hicke}',  in  Davenport  township,  in  the 
State  of  Iowa,  and  was  acquitted.  On  an  appeal  to  the  Circuit  Court 
of  the  State  the  defendant  filed  the  following  plea : 

"  And  now  comes  the  defendant,  F.  Bartemeyer,  and  for  plea  to  the 
information  in  this  cause  says  :  He  admits  that  at  the  time  and  place 
mentioned  in  said  information  he  did  sell  and  deliver  to  one  Timothy 
Hicke}^  one  glass  of  intoxicating  liquor  called  whiskey,  and  did  then  and 
there  receive  pay  in  lawful  money  from  said  Hicke}'  for  the  same.     But 

the  States  as  against  hostile  legislation  from  States  other  than  their  own.  It  protects 
them  against  monopolies  and  secures  equality  of  right  in  pursuing  the  ordinary  avoca- 
tions of  life. 

Mr.  Justice  Bradley,  concurring  in  this  opinion,  added  that  the  Louisiana  statute 
deprived  people  of  both  liberty  and  property,  and  also  of  the  equal  protection  of  tiie 
laws.  The  right  of  choice  in  adopting  lawful  employments  "  is  a  portion  of  their  lil> 
erty :  their  occupation  is  their  property." 

Mr.  Justice  Swayne  agreed  with  both  these  dissenting  opinions,  and  expressed  the 
view  that  liberty  in  the  Fourteenth  Amendment  "  is  freedom  from  all  restraints  but 
such  as  are  justly  imposed  by  law.  .  .  .  Property  is  everything  which  has  an  exchange- 
able value.  .  .  .  Labor  is  property.  .  .  .  The  right  to  make  it  available  is  next  in  im- 
portance to  the  riglits  of  life  and  liberty." 

In  Yi'ck  ]Vo  v.  Hopkins,  118  U.  S.  '3,56,  369  (1885),  Matthews,  J.,  for  the  court, 
said :  "  The  Fourteenth  Amendment  to  the  Constitution  is  not  confined  to  the  protec- 
tion of  citizens.  It  says :  '  Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law ;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws.'  These  provisions  are  universal  in  their  application,  to 
all  persons  within  the  territorial  jurisdiction,  without  regard  to  any  differences  of  race, 
of  color,  or  of  nationality ;  and  the  equal  protection  of  the  laws  is  a  pledge  of  the  pro- 
tection of  equal  laws.  It  is  accordingly  enacted  by  §  1977  of  the  Revised  Statutes, 
that  'all  persons  within  the  jurisdiction  of  the  United  States  shall  have  the  same  right 
in  every  State  and  Territory  to  make  and  enforce  contracts,  to  sue,  be  parties,  gi\  e 
evidence,  and  to  the  full  and  equal  benefit  of  all  laws  and  proceedings  for  the  security 
of  persons  and  property  as  is  enjoyed  by  white  citizens  and  shall  be  subject  to  like  pun- 
ishment, pains,  penalties,  taxes,  licenses,  and  exactions  of  every  kind,  and  to  no  other.' 
The  questions  we  have  to  consider  and  decide  in  these  cases,  therefore,  are  to  be  treated 
as  involving  the  rights  of  every  citizen  of  the  United  States  equally  with  those  of  the 
strangers  and  aliens  who  now  invoke  the  jurisdiction  of  the  court. 

"  It  is  contended  on  the  part  of  the  petitioners,  that  the  ordinances  for  violations  of 
which  thev  are  severally  sentenced  to  imprisonment,  are  void  on  their  face,  as  being 
within  the  prohibitions  of  the  Fourteenth  Amendment ;  and,  in  the  alternative,  if  not 
so,  that  they  are  void  by  reason  of  their  administration,  operating  unequally,  so  as  to 
punish  in  tlie  present  petitioners  what  is  permitted  to  others  as  lawful,  without  any 
distinction  of  circumstances,  —  an  unjust  and  illegal  disciimination,  it  is  claimed,  which, 
though  not  made  expressly  by  the  ordinances,  is  made  possible  by  them."  —  Ed. 


CHAP.  IV.]  BARTEMEYER   V.   IOWA.  533 

defendant  alleges  that  he  committed  no  crime  known  to  tlie  law  by  the 
selling  of  the  intoxicating  liqnor  hereinbefore  described  to  said  Hickey, 
for  the  reason  that  he,  the  defendant,  was  the  lawful  owner,  holder,  and 
possessor,  in  the  State  of  Iowa,  of  said  propert}-,  to  wit,  said  one  glass 
of  intoxicating  liquor,  sold  as  aforesaid  to  said  Hicke}',  prior  to  the 
day  on  which  the  law  was  passed  under  which  these  proceedings  are 
instituted  and  prosecuted,  known  as  the  Act  for  the  Suppression  of 
Intemperance,  and  being  chapter  sixtj'-four  of  the  revision  of  18G0  ; 
and  that,  prior  to  the  passage  of  said  Act  for  the  Suppression  of 
Intemperance,  he  was  a  citizen  of  the  United  States  and  of  the  State 
of  Iowa." 

Without  any  evidence  whatever  the  case  was  submitted  to  the  court 
on  this  wi'itten  plea,  the  parties  waiving  a  jury,  and  a  judgment  was 
rendered  that  the  defendant  was  guilty  as  charged,  and  he  was  sen- 
tenced to  pay  a  fine  of  $20  and  costs.  A  bill  of  exceptions  was  taken, 
and  the  case  carried  to  the  Supreme  Court  of  Iowa,  and  that  court 
alHrmed  the  judgment  of  the  Circuit  Court  and  rendered  a  judgment 
for  costs  against  the  defendant,  who  now  brought  the  case  here  on 
error. 

There  was  sufficient  evidence  that  the  main  ground  relied  on  to 
reverse  the  judgment  in  the  Supreme  Court  of  Iowa  was,  that  the  Act 
of  the  Iowa  Legislature  on  which  the  prosecution  was  based,  was  in 
violation  of  the  Constitution  of  the  United  States.  .   .  . 

The  case  was  submitted  on  printed  arguments  some  time  ago,  and 
when  the  /Slcmghter-House  Cases,  reported  in  16th  Wallace,  36,  were 
argued  ;  the  position  of  the  plaintiff  in  error  in  this  case  being,  as  it 
partly  was  in  those,  that  the  Act  of  the  State  legislature,  the  main- 
tenance of  which  by  the  courts  below  was  the  ground  of  the  writ 
of  error,  was  in  violation  of  the  Fourteenth  Amendment  to  the  Con- 
stitution. .   .  . 

Mr.  W.  T.  Dittoe,  for  the  i)laintiff  in  error;  3Ir.  IT.  O'Connor, 
Attorney-General  of  Iowa,  for  the  State,  contra. 

Mr.  Justice  Miller,  after  stating  the  case,  delivered  the  opinion  of 
the  court,  as  follows  : 

The  case  has  been  submitted  to  us  on  printed  argument.  That  on 
the  part  of  the  plaintiff  in  error  has  taken  a  very  wide  range,  and  is 
largely  composed  of  the  arguments  familiar  to  all,  against  the  right  of 
the  States  to  regulate  traffic  in  intoxicating  liquors.  So  far  as  this 
a^^gument  deals  with  the  mere  question  of  regulating  This  traffic,  or 
even  its  total  prohibition,  as  it  mav  have  been  aifectecTlBylirvthin^n 
the  Federal  Constitution  prior  to  the  recent  amendments  of  that  instru- 


mont.  we  do  not  proi)ose  to  enter  into  a  discussionTTUp  to  that  time  it 
had  been  considered  as  falling  within"  the  police  regnl;itionslgf__tlio 
gtates,  left  to  their  judgment,  and  subject  to  no  other  liiii itations  than 
such  as  were  imposed  by  the  State  Constitution^  Qr_ll^L_thg  general 
principles  supposed  to  limit  all  Ipg-islativp  powprj  Uhas  never  been_ 
Beriou.sly  contended  that  such  laws  raised  any  gnestinn  g;rowing  (juLnf 
the  Constitution  of  the  United  States. 


534  BARTEMEYER  V.    IOWA.  [CHAP.  IV. 

But  the  case  before  U8  is  supposed  by  counsel  of  tbe  plaintiff  in 
error  to  present  a  violation  of  the  Fourteenth  Amendment  of  the  Con- 
stitution, on  the  ground  that  the  Act  of  the  Iowa  Legislature  is  a 
violation  of  the  privileges  and  immunities  of  citizens  of  the  United 
States  which  that  amendment  declares  shall  not  be  abridged  by  the 
States ;  and  that  in  his  case  it  deprives  him  of  his  property-  without 
due  process  of  law. 

As  regards  both  branches  of  this  defence,  it  is  to  be  observed  that 
the  statute  of  Iowa,  which  is  complained  of,  was  in  existence  long 
before  the  amendment  of  the  Federal  Constitution,  which  is  thus 
invoked  to  render  it  invalid.  Whatever _were  the  privileges  and  immu- 
nities of  Mr.  Bartemever,  as  they  stood  before  that  amendment,  under 
the  Iowa  statute,  they  have  certainly  not  been  abridged  by  any  action 
of  the  State  legislatijj'e  since  that  amendment  became  a  part  of  tlie 
Constitution.  And  [unless  that  amendment  confers  privileges  and  im- 
munities which  he  diCl  not  previousTy  possess,  the  argument  fails.X  But 
the_most  liberal  advocate  of  the  rights  conferred  by  that  anfenament 
have  contended  for  nothing  more  than  that  the  rights  of  the  citizen 
previously  pyistinor,  nnd  dpppnrlpnt.  wholly  <^"  Sfntp  laws  for  their 
recognition,  are  now  placed  under  the  protection  of  the  Federal  govern- 
ment, and  nrp  spnnrpd  by  the  Federal  Constitution.  \The  weight  of 
authority  is  overwhelming  that  no  such  immunitv  has  heretofore  existed 
as^would  prevent  State  legislatures  from  regulating  and  even  prohibit- 
ing the  traffic  in  intoxicating  drinks^  with  a  solitary  exception^  That 
exception  is  the  case  of  a  law  operating  so  rigidly  on  property  in 
existence  nt  thp  time  nf  its  passngp,  nbsnintply  prohibiting  its  sale,  as 
to  amount  tP  Hpprivino;  t.Vip  owner  of  his  property.  A  single  case,  that 
of  Wynehamer  v.  The  People^  3  Kernan,  486,  ¥as  held  that  as  to  such 
property  the  statute  would  be  void  for  that  reason.  But  no  case  has 
held  that  such  a  law  was  void  as  violating_the  privileges  or  immunities 
of  citizens  of  a  btate  or  of _the  United  States.  If,  however,  such 
a  propositioiT  is  seriously  urged,^e  think  that  the  right  to  sell  intoxi- 
cating liquors,  so  far  as  such  a  rigfUt  exists,  is  not  one  of  the  rights 
growing  out  of  citizenship  of  the  United  Statesland  in  this  regard  the 
case  falls  within  the  principles  laid  down  by  thig^ourt  in  the  Slaughter- 
House  Cases,  16  Wallace,  36^ 

But  if  it  were  true,  and  it  was  fairly  presented  to  us,  that  the 
defendant  was  the  owner  of  the  glass  of  intoxicating  liquor  which  he 
sold  to  Hickey,  at  the  time  that  the  State  of  Iowa  first  imposed  an 
absolute  prohibition  on  the  sale  of  such  liquors,  then  we'  concede  that 
two  very  grave  questions  would  arise,  namely  :  1.  Whether  this  would 
be  a  statute  depriving  him  of  his  property  without  due  process  of  law ; 
and  secondly,  whether  if  it  were  so,  it  would  be  so  far  a  violation  of  the 
Fourteenth  Amendment  in  that  regard  as  would  call  for  judicial  action 
by  this  court? 

Both  of  these  questions,  whenever  they  may  be  presented  to  us,  are 
of  an  importance  to  require  the  most  careful  and  serious  consideration. 


CHAP.  IV.]  BARTEMEYER   V.   IOWA.  535 

They  are  not  to  be  lightly  treated,  nor  are  we  authorized  to  make  anj'' 
advances  to  meet  them  until  we  are  required  to  do  so  by  the  duties  of 
our  position. 

In  the  case  before  us,  the  Supreme  Court  of  Iowa,  whose  judgment 
we  are  called  on  to  review,  did  not  consider  it.  They  said  that  the 
record  did  not  present  it. 

It  is  true  the  bill  of  exceptions,  as  it  seems  to  us,  does  show  that  the 
defendant's  plea  was  all  the  evidence  given,  but  this  does  not  remove 
the  difficulty  in  our  minds.  The  plea  states  that  the  defendant  was  the 
owner  of  the  glass  of  liquor  sold  prior  to  the  passage  of  the  law  under 
which  the  proceedings  against  him  were  instituted,  being  chapter  sixty- 
four  of  the  revision  of  18G0. 

If  this  is  to  be  treated  as  an  allegation  that  the  defendant  was  the 
owner  of  that  glass  of  liquor  prior  to  1860,  it  is  insufficient,  because  the 
revision  of  the  laws  of  Iowa  of  1860  was  not  an  enactment  of  new 
laws,  but  a  revision  of  those  previousl}^  enacted  ;  and  there  has  been  in 
existence  in  the  State  of  Iowa,  ever  since  the  code  of  1851,  a  law 
strictly  prohibiting  the  sale  of  such  liquors ;  the  Act  in  all  essential 
particulars  under  which  the  defendant  was  prosecuted,  amended  in 
some  immaterial  points.  If  it  is  supposed  that  the  averment  is  helped 
by  the  statement  that  he  owned  the  liquor  before  the  law  was  passed, 
the  answer  is  that  this  is  a  mere  conclusion  of  law.  He  should  have 
stated  when  he  became  the  owner  of  the  liquor,  or  at  least  have  fixed 
a  date  when  he  did  own  it,  and  leave  the  court  to  decide  wlien  the  law 
took  effect,  and  apply  it  to  his  case.  But  the  plea  itself  is  merely 
argumentative,  and  does  not  state  the  ownership  as  a  fact,  but  says  he 
is  not  guilty  of  an3'  offence,  because  of  such  fact. 

If  it  be  said  that  this  manner  of  looking  at  the  case  is  narrow  and 
technical,  we  answer  that  the  record  affords  to  us  on  its  face  the  strongest 
reason  to  believe  that  it  has  been  prepared  from  the  beginning,  for  the 
purpose  of  obtaining  the  opinion  of  this  court  on  important  constitu- 
tional questions  without  the  actual  existence  of  the  facts  on  which  such 
questions  can  alone  arise. 

It  is  absurd  to  suppose  that  the  plaintiff,  an  ordinary  retailer  of 
drinks,  could  have  proved,  if  required,  that  he  had  owned  that  par- 
ticular glass  of  whiskey  prior  to  the  prohibitory  liquor  law  of  1851. 

The  defendant,  from  his  first  appearance  before  the  justice  of  the 
peace  to  his  final  argument  in  the  Supreme  Court,  asserted  in  the 
record  in  various  forms  that  the  statute  under  which  he  was  prosecuted 
was  a  violation  of  the  Constitution  of  the  United  States.  The  act  of 
the  prosecuting  attorne}-,  under  these  circumstances,  in  going  to  trial 
without  any  replication  or  denial  of  the  plea,  which  was  intended  mani- 
festly to  raise  that  question,  but  which  carried  on  its  face  the  strongest 
probability'  of  its  falsehood,  satisfies  us  that  a  moot  case  was  delib- 
erately made  up  to  raise  the  particular  point  when  the  real  facts  of  the 
case  would  not  have  done  so.  As  the  Supreme  Court  of  Iowa  did  not 
consider  this  question  as  raised  by  the  record,  and  passed  no  opinion 


536  BARTEMEYER  V.   IOWA.  [CHAP.  IV. 

on  it,  we  do  not  feel  at  liberty,  Under  all  the  circumstances,  to  pass  on 
it  on  this  record. 

The  other  errors  assigned  being  found  not  to  exist,  the  judgment  of 
the  Supreme  Court  of  Iowa  is  affirmed. 

[Justices  Bradley  and  Field  read  concurring  opinions,  restating  the 
views  of  the  minority  in  the  Slaughter-IIouse  Cases.  The  former, 
speaking  for  himself  and  Justices  Field  and  Swatne,  said  :  .  .  .  "By 
that  portion  of  the  Fourteenth  Amendment  by  which  no  State  may 
make  or  enforce  any  law  which  shall  abridge  the  privileges  and  immu- 
nities of  citizens  of  the  United  States,  or  take  life,  liberty,  or  property, 
without  due  process  of  law,  it  has  now  become  the  fundamental  law  of 
this  countr}'  that  life,  liberty,  and  property  (which  include  '  the  pursuit 
of  happiness ')  are  sacred  rights,  which  the  Constitution  of  the  United 
States  guarantees  to  its  humblest  citizen  against  oppressive  legislation, 
whether  national  or  local,  so  that  he  cannot  be  deprived  of  them  with- 
out due  process  of  law.  The  monopol}'  created  b}-  the  Legislature  of 
Louisiana,  which  was  under  consideration  in  the  Slaughter- House 
Cases,  was,  in  m}-  judgment,  legislation  of  this  sort  and  obnoxious  to 
this  objection.  But  police  regulations,  intended  for  the  preservation  of 
the  public  health  and  the  public  order,  are  of  an  entirely  ditferent  char- 
acter. So  much  of  the  Louisiana  law  as  partook  of  this  character  was 
never  objected  to.  It  was  the  unconscionable  monopoly,  of  which  the 
police  regulation  was  a  mere  pretext,  that  was  deemed  b}'  the  dissent- 
ing members  of  the  court  an  invasion  of  the  right  of  the  citizen  to 
pursue  his  lawful  calling.  A  claim  of  right  to  pursue  an  unlawful  call- 
ing stands  on  ver}'  different  grounds,  occupying  the  same  platform  as 
does  a  claim  of  right  to  disregard  license  laws  and  to  usurp  public 
franchises.  It  is  greatly  to  be  regretted,  as  it  seems  to  me,  that  this 
distinction  was  lost  sight  of  (as  I  think  it  was)  in  the  decision  of  the 
court  referred  to." 

Mr.  Justice  Field  said :  .  .  .  "No  one  has  ever  pretended,  that  I 
am  aware  of,  that  the  Fourteenth  Amendment  interferes  in  any  respect 
with  the  police  power  of  the  State.  ...  It  was  because  the  Act  of 
Louisiana  transcended  the  limits  of  police  regulation,  and  asserted  a 
power  in  the  State  to  farm  out  the  ordinar}'  avocations  of  life,  that  dis- 
sent was  made  to  the  judgment  of  the  court  sustaining  the  validity  of 
the  Act."  ^  ] 

*  See  Pomeroy's  Constitutional  Law  (Bennett's  ed.)  s.  256  e.  —  Ed. 


CHAP.  IV.]       butchers'   UNION   CO.    V.   CRESCENT   CITY   CO.  537 


BUTCHERS'    UNION    SLAUGHTER-HOUSE,    &c.,    COMPANY 
V.  CRESCENT  CTFY,  &c.,  SLAUGHTER-HOUSE  COMPANY. 
Supreme  Coukt  of  the  United  States.     1883. 
[Ill  U.S.  746.] 

In  1869,  the  Legislature  of  Louisiana  granted  the  appellee  exclusive 
privileges  for  stock-landing  and  slaughter-houses,  at  New  Orleans  for 
twenty-five  years,  which  were  sustained  by  this  court  in  the  Slaughter- 
Jlouse  Cases,  16  Wall.  36.  In  1881,  under  a  provision  of  the  State 
Constitution  of  1879,  the  municipal  authorities  granted  privileges  for 
slaughter-houses  and  stock-landing  at  New  Orleans  to  the  appellants. 
The°appellee  as  plaintiff  below  filed  its  bill  in  the  Circuit  Court  to  re- 
strain the  appellants  from  exercising  the  privileges  thus  conferred.  A 
preliminary  injunction  was  granted,  which,  on  hearing,  was  made  per- 
petual. From  this  decree  the  defendants  below  appealed.  The  legis- 
lation and  other  facts  bearing  upon  the  issues  are  stated  in  the  opinion 
of  the  court. 

Ur.  B.  B.  Forman,  for  appellant. 
3Ir.  Thomas  J.  Semnies,  for  appellee. 
Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 
This  is  an  appeal  from  the  Circuit  Court  for  the  Eastern  District  of 
Louisiana. 

The  appellee  brought  a  suit  in  the  Circuit  Court  to  obtain  an  injunc- 
tion against  the  appellant  forbidding  the  latter  from  exercising  the  busi- 
ness of  butchering,  or  receiving  and  landing  live-stock  intended  for 
butchering,  within  certain  limits  in  the  parishes  of  Orleans,  Jefferson, 
and  St.  Bernard,  and  obtained  such  injunction  by  a  final  decree  in  that 
court. 

The  ground  on  which  this  suit  was  brought  and  sustained  is  that  the 
plaintiffs  had  the  exclusive  right  to  have  all  such  stock  landed  at  their 
stock-landing  place,  and  butchered  at  their  slaughter-house,  by  virtue 
of  an  Act  of  the  General  Assembly  of  Louisiana,  approved  March  8th, 
1869,  entitled,  "  An  Act  to  protect  the  health  of  the  City  of  New  Or- 
leans, to  locate  the  stock-landing  and  slaughter-houses,  and  to  incor- 
porate the  Crescent  City  Live-Stock  Landing  and  Slaughter-Iiouse 
Company." 

An  examination  of  that  statute,  especially  of  its  fourth  and  fifth  sec- 
tions, leaves  no  doubt  that  it  did  grant  such  an  exclusive  right. 

The  fact  that  it  did  so,  and  that  this  was  conceded,  was  the  basis  of 
the  contest  in  this  court  in  the  Slaughter- House  Cases,  16  Wall.  36,  in 
which  the  law  was  assailed  as  a  monopoly  forbidden  by  the  Thirteenth 
and  Fourteenth  Amendments  to  the  Constitution  of  the  United  States, 
and  these  amendments  as  well  as  the  Fifteenth,  came  for  the  first  time 
before  this  court  for  construction.  The  constitutional  power  of  the 
State  to  enact  the  statute  was  upheld  by  this  court. 


538  butchers'  union  co.  v.  crescent  city  co,     [chap.  IV. 

This  power  was  placed  by  the  court  in  that  case  expressl}-  on  the 
ground  that  it  was  the  exercise  of  the  police  power  which  had  remained 
with  the  States  in  the  formation  of  the  original  Constitution  of  the 
United  States,  and  had  not  been  taken  away  by  the  amendments 
adopted  since. 

Citing  the  definition  of  this  power  from  Chancellor  Kent,  it  declares 
that  the  statute  in  question  came  within  it.  "  Unwholesome  trades," 
slaugliter-houses,  operations  offensive  to  the  senses,  the  deposit  of 
powder,  the  application  of  steam-power  to  propel  cars,  the  building 
with  combustible  materials,  and  the  burial  of  the  dead,  may  all"  (he 
says)  "be  interdicted  by  law  in  the  midst  of  dense  masses  of  popula- 
tion, on  the  general  and  rational  principle  that  every  person  ought  so 
to  use  his  property  as  not  to  injure  his  neighbors ;  and  that  private 
interests  must  be  made  subservient  to  the  general  interest  of  the  com- 
munity." 2  Kent's  Commentaries,  340;  16  Wall.  62.  In  this  latter 
case  it  was  added  that  "  the  regulation  of  the  place  and  manner  of 
conducting  the  slaughtering  of  animals,  and  the  business  of  butchering 
within  a  city,  and  the  inspection  of  the  animals  to  be  killed  for  moat, 
and  of  the  meat  afterwards,  are  among  the  most  necessary  and  frequent 
exercises  of  this  power." 

But  in  the  year  1879  the  State  of  Louisiana  adopted  a  new  Constitu- 
tion, in  which  were  the  following  articles : 

"  Article  248.  The  police  juries  of  the  several  parishes,  and  the  con- 
stituted authorities  of  all  incorporated  municipalities  of  the  State,  shall 
alone  have  the  power  of  regulating  the  slaughtering  of  cattle  and  other 
live-stock  within  their  respective  limits  ;  provided  no  monopoly  or  ex- 
clusive privilege  shall  exist  in  this  State,  nor  such  business  be  restricted 
to  the  land  or  houses  of  any  individual  or  corporation  ;  provided  the 
ordinances  designating  places  for  slaughtering  shall  obtain  the  concur- 
rent approval  of  the  Board  of  Health  or  other  sanitary  organization. 

"Article  258.  .  .  .  The  monopoly  features  in  the  charter  of  any  cor- 
poration now  existing  in  the  State,  save  such  as  may  be  contained  in 
the  charters  of  railroad  companies,  are  hereby  abolished." 

Under  the  authority  of  these  articles  of  the  Constitution  the  munici- 
pal authorities  of  the  city  of  New  Orleans  enacted  ordinances  which 
opened  to  general  competition  the  right  to  build  slaughter-houses,  estab- 
lish stock -landings,  and  engage  in  the  business  of  butchering  in  that 
city  under  regulations  established  by  those  ordinances,  but  which  were 
in  utter  disregard  of  the  monopoly  granted  to  the  Crescent  City  Com- 
pany, and  which  in  effect  repealed  the  exclusive  grant  made  to  tliat 
company  by  the  Act  of  1869. 

The  appellant  here,  the  Butchers'  Union  Slaughter-House  Company, 
availing  themselves  of  this  repeal,  entered  upon  the  business,  or  were 
about  to  do  so,  by  establishing  their  slaughter-house  and  stock-landing 
within  the  limits  of  the  grant  of  the  Act  of  1869  to  the  Crescent  City 
Company. 

Both  these  corporations,  organized  under  the  laws  of  Louisiana  and 


CHAP.  lY.]       butchers'  UNION   CO.   V.   CRESCENT  CITY   CO.  539 

doing  business  in  that  State,  were  citizens  of  the  same  State,  and  could 
not,  in  respect  of  that  citizenship,  sue  each  other  in  a  court  of  the 
United  States. 

The  Crescent  Cit}'  Company,  however,  on  the  allegation  that  these  con- 
stitutional provisions  of  1879  and  the  subsequent  ordinances  of  the  city, 
were  a  violation  of  their  contract  with  the  State  under  the  Act  of  1869, 
brought  this  suit  in  the  Circuit  Court  as  arising  under  the  Constitution 
of  the  United  States,  art.  1,  sec.  10.  That  court  sustained  the  view  of 
the  plaintiff  below,  and  held  that  the  Act  of  1869  and  the  acceptance 
of  it  by  the  Crescent  City  Company,  constituted  a  contract  for  the  ex- 
clusive right  mentioned  in  it  for  twenty-five  j'ears  ;  that  it  was  within 
the  power  of  the  Legislature  of  Louisiana  to  make  that  contract,  and 
as  the  constitutional  provisions  of  1879  and  the  subsequent  ordinances 
of  the  city  impaired  its  obligation,  they  were  to  that  extent  void. 

No  one  can  examine  the  provisions  of  the  Act  of  1869  with  the  knowl- 
edge that  they  were  accepted  by  the  Crescent  City  Company,  and  so  far 
acted  on  that  a  very  large  amount  of  money  was  expended  in  a  vast 
slaughter-house,  and  an  equally'  extensive  stock-j'ard  and  landing-place, 
and  hesitate  to  pronounce  that  in  form  they  have  all  the  elfment.s  nf  n 
contract  on  sufficient  consideration. 


It  admits  of  as  little  doubt  that  the  ordinance  of  the  city  of  New 
Orleans,  under  the  new  Constitution,  impaired  the  supposed  obligation 
imposed  by  those  provisions  on  the  State,  b}'  taking  away  the  exclusive 
right  of  the  company  granted  to  it  for  twenty-five  years,  which  was  to 
the  company  the  most  valuable  thing  supposed  to  be  secured  to  it  by 
the  statutory  contract. 

We  do  not  think  it  necessary  to  spend  time  in  demonstrating  cither 
of  these  propositions.     We  do  not  believe  they  will  be  controverted. 

The  appellant,  ho^'^'-'^^'i  insists  that,  so  far  as  the  Act  of  1869  par- 
takes of  the  naturt?  of  .on  in-pppniahip  rnutrnnt,  the  legislature  exceeded 
its  authority,  and  it  hnt]  nn  pnwpv  tr>  tip  t,hp  hnnd^  nf  the  lpgis]a<"'irf  in 
the  future  from  legislatincr  on  th.qt  siibject  without  being  bound  by  the 
terms  of  the  statute  then  enacted.  This  propnsitinn  prpspnta  the  rea) 
point  in  the  case. 

Let  us  see  clearly  what  it  is. 

It  does  not  deny  the  power  of  that  legislature  to  create  a  corporation, 
with  power  to  do  the  business  of  landing  live-stock  and  providing  a 
place  for  slaughtering  them  in  the  city.  It  does  not  deny  the  power  to 
locate  the  place  where  this  shall  be  done  exclusivel}'.  It  does  not  deny 
even  the  power  to  give  an  exclusive  right,  for  the  time  being,  to  particu- 
lar persons  or  to  a  corporation  to  provide  this  stock-landing  and  to 
establish  this  slaughter-house. 

But  it  does  deny  the  power  of  that  legislature  to  continue  this  right 
so  that  no  future  legislature  nor  even  the  same  bodv  can  repeal  or 
modify  it,  or  grant  similar  privileges  to  others.  It  concedes  that  such 
a  law,  so  long  as  it  remains  on  the  statute-book  as  the  latest  expression 
of  the  legislative  will,  is  a  valid  law,  and  must  be  obeyed,  which  is  all 


540  butchers'   union   CO.   v.   crescent   city   CO.       [chap,  IV. 

that  was  decided  by  this  court  in  the  Slaughter- House  Cases.  But  it 
asserts  the  right  of  the  legislature  to  repeal  such  a  statute,  or  to  make 
a  new  one  inconsistent  with  it,  whenever,  in  the  wisdom  of  such  legis- 
lature, it  is  for  the  good  of  the  public  it  should  be  done. 

Nor  does  this  proposition  conii::a.Y£iie  tlte  estajjlishgd^prmciple  that 
tj^e  legislature  of  a  State  may  make  contracts  on  many  subjects  which 
will  bind  it,  and  will  bind  succeeding  legislatures  for  the  time  the  con^ 
tract  has  to  run,  so  thaLit§._pi'ovisinns  canjafiitherjbe  repealed  nor  its 
obligation  impaired.  The  examples  are  numerous  where  this  has  been 
done  and  the  contract  upheld. 

The  denial  of  this  power,  in  the  present  instance,  rests  upon  the 
ground  that  the  power  of  the  legislature  intended  to  be  susjjended_is 
one  so  indispensable  to  the  public  welfarejthat  it  cannot  be_bargained 
a^pyay  by  contract.  It  is  that  well-known  but  undefined  power  callejd-thfi 
police  jjQwer,^  We  have  not  found  a  better  definition  of  it  for  our  pres- 
ent purpose  than  the  extract  from  Kent's  Commentaries  in  the  earlier 
part  of  this  opinion.  "  The  power  to  regulate  unwholesome  trades, 
slaughter-houses,  operations  olTensive  to  the  senses,"  there  mentioned, 
points  unmistakably  to  the  powers  exercised  by  the  Act  of  1869,  and 
the  ordinances  of  the  city  under  the  Constitution  of  1879.  nVhile  we 
are  not  prepared  to  say  that  the  legislature  can  make  v alid  contracts  nn_ 
no  subject  embraced  in  the  largest  definition  of  the  police  power,  we 
think  that,  in  regard  to  two  subjects  «"  pmhrflcpdT  it  cannot,  by  any 
contract,  limit  the  exercise  of  those  powers  to  the  prejudice  of  iW  gen- 
eral welfare.  These  are  the  public  health  and  public  morals^  Tiie 
preservation  of  these  is  so  necessary  to  the  best  interests  of  social  qr- 
^aiiization  that  a  wise  policy  forbids  the  legislative_body  to  divest  itself 
of  the  power  to  enact  laws  for  the  preservation  of  health  and  the^repies- 
sion  of  crinQej__ 

It  cannot  be  permitted  that,  when  the  Constitution  of  a  State,  the 
fundamental  law  of  the  land,  has  imposed  upon  its  legislature  the  duty 
of  guarding,  b}'  suitable  laws,  the  health  of  its  citizens,  especially  in 
crowded  cities,  and  the  protection  of  their  person  and  property  bj-  sup- 
pressing and  preventing  crime,  that  the  power  which  enables  it  to  per- 
form this  duty  can  be  sold,  bargained  away,  under  any  circumstances, 
as  if  it  were  a  mere  privilege  which  the  legislator  could  dispose  of  at  his 
pleasure. 

This  principle  has  been  asserted  and  repeated  in  this  court  in  the  last 
few  3'ears  in  no  ambiguous  terms. 

The  first  time  it  seems  to  have  been  distinctly  and  clearl}'  presented, 
was  in  the  case  of  £oyd  v.  Alabama^  94  U.  S.  645.  That  was  a  writ 
of  error  to  the  Supreme  Court  of  Alabama,  brought  bj'  Boyd,  who  had 
been  convicted  in  the  courts  of  that  State  of  carrying  on  a  letter}'  con- 
trary to  law.  In  his  defence,  he  relied  upon  a  statute  which  authorized 
lotteries  for  a  specific  purpose,  under  which  he  held  a  license.  The  re- 
peal of  this  statute,  which  made  his  license  of  no  avail  against  the  gen- 
eral law  forbidding  lotteries,  was  asserted  by  his  counsel  to  be  void  as 


CHAP.  IV.]       BUTCHERS'   UNION   CO.   V.   CRESCENT   CITY   CO.  541 

impairing  the  obligation  of  the  contract,  of  which  his  license  ^as  evi- 
tlence,  and  the  Supreme  Court  of  Alabama  had  in  a  previous  case  held 

it  to  be  a  contract.  ,  •  i    i  • 

In  Boyd's  case,  however,  that  court  held  the  law  under  which  his 
license  vvas  issued  to  be  void,  because  the  object  of  it  was  not  expressed 
in  the  title,  as  required  by  the  Constitution  of  the  State.  This  court 
followed  that  decision,  and  affirmed  the  judgment  on  that  ground. 

But  in  the  concluding  sentences  of  the  opinion  by  Mr.  Justice  Pield, 
the  court,  to  repel  the  inference  that  the  contract  would  have  been  irre- 
pealable,  if  the  statute  had  conformed  to  the  special  requirement  of  the 
Constitution,  said:  i     -i 

"  We  are  not  prepared  to  admit  that  it  is  competent  for  one  legisla- 
ture, by  anv  contract  with  an  individual,  to  restrain  the  power  of  a  sub- 
sequent legislature  to  legislate  for  the  public  welfare,  and  to  that  end  to 
suppress  any  and  all  practices  tending  to  corrupt  the  public  morals, 
citing  Moore  v.  The  State,  48  Miss.  147,  and  Metropolitan  Board  of 
Excise  V.  Barrie,  34  N.  Y.  657,  663, 

This  cautionary  declaration  received  the  unanimous  concurrence  ot 
the  court,  and  a  year  later  the  principle  became  the  foundation  of  the 
decision  in  the  case  of  The  Beer  Company  v.  Massachusetts,  97  U.  S. 
25    28  [Here  the  court  considers  the  case  last  named,  and  also 

Stone  x' Mississippi,  101  U.  S.  814,  and  Fertilizing  Co.  v.  Hyde  Park, 

97  U.  S.  659.]  ^  .    ^,  .  .         . 

These  cases  are  all  cited  and  their  views  adopted  in  the  opinion  ot 
the  Supreme  Court  of  Louisiana  in  a  suit  between  the  same  parties  m 
regard  to  the  same  matter  as  the  present  case,  and  which  was  brought 
to  this  court  by  writ  of  error  and  dismissed  before  a  hearing  by  the 

present  appellee.  .        ...o-n       i 

The  result  of  these  considerations  is  that  the  Constitution  of  18/ J  and 

the  ordinances  of  the  city  of  New  Orleans,  which  are  complained  of, 

are  not  void  as  impairing  the  obligation  of  complainant's  contract,  and 

that 

The  decree  of  the  Circuit  Court  must  be  reversed,  and  the  case  re- 
manded to  that  court  with  directions  to  dismiss  the  bill} 

1  Jdstices  Field  and  Bkadley  (with  the  latter  of  whom  agreed  Justices  Haklan 
and  Woods)  gave  concurring  opinions,  in  which  they  again  restated  the  views  of  the 
minority  in  the  Slamjhter-Honse  Cases.  _        _ 

FiKLD  J  said  •  "  As  in  our  intercourse  with  our  fellow-men  certain  principles  ot 
morality 'arc  assumed  to  exist,  without  which  society  would  be  impossible,  so  certain 
inherent  rights  lie  at  the  foundation  of  all  action,  and  upon  a  recognition  of  them  alone 
can  free  institutions  be  maintained.  These  inherent  rights  have  never  been  more  hap- 
pily expressed  than  in  tlie  Declaration  of  Independence,  that  new  evangel  of  hl.erty  to 
the  people  ■  '  We  hold  these  truths  to  be  self-evident,'  -that  is,  so  plain  that  their  truth 
is  recognized  upon  their  mere  statement, -' that  all  men  are  endowed  -not  by  edic-ts 
of  emperors,  or  decrees  of  Parliament,  or  acts  of  Congress,  but  'by  tlveir  Creator  with 
certain  inalienable  rights,' -  that  is,  rights  which  cannot  be  bartered  away,  or  given 
away,  or  taken  away  except  in  punishment  of  crime,  - '  and  that  among  these  are  life 
Uberty  and  the  pursuit  of  happiness,  and  to  secure  these  '-not  grant  them,  but  secure 


542  butchers'  union  co.  v.  crescent  city  co.     [chap.  IV. 

them —'governments  are  instituted  among  men,  deriving  their  just  powers  from  the 
consent  of  the  governed.'  Among  these  inalienable  rights,  as  proclaimed  in  that  great 
document,  is  the  right  of  men  to  pursue  their  happlness.ljy^ which  is  meant  the  rio;ht 
to  pursue  any  lawful  business  or  vocation,  in  any  manner  not  inconsistent  with  tlie 
equal  rights  of  others,  which  may  increase  their  prosperity  or  develop  their  faculties, 
so  as  to  give  to  them  their  highest  enjoymenk.  The  common  business  and  callings  of 
life,  the  ordinary  trades  and  pursuits,  which  are  innocuous  in  themselves,  and  have  been 
followed  in  all  communities  from  time  immemorial,  must,  therefore,  be  free  in  tiiis 
country  to  all  alike  upon  the  same  conditions.  The  right  to  pursue  them,  without  let 
or  hindrance,  except  that  which  is  applied  to  all  persons  of  the  same  age,  sex,  and  con- 
dition, is  a  distinguishing  privilege  of  citizens  of  the  United  States,  and  an  essentfal 
element  of  that  freedom  which  they  claim  as  their  birthright.  It  has  been  well  said 
that,  '  The  property  which  every  man  has  iu  his  own  labor,  as  it  is  the  original  founda- 
tion of  all  other  property,  so  it  is  the  most  sacred  and  inviolable.  The  patrimony  of 
tlie  poor  man  lies  in  the  strength  and  dexterity  of  his  own  hands,  and  to  hinder  his 
employing  this  strength  and  dexterity  in  what  manner  he  thinks  proper,  without  injury 
to  his  neighbor,  is  a  plain  violation  of  this  most  sacred  property.  It  is  a  manifest  en- 
croachment upon  the  just  liberty  both  of  the  workman  and  of  those  who  might  be  dis- 
posed to  employ  him.  As  it  hinders  the  one  from  working  at  what  he  thinks  proper, 
so  it  hinders  the  others  from  employing  whom  they  think  proper.'  —  Adam  Smith's- 
Wealthof  Nations,  Bk.  I.  Chap.  10.  .  .  .  The  first  section  of  the  amendment  is  stripped 
of  all  its  protective  force,  if  its  application  be  limited  to  the  privileges  and  immunities 
of  citizens  of  the  United  States  as  distinguished  from  citizens  of  the  States,  and  thus 
its  prohibition  be  extended  only  to  the  abridgment  or  impairment  of  such  rights,  as 
the  right  to  come  to  the  seat  of  government,  .  .  .  which  are  specified  in  the  opinion  in 
the  Ulaughter-House  Cases  as  the  special  rights  of  such  citizens.  If  thus  limited,  notli- 
iug  was  accomplished  by  adopting  it.  The  States  could  not  previously  have  interfered 
with  these  privileges  and  immunities,  or  any  other  privileges  and  immunities  which 
citizens  enjoyed  under  the  Constitution  and  laws  of  the  United  States.  .  .  .  Whilst-.,— 
therefore.  I  fully  concur  in  the  decision  of  the  court  that  itjyas.  e"<^^'"i'p1y  competent  fi^r 
the  State  to  annul  the  monopoly  features  of  the  ofityjnal  Act  incorporating  the  plaintiffs 
I  am  of  opinion  that  the  Act,  in  creating  the  monopoly  in  an  ordinary  employinpnt. 
and  business,  was  to  that  extent  against  common  right  and  void." 

Br.\dley,  J.  (speaking  also  tor  Justices  Harlan  and  Woods),  said  :  ..."  I  do  not 
mean  to  say  that  there  are  no  exclusive  rights  which  can  be  granted,  or  that  there  are 
not  mauy  regulative  restraints  on  civil  action  which  may  be  imposed  by  law.  .  .  .  But 
this  concession  does  not  in  the  slightest  degree  affect  the  proposition  (which  I  deem  a 
fundamental  one),  that  the  ordinary  pursuits  of  life,  forming  the  large  mass  of  indus- 
trial avocations,  are  and  ought  to  be  free  and  open  to  all,  subject  only  to  such  general 
regulations,  applying  equally  to  all,  as  the  general  good  may  demand ;  and  the  grant 
to  a  favored  few  of  a  monopoly  in  any  of  these  common  callings  is  necessarily  an  out- 
rage upon  the  liberty  of  the  citizen  as  exhibited  in  one  of  its  most  important  aspects, 
—  the  liberty  of  pursuit.  ...  It  abridges  the  privileges  of  citizens  of  the  United  States ; 
it  deprives  them  of  a  portion  of  their  liberty  and  property  without  due  process  of  law; 
and  it  denies  to  them  the  equal  protection  of  the  laws  1.  I  hold  that  the  liberty  of 
pursuit  —  the  right  to  follow  any  of  the  ordinary  callings  of  life  —  is  one  of  the  privi- 
leges of  a  citizen  of  the  United  States.  ...  2.  But  if  it  does  not  abridge  the  privileges 
and  immunities  of  a  citizen  of  the  United  States  to  prohibit  him  from  pursuing  his 
chosen  calling,  and  giving  to  others  the  exclusive  right  of  pursuing  it,  it  certainly  does 
deprive  him  (to  a  certain  extent)  of  his  liberty ;  for  it  takes  from  him  the  freedom  of 
adopting  and  following  the  pursuit  which  he  prefers;  which,  as  already  intimated,  is 
a  material  part  of  the  liberty  of  the  citizen.  And,  if  a  man's  right  to  his  calling  is 
property,  as  many  maintain,  then  those  who  had  already  adopted  the  prohibited  pur- 
suits in  New  Orleans,  were  deprived,  by  the  law  in  question,  of  their  property,  as  well 
as  their  liberty,  without  due  process  of  law.  3.  But  still  more  apparent  is  the  viola- 
tion, by  this  monopoly  law,  of  the  last  clause  of  the  section,  — '  no  State  shall  deny  to 
any  person  the  equal  protection  of  the  laws.'     If  it  is  not  a  denial  of  the  equal  protection 


CHAP.  IV.]  STRAUDER  V.   WEST   VIRGINIA.  543 


STRAUDER  v.   WEST  VIRGINIA. 

Supreme  Court  of  the  United  States.     1879. 

[100  U.  S.  303.] 

Error  to  the  Supreme  Court  of  Appeals  of  the  State  of  West 
Virginia. 

Tiie  facts  are  stated  in  the  opinion  of  the  court. 

3Ir.  Charles  Devens  and  JUr.  George  0.  Davenport,  for  the  plaintiff 
in  error. 

Mr.  Robert  White,  Attornej'-General  of  West  Virginia,  and  Jir. 
James  W.  Green,  co?itra. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  a  colored  man,  was  indicted  for  murder  in  the 
Circuit  Court  of  Ohio  County,  in  West  Virginia,  on  the  20th  of  October, 
1874,  and  upon  trial  was  convicted  and  sentenced.  The  record  was 
then  removed  to  the  Supreme  Court  of  the  State,  and  there  the  judg- 
ment of  the  Circuit  Court  was  affirmed.  The  present  case  is  a  writ  of 
error  to  that  court,  and  it  is  now,  in  substance,  averred  that  at  the  trial 
in  the  State  court  the  defendant  (now  plaintiff  in  error)  was  denied 
rights  to  which  he  was  entitled  under  the  Constitution  and  laws  of  the 
United  States. 

In  the  Circuit  Court  of  the  State,  before  the  trial  of  the  indictment 
was  commenced,  the  defendant  presented  his  petition,  verified  by  his 
oath,  praying  for  a  removal  of  the  cause  into  the  Circuit  Court  of  the 
United  States,  assigning,  as  ground  for  the  removal,  that,  "■  by  virtue 
of  the  laws  of  the  State  of  West  Virginia  no  colored  man  was  eligible 
to  be  a  member  of  the  grand  jur}'  or  to  serve  on  a  petit  jurj-  in  the 
State  ;  that  white  men  are  so  eligible,  and  that  by  reason  of  his  being  a 
colored  man  and  having  been  a  slave,  he  had  reason  to  believe,  and 
did  believe,  he  could  not  have  the  full  and  equal  benefit  of  all  laws  and 
proceedings  in  the  State  of  West  Virginia  for  tlie  securitj-  of  his  person 
as  is  enjoyed  b}'  white  citizens,  and  that  he  had  less  chance  of  enforcing 
in  the  courts  of  the  State  his  rights  on  the  prosecution,  as  a  citizen  of 
the  United  States,  and  that  the  probabilities  of  a  denial  of  them  to  him 

of  the  laws  to  grant  to  one  man,  or  set  of  men,  the  privilege  of  following  an  ordinary 
calling  in  a  large  community,  and  to  deny  it  to  all  others,  it  is  difficult  to  understand 
what  would  come  within  the  constitutional  prohibition.  MQllo]2olifiS_^araJJie_baiifi_af 
our  body  politic  at  the  present  (lay.  In  the  eager  pursuit  of  gain  they  are  souglit  in 
every  direction.  They  exhibit  tlyfimselves  in  corners  in  the  stock  market  and  produce 
market,  and  in  many  other  ways.  \]f  Viy  Ipgislat.ivp  enr^^'tm"''''  ^^"^y  ^a"  '">  cnrn'oil  \ntn 
the  common  avocations  and  callings  of  life,  so  ns  tn  ont  off  the  right  of  the  citizen -to 
choose  his  avocation,  the  right  to  earn  his  bread  hy  the  tr.ade  which  he  has  learned : 

and  if  there  is  no  C0nstHllt'""^1  moana  ,\f  pnftinpr  -^  nho^^l-  tr,  anph  ftnormjt.y,  \  oai\  only 

say  that  it  is  time  the  Consf.it^^tion  was  still  further  amended.  In  my  judgment,  the 
present  Constitution  is  amply  sufficient  for  the  protection  of  the  people  if  it  is  fairly 
interpreted  and  faithfully  enforced."  —  Ed. 


544  STRAUDER  V.  WEST  VIRGINIA.  [CHAP.  IV. 

as  such  citizen  on  every  trial  which  might  take  place  on  the  indictment 
in  the  courts  of  the  State  were  much  more  enhanced  than  if  he  was  a 
white  man."  This  petition  was  denied  by  the  State  court,  and  the 
cause  was  forced  to  trial. 

Motions  to  quash  the  venire,  "  because  the  law  under  which  it  was 
issued  was  unconstitutional,  null,  and  void,"  and  successive  motions  to 
challenge  the  array  of  the  panel,  for  a  new  trial,  and  in  arrest  of  judg- 
ment were  then  made,  all  of  which  were  overruled  and  made  by  excep- 
tions parts  of  the  record. 

The  law  of  the  State  to  which  reference  was  made  in  the  petition  for 
removal  and  in  the  several  motions  was  enacted  on  the  12th  of  March, 
1873  (Acts  of  1872-73,  p.  102),  and  it  is  as  follows :  "  All  white  male 
persons  who  are  twenty -one  years  of  age  and  who  are  citizens  of  this 
State  shall  be  liable  to  serve  as  jurors,  except  as  herein  provided." 
The  persons  excepted  are  State  oflicials. 

In  this  court,  several  errors  have  been  assigned,  and  the  controlling 
questions  underl3uug  them  all  are,  first,  whether,  b}'  the  Constitution 
and  laws  of  the  United  States,  every  citizen  of  the  United  States  has  a 
right  to  a  trial  of  an  indictment  against  him  by  a  jurj'  selected  and  im- 
panelled without  discrimination  against  his  race  or  color,  because  of 
race  or  color;  and,  second,  if  he  has  such  a  right,  and  is  denied  its 
enjoyment  b}'  the  State  in  which  he  is  indicted,  ma}'  he  cause  the  case 
to  be  removed  into  the  Circuit  Court  of  the  United  States  ? 

It  is  to  be  observed  that  the  first  of  these  questions  is  not_yvheth£r-a 
colored  man,  when  an  indictment  has  been  preferred  against  him,  has  a 
right  to  a  grand  or  a  petit  jury  composed  in  whole  or  in  part  ofpersons 
nf  his  own  rnop  or  nolnr,  but  it  is  whpthpr,  in  t.hp_mmpnsifinn  nr  solgf^tmn 
of  jurors  by  whom  he  is  to  be  indicted  or  tried,  all  persons  of  his_raoe 
or  color  mav  be  excluded  b}'  law,  solely'  because  of  their  race  or  color, 
so_that  by-no  possibility  cnn  nny  colm:£d_mair  sit  upon  the'jiny.  .  7". 
[Sect.  1  of  the  Fourteenth  Amendment  is  here  recited.] 

This  is  one  of  a  series  of  constitutional  provisions  having  a  common 
purpose;  namely,  securing  to  a  race  recently  emancipated,  a  race  that 
through  man}'  generations  had  been  held  in  slavery,  all  the  civil  rights 
that  the  superior  race  enjoy.  The  true  spirit  and  meaning  of  the 
amendments,  as  we  said  in  the  Slaughter-House  Cases,  16  AVall.  36, 
cannot  be  understood  without  keeping  in  view  the  history  of  the  times 
when  they  were  adopted,  and  the  general  objects  they  plainly  sought  to 
accomplish.  At  the  time  when  they  were  incorporated  into  the  Consti- 
tution, it  required  little  knowledge  of  human  nature  to  anticipate  that 
those  who  had  long  been  regarded  as  an  inferior  and  subject  race  would, 
when  suddenly  raised  to  the  rank  of  citizenship,  be  looked  upon  with 
jealousy  and  positive  dislike,  and  that  State  laws  might  be  enacted  or 
enforced  to  perpetuate  the  distinctions  that  had  before  existed.  Dis- 
criminations against  them  had  been  habitual.  It  was  well  known  that  in 
some  States  laws  making  such  discriminations  then  existed,  aud  others 
might  well  be  expected.     The  colored  race,  as  a  race,  was  abject  and 


CHAP.  IV.]  STRAUDER   V.    WEST    VIRGI^  545 

ignorant,  and  in  that  condition  was  unfitted  to  command  the  respect  of 
those  who  had  superior  intelligence.  Their  training  had  left  them  mere 
children,  and  as  such  they  needed  the  protection  which  a  wise  govern- 
ment extends  to  those  who  are  unable  to  protect  themselves.  The}- 
especially  needed  protection  against  unfriendly  action  in  the  States 
where  they  were  resident.  It  was  in  view  of  these  considerations  tiie 
Fourteenth  Amendment  was  framed  and  adopted.  It  was  designed__tp 
assure  to  the  colored  race  the  enjoyme^ijtofjilLUie^ynjjghtsJjjat  under 
JJTfJjva'  are  e^j^y^'d  >^y  vyhhf^  pfi-snns^  aiid  to^ive  toJthat j-acfi_ilie„4iro^ 
tection  of  the  general  government,  iii^thiit—ejiJQymant,.  jdienei'erJt 
should  be  denied  by  the  States.  1 1  nol ojiLy  _gai:e^  cilizenship-^aud-the 
privileges  of  citizenshitvtoj3ersons_of  color,  but  it  deni^d_tQ  any  State 
the  power  to  withhold  from  them  Jhe^aaal  protection  of  the  laws, 
and  authorized  Congress  jo,  enfoTce  J.ts  provisions  by  nppropriate 
legislatioiL-  •   .  . 

If  this  is  the  spirit  and  meaning  of  the  amendment,  whether  it  means 
more  or  not,  it  is  to  be  construed  liberally,  to  carry  out  the  purposes  of 
its  framers.  It  ordains  that  no  State  shall  make  or  enforce  any  laws 
which  sliall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States  (evidently  referring  to  the  newly  made  citizens,  who, 
being  citizens  of  the  United  States,  are  declared  to  be  also  citizens  of 
the  State  in  which  they  reside).  It  ordains  that  no  State  shall  deprive 
any  person  of  life,  liberty,  or  property,  without  due  process  of  law,  or 
deny  to  any  person  within  its  jurisdiction  the  equal  pi'otcction  of  the  laws. 
What  is  this  but  declaring  that  the  law  in  the  States  shall  be  the  same 
for  the  black  as  for  the  white;  that  all  persons,  whether  colored  or 
white,  shall  stand  equal  before  the  laws  of  the  States,  and,  in  regard  to 
the  colored  race,  for  whose  protection  the  amendment  was  primarily 
designed,  that  no  discrimination  shall  be  made  against  them  b}'  law 
because  of  their  color?  The  words_of^the_ajiipndmpnt,  it  is  tiMiej^jvrg^ 
prohibitoryi  but  tlipy  contain  a  necessary  implicflt.ion  nf„ a  positiye4ffi- 
■nunity,  nr  vjp;bf,,  mns^.  valuable  to  the  colored  race ^ -^-  the  ri^liLJD 
exemption  from  unfriendly  legislation  against  tJimn-diatuictJA^elv  as  qq1= 
oretT, —exemption  from  legal  discriminations,  implying  infJei-JorltMJB 
civil   soejpty,    Ipsspning  tho  .spcnrity  of  tlieir  enioyment,  of  tM  J'ights 

^'ifll   ^tllP''"  ^"j'^yj    ^"^^    rlJgr^ritninnfinncj   ^rl^ir-h    flVP    stppS  tOWards  reduc- 
ing them  to  the  (--onrlitmn  r^f  f]^  °nbject  race. 

That  the  West  Virginia  statute  respecting  juries  —  the  statute  that 
controlled  the  selection  of  the  grand  and  petit  jur}'  in  the  case  of  the 
plaintiff  in  error  —  is  such  a  discrimination  ought  not  to  be  doubted. 
Nor  would  it  be  if  the  persons  excluded  b}-  it  were  white  men.  If  in 
those  States  where  the  colored  people  constitute  a  majority  of  the  en- 
tire population  a  law  should  be  enacted  excluding  all  white  men  from 
jury  service,  thus  denying  to  them  the  privilege  of  participating  equally 
with  the  blacks  in  the  administration  of  justice,  we  apprehend  no  one 
would  be  heard  to  claim  that  it  would  not  be  a  denial  to  white  men  of 
the  equal  protection  of  the  laws.  Nor  if  a  law  should  be  passed  exclud- 
voL.  I.  —  35 


54:6  STUAUDER   V.    WEST    VIRGINIA.  [cHAP.  IV. 

ing  all  naturalized  Celtic  Irishmen,  would  there  be  any  doubt  of  its 
inconsistenc}'  with  the  spirit  of  the  amendment.  rThe  very  fact  tliat 
colored  people  are  singled  out  and  expressly  denied  by  a  statute  all 
riojht  to  participate  in  the  adniiiQistration  oi  the  law,  as  jurors,  because 
of  their  color,  though  theyj,re  citizens,  and  may  be  in  other  respects 
fully  qualified,  is  practically  a^brand  upon  them,  affixed  by  the  law,  an 
assertion  of  their  inferiority,  and  a  stiiniiilat7t  toJthat  race  prejudice 
which  is  an  impediment  to  seciirlng-tQ-individuals  of  the^race  that  equal 
justice  ^/vh\oh  the  laJi_aimsJ,o  secure  to  jail  others  J 

The  right  to  a  trial  b}'  jury  is  guaranteed  to  every  citizen  of  "West 
Virginia  b\'  the  Constitution  of  that  State,  and  the  constitution  of  juries 
is  a  very  essential  part  of  the  protection  such  a  mode  of  trial  is  intended 
to  secure.  The  very  idea  of  a  jury  is  a  body  of  men  composed  of  the 
peers  or  equals  of  the  person  whose  rights  it  is  selected  or  summoned 
to  determine  ;  that  is,  of  his  neighbors,  fellows,  associates,  persons  hav- 
ing the  same  legal  status  in  societ}'  as  that  which  he  holds.  Blackstone, 
in  his  Commentaries,  says,  "  The  right  of  trial  In-  jury,  or  the  country, 
is  a  trial  by  the  peers  of  every  Englishman,  and  is  the  grand  bulwark 
of  his  liberties,  and  is  secured  to  him  by  the  Great  Charter."  It  is  also 
guarded  b}'  statutory  enactments  intended  to  make  impossible  what  Mr. 
Bentham  called  "  packing  juries."  It  is  well  known  that  prejudices 
often  exist  against  particular  classes  in  the  communit}-,  which  swa}'  the 
judgment  of  jurors,  and  which,  therefore,  operate  in  some  cases  to  deny 
to  persons  of  those  classes  the  full  enjoyment  of  that  protection  which 
others  enjoy.  Prejudice  in  a  local  communit}^  is  held  to  be  a  reason  for 
a  change  of  venue.  The  framers  of  the  constitutional  amendment  must 
have  known  full  well  the  existence  of  such  prejudice  and  its  likelihood 
to  continue  against  the  manumitted  slaves  and  their  race,  and  that 
knowledge  was  doubtless  a  motive  that  led  to  the  amendment.  By^ 
their  manumission  and  citizenship  the^olored  race  became  entitled^to^the, 
equal  protection  of  the  laws  of  th^  States  in  which  t.hpy  i-psiHod  ;_aJI!i 
the  apprehension  that  through  prejudice  they  might  be  denied  that  equal 
protection,  that  is,  that  there  might  be  discrimination  agninst.  thpm,  was 
the  inducement  to  bestow  upon  the  national  government  the  power  _tp 
PTrfnrop  the  provision  that  no  State  shall  deny  to  them  the  e^^jal  protec- 
tinn^f^f  thp  1nw,c^  Without  the  apprehended  existence  of  prejudice  that 
portion  of  the  amendment  would  have  been  unnecessar3%  and  it  might 
have  been  left  to  the  States  to  extend  equality  of  protection.  .  .  . 

We  do  not  say  that  within  the  limits  from  which  it  is  not  excluded  by 
\hp  .iiTiendmpnl,.  a_State  may  hot  prescribp  thp  gnnlifientions  of  ifsjiirnrsj 
and  jn  so  doing  make  discriminations.  It  may  confine  the_selectionjto_ 
males,  to  freeholders,  to  citizens,  to  persons  within  certain  ages.  an_tO- 
poi-cr>nc  Vinving  prliipntiQnnj__qiin1ifipfl t.ions  We  do  uot  believe  the 
Fourteenth  Amendment  was  ever  intendecKto  pro]jibit  this.  Looking 
at  its  history,  it  is  clear  it  had  no  such  purposeXLlta^im  was  against 
discrimination  because  of  race  or  coloA  As  we  nave  said  more  than 
once,  its  design  was  to  protect  an  emancipated  race,  and  to  strike  down 


CHAP.  IV.]  STRAUDER   V.   WEST   VIRGINIA.  547 

all  possible  legal  discriminations  against  those  who  belong  to  it.  To 
quote  further  from  16  Wall.,  supra:  "  In  giving  construction  to  any  of 
these  articles  [amendments],  it  is  necessary  to  keep  the  main  purpose 
steadily  in  view."  "  It  is  so  clearly  a  provision  for  that  race  and  that 
emergency,  that  a  strong  case  would  be  necessary  for  its  application  to 
any  other."     We  are  not  now  called  upon  to  affirm  or  deny  that  it  had 

other  purposes. 

The  Fourteenth  Amendment  makes  no  attempt  to  enumerate  tlie 
rio-htTiTdeslgH^rroTrofectrT^speaks  in  general  terms,  and  those  are 
as" comprehensive  as  possible.  Qts  language, is  prohibitory;  but  every 
prohibition  implies  the  existenc^fnghts,MidJinmimities,  prominent 
aWn<r  which  is  an  imnninitxiiom  iaequalityLof  legal  protection^jeitber^ 
for  life,  liberty,  or  prope^-.  Any  State  action  that  denies  this  inomu^ 
nity  to  a  colored  man  is  in  conflict  with  the  Constltutionjj 

Concluding,  therefore,  that  the  statute  of  West  Virginia,  discrirainat- 
in<r  in  the  selection  of  jurors,  as  it  does,  against  negroes  because  of 
their  color,  amounts  to  a  denial  of  the  equal  protection  of  the  laws  to  a 
colored  man  when  he  is  put  upon  trial  for  an  alleged  offence  against 
the  State,  it_remains_onlyJo  be^cons^deredjwhether  the  power  of_Coiv 
gress  to  enforce  the  provisions  qfjRFouri^enlh^JiiejiduLeiit  b^jiiy^ 
t^mfele'^iilationis  s'umcieiU  to  justify_thaxnactn^et^t  of-seot.  641  of  the 

Revised  Statutes.  . 

"ATi^t  or  an  immunity,  whether  created  by  the  COTstitution_oiLQnl3L 
guaranteed  by  it,  evenjvJthQnt  ^ny  evpress  delegatioJi-0^pow«iT«a3^ 
m-otected   by  C^^^^^E^^Prigg  v.   The  Commonwealth   of  PennsyU 
vania,  16  Pet.  539.     So  in  United  States  v.  Heese,  92  U.  S.  214,  it 
was  said  by  the  Chief  Justice  of  this  court:  "Rights  and  immunities 
created  by  or  dependent  upon  the  Constitution  of  the  United  States  can 
be  protected  by  Congress.     The  form  and  manner  of  the  protection  may 
be  such  as  Congress  in  the  legitimate  exercise  of  its  legislative  discre- 
tion shall  provide.     These  may  be  varied  to  meet  the  necessities  of  the 
particular  right  to  be  protected."     But  there  is  express  authority  to 
protect  the  rights  and  immunities  referred  to  in  the  Fourteenth  Amend- 
ment, and  to  "enforce  observance  of  them  by  appropriate  congressional 
legislation.     And  one  very  efficient  and  appropriate  mode  of  extending 
siKih  protection  and  securing  to  a  party  the  enjoyment  of  the  right  or 
immunity,  is  a  law  providing  for  the  removal  of  his  case  from  a  State 
court,  in  which  the  right  is  denied  by  the  State  law,  into  a  Federal 
court,  where  it  will  be  upheld.     This  is  an  ordinary  mode  of  protecting 
rights  and  immunities  conferred  by  the  Federal  Constitution  and  laws. 
Sect.  641  is  such  a  provision.  ... 

We  have  heretofore  considered  and  affirmed  the  constitutional  power 
of  Con<ri-ess  to  authorize  the  removal  from  State  courts  into  the  circuit 
courts  °of  the  United  States,  before  trial,  of  criminal  prosecutions  for 
alle<Ted  offences  against  the  laws  of  the  State,  when  the  defence  pre- 
scut's  a  Federal  question,  or  when  a  right  under  the  Federal  Constitution 
or  laws  is  involved.  Tennessee  v  Daris,  supra,  p.  257.  It  is  unneces- 
sary now  to  repeat  what  we  there  said. 


548  EX   PARTE    VIRGINIA.  [CHAP.  IV. 

That  the  petition  of  the  plaintiff  in  error,  filed  b}^  him  in  the  State 
court  before  the  trial  of  his  ease,  made  a  case  for  removal  into  the  Fed- 
eral Circuit  Court,  under  sect.  641,  is  very  plain,  if,  by  the  constitu- 
tional amendment  and  sect.  1977  of  the  Revised  Statutes,  he  was 
entitled  to  immunity  from  discrimination  against  him  in  the  selection 
of  jurors,  because  of  their  color,  as  we  have  endeavored  to  show  that 
he  was.  It  set  forth  sufficient  facts  to  exhibit  a  denial  of  that  immun- 
ity, and  a  denial  by  the  statute  law  of  the  State. 

There  was  error,  therefore,  in  proceeding  to  the  trial  of  the  indict- 
ment against  him  after  his  petition  was  filed,  as  also  in  overruling  liis 
challenge  to  the  array  of  the  jury,  and  iu  refusing  to  quash  the  panel. 

The  judgment  of  the  Supreme  Court  of  West  Virginia  will  be  reversed, 
and  the  case  remitted  with  instructions  to  reverse  the  judgment  of  the 
Cii'cuit  Court  of  Ohio  County  ;  and  it  is  jSo  ordered. 

[Field  and  Clifford,  JJ.,  dissented.] 


Ex   Parte   VIRGINIA. 
Supreme  Court  of  the  United  States.     1879. 

[100  U.  S.  339.] 

Petition  for  a  writ  of  habeas  corpus. 

The  facts  are  stated  in  the  opinion  of  the  court. 

3Ir.  James  G.  Fields  Attorney-General  of  Virginia,  and  Mr.  William 
J.  Hobertson,  for  the  petitioner. 

Mr.  Attorney- General  Devens  and  3fr.  Assistant  Attorney -General 
/Smith,  contra. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

The  petitioner,  J.  D.  Coles,  was  arrested,  and  he  is  now  held  in  cus- 
tody under  an  indictment  found  against  him  in  the  District  Court  of  the 
United  States  for  the  Western  District  of  Virginia.  The  indictment 
alleged  that  he,  being  a  judge  of  the  count)'  court  of  Pittsylvania  Countv 
of  that  State,  and  an  officer  charged  by  law  with  the  selection  of  jurors 
to  serve  in  the  circuit  and  county  coui'ts  of  said  count}*  in  the  year 
1878,  did  then  and  there  exclude  and  fail  to  select  as  grand  and  petit 
jurors  certain  citizens  of  said  count}'  of  Pittsylvania,  of  African  race 
and  black  color,  said  citizens  possessing  all  other  qualifications  pre- 
scribed by  law,  and  being  by  him  excluded  from  the  jury  lists  made  out 
by  him  as  such  judge,  on  account  of  their  race,  color,  and  previous  con- 
dition of  servitude,  and  for  no  other  reason,  against  the  peace  and  dig- 
nity of  the  United  States,  and  against  the  form  of  the  statute  of  the 
United  States  in  such  case  made  and  provided. 

Being  thus  in  custody,  he  has  presented  to  us  his  petition  for  a  writ 
of  habeas  corpus  and  a  writ  of  certiorari  to  bring  up  the  record  of  the 
District  Court,  in  order  that  he  ma}-  be  discharged ;  and  he  avers  that 


CHAP.  IV.] 


EX   PARTE   VIRGINIA.  ^'^^ 


the  District  Court  had  and  has  no  jurisdiction  of  the  matters  charged 
against  him  in  said  indictment;  that  they  constitute  no  otience  punish- 
able in  said  District  Court ;  and  that  the  finding  of  said  indictment,  and 
his  consequent  arrest  and  imprisonment,  are  unwarranted  by  the  Con- 
stitution  of  the  United  States,  or  by  any  law  made  in  pursuance  thereof, 
and  are  in  violation  of  liis  rights  and  of  the  rights  of  the  State  ot  Vir- 
oinia,  whose  judicial  officer  he  is. 

"  A  similar  petition  has  been  presented  by  the  State  of  Virguna  pray- 
ina  for  a  habeas  corpus  and  for  the  discharge  of  the  said  Coles.  Accom- 
pa^iyin-  both  these  petitions  are  exhibited  copies  of  the  indictment,  the 
bench-warrant,  and  the  return  of  the  marshal,  showing  the  arrest  of 
the  said  Coles  and  his  detention  in  custody.  ^  „      «    + 

Both  these  petitions  have  been  considered  as  one  case,  and  the  first 
question  they  present  is,  whether  this  court  has  jurisdiction  to  award 

the  writ  asked  for  by  the  petitioners Our  conclusion,  then,  is  that 

we  are  empowered  to  grant  the  writ  in  such  a  case  as  is  presented  in 
these  petitions.     We  come  now  to  the  merits  of  the  case. 

The  indictment  and  bench-warrant,  in  virtue  of  winch  the  petitioner 
Coles  has  been  arrested  and  is  held  in  custody,  have  their  justification, 
_  if  any  thev  have,  -  in  the  Act  of  Congress  of  March  1,  18  /o,  sect.  4. 
18  Stat.;  part  3,  33G.  That  section  enacts  that  -  no  citizen  possessing 
all  other  qualifications  which  are  or  may  be  prescribed  by  law  shall  be 
disqualified  for  service  as  grand  or  petit  juror  in  any  court  of  the  L  nited 
States,  or  of  any  State,  on  account  of  race,  color,  or  previous  condition 
of  servitude  ;  and  any  officer  or  other  person  charged  with  any  duty  in 
the  selection  or  summoning  of  jurors  wlio  shall  exclude  or  fail  to  sum- 
mon anv  citizen  for  the  cause  aforesaid  shall,  on  conviction  thereof  be 
deemed  ouilty  of  a  misdemeanor,  and  be  fined  not  more  than  $5,000. 
The  defe'ida'ht  has  been  indicted  for  the  misdemeanor  described  in  this 
Act,  and  itisnotdeniedjha^^ 

answer  the  inclictment^Dhe^^i^^ 

Constitution,    "fhi'^dl^li^erits  of  the  case  are  involved  in  the  ques- 
tion, whether  the  Act  was  thus  warranted.  ... 

One  great  purpose  of  these  amendments  was  to  raise  the  colored  race 
from  that  condition  of  inferiority  and  servitude  in  which  most  of  them 
had  previously  stood,  into  perfect  equality  of  civil  rights  with  all  other 
persons  within  the  jurisdiction  of  the  States.  They  were  intended  to 
take  away  all  possibility  of  oppression  by  law  because  of  race  or  color. 
They  were  intended  to  be,  what  they  really  are,  limitations  of  the  power 
of  the  States  and  enlargements  of  the  power  of  Congress.  They  are  to 
some  extent  declaratory  of  rights,  and  though  in  form  prohil)itions,  they 
imply  immunities,  such  as  may  be  protected  by  ^^ong'-^f '«"f \ /^Jl^^'f- 
tion  We  had  occasion  in  the  Slaughter  House  Cases,  16  Wall.  3fi,  to 
express  our  opinion  of  their  spirit  and  purpose,  and  to  some  extent  ot 
their  meaning.  We  have  again  been  called  to  consider  them_  in  Ten- 
nessee  v.  J)avis,  100  U.  S.  257,  and  Strauder  v.  Ifest  Virgxma.  Id. 
303      In  this  latter  case  ...  we  held,  further,  that  this  protection 


550  EX    PARTE    VIKGINIA.  [cHAP.  IV. 

and  this  guarantee,  as  the  fifth  section  of  the  amendment  expressly  or- 
dains, may  be  enforced  by  Congress  by  means  of  appropriate  legislation. 

All  of  the  amendments  derive  much  of  their  force  from  this  latter 
p ro V i sion .  Itjsjiot  said  the  judicial  power  of  tlie  general  g(u-prnmont 
shall  extend  to  enforcing  tlie  prohibitions  and  to  prot.ettting  the  rights 
^id  imm""^<^i'^'^  gnnrtintPPfl — It  is  not-said  that  branch- of  4he-gaxc rn- 
rnpnt.  sl^^ill  bp  ,'^iit.lKti-i^.pd  to  de^;]nre  void  any  action  of  a  State  iu  vLuhi- 
tion  of  the  urohibitions.  It  is  the  powpi-  of  Cnnovn^js.  which  hat^  l>.. ea 
ejilarged.  Congress  ift-anthorized-to-pnfnrr-p  thp  proViiliitmng  hy  ,appio- 
priate  legislntion  ^'^'m^  -]Ay;tti^ui^»  is:^;eHteiwpiftted-te-make-the-am£nd- 
ments  fuUy^  <^ffef^t,'vp.  miiai£veii_legislation  is  appropriate,  that  is^ 
adapted  to^  cari^:  out  the^  objects-  thaja,m£iidinents  have  in  x'low,  what- 
ever tends  to  enforce  submission  to  the  prohibitions  they  containl  and  to 
secure  to  all  persons  the  enjoyment  of  perfect  equality  of  civil  riguts  and 
the  equal  protection  of  the  laws  against  State  denial  or  invasion]  if  not 
prohibited,  is  brought  within  the  domain  of  congressional  power. 

We  have  said  the  prohibitions  of  the  Fourteenth  Amen^ient,  are 
addressed  to  the  States.  They  are,  "  No  State  shall  make^r^ enforce 
a  law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States,  .  .  .  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws."  They  l^avgJi^i^renoe  to  actlon&of  tliei)e- 
litical  body  denominated  a  State,  by  whatever  instruments  or  in  whalfixfii' 
modes  that  actj^T  m«y  be  taken.  A  Stnto  ftcts  by  its— legislative,  its 
executive,  or  itsjudicial  authorities.  It  can  act  in  no  other_way^__The_ 
constitutionni  provision,  therefore,  must  mean  that  no  aggncy  of  the 
State,  orjof  the  officers  or  agents  by  whom  its  powers  are  exerted,  shall 
deny  tg^^nji-pei'oon  within  ito  jurisdiction  thp  equal  protection  oLtlio 
laws.  fVVhoever,  by  virtue  of  public  position  under  a  State  goyernmeiitj^ 
deprives'^notheTljf  property.  life,  or  liberty,  without  dtte  process  of 
law,  or  denies  or  takes  away  the  e^uaLprotoctinn  of  thp  If^ws^jviolates 
the  constitutional  inhibition  ;  and  as  he  acts  in  the  name  and  for  the 
S^tate,  and 


is  cIothed_with-lhfi  State's  power,  his  act  is  tliat-ofJlm^^talfi)^ 
be  so,  or  the  constitutional  prohibition   has  no  meaning 


Thiiinust 

Then  the  State  has  clothed  one  of  its  agents  with  power  to  annul  or  to 

evafle  it.   .   .  . 

(\Ve  do  not  perceive  how  holding  an  office  under  a  State,  and  claiming 
trtSrtJbr  the  State,  can  relieve  the  holder  from  obligation  to  obeiTHie 
Constitution  ofjhejjnited  Stntps,  or  take  away  the  power  of  Congress 
to  punish  his  disobedience^^ 

It  was  insisted  during  tlfe  argument  on  behalf  of  the  petitioner  that 
Congress  cannot  punish  a  State  judge  for  his  official  acts  ;  and  it  was 
assumed  that  Judge  Cole,  in  selecting  the  jury  as  he  did,  was  perform- 
ing  a  judicial  act.  This  assumption  cannot  be  admitted.  yv\'hether  the 
act  done  by  him  was  judicial  or  not  is  to  be  determined  bv  its  character. 
and  not  by  the  elinrnfter  of  the  ngent!^  Whether  he  was  a  county  judge 
or  not  is  of  no  importance.  The  duty  of  selecting  jurors  might  as  well 
have  been  committed  to  a  private  person  as  to  one  holding  the  office  of 


CHAP.  IV.]  EX   PARTE   YARBROUGH.  551 

a  judge.  It  often  is  given  to  county  commissioners,  or  supervisors,  or 
assessors.  In  former  times,  the  selection  was  made  by  tlie  slieritf.  In 
such  cases,  it  surel\'  is  not  a  judicial  act,  in  any  such  sense  as  is  con- 
tended for  here.  It  is  merely  a  ministerial  act,  as  ranch  so  as  the  act 
of  a  sheriff  holding  an  execution,  in  Tleterminuig  upon  what  piece  of 
property  he  will  make  a  lev}-,  or  the  act  of  a  roadmaster  in  selecting 
laborers  to  work  upon  the  roads.  That  the  jurors  are  selected  for  a 
court  makes  no  difference.  So  are  court-criers,  tipstaves,  sheriffs,  &c. 
Is  their  election  or  their  appointment  a  judicial  act? 

But  if  the  selection  of  jurors  could  be  considered  in  any  case  a  judicial 
act,  can  the  act  charged^gainslTthe  uetitioner  be  considered  such  when 
he  acted  outside  of  his  authority  and  in  direct  violation  of  the  spirit  of 
fclie  State  statute?  That  statute  gave  him  no  authority Hwhen  selecting 
jurors,  from  whoni  a  panel  might  Tjellrawn  for  a  circuit  court,  to  exclude 
aTTcoIored  men  merely  because  they  were  colored.  Such  an  exclusion 
was  not  jell  within  the  limife  of  his  .disi^reXJ^JLjltis  idle ,  therefore,  to 
say  that  the  Act  of  Congress  is  unconstitutional  ^cause  it  inflictsjjfijial- 
tl^s  u|)onbtateJuclges  forTheir  judicial  action.      It  does  no  suclLthing.\ 

Upon  the  whole,  as  we  are  of  opinion  that  the  Act  of  Congress  upon 
which  the  indictment  against  the  petitioner  was  founded  is  constitu- 
tional, and  that  he  is  correctly  held  to  answer  it,  and  as,  therefore,  no 
object  would  be  secured  by  issuing  a  writ  of  habeas  corpus,  the  peti- 
tions are  Denied. 

[Field,  J.,  for  himself  and  Clifford,  J.,  gave  a  dissenting  opinion.] 

In  Ex  parte  Yarbrough,  110  U.  S.  651  (1883),  in  denying  a  petition 
for  a  writ  of  habeas  corpus  for  the  release  of  several  persons,  sen- 
tenced and  imprisoned  for  conspiracy  to  intimidate  persons  of  African 
descent  from  voting  at  an  election  for  a  member  of  Congress,  the  court 
(Miller,  J.)  said  :  "  It  is  said  that  the  parties  assaulted  in  these  cases 
are  not  officers  of  the  United  States,  and  their  protection  in  exercising 
the  right  to  vote  by  Congress  does  not  stand  on  the  same  ground. 

"  But  the  distinction  is  not  well  taken.  The  power  in  either  casq 
arises  out  of  the  circumstance  that  the  function  in  which  the  party_Js_ 
engaged  or  the  right  which  he  is  about  t,o  exprcise  is  dependent  on  the 
laws  of  the  United  States. 

"  In  both  cases  it  is  tbo  rlnty  r>f  thnf  gr.vpvnmpnt  to  see  that  he  may- 
exercise  this  right  freely,  and  to  protect  liim-  from  violence  wliile  so 
doing,  or  on  account  of  so  doing.  Pfhis  duty_does  not  arise  solely  from 

the^interest  of  tjjP  p^'-ty  ponrpi-nprl,  hnh  fmm  flip  npf>PRsi±^'_af  t.lip  gnv- 
ernmejit,  itspjf.  tlinf  Ita  gpi-vif>p  shill  bp  fi-pp  frnm  the  adverse  infliHMTce 
j^fjorcp  and  frniid  pi-npfispd  op  its  agents,  and  that  the  yntPs  by  whiVh 
its  members  of  Congress  and  itc  Pi-pculopt  are  elected  shall  l^e  the  free 
votes  of  the  electors,  and  the  officers  thus  chosen  the  U-e.o.  and  iincnr- 
rnjited  clipi^p  of  fhocp  vvlm  have  the  righ^  ^^  ^"kp  pm-t  in  thgt  ^•^lojpp^ 

"  This  proposition  answers  also  another  objection  to  the  constitution- 
ality of  the  laws  under  consideration,  namelj',  that  the  right  to  vote  for 


552  EX   PAllTE   YAKBKOUGH.  [CHAP.  IV. 

a  member  of  Congress  is  not  dependent  upon  the  Constitution  or 
liiws  of  the  United  States,  but  is  governed  by  tlie  law  of  eaeli  State 
respectively. 

"  If  this  were  conceded,  the  importance  to  the  general  government 
of  having  the  actual  election  —  the  voting  for  those  members  —  free 
from  force  and  fraud  is  not  diminished  by  the  circumstance  that  the 
qualification  of  the  voter  is  determined  by  the  law  of  the  State  where 
he  votes.  It  equally  atfects  the  government,  it  is_as,  indispensable  to 
the  proper  discharge  of  the  great  function  of  legislating  for  that  go.v- 
ernment,  that  those  who  are  to  control  this  legislation  shall  not  owe 
their  election  to  bribery  or  violence,  whether  the  class  of  persons  who, 
shall  vote  is  determined  by  the  law  of  the  State,  or  by  law  of  the 
United  States,  or  by  their  united  result. 

"  But  it  is  not  correct  jq  sny  tliqt.  tlip  n'o-lit  to  vote  for  a  member  of 
Congress  does  not  depend  on  the  Constitution  of  the  United  States^— 

"  The  office,  if  it  be  properly  called  an  office,  is  created  by  that  Con- 
stitution, and  by  that  alone.  It  also  declares  how  it  shall  be  filled  ; 
namely,  by  election. 

"Its  language  is:  'The  House  of  Representatives  shall  be  com- 
posed of  members  chosen  every  second  year  b}'  the  people  of  the  sev- 
eral States,  and  the  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  tlie  most  numerous  branch  of  the  State  legis- 
lature.'    Article   1,  section  2. 

"  The  States  in  prescribing  the  qualifications  of  voters  for  the  most 
numerous  branch  of  their  own  legislatures,  do  not  do  this  with  reference 
to  the  election  for  members  of  Congress.  Nori;an  the}'  prescribe  the 
qualification  for  voters  for  those  eo  nomine.  iThey  define  who  are  to 
v^te  for  the  popular  branch  of  their  own  legislaTure,  and  the  Cnnstitn- 
tioii  of  the  United  States  says  the  snmp  ppraong  s));,ii  vnfp  for  members 
of  Congress  in  that  State.  It  adopts  tlie  qnnlification  thus  furnished  as 
the_qualification  of  its  own  electors  for  members  of  Congress. 

"  U  is  not  true,  therefore,  that  electors  for  members  of  Congress  owg 
then-  right  to  voteJ.o  the  State  law  in  any  sense  wlnr-li  mpl\es  thp  pvpv- 
cise  of  the  right  to  depend  evclnsivelv  on  the  law  of  the  StateT^ 

"  Counsel  for  petitioners,  seizing  upon  the  expression  found  in  the 
opinion  of  the  court  in  the  case  of  Minor  v.  HappersetL  21  Wall.  162, 
that  '  the  Constitution  of  the  United  States  does  not  con  er  the  right  of 
suffrage  upon  any  one,'  without  reference  to  the  connection  in  which  it 
is  used,  insists  that  the  voters  in  this  case  do  not  owe  their  right  to  vote 
in  any  sense  to  that  instrument. 

"  But  the  court  was  combating  the  argument  that  this  right  was  con- 
ferred on  all  citizens,  and  therefore  upon  women  as  well  as  men. 

"  In  opposition  to  that  idea,  it  was  said  the  Constitution  adopts  as 
the  qualification  for  voters  of  members  of  Congress  that  which  prevails 
in  the  State  where  the  voting  is  to  be  done  ;  therefore, ^said  the  opin- 
ion, the  right  is  not  definitely  confei:iiid_Qii  any  person  or  class  of  per- 
sons, bj-  the  Constitution  alone,  because  you  have  to  look  to  the  law  of 


CHAP.  lY.]  EX   PARTE   YARBROUGH.  553 

the  State  for  the  description  of  the  class.  But  the  court  did  not  intend 
to  say  that~wlien  the  class  or  the  person  is^us  ascertained,  his  jlghi-tcu 
vote  for  a  member  of  Congress^ was  j2ot_fundamenJ^lyJ)ased_upon_the 
Constitution,  which  created  the^ffice^of  meniber  of  Congress,  and  de- 
clared it  should  be  elective,  and  pointed  to  the  means  of  ascertaining 
who  should  be  electors. 

"  The  Fifteenth  Amendment  of  the  Constitution,  by  its  limitation  on 
the  tjovver  of  the  States  in^the  exercise  of  their  right  to  presmiht^  tlig~ 
qi'^liticaUonFof^yoteiLS  iff^^'''  »wn  plpftiong,  ,ii|^rL  t^y  ifg  limitation  of 
the  power  of  the  United  States  over  that  subject  Jclearlv  shows  that  the 
rightof^ suffrage  was_coiisidered  to  hp  nf  snpi-pme  importance  to  the 
national  government,  andjLvas  not  intended  to  be-IefLjmthin  the  exclu- 
sive control  of  the^tates/l  It  is  in  the  following  language  :  — 

"  '  Sec.  1.  The  riglit  ofcitizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States,  or  by  any  State,  on  account 
of  race,  color,  or  previous  condition  of  servitude. 

" '  Sec.  2.  Viie  Congress  shall  have  power  to  enforce  this  article  by 
api)i"^)riate  legislation.' 

•'uVhile  it  is  quite  true,  as  was  said  by  this  court  in  United  States  v. 
!.s^.  92  TT.  S^ 


Reese,  92  U.  S7'^1'4-y-4Jiat_-tjns  article  gives  no  affirmative  right  to  tlie 
colored  man  to  vote,  and  is  designed  primarily  to  prevent  discriinina- 
tion  against  him  whenever  the  riglit  to  vote  ma}'  be  granted  to  otliers, 
it  is  easy  to  see  tliat  \|nder  some  circumstances  it  may  operate  as  the 
immediate  source  of  a  right  to  vot^^^jnall  cases  where  tlie  foriner 
slaveholding  States  had  not  removed^om  their  constitutions  tne  words 
'  white  manj_as  a  qualification  for  votingTthls^Kovision  ttid,  in  effect, 
confer  on  him  the  rightlo^vote,  because,  being  pal-amount  to  the^State 
law,  and  a  part  of  the  State  law,  it  annulled  the  discrim i n ating  word 
re  kite,  and  thus  left  him  in  the  enjoyment  of  the  same  right  as  white 
persons.  And  such  would  be  the  effect  of  any  future  constitutional 
provision  of  a  State  which  should  give  the  right  of  voting  exclusively 
to  white  people,  whether  they  be  men  or  women.  Need  v.  Delaioare, 
103  U.  S.  370. 

^^Un  such  cases  this  Fifteenth  Article  of  Amendment  docs,  propria 


W^Qrg^siii).sranti;iHy  umifer  on  the  negrojthe  right  to  votCj  awd  Congress 
has  thejiower  to  motect  and  enforcetbat  rightri 

"  In  the  case  of  United  States  \.  Meese,~so  much  relied  on  b}-  coun- 
sel, tills  court  said  in  regard  to  the  Fifteenth  Amendment,  that  '  it  has 
invested  the  citizens  of  the  United  States  with  a  new  constitutional 
right  which  is  within  the'  protecting  power  of  Congress.  That  riglit  is 
an  exemption  from  discrimination  in  the  exercise  of  the  elective  fran- 
chise on  account  of  race,  color,  or  previous  condition  of  servitude.' 
Tliis  new  constitutional  right  was  mainly  designed  for  citizens  of  African 
descent.  The  principle,  however,  that  the  protection  of  the  exercise  of 
this  right  is  within  the  power  of  Congress,  is  as  necessary  to  tlio  right 
of  other  citizens  to  vote  as  to  the  colored  citizen,  and  to  the  right  to 
vote  in  general  as  to  the  right  to  be  protected  against  discriminatioa. 


554  CIVIL   RIGHTS   CASES.  [CHAP.  17. 

"  The  exercise  of  the  right  in  both  instances  is  guaranteed  b3-  the 
Constitution,  and  should  be  kept  free  and  pure  by  congressional  enact- 
ments wlienever  that  is  necessarj'. 

"  The  reference  to  cases  in  this  court  in  which  the  power  of  Congress 
under  the  first  section  of  the  FonrtPRntli  AnipndmRnt  has  been  held  to 
relate  alone  to  acts  done  under  State  authori^3>«Jm  afford  petitioners 
no  aid  in  the  present  case.  For,  whjlgJt^ay  be  fxne^  thnf  gr-±a-jclur-h 
are  mere  invasions_oLpm:aie  rights,  whicli  acts  tiaYejifl_8nnction  in  the 

statutes  of  a  State,  or  whi'-l^    ^rp    nr>t  pnminittorl    hy  any  f\na_^  PVPvr-iginff 

itsjinthorify,  are  not  within  the  scope  of  that  amendment,  it  is  quite  a 
different  matter  when  Congress  undertakes  to  protect  the  citizen  in  tiie 
€X£rciseof_rights  conferred  by  the  Constitution  of  the  TTnitpd  States 
f>Qgpntjfl1jnJ.hft  l^pnlthy  ni-gnnizntion  nf  \hp_anvprnmpr\f.  itspjf." 


CIVIL   RIGHTS   CASES. 

Supreme  Court  of  the  United  States.     1883.- 

[109  U.  S.  3.] 

These  cases  were  all  founded  on  the  first  and  second  sections  of  the 
Act  of  Congress,  known  as  the  Civil  Riglits  Act,  passed  March  1st, 
1875,  entitled  "  An  Act  to  protect  all  Citizens  in  their  Civil  and  Legal 
Rights."  18  Stat.  335.  Two  of  the  cases,  those  against  Stanley  and 
Nichols,  were  indictments  for  denying  to  persons  of  color  the  accommo- 
dations and  privileges  of  an  inn  or  hotel ;  two  of  them,  those  against 
Ryan  and  Singleton,  were,  one  an  information,  the  other  an  indictment, 
for  denying  to  individuals  the  privileges  and  accommodations  of  a 
theatre,  the  information  against  Ryan  being  for  refusing  a  colored 
person  a  seat  in  the  dress  circle  of  Maguire's  theatre  in  San  Fran- 
cisco ;  and  the  indictment  against  Singleton  was  for  denying  to  another 
person,  whose  color  was  not  stated,  the  full  enjoyment  of  the  accommo- 
dations of  the  theatre  known  as  the  Grand  Opera  House  in  New  York, 
"  said  denial  not  being  made  for  any  reasons  by  law  applicable  to  citi- 
zens of  every  race  and  color,  and  regardless  of  any  previous  condition 
of  servitude."  The  case  of  Robinson  and  wife  against  the  Memphis  & 
Charleston  R.  R.  Company  was  an  action  brought  in  the  Circuit  Court 
of  the  United  States  for  the  Western  District  of  Tennessee,  to  recover 
the  penalty  of  five  hundred  dollars  given  by  the  second  section  of  the 
Act ;  and  the  gravamen  was  the  refusal  by  the  conductor  of  the  railroad 
company  to  allow  the  wife  to  ride  in  the  ladies'  car,  for  the  reason,  as 
stated  in  one  of  the  counts,  that  she  was  a  person  of  African  descent. 
The  jury  rendered  a  verdict  for  the  defendants  in  this  case  upon  the 
merits,  under  a  charge  of  the  court  to  which  a  bill  of  exceptions  was 
taken  by  the  plaintiffs.  The  case  was  tried  on  the  assumption  by  both 
parties  of  the  validity  of  the  Act  of  Congress  ;  and  the  principal  point 


CHAP.  IV.]  CIVIL  RIGHTS   CASES.  555 

made  bj'  the  exceptions  was,  that  the  judge  allowed  evidence  to  go  to 
the  jury  tending  to  show  that  the  conductor  had  reason  to  suspect  that 
the  plaintiff,  the  wife,  was  an  improper  person,  because  she  was  in  corn- 
pan}'  with  a  young  man  whom  he  supposed  to  be  a  white  man,  and  on 
that  account  inferred  that  there  was  some  improper  connection  between 
them ;  and  the  judge  charged  the  jury,  in  substance,  that  if  this  was 
the  conductor's  bona  fide  reason  for  excluding  the  woman  from  the  car, 
thp}'  might  take  it  into  consideration  on  the  question  of  the  liability  of 
the  company.  The  case  was  brought  here  by  writ  of  error  at  the  suit 
of  the  plaintiffs.  The  cases  of  Stanley,  Nichols,  and  Singleton,  came 
up  on  certificates  of  division  of  opinion  between  the  judges  below  as  to 
the  constitutionalit}'  of  the  first  and  second  sections  of  the  Act  referred 
to ;  and  the  case  of  Ryan,  on  a  writ  of  error  to  the  judgment  of  the 
Circuit  Court  for  the  District  of  California  sustaining  a  demurrer  to 
the  information. 

The  Stanley-,  Rj'an,  Nichols,  and  Singleton  cases  were  submitted 
together,  by  the  Solicitor-General  at  the  last  term  of  court,  on  the  7th 
day  of  November,  1882.  There  were  no  appearances  and  no  briefs 
filed  for  the  defendants. 

The  Robinson  case  was  submitted  on  the  briefs  at  the  last  term,  on 
the  29th  day  of  March,  1883. 

Mr.  Solicitor-  General  Phillips,  for  the  United  States. 

Mr.  William  M.  Randolph.,  for  Robinson  and  wife,  plaintiffs  in 
error. 

Mr.  William  Y.  C.  Humes  and  Mr.  David  Posten  for  the  Memphis 
and  Charleston  Railroad  Co.,  defendants  in  error. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court.  After 
stating  the  facts  in  the  above  language  he  continued  : 

It  is  obvious  that  the  primary  and  important  question  in  all  the  cases 
is  the  constitutionality  of  the  law :  for  if  the  law  is  unconstitutional 
none  of  the  prosecutions  can  stand. 

The  sections  of  the  law  referred  to  provide  as  follows :  [These  sec- 
tions are  given  in  a  note  below.]  ^ 

^  "Sec.  I.  That  all  persons  within  the  jurisdiction  of  the  United  States  shall  be 
entitled  to  the  full  and  equal  enjoyment  of  the  accommodations,  advantages,  facilities, 
and  privileges  of  inns,  public  conveyances  on  land  of  water,  theatres,  and  other  places 
of  public  amusement;  subject  only  to  the  conditions  and  limitations  established  by 
law,  and  applicable  alike  to  citizens  of  every  race  and  color,  regardless  of  any  previous 
condition  of  servitude. 

"  Sec.  2.  That  any  person  who  shall  violate  the  foregoing  section  by  denying  to  any 
citizen,  except  for  reasons  by  law  applicable  to  citizens  of  every  race  and  color,  and 
regardless  of  any  previous  condition  of  servitude,  the  full  enjoyment  of  any  of  the 
accommodations,  advantages,  facilities,  or  privileges  in  said  section  enumerated,  or  by 
aiding  or  inciting  such  denial,  shall  for  every  such  offence  forfeit  and  pay  the  sum  of 
five  hundred  dollars  to  the  person  aggrieved  thereby,  to  be  recovered  in  an  action  of 
debt,  with  full  costs  ;  and  shall  also,  for  every  such  offence,  be  deemed  guilty  of  a  mi.s- 
demeanor,  and,  upon  conviction  thereof,  shall  be  fined  not  less  than  five  hundred  nor 
more  than  one  thousand  dollars,  or  shall  be  imprisoned  not  less  tiian  thirty  days  nor 
more  than  one  year  :  Provided,  That  all  persons  may  elect  to  sue  for  the  penalty  afore- 


556  CIVIL   RIGHTS   CASES.  [CHAP,  IV. 

Are  these  sections  constitutional?  Tlie  first  section,  which  is  the 
principal  one,  cannot  be  fairly  understood  without  attending  to  the  last 
clause,  which  qualifies  the  preceding  part. 

The  essence  of  the  law  is,  not  to  declare  broadk  thai  all  persons 
shall  be  entitled  to  the  full  and  equal  enjoyment  of  the  accommodations, 
advantages,  facilities,  and  privileges  of  inns,  public  conveyances,  and 
theatres  ;  but  that  such  enjoyment  shall  not  be  subject  to  any  con- 
ditions applicable  only  to  citizens  of  a  particular  race  or  color,  or  who 
had  been  in  a  previous  condition  of  servitude.  In  other  words,  it  is 
the  purpose  of  the  law  to  declare  that,  in  the  enjoyment  of  the  accom- 
modations and  privileges  of  inns,  public  conveyances,  theatres,  and 
other  places  of  public  amusement,  no  distinction  shall  be  made  between 
citizens  of  ditferent  race  or  color,  or  between  those  who  have,  and  those 
who  have  not,  been  slaves.  Its  effect  is  to  declare,  that  in  all  inns, 
public  conveyances,  and  places  of  amusement,  colored  citizens,  whether 
formerly  slaves  or  not,  and  citizens  of  other  races,  shall  have  the  same 
accommodations  and  privileges  in  all  inns,  public  conveyances,  and 
places  of  anmsement  as  are  enjoyed  by  white  citizens  ;  and  rice  versa. 
The  second  section  makes  it  a  penal  olfence  in  any  person  to  deny  to 
any  citizen  of  any  race  or  color,  regardless  of  previous  servitude,  any 
of  the  accommodations  or  privileges  mentioned  in  the  first  section. 

Has  Congress  constitutional  power  to  make  such  a  law  ?  Of  course, 
no  one  will  contend  that  the  power  to  pass  it  was  contained  in  the  Con- 
stitution before  the  adoption  of  the  last  three  amendments.  The  power 
is  sought,  first,  in  the  Fourteenth  Amendment,  and  the  views  and  argu- 
ments of  distinguished  Senators,  advanced  whilst  the  law  was  under 
consideration,  claiming  authority  to  pass  it  by  virtue  of  that  amend- 
ment, are  the  principal  arguments  adduced  in  favor  of  the  power.  We 
have  carefully  considered  those  arguments,  as  was  due  to  the  eminent 
ability  of  those  who  put  them  forward,  and  have  felt,  in  all  its  force, 
the  weight  of  authority  which  always  invests  a  law  that  Congress  deems 
itself  competent  to  pass.  But  the  responsibility  of  an  independent 
judgment  is  now  thrown  upon  this  court ;  and  we  are  bound  to  exercise 
it  according  to  the  best  lights  we  have. 

The  first  section  of  the  Fourteenth  Amendment  (which  is  the  one 
relied  on),  after  declaring  wjio  shall  be  citizens  of  the  United  States, 
and  of  the  several  States,  is  prohibitory  in  its  character,  and  prohibitory 
upon  the  States.     It  declares  that : 

"No  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States  ;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property  without  due  pro- 
said,  or  to  proceed  under  their  rights  at  common  law  and  hy  State  statutes ;  and  having 
so  elected  to  proceed  in  the  one  mode  or  the  other,  their  right  to  proceed  in  the  other 
jurisdiction  sliall  be  barred.  But  this  provision  shall  not  apidy  to  criminal  proceed- 
ings, either  under  this  Act  or  the  criminal  law  of  any  State  :  And  provided  fuvther. 
That  a  iudgment  for  the  penalty  in  favor  of  the  party  aggrieved,  or  a  judgment  upon 
an  indictment,  shall  be  a  bar  to  either  prosecution  respectively." 


CHAP.  IV.]  CIVIL   RIGHTS    CASES.   .  557 

cess  of  law ;  nor  deny  to  any  person  within  its  jurisdiction  the  equal 

protection  of  the  laws."  ,  .,  -^  j       t    r 

It  is  State  action  of  a  particular  character  that  is  prohibited,  imil; 
vidual  invasion  of  individualjnghtsjg  not  the  subject^at^jiL-QL-thij 
a^IIISII5^nr-irTISi"r7k^^^  it  nullifies  and 

l^a-kes  void  all  State  legisTmoETaTKr^IS^^^^^tT^rHT  every  ki"<^,jl;>ch 
impairs  the  privileges  and  immunities  of  citizens  ot  the  United  States, 
or  which  injures  them  in  life,  liberty  or  property  without  due  process  ot 
law,  or  which  denies  to  any  of  them  the  equal  protection  of  the  laws 
It  not  only  does  this,  but,  in  order  that  the  national  will  thus  dec  aied 
may  not  be  a  mere  hrutum  fulmen,  the  last  section  of  the  amendment 
invests  Conai-ess  with  power  to  enforce  it  by  appropriate  legislation. 
To  enforce  what?     To  enforce  the  prohibition.     To  adopt  appropriate 
legislation  for  correcting  the  effects  of  such  prohibited  State    aws  and 
Nt^ate   acts,  and  thus  to  render  them  ertectually  null,  void,  and  innocu- 
<,„s      This  is  the  legislative  power  conferred  upon  Congress,  and    h  s 
i.  the  whole  of  it.   (lUloesjiotmvesi^^ 
upon  subieii^ilkkfeemU^^ 

ni:^;:iarmodes  of  relief  againsj^tatejegisk  -^'-tinn,  of 

thTjdnd  referred  toi^  It  do'ii  not  authorize  Congress  to  create  a  code 
of  municipal  law  fof  the  regulation  of  private  rights;  but  to  provide 
modes  of  redress  against  the  operation  of  State  laws,  and  the  action 
of  State  officers  executive  or  judicial,  when  these  are  subversive  of  the 
fundamental  rights  specified  in  the  amendment.  Positive  rights  and 
privileges  are  undoubtedly  secured  by  the  Fourteenth  Amendment ;  but 
they  are  secured  by  way  of  prohibition  against  State  laws  and  State 
proceedings  affecting  those  rights  and  privileges,  and  by  power  given 
to  Congress  to  legislate  for  the  purpose  of  carrying  such  prohibition 
into  effect :  and  such  legislation  must  necessarily  be  predicated  upon 
such  supposed  State  laws  or  State  proceedings,  and  be  directed  to  the 
correction  of  their  operation  and  eflect.  A  quite  full  discussion  of  this 
aspect  of  the  amendment  may  be  found  in  United  States  v.  Cruikshank, 
92  U.  S.  542  ;  Virginia  v.  Bives,  100  U.  S.  313  ;  and  Ux  parte  Vir- 
ginity 100  U.  S.  339. 

An  apt  illustration  of  tliis  distinctionmay  be  found  in  some  _of_the 
provisions  of  the  orioinal  Constitution.  Take  the  subject  of  contracts, 
fef^imple.  The  Constitution_prohibited  the  States  from  passing  am' 
^l^:^7^^^pairingjhe^^  This  did  not  give  to^Cqn- 

gTesspowerto  provide  laws  for  the  general  enforcement  of_eontracts.; 
"TioijXJwerioni^Bsrthe  courts  of  th«^ United  States  with  jurisdictloji 
over  contracts,  so  as  to  enablejmrtiesjo.sue  upon  them  in  those  courts. 
It  did,  however,  give  the  power  to  provide  remedies  by  which  the  im- 
pairment of  contracts  by  State  legislation  might  be  counteracted  and 
corrected  :  and  this  power  was  exercised.  The  remedy  which  Congress 
actuallv  provided  was  that  contained  in  the  2oth  section  of  the  Judiciary 
Act  of  1789,  1  Stat.  85.  giving  to  the  Supreme  Court  of  the  United 
States  jurisdiction  by  writ  of  error  to  review  the  final  decisions  of  State 


558  .    CIVIL   KIGHTS    CASES.  [CHAJ.  TV. 

courts  whenever  they  should  sustain  the  validity  of  a  State  statute  or 
authority  alleged  to  be  repugnant  to  the  Constitution  or  laws  of  the 
United  States.  By  this  means,  if  a  State  law  was  passed  impairing  the 
obligation  of  a  contract,  and  the  State  tribunals  sustained  the  validity 
of  the  law,  the  mischief  could  be  corrected  in  this  court.  The  legisla- 
tion of  Congress,  and  the  proceedings  provided  for  under  it,  were 
corrective  in  their  character.  No  attempt  was  made  to  draw  into  the 
United  States  courts  the  litigation  of  contracts  generally  ;  and  no  such 
attempt  would  have  been  sustained.  We  do  not  say  that  the  remedy 
provided  was  the  only  one  that  might  have  been  provided  in  that  case. 
Probably  Congress  had  power  to  pass  a  law  giving  to  the  courts  of  the 
United  States  direct  jurisdiction  over  contracts  alleged  to  be  impaired 
by  a  State  law ;  and  under  the  broad  provisions  of  the  Act  of  March 
3d,  1875,  ch.  137,  18  Stat.  470,  giving  to  the  circuit  courts  jurisdiction 
of  all  cases  arising  under  the  Constitution  and  laws  of  the  United 
States,  it  is  possible  that  such  jurisdiction  now  exists.  But  under 
that,  or  any  other  law,  it  must  appear  as  well  bj'  allegation,  as  proof 
at  the  trial,  that  the  Constitution  had  been  violated  by  the  action 
of  the  State  legislature.  Some  obnoxious_State_law  passed,  or  that, 
might  be  passed,  is  necessary  to  be  assumed  in  order  to  lay  the  founda.- 
tion  of  an}^  Federal  remedj'  irPtFe  case ;  and  for  the  vgjy  siiffjxjput 
reason,  that  the  constitutional  prohibition  is  against  State  laws  impairing 
the  obligation  of  contracts. 

|And  so  in  the  present  ease,  until'  some  State  kwbas  been  passed  ,^r 
some  State  action  through  its  officers  or  agents  has  been  taken,  adverse 
to  the  rifytits  nf  (>jf,izpns  Ronght  to  be  protected  b}-  the  Fourteeiilh 
Amendment,  no  legislation  of  the  United  States  under  said  amendment, 
nor  any  proceeding  under  such  legislation,  can^be_called  into  activity  jfor 
the  prohibitions  of  the  amendment  are^ainst  State  laws  and  acts  tJone 
under  State  aiithorii^  Of  course,  legislation  ma}-,  and  should  be,  pro- 
vided in  advance  to  meet  the  exigency  when  it  arises  ;  but  it  should  be 
adapted  to  the  mischief  and  wrong  which  the  amendment  was  intended 
to  provide  against ;  and  that  is,  State  laws,  or  State  action  of  some 
kind,  adverse  to  the  rights  of  the  citizen  secured  by  the  amendment. 
Such  legislation  cannot  properly  cover  the  whole  domain  of  rights 
appertaining  to  life,  liberty  and  property,  defining  them  and  providing 
for  their  vindication.  That  would  be  to  establish  a  code  of  municipal 
law  regulative  of  all  private  rights  between  man  and  man  in  society. 
It  would  be  to  make  Congress  take  the  place  of  the  State  legislatures 
and  to  supersede  them.  It  is  absurd  to  affirm  that,  because  the  rights 
of  life,  liberty  and  property  (which  include  all  civil  rights  that  men 
have),  are  by  the  amendment  sought  to  be  protected  against  invasion 
on  the  part  of  the  State  without  due  process  of  law,  Congress  may  there- 
fore provide  due  process  of  law  for  their  vindication  in  every  case  ;  and 
that,  because  the  denial  by  a  State  to  any  persons,  of  the  equal  pro- 
tection of  the  laws,  is  prohibited  by  the  amendment,  therefpre  Congress 


may  establish  laws  for  their  equal  protection.     In  fine,  Ithe  legislation 


retpi 
Jthe 


CHAP.  IV.]  CIVIL   RIGHTS   CASES. 


559 


which  Congress  is_authorized  to  adopt  iu  this  behalf  is  not  genena 
legislation  upon  the  riglits  of  the  citizen,  but  coiTective  legislationjthat 
isTsuch  as  ma^  be  necessary  and  proper  for  counteracting  such  laws  as 
the  Statcs~niay  adopt  or  enforce,  and  which,  by  the  amendment,  tlie}' 
ai^e  prohibited  froiijjnakin^- or  enforcing,  or  such  acts  and  pi'oceedings 
as  the  States  may  commit  or  take,  and  which,  by  the  amenihnent,  they 
anvprohibited  from  committing  or  taking;^  It  is  not  necessary  for  uTto 
stated  if  we  could,  what  legislation  would  be  proper  for  Congress  to 
a(lopt.  It  is  sufficient  for  us  to  examine  whether  the  law  in  question 
is  of  that  character. 

An  inspection  of  the  law  shows  thaj  it  makes  no  reference  whatever 
to  any  supposed  or  apprehended  violation  of  the  Fourteenth  An^ejjd; 
mcnt  on  the  part  ofjhe  SUites.  It  is  not  predicated  on  any  such  view. 
It  proceeds  ex  (?/m^  to  dec^IZre  that  certain  acts  committed  by  indi- 
viduals shall  be  deemed  offelices,  and  shall  be  prosecuted  and  punished 
by  proceedings  in  the  courts  of  the  United  States.  It  does  not  profess 
to  be  corrective  of  any  constitutional  wrong  committed  by  the  States ; 
it  does  not  make  its  operation  to  depend  upon  any  such  wrong  com- 
mitted. It  applied  equally  to  cases  arising  in  States  which  have  the 
justest  Uiws  respecting  the  personal  rights  of  citizens,  and  whose 
authorities  are  ever  ready  to  enforce  such  laws,  as  to  those  which 
arise  in  States  that  may  have  violated  the  prohibition  of  the  amend- 
ment. U.  other  woiT^it.  steps  into  the  domain  of  local  jurispnidence, 
and  lavs  down  rules  for  the  conduct  of  individuals  in  society  towards 
each  other,"and  imi)Oses  sanctio"ns  Tor  the  enforcement  ofJHose.rules^ 
without  referring  in  any  manner  to  any  supposed  action  of  the  State  o£ 
its  aulliQilties. 

If  this  legislation  is  appropriate  for  enforcing  the  prohibitions  of  tiie 
amendment"  it  is  difficult  to  see  where  it  is  to  stop.  Why  may  not 
Congress  with  equal  show  of  authority  enact  a  code  of  laws  for  the 
enfoT-cement  and  vindication  of  all  rights  of  life,  liberty,  and  property? 
If  it  is  supposable  that  the  States  may  deprive  persons  of  life,  liberty,^ 
and  property  without  due  process  of  law  (and  the  amendment  itself 
does  suppose  this),  why  should  not  Congress  proceed  at  once  to  pre- 
scribe due  process  of  law  for  the  protection  of  every  one  of  these 
fundamental  rights,  in  every  possible  case,  as  well  as  to  prescribe  equal 
privileges  in  inns,  public  conveyances,  and  theatres?  The  truth  is, 
that  the  impjicption  of  a  power  to  legislate  in  this  manner  is  base_d 
vij^^^nftho_n3|^^  that  if  the  States  are  forbidden  to  legislate  or  act 
in  a  tWicular^ymiAixtili<'ii]nr  siibjfifit,  apd  power  is  conferred  upon 
Congress  to^eiiforce  the  prohibition,  this  gives  Congress  power  to  legjs- 
late  generally  upon  that  subject,  and  not  merely  POWer  to  provide  modes 
of  redress  ap;ainst  such  Stnto  legislation  oii^ai::tkui. — The  assumption  js 
certainly jinsmilKL—Lt  ifl  ropugnnnt  to  tlip  Tenth  Amendment_of  the 
Constitution  1  which  declares  that  powers  not  delegated  to  the  United 
States  bv  the  <^^nRtii'-t'""i  "^''  prohibited  bv  it  to  the  States,  are 
yocnr^^o^  ^^  fhe  Stnt.pis  respectivplv  or  to  the  people.l 


560  CIVIL   RIGHTS   CASES.  [CIIAP.  IV. 

We  have  not  overlooked  the  fact  that  the  fourth  section  of  the  Act 
now  under  consideration  has  been  held  by  tiiis  court  to  be  constitu- 
tional. That  section  declares  '•  that  no  citizen,  possessing  all  other 
qualifications  which  are  or  may  be  prescribed  by  law,  shall  be  disquali- 
fied for  service  as  grand  or  petit  juror  in  an}'  court  of  the  United  States, 
or  of  an}'  State,  on  account  of  race,  color,  or  previous  condition  of  ser- 
vitude ;  and  any  officer  or  other  person  charged  with  any  dut}'  in  the 
selection  or  summoning"  of  jurors  who  shall  exclude  or  fail  to  summon 
any  citizen  for  the  cause  aforesaid,  shall,  on  conviction  thereof,  be 
deemed  guilty  of  a  misdemeanor,  and  be  fined  not  more  than  five  thou- 
sand dollars."  In  Ex  parte  Virginia,  100  U.  S.  339,  it  was  held  that 
an  indictment  against  a  State  officer  under  this  section  for  excluding 
persons  of  color  from  the  jury  list  is  sustainable.  But  a  moment's 
attention  to  its  terms  will  show  that  the  section  is  entirel}'  corrective  in 
its  character.  Disqualifications  for  service  on  juries  are  onl}'  created 
b}'  the  law,  and  the  first  part  of  the  section  is  aimed  at  certain  dis- 
qualifying laws,  namely,  those  which  make  mere  race  or  color  a  disquali- 
fication ;  and  the  second  clause  is  directed  against  those  who,  assuming 
to  use  the  authority  of  the  State  government,  carry  into  eflJect  such  a 
rule  of  disqualification.  In  the  Virginia  case,  the  State,  through  its 
officer^  (Hiforced  a -iiule  of  disqnalifientinn  whieh  thejiawjvasjnteuded 
to  abrogate  and_ counteract.  __35lLeilier-.the  statute-book  of  the _B talc 
actually  laid  d^wn  any  such  rule  of  disqualific^iQu.-j:)rjiQt.  tha  Stall?, 
til  rough  its  officei%_enforeed  such  a  rule :  ^nd  it  is^gainst  such  State 
actioii,  througliltsofficers  an£Lagents,_that  the  fast  clause  of  the  scctimi 
is  directed.  This  aspect  of  the  law  was  deemed  sufficient  to  divest 
it  of  any  unconstitutional  character,  and  makes  it  differ  widely  from 
the  first  and  second  sections  of  the  same  Act  which  we  are  now 
considering. 

These  sections,  in  tlie_(iLa£C-tLamible-^  features  before  referred  to,  are_ 
dijfemi^t  also  fj-omtli(L law  ordinarily  called  the  "Civil  Rights  BiU,"' 
originally  passed  April  9th,  1866,  14  Stat.  27,  ch.  31.  and  xfe^aaeted- 
wjtli  some  m^^iifi^'^^ion'^  JP  sections  16  17  18  of  tlio  K.nforcpmeut 
Acti^  passed  May  31st,  1870,  16  Stat.  140,  ch.  114.  That  law,  as  re- 
enacted,  after  declaring  that  all  persons  within  the  jurisdiction  of  the 
United  States  shall  have  the  same  right  in  every  State  and  Territory  to 
make  and  enforce  contracts,  to  sue,  be  parties,  give  evi(lence,  and  to 
the  full  and  equal  benefit  of  all  laws  and  proceedings  for  the  security 
of  persons  and  property  as  is  enjoyed  by  white  citizens,  and  shall  be 
subject  to  like  punishment,  pains,  penalties,  taxes,  licenses  and  exac- 
tions of  every  kind,  and  none  other,  any  law,  statute,  ordinance, 
regulation  or  custom  to  the  contrary  notwithstanding,  proceeds  to 
enact,  that  any  person  who,  under  color  of  any  law,  statute,  ordinance., 
regulation,  or  custom,  shall  subject,  or  cause  to  be  subjected,  any 
inhabitant  of  any  State  or  Territory  to  the  deprivation  of  any  rights 
secured  or  protected  by  the  preceding  section  (above  quoted),  or  to 
diflferent  punishment,  pains,  or  penalties,  on  account  of  such  person 


CHAP.  IV.]  CIVIL   RIGHTS    CASES.  561 

being  an  alien,  or  by  reason  of  his  color  or  race,  than  is  prescribed  for 
the  pmiisliment  of  citizens,  shall  he  deemed  guilty  of  a  misdemeanor, 
and  subject  to  fine  and  imprisonment  as  specified  in  the  Act.  This  law 
is  clearly  corrective  in  its  character,  intended  to  counteract  and  furnish 
redress  against  State  laws  and  proceedings,  and  customs  having  tlie 
force  of  la^w,  which  sanction  the  wrongful  acts  specified.  In  the  Revised 
Statutes,  it  is  true,  a  very  important  clause,  to  wit,  the  words  ''any 
law,  statute,  ordinance,  regulation  or  custom  to  the  contrary  notwith- 
standing," which  gave  the  declaratory  section  its  point  and  effect,  are 
omittedT  but  the^ penal  part,  bv  j\Mcli-tiie^eciiLratIon  is  enforced,  and 
which  is  really  the  eflective  part  of  the  law,  retains  the  reference  Jo_ 
ST^^J^wsTby  making  the  penalty  apply  only  to  those  who  should  sub- 
joet[)arties  to  a  deprivation  of  their  rights  under  color  of  any  statute, 
^jjahi^^^^^^]^^^^  any  State  or  Territory  :  thus  preservingjlie 

cmrective  character  of.the  legislation.  Rev.  St.  §§  1977,  1978,  1979, 
Sjfa  The  Civil  Rights  Bill  here  referred  to  is  analogous  in  its  char- 
acter to  what  a  law  would  have  been  under  the  original  Constitution, 
declaring  that  the  validity  of  contracts  should  not  be  impaired,  and  that 
if  any  person  bound  by  a  contract  should  refuse  to  comply  with  it,  under 
color  or  pretence  that  it  had  been  rendered  void  or  invalid  by  a  State 
law,  he  should  be  liable  to  an  action  upon  it  in  the  courts  of  the  United 
States,  with  the  addition  of  a  penalty  for  setting  up  such  an  unjust  and 
unconstitutional  defence.  ^ 

In  this  connection  it  is  proper  to  statejhatu-iyiljjghts,  such  as  are 
^^^T^iiiw^»f^/|   by  fh^  rnn^titntion   ncrainst  Stat>  iiggressimi.  cannot  he. 
impaired  bv  the  wrongful  acts  of  individualsAimsupported  by  Stale 
ontWky  in  the  shape  of  laws,  customs.  or,jmIie].aLoi-  executive  proceed^ 
inys.    ;.rhP  w^ng^i'1    nf't  of  an   bidividual.   unsupported   by   anv_such 
authority,  is  simply  a  private  JEiQiio:._or^a  crime  of  that  individnnLuau. 
invnsiovi  of  thP  rig-hts  of  the  injured  part3\Jt  is  true„^.hether  theyjiffect 
liis  pprson.  his  |)roperty,  or  his  reputatipnj_but  m  n_ot  sanctioned  iji 
some  way  by  the  State,  or  not  done  under  JStateSiiitliority,  his  righis 
remain  in  full  force,  and  may  presumahh^bej-indicated  bya'esort  to  tlie 
Invvs  of  fhf>  i^tfVtP  ^"''  '•^^'•p^'l^    An  individual  cannot  deprive  a  man  of 
his  right  to  vote,  to  hold  pro^^t}',  to  buy  and  sell,  to  sue  in  the  courts, 
or  to  be  a  witness  or  a  juror  ;  he  may,  by  force  or  fraud,  interfere  with 
the  enjoyment  of  the  right  in  a  particular  case  ;  he  may  commit  an 
assault  against  the  person,  or  commit  murder,  or  use  ruffian  violence 
at  the  polls,  or  slander  the  good  name  of  a  fellow-citizen  ;  but,  unless 
protected  in  these  wrongful  acts  by  some  shield  of\State  law  or  State 
authority,  he  cannot  destroy  or  injure  the  right;   he^^siviU  only  render 
himself  amenable  to  satisfaction  or  punishment;  and  amenable  therefor 
to  the  laws  of  the  State  where  the  wrongful  acts  are  committecb-v^nence^ 
in  all  those  cases  where  the  Constitution  seeks  to  protect  the_right_s^ 
the  citizen  against  discriminative  and  nnjustjaws  of  the  State  by  pro- 
hibiting such   laws,  it  IS  not  iiT^IHdualloffpnpps.bnt -abrogation  and 
denial  of  rightsiwhich  it  denounces,  and  for  which  it  clothes  the  Con- 
"^      VOL.  I.  —  SS/' 


562  CIVIL   RIGHTS    CASES.  [CHAP.  IV. 

gress  with  power  to  provic^ft  a.  remedy.  This  abrogation  and  denial  of 
rights,  for  which  the  States  alone  were  or  could  be  responsible,  was  the 
great  seminal, and Jiwdtimental  wrong  which  was  intended  to  be  reme- 
died. Aud^hejiemedy-to  bo  provided  mu^t  necpssarilj  be  prfidicate^d 
upon  that  wron^_It.miist  assume  that  in  the  cases  provided  for,  the 
evil  or  wrong  acnially  fntnmittorl  ronfs  upon  soipp  St,aj;P_jflw_nr ^tate 
authority  for  its  excus£_aDjd  pcrpotration. 

Of  course,  these  remarks  do  not  apply  to  those  cases  in  which  Con- 
gress is  clothedjvith  direct  and  plenary  powers  of  legislation  over  the 
whole  subject,  accompanied  with  an  express  or  implied  denial  of  such 
power  to  the^  States,  lis  in  the  regulation  of  commerce  with  foreign 
nations,  'ambng^the  several  States,  and  with  the  Indian  tribes,  the  coin- 
ing of  money,  the  establishment  of  post-offices  and  post-roads,  the 
declaring  of  war,  etc.  In  these  cases  Congress  has  power  to  pass  laws 
for  regulating  the  subjects  specified  in  every  detail,  and  the  conduct 
and  transactions  of  individuals  in  respect  thereof.  But  where  a  sub- 
ject is  not  submitted  to  the  general  legislative  power  of  Congress,  but 
is  only  submitted  thereto  for  the  purpose  of  rendering  effective  some 
prohibition  against  particular  State  legislation  or  State  action  in  refer- 
ence to  that  subject,  the  power  given  is  limited  by  its  object,  and  any 
legislation  by  Congress  in  the  matter  must  necessarily  be  corrective  in 
its  character,  adapted  to  counteract  and  redress  the  operation  of  such 
prohibited  State  laws  or  proceedings  of  State  officers. 

If  the  principles  of  interpretation  which  we  have  laid  down  are  cor- 
rect, as  we  deem  them  to  be  (and  they  are  in  accord  with  the  principles 
laid  down  in  the  cases  before  referred  to,  as  well  as  in  the  recent  case 
of  United  States  v.  Harris,  106  U.  S.  629),  it  is  clear  that  the  law  in 
question  cannot  be  sustained  by  any  grant  of  legislative  power  made  to 
Congress  by  the  Fourteenth  Amendment.  That  amendment  proiiil)its 
the  States  from  den3ing  to  any  person  the  equal  protection  of  the  laws, 
and  declares  that  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  the  amendment.  The  law  in  questioii. 
without  any  reference  to  adverse  State  legislation  on  the  subjecj 
dares  that  all  persons  shall  be  entitled  to  equal  accommodaticM^  and 
privileges  of  inns,  public  conveyances,  and  places  of  public  a>*fusement, 
and  imposes  a  penalty  upon  any  individual  who  shall  de^to  any  citi- 
zen such  equal  accommodations  and  privileges.  This  j^jiot  cnvrpcthp. 
legislation  ;  it  is  primary  and  direct ;  it  takes  immediate  and  absolute 
possession  of  the  subject  of  the  ri^ht  of  atl mission  t^  inns,  public  con- 
veyances, and  places  of  amusement.  ,It  supersedes  and  displaces  Stale 
legislation  on  the  same  subject,  or  only  allows  it  permissi_ve  Jorce^,  _It- 
ignores  such  legislation,  and  assumes  that  the  matter  is  one  that  belongs 
t^Jjie  doTuain  of  naH^p5TTpp;iilatinn.  Whfit,hei"it-ffi:nMlrl  not  have  been 
a_more  rffrrtive  prntnntinn  nf  the  riprht,s-Qf-feltizeD.s_to  have  clothed  C^j> 
gress  with  plenary  j)OweiLa^:£i:-the-whole  subject,  is  pot  now  the  queslLiiu. 
What  we  h"vp  ^(^  HpfiVIp  I'g,  whothpr  mu'h_ple.niirvL^power-haa-been  con- 
fprfpd  upon  Congross  by  the  FourJ^onth  Amendment;  and.,--in-cmj 
judgment,  it  has  not. 


CHAP.  IV.]  CIVIL   RIGHTS    CASES.  563 

We  have  discussed  the  question  presented  bj'  the  law  on  the  assump- 
tion that  a  right  to  enjoy  equal  accomiuodation  and  privileges  in  all 
inns,  public  conveyances,  and  places  of  public  atuusenient,  is  one  of 
the  essential  rights  of  the  citizen  which  no  State  can  abridge  or  interfere 
with.  AVhether  it  is  such  a  right,  or  not,  is  a  different  question  which, 
in  the  view  we  have  taken  of  the  validity  of  the  law  on  the  ground 
already  stated,  it  is  not  necessary  to  examine. 

We  have  also  discussed  the  validity  of  the  law  in  reference  to  cases 
arising  in  the  States  only  ;  and  not  in  reference  to  cases  arising  in  the 
Territories  or  the  District  of  Columbia,  which  are  subject  to  tlie  ple- 
nary legislation  of  Congress  in  every  branch  of  municipal  regulation. 
Wliether  the  law  would  be  a  valid  one  as  applied  to  the  Territories  and 
the  District  is  not  a  question  for  consideration  in  the  cases  before  us  : 
they  all  being  cases  arising  within  the  limits  of  States.  And  whether 
Congress,  in  the  exercise  of  its  power  to  regulate  commerce  amongst 
the  several  States,  might  or  might  not  pass  a  law  regulating  rights  in 
public  conveyances  passing  from  one  State  to  another,  is  also  a  question 
which  is  not  now  before  us,  as  the  sections  in  question  are  not  conceived 
in  any  such  view. 

But  the  power  of  Congress  to  adopt  direct  and  primary,  as  distinguished 
from  corrective  legislation,  on  the  subject  in  hand,  is  sought,  in  the  sec- 
ond place,  from  the  Thirteenth  Amendnient,  which  abolishes  slavery. 
This  amendment  declares  "  that  neither^lavery,  nor  involuntary  servi- 
tude, except  as  a  punishment  for  crim^  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction  ; "  ^rf^  it  gives  Congress  power  to  enforce 
the  amendment  by  appropriate  legislation. 

This  amendment,  a,&--ive\\  as  the  Fourteenth,  is  undoubtedly  self- 
executing  without_any__ancillary  legislation.  so_.far  as^Jts  terins  are_ 
flpn1jr;n]2lp,  to  any  existing  state  of^drcumstances.     By  its  own  unaided 
force  and  effect  it  abolished  slavery,  and  established  universal  freedom. 
Still,  legislation  may  be  necessary  and  proper  to  meet  all  the  various^ 
cases  and  circumstances  to  be_a^fit£d- Jay  it,  and  to  prescribe4)roj)eF 
modes  ofredress  for  its  violation  m.  letter  or  spirit.     And  such  legisla- 
tion  may  be  primarj^and  direct,  in  its  cthamcter :  for  the  amendment  i8_ 
notn_merej|rohibition  of  State  laws  establishinSLJ3r  upholding  slavery, 
lluLlLIUlhsolntP  d^^^'^'-'^tinn   that.  «t1avPry„arL-mvQliint,ary  .servitude  shall 
iTrvt^_pvist  jn  any  part  of  the  Iljiite.d  States. 

It  is  true  that  slavery  cannot  exist  without  law,  any  more  than 
property  in  lands  and  goods  can  exist  without  law  :  and,  therefore,  the 
Thirteenth  Amendment  may  be  regarded  as  nullifying  all  State  laws 
which  establish  or  uphold  slaver}'.  But  it  has  a  reflex  character  also, 
establishing  and  decreeing  universal  civil  and  political  freedom  through- 
out the  United  States  ;  and  it  is  assumed,  that  the  power  vested  in 
Congress  to  enforce  the  article  by  appropriate  legislation,  clothes  Con- 
gress with  power  to  pass  all  laws  necessary  and  proper  for  abolishing 
all  badges  and  incidents  of  slavery  in  the  United  States :   and  upoa 


564  CIVIL   RIGHTS   CASES.  [CHAP.  IV. 

this  assumption  it  is  claimed,  that  this  is  sufficient  authority  for  declar- 
ing by  law  that  all  persons  shall  have  equal  accommodations  and 
privileges  in  all  inns,  public  convej'ances,  and  places  of  amusement ; 
the  argument  being,  that  the  denial  of  such  equal  accommodations  and 
privileges  is,  in  itself,  a  subjection  to  a  species  of  servitude  within  the 
meaning  of  the  amendment.  Conceding  the  major  proposition  to_be 
true,  that  Congress  has  a  rip;ht  to  enact  all  necessary  and  proper  laws 
for  the  nblitiprntion  and  pre-'^^iH^^"  of  slavery  with  all  its  badges  and 
incidentsTlsthe  minor  proposition  also  true,  that  the  denial  to  an3' 
person  of  admission  to  the  accommodations  and  privileges  of  an  innj 
flj2nl>]ic^  conveyanf^Pj  or  a  theatre,  does  subject  that  person  to  an>  form 
rtfspvvitiidp,  or  tftnrl  to  fnstftn-jjpon  him  any  badge  of  slavery^?  If  it 
does  not,  then  power  to  pass  the  law  is  not  found  in  the  Thirteenth 
Amendment. 

In  a  very  able  and  learned  presentation  of  the  cognate  question  as  to 
the  extent  of  the  rights,  privileges  and  immunities  of  citizens  which 
cannot  rightfully  be  abridged  by  State  laws  under  the  Fourteenth 
Amendment,  made  in  a  former  case,  a  long  list  of  burdens  and  dis- 
abilities of  a  servile  character,  incident  to  feudal  vassalage  in  France, 
and  which  were  abolished  b}'  the  decrees  of  the  National  Asserabh', 
was  presented  for  the  purpose  of  showing  that  all  inequalities  and 
observances  exacted  b}'  one  man  from  another  were  servitudes,  or 
badges  of  slaver^',  which  a  great  nation,  in  its  effort  to  establish  uni- 
versal liberty,  made  haste  to  wipe  out  and  destroy.  But  these  were 
servitudes  imposed  by  the  old  law,  or  by  long  custom,  which  had  the 
force  of  law,  and  exacted  b}'  one  man  from  another  without  the  latter's 
consent.  Should  any  such  servitudes  be  imposed  by  a  State  law,  there 
can  be  no  doubt  that  the  law  would  be  repugnant  to  the  Fourteenth, 
no  less  than  to  the  Thirteenth  Amendment;  nor  any  greater  doubt  that 
Congress  has  adequate  power  to  forbid  any  such  servitude  from  being 
exacted. 

But  is  th'ere  any  similarity  between  such  servitudes  and  a  denial  by 
the  owner  of  an  inn,  a  public  conveyance,  or  a  theatre,  of  its  accommo- 
dations and  privileges  to  an  individual,  even  though  the  denial  be 
founded  on  the  race  or  color  of  that  individual?  Where  does  any 
slavery  or  servitude,  or  badge  of  either,  arise  from  such  an  act  of 
denial?  Whether  it  might  not  be  a  denial  of  a  right  which,  if  sanc- 
tioned by  the  State  law,  would  be  obnoxious  to  the  prohibitions  of  the 
Fourteenth  Amendment,  is  another  question.  But  what  has  it  to  do 
with  the  question  of  slavery? 

It  may  be  that  by  the  Black  Code  (as  it  was  called),  in  the  times 
when  slavery  prevailed,  the  proprietors  of  inns  and  public  conveyances 
were  forbidden  to  receive  persons  of  the  African  race,  because  it  might 
assist  slaves  to  escape  from  the  control  of  their  masters.  This  was 
merely  a  means  of  preventing  such  escapes,  and  was  no  part  of  the 
servitude  itself.  A  law  of  that  kind  could  not  have  any  such  object 
now,  however  justly  it  might  be  deemed  an  invasion  of  the  party's  legal 


CHAP.  IV.]  CIVIL   RIGHTS    CASES.  565 

right  as  a  citizen,  and  amenable  to  the  prohibitions  of  the  Fourteenth 
Amendment. 

The  long  existence  of  African  slaver}'  in  this  country  gave  us  very 
distinct  notions  of  what  it  was,  and  what  were  its  necessary  incidents. 
Compulsor}'  service  of  the  slave  for  the  benefit  of  the  master,  restraint 
of  his  movements  except  bj-  the  master's  will,  disability  to  hold  prop- 
erty, to  make  contracts,  to  have  a  standing  in  court,  to  be  a  witness 
against  a  white  person,  and  such  like  burdens  and  incapacities,  were 
the  inseparable  incidents  of  the  institution.  Severer  punishments  for 
crimes  were  imposed  on  the  slave  than  on  free  persons  guilty  of  the 
same  offences.  Congress,  as  we  have  seen,  by  the  Civil  Rights  Bill  of 
1866,  passed  in  view  of  the  Thirteenth  Amendment,  before  the  Four- 
teenth was  adopted,  undertook  to  wipe  out  these  burdens  and  disabili- 
ties, the  necessar}'  incidents  of  slavery,  constituting  its  substance  and 
visible  form  ;  and  to  secure  to  all  citizens  of  every  race  and  color,  and 
without  regard  to  previous  servitude,  those  fundamental  rights  which 
are  the  essence  of  civil  freedom,  namely,  the  same  right  to  make  and 
enforce  contracts,  to  sue,  be  parties,  give  evidence,  and  to  inherit, 
purchase,  lease,  sell  and  convey  property',  as  is  enjoyed  b}-  white  citi- 
zens. Whether  this  legislation  was  fully  authorized  b}-  the  Thirteenth 
Amendment  alone,  without  the  support  which  it  afterward  received 
from  the  Fourteenth  Amendment,  after  the  adoption  of  which  it  was 
re-enacted  with  some  additions,  it  is  not  necessary  to  inquire.  It  is 
referred  to  for  the  purpose  of  showing  that  at  that  time  (in  1866)  Con- 
gress did  not  assume,  under  the  authority  given  hy  the  Thirteenth 
Amendment,  to  adjust  what  may  be  called  the  social  rights  of  men  and 
races  uTlhe  community ;  but  only  to  declare  and  vindicate  those  fuiiHa"- 
mental  rights  which  appertain  to  the  essence  of  citizenship,  and  th£ 
enjoyment  or  deprivation  of  which  constitutes  the  essential  distinction 
between  freedom  and  slavery. 

We  must  not  forget  that  the  province  and  scope  of  the  Thirteenth 
and  Fourteenth  Amendments  are  different ;  the  former  simply  abol- 
ished slavery :  the  latter  prohibited  the  States  from  abridging  the 
privileges  or  immunities  of  citizens  of  the  United  States  ;  from  depriv- 
ing them  of  life,  liberty,  or  property  without  due  process  of  law,  and 
from  denying  to  any  the  equal  protection  of  the  laws.  The  amend- 
ments are  different,  and  the  powers  of  Congress  under  them  are  different. 
What  Congress  has  power  to  do  under  one,  it  may  not  have  power  to 
do  under  the  other.  Under  the  Thirteenth  Amendment,  it  has  only  to 
do  with  slavery  and  its  incidents.  Under  the  Fourteenth  Amendment, 
it  has  power  to  counteract  and  render  nugatory  all  State  laws  and  pro- 
ceedings which  have  the  effect  to  abridge  any  of  the  privilegos  or 
immunities  of  citizens  of  the  United  States,  or  to  deprive  them  of  life, 
liberty  or  property  without  due  process  of  law,  or  to  deny  to  any  of 
them  tlie  equal  protection  of  the  laws.  lUnder  the  Thirteenth  Amejld.- 
ment,  tlie  legislation,  so  far  as  necesi^-y  or  proper  to  era_diciitfi_idl 
forms  and  incidents  of  slavery  aiKlinToluntarv  servitude,  may  be  direct 


566  CIVIL   RIGHTS   CASES.  [CHAP.  IV. 

and  mJ^^^T'  operating  upon  thfi.aGts^f  imliv'iduals,  whether  sanctioned 
5^'  State  legislation  or  not ;   under  the  Fourteenth,  as  we  have  aheuii^ 
^hown,  it  must  necessarily  be,  and  can  onjy^e^  corrective  in.  its  chaxzL 
acter,  addressed  to  counteract  and  afford  relief  against  State  regulalkma_ 
oTproceedings?^ 

The  onl}'  qifestion  under  the  present  head,  therefore,  is,  whether  the 
refusal  to  any  persons  of  the  accommodations  of  an  inn,  or  a  public 
conveyance,  or  a  place  of  pubHc  amusement,  b}-  an  individual,  and 
without  any  sanction  or  support  from  any  State  law  or  regulation,  does 
inflict  upon  such  persons  any  manner  of  servitude,  or  form  of  slavery, 
as  those  terms  are  understood  in  this  country?  Many  wrongs  may  be 
obnoxious  to  the  prohibitions  of  the  Fourteenth  Amendment  whicli  are 
not,  in  an}-  just  sense,  incidents  or  elements  of  slavery.  Such,  for 
example,  would  be  the  taking  of  private  property  without  due  process 
of  law  ;  or  allowing  persons  who  have  committed  certain  crimes  (horse- 
stealing, for  example)  to  be  seized  and  hung  b}'  the  posse  comitatus 
without  regular  trial ;  or  denying  to  an}'  person,  or  class  of  persons,  the 
riglit  to  pui'sue  any  peaceful  avocations  allowed  to  others.  What  is 
called  class  legislation  woukl  belong  to  this  category,  and  would  be 
obnoxi6u'sTo"The_prabibitions  of  tho  Fourtopnth  A'Tip'^drnpnt,  l>tit  would  • 
not  necessarily  be  so  to  the  Thirteenth,  whgn  not  involving  the  idea  of 
any  subjection  of  one  man  to  another.  AThe  ThirteentlT  Amendment 
has  respect,  not  to  distinctions  of  race,  or*class,  or  color,  but  to  slaver}". 
The  Fourteenth  Amendment  extends  its  protection  to  races  and  classes, 
and  prohibits  any  State  legislation  wnicii  has  the  etiect  of  deinijig 
to^  any  race  or  class,  or  to  any  individual,  tue  equal  pi'otecti^_n_Q| 
the  laws.l 

Now,  cmiceding,  for  the  sake  of  the  argument,  that  the  admission  to 
anjiuK^a  public  convevance.  or  a  place  of  public  am useiioejitj.  on  equal" 
terms  with  all  other  citizens,  is  the  right  of  every  man  and  all  classes 
of  men,  is  it  any  more  than  one  of  those  rights  which  the  States  by  the 
Fourteenth  Amendment  are  forbidden  to  d(^y  jfTnTij-IpersoiT?  ^5Tid  is 
the'Constitution  violated  until  the  denial  of  the  right  has  some  State 
sanction  or  authority?  Can  the  act  of  a  mere  individual,  the  owner  of 
the  inn,  the  public  conve3-ance  or  place  of  amusement,  refusing  the 
accommodation,  be  justly  regarded  as  imposing  any  badge  of  slavery  or 
servitude  upon  the  applicant,  or  only  as  inflicting  an  ordinary  civil 
injury,  properl}'  cognizable  b}-  the  laws  of  the  State,  and  presumably 
subject  to  redress  by  those  laws  until  the  contraiy  appears? 

After  giving  to  these  questions  all  the  consideration .jcvhich  their 
importance  demands,  we  are  forced  to  the  conclusion  tlmtUnr-h  ;in_npt 
of  refusal   has  nothing  to  do  with  fi]pvpry  or  invnjinntnry  se^vitiide^  .-^nd 

tVwvi^if  '*^  '°  ^'^1ntiiv»  "^  ^"y ''ight  0^  thp— p«^4y^lvk--^Wh^«a-Tfr-4:<»-~bft- 
sought  under  the  laws  of  the  State  ;lor  if  thqse^Jaws  are-adv-erse  tojijs 
rights  and  do  not  protect  him,  his  remedy  will  be  found  in  the  corrective 
legislation  which  Congress  has  adopted,  or  majiadopt,  for  comvtei-aeting 
the  effect  of  State  laws,  or  State  action,  prohibited  by  the  Fourteenth 


CHAP.  IV.]  CIVIL   RIGHTS   CASES.  567 

Amendment.  It  would  be  running  the  slaveiy  argument  into  the  ground 
to  make  it  apply  to  every  act  of  discrimination  which  a  person  may  see 
fit  to  make  as  to  the  guests  he  will  entertain,  or  as  to  the  people  he  will 
take  into  his  coach  or  cab  or  car,  or  admit  to  his  concert  or  theatre,  or 
deal  with  in  other  matters  of  intercourse  or  business.  Innkeepers  and 
pul)lic  carriers,  b}'  the  laws  of  all  the  States,  so  far  as  we  are  aware, 
are  bound,  to  the  extent  of  their  facilities,  to  furnish  proper  accommo- 
dation to  all  unobjectionable  persons  who  in  good  faith  apply  for  them. 
If  the  laws  themselves  make  an\'  unjust  discrimination,  amenable  to 
the  prohibitions  of  the  Fourteenth  Amendment,  Congress  has  full  power 
to  afford  a  remed\'  under  that  amendment  and  in  accordance  with  it. 

When  a  man  has  emerged  from  slaver}-,  and  by  the  aid  of  beneficent 
legislation  has  shaken  off  the  inseparable  concomitants  of  that  state, 
there  must  be  some  stage  in  the  progress  of  his  elevation  when  he  takes 
the  rank  of  a  mere  citizen,  and  ceases  to  be  the  special  favorite  of  the 
laws,  and  when  his  rights  as  a  citizen,  or  a  man,  are  to  be  protected  in 
the  ordinary  modes  bv  which  other  men's  rights  are  protected.  There 
were  thousands  of  free  colored  people  in  this  country  before^e  aboli- 
ti^  of  slavery,  enjoying  all  the  essential  rights  of  life,  libert}-  and 
property  the  same^Tts-^^^hite  citizens ;  yet  no  one,  at  that  time,  thought 
that  it  was  any  invasion  or~lns-p£rsonal  status  as  a  freeman  because  he 
was  not  admitted  to  all  the  privileges  enjoyed  b}-  white  citizens,  or 
because  he  was  subjected  to  discriminations  in  the  enjoyment  of  accom- 
modations in  inns,  public  conve3'ances  and  places  of  amuseraeht.^_Mere 
discriminations_Qn  account^ of  race  or  color  were  not  regarded  as  badges 
ofslaverv.  If,  since  that  time,  the  enjoj-ment  of  equal  rights  in  all 
these jiesp^-CtsJms  become  established  _by  constitutional  enactment,  it  is 
noLby_Jiii:£e_of  the  Thirteenth  Amendment  (which  merely  abolishes 
slavery),  but  by  force  of  the  Fourteenth  and  Fifteenth  Amendments. 

On  the  whole  we  are  of  opinion,  that  no  countenance  of  authoiTty 
for  the  passage  of  the  law  in  question  can  be  found  in  eitlier  the  Thir- 
teenth or  Fourteenth  Amendment  of  the  Constitution  ;  and  no  other 
ground  of  authority  for  its  passage  being  suggested,  it  must  necessarily 
be  declared  void,  at  least  so  far  as  its  operation  in  the  several  States  is 
concerned. 

This  conclusion  disposes  of  the  cases  now  under  consideration.  In 
the  cases  of  the  United  States  v.  Michael  Myan^  and  of  Richard  A. 
Hobinson  and  Wife  v.  The  Memphis  &  Charleston  Railroad  Company, 
the  judgments  must  be  aflSrmed.  In  the  other  cases,  the  answer  to  be 
given  will  be  that  the  first  and  second  sections  of  the  Act  of  Congress 
of  March  1st,  1875,  entitled  ^' An  Act  to  protect  all  Citizens  in  their 
Civil  and  Legal  Rights,"  are  unconstitutional  and  void,  and  that  judgment 
should  be  rendered  upon  the  several  indictments  in  those  cases  accord- 
ingl3%  And  it  is  so  ordered.^ 

[Harlan,  J.,  gave  a  dissenting  opinion.] 

1  Compare  The  Civil  Rights  Bill,  Hughes,  541  (1875),  Younger  v.  Judah,  111  Mo. 
303  (1892).  — Ed. 


568  PEOPLE   V.    KING.  [CHAP.  IV. 


PEOPLE   V.   KING. 
New  York  Court  of  Appeals.     1888. 

[llOiV.  Y.  418.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  entered  upon  an  order  made  Novem- 
ber 9,  1886,  which  affirmed  a  judgment  of  the  Court  of  Sessions  of 
Chenango  Count}',  entered  upon  a  verdict  convicting  defendant  of  a 
misdemeanor.     (Reported  below,  42  Hun,  186.) 

The  substance  of  the  indictment  and  the  material  facts  are  stated  in 
the  opinion. 

E.  H.  Prindle,  for  appellant. 

George  P.  Pudney^  for  respondent. 

Andrews,  J.  Section  383  of  the  Penal  Code  declares  that  "  no  citi- 
zen of  this  State  can,  by  reason  of  race,  color,  or  previous  condition  of 
servitude,  be  excluded  from  the  equal  enjo3-ment  of  any  accommoda- 
tion, facilit}',  or  privilege  furnished  b}-  innkeepers  or  common  carriers, 
or  by  owners,  managers,  or  lessees  of  theatres  or  other  places  of 
amusement,  by  teachers  and  officers  of  common  schools  and  public 
institutions  of  learning,  or  b}-  cemeterv  associations."  The  violation  of 
this  section  is  made  a  misdemeanor,  punishable  by  fine  of  not  less  than 
fifty  nor  more  than  five  hundred  dollars. 

The  defendant  and  one  Scott,  in  the  3'ear  1884,  were  the  owners  and 
proprietors  of  a  skating-rink  in  the  village  of  Norwich,  in  this  State, 
erected  in  that  year  upon  their  own  lands.  Prior  to  June  13,  1884,  the}- 
announced,  through  the  public  press  and  otherwise,  that  the  rink  would 
be  opened  on  the  evening  of  that  daj-,  and  they  arranged  with  the 
"Apollo"  Club,  of  Binghamton,  to  attend  the  opening  to  give  an 
exhibition  of  roller-skating",  the  profits  of  the  entertainment  to  be  divided 
between  the  club  and  the  proprietors  of  the  rink.  Tickets  of  admission 
were  sold  on  the  evening  in  question  by  the  agents  of  the  proprietor, 
at  the  office  on  the  premises,  but  persons  who  had  not  procured  tickets 
were  admitted  on  pa3'ment  of  the  charge  for  admission  at  the  door. 
Several  hundred  persons  attended  the  exhibition.  During  the  evening 
three  colored  men  made  application  to  purchase  tickets  at  the  office 
where  tickets  were  sold,  but  the  agents  of  the  proprietors,  having  charge 
of  the  sale,  acting  in  accordance  with  the  instructions  of  the  defendant, 
refused  to  sell  them  tickets,  because  the}'  were  persons  of  color,  and 
they  were  so  informed  at  the  time.  The  defendant  was  indicted  under 
the  section  of  the  Penal  Code  above  quoted,  the  indictment  alleging,  in 
substance,  that  the  defendant,  being  one  of  the  owners  of  a  skating- 
rink,  a  place  of  amusement,  did,  on  the  day  named,  exclude  from  said 
skating-rink,  and  from  the  equal  enjoyment  of  an}'  and  all  accommoda- 
tion, facility,  and  privilege  of  said  skating-rink,  George  F.  Breed,  Wil- 
liam Wyckoff,  Charles  Robbins,  and  others,  all  being  citizens  of  the 


CHAP.  IV.]  PEOPLE   V.    KING.  569 

State,  by  reason  of  race  and  color,  etc.  The  objection  is  now  taken 
tliat  the  indictment  is  detective,  in  substance,  in  not  averring  the  means 
b}-  which  the  exclusion  of  the  persons  mentioned  was  effected.  The 
objection  is  untenable.  The  indictment  follows  the  statute,  and  it  was 
not  necessary  to  aver,  with  any  greater  particularity  than  was  used,  the 
circumstances  constituting  the  otience.  People  v.  West,  106  N.  Y.  293- 
Xor  is  there  any  force  in  the  suggestion  that  proof  of  a  refusal  to  sell 
to  the  colored  men  tickets  of  admission  at  the  office  did  not  support  the 
allegation  that  the}'  were  excluded  from  the  rink.  The  defendant  pro- 
vided tickets  as  evidence  of  the  right  of  persons  having  them  to  admis- 
sion. He  refused  to  furnish  this  evidence  to  the  persons  named  in  the 
indictment,  which  was  furnished  to  all  others  who  applied,  placing  the 
refusal  on  a  ground  which  justified  the  applicants  in  supposing,  and 
the  jury  in  finding,  that  the  defendant  thereb}'  intended  to  exclude 
them,  and  did  there b}'  exclude  them,  from  the  rink. 

The  real  question  in  the  case  arises  upon  the  contention  of  the  coun- 
sel for  the  appellant  that  the  statute  upon  which  the  indictment  is 
founded,  so  far  as  it  undertakes  to  prescribe  that  the  owner  of  a  place 
of  amusement  shall  not  exclude  therefrom  any  citizen  b}-  reason  of  race, 
color,  or  previous  condition  of  servitude,  is  an  unconstitutional  inter- 
ference with  private  rights,  in  that  it  restricts  the  owner  of  property  in 
respect  to  its  lawful  use,  and  as  to  an  incident  which  is  not  a  legitimate 
matter  of  regulation  by  law. 

The  legislation  in  question  is  not  without  precedent.  The  Act  of  Con- 
gress of  March  1,  1875,  entitled  "An  Act  to  protect  all  Persons  in  their 
Civil  Rights"  (18  U.  S.  Stat,  at  Large,  335),  contains  a  section  identical 
in  import  with  section  383  of  the  Penal  Code,  except  that  it  is  still 
broader  in  its  scope,  and  secures,  not  to  citizens  only,  but  to  all  persons 
within  the  jurisdiction  of  the  United  States,  the  equal  enjoyment  of  the 
accommodation,  advantages,  facilities,  and  privileges  of  "inns,  public 
conveyances  on  land  and  water,  theatres,  and  other  places  of  public 
amusement,  subject  only  to  the  limitations  established  by  law,  and 
applicable  to  citizens  of  ever}'  race  and  color,  regardless  of  an}-  pre- 
vious condition  of  servitude."  The  Civil  Rights  Act  of  Mississippi, 
passed  February  7,  1873,  contains  a  similar  provision.  In  Louisiana, 
the  matter  is  made  the  subject  of  a  constitutional  enactment,  ordaining 
that  "  all  persons  shall  enjoy  equal  rights  and  privileges,  etc,  in  every 
place  of  public  resort ; "  and  this  was  supplemented  by  Acts  of  the 
Legislature  of  Louisiana,  passed  in  1870  and  1871. 

It  is  not  necessary,  at  this  day,  to  enter  into  any  argument  to  prove 
that  the  clause  in  the  Bill  of  Rights  that  no  person  shall  "  be  deprived 
of  life,  liberty,  or  property  without  due  process  of  law  "  (Const,  art.  1, 
§  6),  is  to  have  a  large  and  liberal  interpretation,  and  that  the  funda- 
mental principle  of  free  government,  expressed  in  these  words,  protects 
not  only  life,  liberty,  and  property,  in  a  strict  and  technical  sense, 
against  unlawful  invasion  by  the  government,  in  the  exertion  of  gOA*- 
ernmental  power  in  any  of  its  departments,  but  also  protects  every 


570  PEOPLE  V.   KING.  [CHAP.  IV. 

essential  incident  to  the  enjoyment  of  those  rights.  The  interpretation 
of  this  time- honored  clause  has  been  considered,  in  recent  cases  in  this 
court,  witli  a  fulness  and  completeness  which  leaves  nothing  to  be  said 
b}'  wa}-  of  support  or  illustration.  Wynehamer  v.  People^  13  N.  Y. 
378  -,  Bertholfy.  O'Reilly,  14.  Id.  509  ;  In  re  Jacobs,  98  Id.  98  ;  People 
V.  Marx,  99  Id.  377. 

But,  as  tlie  language  of  the  constitutional  pi-ohil»i^otHmpl4esr-life,4ili- 
ertv,  and  ])ropertv  may  be  justly  j^ected  by  In^^.  and  the  statutes 
abound  in  examples  of  legislation  limiting  or  reflating  the  use  of  pri- 
vate property,  restraining  freedom  of  perspiTal  action  or  controlling 
individual  conduct,  which,  by  common ^(xTnsent,  do  not  transcend  the 
limitations  of  the  Constitution.  This^  legislation  is  under  what,  for 
lack  of  a  better  name,  is  called  the  police  4')Ower  of  the  Statc.,-=-a,- 

J20WPr  inr'.npa.])le  of  P-raot  rlAfinitinn^   hnt  tlin  Pvictpnop  nf  roliiph   ig  Pggpn- 

tial  to  every  well-ordered  goypnimpjit,  B3'  means  of  this  power  the 
legislature  exercises  a  supervision  over  matters  involving  the  common 
weal,  and  enforces  the  observance,  b}'  eadi  individual  member  of  society, 
of  the  duties  which  he  owes  to  others  and  to  the  community  at  large. 
It  ma}'  be  exerted  whenever  necessary  to  secure  the  peace,  good  order, 


3  communit}',  and  the  propri- 
limits  is  pureh'  a  matter  of 


health,  morals,  and  general  welfare  of  th 
ety  of  its  exercise  within  constitutional 
legislative  discretion  with  which  the  cour  s  cannot  interfere.  In  short, 
the  police  power  covers  a  wide  range  of  particular  unexpressed  powers 
reserved  to  the  State  affecting  freedom  of  action,  personal  conduct, 
and  the  use  and  control  of  property.  ^^MJI  propei'ty,"  '^"^'"'^  ^ii^w  r:-^ 
in  Com,  v.  Alaer,  7  Cush.  85,  ^'  is  hela  subject  to  those  general  regu.- 
lations  which  are  necessary  to_tl'e  pni-nmon  go^d  nnd  g^nernl  ^"^^21"" 
This  power,  of  course,  is  subject  to  limitations^  The  line  of  demarca- 
tion between  its  lawful  and  unlawful  exerci^  it  is  often  difficult  to 
trace.  We  have  held  that  it  cannot  be  exerted  for  the  destruction  of 
property  lawfully  held  and  acquired  under  existing  laws,  or  of  any  of 
the  essential  attributes  of  such  property  (Wynehamer  v.  People,  supra)  ; 
nor  to  deprive  an  individual  of  the  right  to  pursue  a  lawful  business  on 
his  own  ))remises,  not  injurious  to  the  public  health,  or  otherwise  inimical 
to  the  public  interests  {In  re  Jacobs,  supra)  ;  nor  to  prevent  the  manufac- 
ture or  sale  of  a  useful  article  of  food.  People  v.  Marx,  supra.  But 
■we  have  held  that  the  legislature  may  lawfully  subject  the  owner  of 
premises  to  pecuniary  liability  for  injuries  resulting  from  intoxication 
caused  in  whole  or  in  part  by  the  use  of  liquor  sold  by  the  lessee 
therein,  although  the  sale  itself  was  lawful  {Bertholf  v.  G'ReiUy, 
supra) ;  and  it  was  held  by  the  Supreme  Court  of  the  United  States,  in 
Munn  V.  Illinois,  94  U.  S.  113,  that  a  State  law  regulating  the  licensing 
of  elevators  for  the  handling  and  storage  of  grain,  and  fixing  a  maxi- 
mum charge  therefor,  was  not  repugnant  to  that  part  of  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States  which  ordains 
that  "no  State  shall  deprive  any  person  of  Ufe,  libertj',  or  property 
without  due  process  of  law." 


CHAP.  IV.j  PEOPLE   V.   KING.  571 

In  considering  whether  the  enactment  of  septio"  -^^-^  '''^  ^^^^  Ppijn  1 
Code  transcends  legislative  power,  it,  is  important,  to  Imvp  in  minrl  tliP 
_piirpose  of  the  enactment.  It  cannot  be  doubted  tli.st  it  wns  pnnft.pd 
^Yith_special  reference  to  citizens  of  African  descent,  nor  is  tlipi-p  nny 
doubt  that  the  policy  which  dictated  thp  )po-is1ntinn  wns  tn  sppm-p  to 
such  persons  equal  rights  with  white  persons  to  tlip  fnpilitipg  fm-nigiinrl 
by  carriers,  innkeepers,  tlioatrp?^,  srhonls,  ;ind  plnfRs  of  pnhlif  Mmngp- 
ment  The  race-prejudice  against  persons  of  color,  which  had  its  root, 
in  part  at  least,  in  the  system  of  slavery,  was  bj-  no  means  extinguished 
when,  by  law,  the  slaves  became  freemen  and  citizens.  But  this  great 
act  of  justice  towards  an  oppressed  and  enslaved  people  imposed  upon 
the  nation  great  responsibilities.  They  became  entitled  to  all  the  privi- 
leges of  citizenship,  although  the  great  mass  of  them  were  poorly  pre- 
pared to  discharge  its  obligations.  The  nation  secured  the  inviolability 
of  the  freedom  of  the  colored  race  and  their  rights  as  citizens  by  the 
Thirteenth,  Fourteenth,  and  Fifteenth  Amendments  of  the  Constitution 
of  the  United  States.  The  Fourteenth  Amendment  ordained,  among 
other  things,  that  "  no  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United  States, 
.  .  .  nor  den}-  to  any  person  within  its  jurisdiction  the  equal  [)rotectiou 
of  the  laws."  The  construction  of  the  Fourteenth  Amendment  has 
come  under  the  consideration  of  the  Supreme  Court  of  the  United 
States  in  several  cases,  among  others,  in  two  cases  known  as  the  jur^' 
cases,  —  Straiider  v.  West  Virginia,  100  U.  S.  303,  and  Ex  parte  Vir- 
ginia, Id.  339.  In  the  case  first  mentioned  it  was  held  that  a  State 
law  confining  the  selection  of  jurors  to  white  persons  was  in  contraven- 
tion of  the  Fourteenth  Amendment;  and  in  the  second,  that  the  action 
of  the  State  officer  invested  with  the  power  to  select  jurors,  excluding 
all  colored  persons  from  the  lists,  was  also  repugnant  to  its  provisions. 
In  Stiruider  v.  West  Virginia,  Strong,  J,,  speaking  for  the  majority  of 
the  court,  said  :  •'  The  words  of  the  amendment,  it  is  true,  are  prohib- 
itor3',  but  they  contain  a  necessar}'  implication  of  a  positive  immunity 
or  right  most  valuable  to  the  colored  men, — the  right  of  exemption 
from  unfriendly  legislation  against  them  distinctively  as  colored  ;  ex- 
emption from  legal  discrimination  implying  inferiority  in  civil  society', 
lessening  the  security  of  their  enjoyment  of  the  rights  which  others 
enjo}',  and  discriminations  which  are  steps  toward  reducing  them  to  the 
condition  of  a  subject  race." 

We  have  referred  to  these  amendments  and  to  the  cases  constru- 
ing them,  because  the}'  disclose  the  fact  that,  in  the  judgment  of  tlie 
nation,  the  public  welfaie  required  that  no  State  should  be  permitted 
to  establish  by  law  such  a  discrimination  against  persons  of  color  as 
was  made  b}-  the  defendant  in  this  case,  for  we  think  it  incontestable 
that  a  State  law  excluding  colored  people  from  admission  to  places  of 
public  amusement  would  be  considered  as  a  violation  of  the  Federal 
Constitution.  It  would  seem,  indeed,  in  view  of  the  Act  of  March  1, 
1875,  that,  in  the  opinion  of  Congress,  the  amendments  had  a  much 


572  PEOPLE   V.    KING.  [CHAP.  IV. 

])roader  scope,  and  prevented  not  onl}-  discriminating  legislation  of 
this  character  b3'  the  State,  but  also  such  discrimination  b>'  individuals, 
since  the  jurisdiction  of  Congress  to  pass  a  law  forbidding  the  exclusion 
of  persons  of  color  from  places  of  public  amusement,  and  annexing  a 
penalty  for  its  violation,  must  be  derived,  if  it  exists,  from  the  Thir- 
teenth, Fourteenth,  and  Fifteenth  Amendments.^  It  cannot  be  doubted 
that  before  they  were  adopted  the  power  to  enact  such  a  regulation 
resided  exclusively  in  the  States.  But  independently  of  the  inference 
arising  from  the  solemn  assertion  by  the  nation,  through  its  action  in 
adopting  the  amendments,  that  legal  discriminations  against  persons  of 
color  b3'  the  action  of  States  was  opposed  to  the  public  welfare,  it  is 
not  difficult  to  see  that  ther£_is  a  pubbV.  int.prpst_whiVh  ^ustifiedJJifi 
enactment  of  section  385  of  the  Code,  provided  it  did_not  overs tep_the 
limits  of  lawful  infprfpi-pnpp  with  thp  uses  of  privntp^prnporfy. 
The  rnpmbprs  f>f  the  African  race,  born  or  naturalized  in  this  cotnitry. 
are  citizens  of  the  States  where  they  reside  and  of  thp  TTnitPfl  States. 
^Rotli  jiistipp  and  thp  pnhlio  interest  concur  in  a  policy  whirh  shn11^.1e^ 
vate  them  as  individuals  and  relieve  them  from_oppi'x^sive-ai:  degrading 
discrimination,  and  which  shall  encourage  and  culih:ate-a^-s^pirit-«44icli 
will  make  them  self  respecting,  contentfiil^and  loval  citiz^ens,  and  .give 
them  a  fair  chance  in  thp  stmo-glp  of  life,  weighted,  as^  the^^arc  at  best,  - 
with  so  many  disadvantages.  It  is  evident  that  to  exclude  colored 
people  fr-^ni  p^q^-pg  nf  pnhlip  rpsnrt  on  account  of  their  race  is  to  fix 
upou_them  a  brand  of  inferiority^  and  tends  to  fix  tlieir  position  as  a 
servile  and  dependent  people.  It  is,  of  course,  impossible  to  pu force 
social  equality  by  law.  iBut  the  law_in  question,  simply  .J  nsure&_l.o 
colored  citizens  the  right  to  admission,  nn^egual  terms  with  others^J.O 
public  resorts  and  to  equal  enjoyment  of  prLxileges  of  a-^twosi ^iahlifi 
character  The  law  cannot  be  set  aside,  because  it  has  nojjasis  iiijlie 
public  interest,  andlthe  promotion  of  the  public  good  is  the  main  piii:. 
pose  for  which  the  police  power  may  be  exerted;  and  whether,  in  a 
^iven  case,  it  shall  be  exerted  or  not,  the  legislature  is  the  sole  judge, 
and  a  law  will  not  be  held  invalid  because,  in  the  judgment_pf  a  court, 
its  enactment  was  inexpedient  or  unwise.T 

The  final  question,  therefore,  is,  doeS'Uie  law  in  question  invade  the 
right  of  property  protected  b}"  the  Constitution  ?  The  State  could  not 
pass  a  law  making  the  discrimination  made  by  the  defendant.  The 
amendments  to  the  Federal  Constitution  would  forbid  it.  May  not  the 
State  impose  upon  individuals  having  places  of  public  resort  the  same 
restriction  which  the  Federal  Constitution  places  upon  the  State?  It 
Is  not  claimed  that  that  part  of  the  statute  giving  to  colored  people  equal 
rights,  at  the  hands  of  innkeepers  and  common  carriers,  is  an  infraction 
Df  the  Constitution.  But  the  business  of  an  innkeeper  or  a  common  car- 
tier,  when  conducted  by  an  individual,  is  a  private  business,  receiving 
Ro  special  privilege  or  protection  from  the  State.     By  the  common  law, 

1  See  the  Civil  Rights  Cases,  109  U.  S.  3 ;  ante,  p.  554.  —  Ed. 


CHAP.  IV.]  PEOPLE   V.    KING.  573 

innkeepers  and  common  carriers  are  bound  to  furnish  equal  facilities  to 
all,  without  discrimination,  because  public  policy  requires  them  so  to 
do.  The  business  of  conducting  a  theatre  or  place  of  public  amusement 
is  also  a  private  business  in  which  au}'  one  may  engage,  in  the  absence 
of  an}'  statute  or  ordinance.  But  it  has  been  the  practice,  which  has 
l)a3sed  unchallenged,  for  the  legislature  to  confer  upon  municipalities 
liie  [)Ovver  to  regulate  by  ordinance  the  licensing  of  theatres  and  shows, 
and  to  enforce  restrictions  relating  to  such  places,  in  the  public  inter- 
est, and  no  one  claims  that  such  statutes  are  an  invasion  of  the  right  of 
liberty  or  property  guaranteed  by  the  Constitution. 

The  statute  in  question  assumes  to  regulate  the  conduct  of  owners  or 
managers  of  places  of  public  resort  in  the  respect  mentioned.  The 
principle  stated  by  Waite,  C.  J.,  in  Muiui  v.  Illinois,  supra,  which 
received  the  assent  of  the  majority  of  the  court,  applies  in  this  case. 
"UVhere,"  says  the  Chief jJustice,  "  one  devotes  his  |)roperty  to_au^se 
in  which  the  public  have  an  interest,  he,,  in  effect,  grants  to  the  public 
_an  ii]terest_uLi^^^^~"^^'  and_musJLsubmit  to  bo  eontrollcd  by  the  public- 
for  the  common  good,  to  the  exteiiLaf-thti-JHierest  he  has  thus  <treated."J 
In  the  judgment  of  the  legislature  the  public  had  au  interest  to  prevent 
race  discrimination  between  citizens,  on  the  part  of  persons  maintaining 
places  of  public  amusement,  and  the  quasi  public  use  to  which  the 
owner  of  such  a  place  devoted  his  property,  gives  the  legislature  a  right 
to  interfere.  If  the  defendant,  instead  of  basing  his  exclusion  of  a 
class  of  citizens  upon  color,  had  made  a  rule  excluding  all  Germans,  or 
all  Irishmen,  or  all  Jews,  the  law  as  applied  to  such  a  case  would  have 
seemed  entirely  reasonable.  United  States  v.  Newcombe  [U.  S.  Dist. 
Ct.],  4  Phila.  519.  But  the  principle  is  the  same,  and  if  the  law  could 
be  sustained  in  the  one  case,  it  may  in  the  other.  The  validity  of  simi- 
lar statutes  in  Mississippi  and  Louisiana  has  been  sustained  by  the 
coui-ts  in  those  States.  Donnell  v.  The  State,  48  Miss.  661  ;  Joseph  v. 
Bidwell,  28  La.  382.  The  statute  does  not  interfere  with  private  en- 
tertainments, or  prevent  persons  not  engaged  in  the  business  of  keeping 
a  place  of  public  amusement,  from  regulating  admission  to  social, 
public,  or  private  entertainments  given  by  them  as  they  may  deem 
best,  nor  does  it  seek  to  compel  social  equality.  It  was,  we  think,  a 
valid  exercise  of  the  police  power  of  the  State  over  a  subject  within  the 
cognizance  of  the  legislature. 

The  judgment  should  be  affirmed. 

All  concur,  except  Peckham  and  Gray,  JJ.,  dissenting;  Ruger, 
C.  J.,  concurring  in  result.  Judgment  affirmed} 

1  And  so  Ferguson  v.  Gies,  82  Mich.  358  (1890),  as  to  restaurants,  where  the  stat- 
ute is  said  to  be  only  declaratory  of  the  common  law,  as  now  understood  in  that  State ; 
Bai/lies  v.  Currif,  128  111.  287  (1889).  Compare  Central  R.  R.  Co.  v.  Green,  80  Pa.  St. 
427  (1878);  R.  R.  Co.  v.  Brown,  17  Wall.  445  (1873).  — Ed. 


574  LEHEW  V.   BKUMMELL.  [CHAP.  IV. 

LEHEW  V.  BRUMMELL. 
Supreme  Court  of  Missouri.     1890.     . 

[103  Mo.  546.] 

^.  M.  Sarber.,  for  appellants. 

R.  A.  DeBolt.,  for  respondents. 

Black,  J.  The  five  plaintiffs  in  this  case  reside  in  School  District 
Number  4,  in  Grundy  County,  and  each  has  children  entitled  to  attend 
the  public  school  maintained  therein  for  the  education  of  white  children. 
In  September,  1887,  when  this  suit  was  commenced,  the  defendant 
Barr  was  the  teacher,  and  three  of  the  defendants  were  directors  of  the 
school  district.  The  defendant  Brummell  is  a  man  of  African  descent, 
and  at  the  last-mentioned  date  had  four  children,  all  of  whom  resided 
with  him  in  said  district  and  were  of  the  ages  entitling  them  to  attend 
the  public  schools.  These  four  children  were  the  onl}'  colored  childr  n 
of  school  age  in  the  district.  No  separate  school  was  ever  establibhed 
or  maintained  tlierein  for  the  education  of  colored  children;  but  tliere 
was  such  a  separate  school  in  the  town  of  Trenton  in  tlie  same  count}-, 
three  and  one-half  miles  from  Brummell's  residence.  No  white  child  in 
District  Number  4  had  to  go  more  than  two  miles  to  reach  the  school- 
house.  These  colored  children  were  permitted  to  attend  the  school 
maintained  for  white  children  in  District  Number  4  for  a  short  time. 

On  the  furegoing  facts  a  temporary  injunction  was  awarded  the  plain- 
tiffs, restraining  Brummell's  children  from  attending  tlie  school  so  estab- 
lished for  white  children,  which  was  made  perpetual  on  the  final  hearing 
of  the  cause,  and  tlie  defendants  appealed. 

But  two  questions  are  presented  by  the  briefs  for  our  consideration. 
The  first  is,  that  the  laws  of  this  State  concerning  the  education  of 
colored  children  are  in  conflict  with  section  1  of  the  Fourteenth  Amend- 
ment of  the  Constitution  of  the  United  States,  and,  therefore,  void. 

Section  1,  of  article  11,  of  the  Constitution  of  this  State,  makes  it  the 
duty  of  the  General  Assembly  to  establish  and  maintain  free  pubUc 
schools  for  the  gratuitous  instruction  of  all  persons  in  this  State  be- 
tween the  ages  of  six  and  twenty  3-ears ;  and  section  3  of  the  same 
article  declares  :  "  Separate  free  public  schools  shall  be  established  for 
the  education  of  cliildren  of  African  descent." 

A  system  of  free  public  schools  has  been  established  b}'  general  laws 
throughout  the  State,  and  for  all  the  purposes  of  this  case  it  will  be 
sufficient  to  notice  the  statutes  concerning  colored  schools.   .   .   . 

These  statute  laws  simply  carry  out  and  put  in  oj^eration  the  com- 
mand of  that  section  of  our  Constitution  before  quoted,  and  the  objec- 
tion now  made  is  levelled  at  the  constitutional  provision,  and  it  is  tliat 
whieh  we  are  asked  to  strike  down,  because  of  the  contention  that  it 
violates  section  1  of  the  Fourteenth  Amendment  of  the  Constitution  of 
the  United  States.  .  .  . 


CHAP.  IV.]  LEHEW  V.    BRUMMELL  575 

We  then  come  to  the  last  clause,  which  is  prohibitoiy  of  State  action. 
It  says,  nor  shall  any  State  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws.  Speaking  of  this  clause  in  its  appli- 
cation to  State  legislation  as  to  colored  persons,  Justice  Strong  said : 
"  What  is  this  but  declaring  that  the  law  in  the  States  shall  be  tlie 
same  for  the  black  as  for  the  white  ;  that  all  persons,  whether  colored 
or  white,  shall  stand  equal  before  the  laws  of  the  States,  and,  in  regard 
to  the  colored  race,  for  whose  protection  the  amendment  was  primarily 
designed,  that  no  discrimination  shall  be  made  against  them  by  law 
because  of  their  color?"  Slrauder  y.West  Virginia,  100  U.  S.  303. 
We  then  come  to  tlie  simple  question  whether  our  Constitution  and  the 
statutes  passed  pursuant  to  it,  requiring  colored  persons  to  attend 
schools  established  and  maintained  at  public  expense  for  the  education 
of  colored  persons  only,  deny  to  such  persons  "  equal  protection  of  the 
laws." 

It  is  to  be  observed  in  the  first  place  that  these  persons  are  not  de- 
nied tiie  advantages  of  the  public  schools.  The  right  to  attend  such 
schools  and  receive  instruction  thereat  is  guaranteed  to  them.  The 
framers  of  the  Constitution  and  the  people  by  their  votes  in  adopting  it, 
it  is  true,  were  of  the  opinion  that  it  would  be  better  to  establish  and 
maintain  separate  schools  for  colored  children.  The  wisdom  of  the 
provision  is  no  longer  a  matter  of  speculation.  Under  it,  the  colored 
children  of  the  State  have  made  a  rapid  stride  in  the  vva}-  of  education, 
to  the  great  gratification  of  every  right  minded  man.  The  schools  for 
white  and  black  persons  are  carried  on  at  a  great  public  expense,  and 
it  has  been  found  expedient  and  necessary  to  divide  them  into  classes. 
That  separate  schools  may  be  established  for  male  and  female  pupils 
cannot  be  doubted.  No  one  would  question  the  right  of  the  legislature 
to  provide  separate  schools  for  neglected  children  who  are  too  far  ad- 
vanced in  years  to  attend  the  primary  department ;  for  such  separate 
schools  would  be  to  the  great  advantage  of  that  class  of  pupils.  So, 
too,  schools  may  be  classed  according  to  the  attainments  of  the  attend- 
ants in  the  branches  taught.  That  schools  may  be  classed  on  these 
and  other  grounds  without  violating  the  clause  of  the  Federal  Constitu- 
tion now  in  question,  must  be  conceded.  [But  it  will  be  said  the  classi- 
fication now  in  question  is  one  based  on  colori  nnd  _aQ-it  jg  ;  hut  thf 
coTor  carries  with  it  natural  race  peculiarities  which  furnish  the  reason 
for  the  classification.  There  are  differences  in  races,  and  bptwppn 
individuals  of  the  same  race,  n^t,  rrpatpd  by  hnmnn  Iowa  o^^mo  <^>f 
which   can   never   be  eradicated.!  These   differences   create   different 


nttt  creflten  r>y 
i{\.\  These  diffe 
all  well-orffanize 


social  relations  recognized  by  air  well-organized  governmoi^ts.  If  we 
cast  aside  chimerical  theories  and  look  to  prantin?^,!  results,  it  seems  to 
us  it  must  be  conceded  that  sppnrflift  gfhnnia  ff>r  f'oj^rpd  fhildiyn  i^  ^ 
regulation  to  their  great  advantage. 

It  is  true  Brummell's  children  must  go  three  and  one-half  miles  to 
reach  a  colored  school,  while  no  white  child  in  the  district  is  required 
to  go  further  than  two  miles.     The  distance  which  these  children  must 


576  LEHEW   V.    BRUMMELL.  [cHAP.  Vv. 

go  to  reach  a  colored  school  is  a  matter  of  inconvenience  to  them, 
l3ut  it  is  an  inconvenience  which  must  arise  in  anj'  school  system. 
The  law  docs  not  undertake  to  establish  a  school  within  a  ^iven  dis- 
tavKigjlLaLny  ""f",  whitp  or  h1nr-k  'Pjift  inequality  in  distances  to  be 
travelled  bjMiie^  children  of  different  families  is  but  an  in'^'d^n^  *^ 
any  classification,  and  furnisbps  no  sii^cfnntioi  ^mnnrl  of  pn|nplf^jnt. 
People  ex  rel.  King  v.  Gallagher^  93  N.  Y.  438-451. 

T^ip  ffic-t  miisr,  be  kepf.  in  mind,  for  it  lies  sit  the  fonndntion  Ci£  Ibis 
pmvbviJ££2'!^yi  ^hnt.  tliP  la^f?  of  f hjs  State  do  not  exclude  colored  children 
J'rom  the  public  schools.  Such  children  have  all  the^gWioo^  Qrivnntf^(TP<a_ 
andjprivileges  that  are  afforded  white  children.  The  fact  that  the  two 
races  are  separated  for  the  purpose  of  receiving  instruction  deprives 
neither  of  anv  riofbts.  Tt,  is  biit.  n.  rpaspnnble^  regnlfltion  of  fho  exercise 
of  flip  rigbt.  As  s?iidjn  the  case  just  cited,^^  Equality  and  not  iden- 
tityjrfjP^'^^^g'^^  and  rjo-hts  is  what  is  gnnmnl^ed  to  the  citizen. 'Ml  Our 

conclusion  is  that,    thp  r'ont;titiifir>n   nnrl   1nn:g  of  thio   Sfnfp  providing    for 

separate  schools  for  colored  children  are  not  forbidden  by,  or  in  con- 
flict with,  the  Fourteenth  Amendment  of  the  Federal  ConstitjitiQii ;  and 
the  courts  of  last  resort  in  several  States  have  reached  the  same  result. 
People  ex  rel.  King  v,  Gallagher,  supra;  State  ex  rel.  Garfies  v. 
McCann,  21  Ohio  St.  198;  Cory  v.  Carter,  48  Ind.  328;  Ward  v. 
Flood,  48  Cal.  36. 

A  like  result  was  reached  in  Massachusetts  under  a  constitutional 
provision  similar  to  the  Fourteenth  Amendment  as  to  the  question  in 
hand.  Poberts  v.  The  City  of  Boston,  5  Gushing,  198.  We  are,  also,  of 
the  opinion  that  our  conclusion  is  in  accord  with  the  cases  cited  from 
the  Supreme  Court  of  the  United  States,  the  final  arbiter  of  all  such 
questions.' 

[The  second  point,  turning  on  the  want  of  proper  parties,  is  omitted.] 

1  And  so  Chrisman  v.  Brookhaven,  70  Miss.  477  (1892).  In  this  case  the  court 
(Campbell,  C.  J.)  remarks  that,  "  The  Constitntion  of  1&90  embodies  by  express  pro- 
vision, in  s.  207,  the  rule  which  has  ahvays  prevailed  in  this  State,  that  '  separate  schools 
shall  be  maintained  for  children  of  the  wliite  and  colored  races.' "  The  same  doctrine 
is  held  m  regards  legislation  requiring  railway  companies  to  "  provide  equal  but  sepa- 
rate accommodations  for  tlie  white  and  colored  races;  "  in  Ex  parte  Plcssy,  11  So.  Kep. 
948  (La.  Dec.  1892).     Compare  Lotusr.,  cj-c.  Bi/.  Co.  v.  Miss.,  133  U.  S.  587. 

In  Roberts  v.  T/ie  City  of  Boston,  5  Cush.  198  (1850),  before  the  Fourteenth  Amend- 
ment, a  similar  question  was  elaborately  argued  before  the  Supreme  Court  of  Massachu- 
setts by  Charles  Sumner  (3  Pierce's  Life  of  Sumner,  40,  41).  In  an  often-cited  opinion 
the  court  (Shaw,  C.  J.)  said:  "The  plaintiff,  a  colored  child  of  five  j^ears  of  age,  has 
commenced  this  action,  by  her  father  and  next  friend,  against  the  city  of  Boston,  upon 
the  stg.Uite  of  1845,  c.  214,  which  provides,  tiiat.auy  child  unlawfully  excluded  from 
public-school  instruction,  in  this  Commonwealth,  sliall  recover  damages  therefor,  in  an 
action  against  the  city  or  town  by  which  such  public-school  instruction  is  supported. 
The  question  tlierefore  is,  whether,  upon  the  facts  agreed,  the  plaintiff  has  been  un- 
lawfully excluded  from  such  instruction. 

"  Ry  the  agreed  statement  of  facts,  it  appears,  that  the  defendants  support  a  class  of 
schools  called  primary  schools,  to  the  number  of  about  one  hundred  and  sixty,  designed 
for  the  instruction  of  children  of  both  sexes,  who  are  between  the  ages  of  four  and 


CHAP.  IV.]  LEHEW   V.    BRUMMELL.  577 

seven  years.  T.vo  of  these  schods  are  api-ropriated  by  the  P"™"^/^^^^  J";";[;^\'' 
havin.^  charge  of  tKKTTTais  of  schools,  to  the  exclusive  instruction  of  colored  clul.lren, 
and  the  residue  to  tiie  exclusive  instruction  of  white  children.  •   , ,  „„p  of 

"  T  le  pkiintiff,  by  her  father,  took  proper  measures  to  obtain  admission  into  one  of 
these  hor  appropriated  to  white  children,  but  pursuant  to  the  regulations  of  tie 
comm  tt  e  and  in  conformity  therewith,  she  was  not  admitted.  Either  of  tlie  schools 
TZZ^t^  to  colored  cKMren.. as  open  to  her;  the  nearest  of  wh.c-^i  was  about  a 
Si  of  fmile  or  seventy  rods  more  distant  from  her  fathers  house  than  the  nearest 
IZ)  It  further  appears,  by  the  facts  agreed,  that  the  committee  having 
pnmary  -ho^l  J^X^i^Pf^,    ,',1,0^  time  previously  to  the  plaintiffs  applicai.on, 

charge  of  that  '  ^  "^f^^^'^^^;;;^  ,f  ^  committee,  that  in  the  opinion  of  that  board, 
adopted  a  '^^-^;'\'2Z7J-^t^^^^^^  children,  and  the  regular  attendance 

'^j;^'::^^^::^^^^^^  i^  -t  omy  ,egal  and  iust,  hut  is  .,est  adapted  to 

-^x;is:r;;:dii:t^-orif^^^^^^ 
-^-^"VT:^t::^^^^e^iE^ 

-^^'•"'^^^■•^^^/"'^r^l^Tni'    that  the  schools  thus  open  to  the  plaintiif  are  exclu- 

s^-;:^;;e?Ltqeh;...^^^ 

^  ^rr^tri::r.^:S^trwe  nave  be.  ...  to  .ve  the  sub 

^^  ^^r^^:;;r advanced  by  -  ^^^^ -.x:^^^^:!^:^ 
:;^sr:7s::rs:srr^:iS:^"e^^^^ 

as  a  b  0^1  general  principle,  sucii  as  ought  to  appear  in  a  declaration  of  rights,  is  per- 
fectly ^"1!    it  is  not  onh-  expressed  in  terms,  but  pervades  and  animates  the  whole 
sp       of  our  constitution  of  free  government.     But^en  this  ^reat^nnc.ple  c_om_e^o 
all  ed  to  the  actual  and  various^ditions  oTpSi5n^i:..ocI.t^.^I^^^^ 
{LZevtion^^^L^^A^^^^^S^^^y  clothed_with_tlie jMiexivil^ad4Kto 
^l^^r^Thjldil^rid^l^r.  legally  to  hayO,Jhe.^n^»nct.on.  .ml 
^;i;-^^^^i^li;r;^^^^ri;^:^ent;  but  onlrthatjhe  rip-hts  o'f  all  as  theY^I^^aUkiLiilill 
regulated  by  law,  are  equally  enjitlegtojhiSffiaUm^^t.on  ind  F^  fr^"'"  />t 
ellaw  for  their  maintenance-and  secMiritj:^-Wlia«.tho.a-«gte^re.±a^i.h^^ 

-S-irthn55mti;yH!^5r^  .vhidijhexiu:^^u2m^^ 

are  ;ntitied  Ti^SiOi^iEdTnTaws  adapted  to  thoir  respectiye_xdaMSDS.and^oa<ilt^ 
^'Concedng  therefore,  in  tiie-TTinest  manner,  that  colored  persons,  the  descendant, 
of  Africans,  are  entitled  by  law,  in  this  Commonwealth,  to  equal  rights,  constitutional 
fnd  Sal  civil  and  social,  the  question  then  arises,  whether  the  reguktion  ,n  ques- 
Tot  wS  provides  separate  schools  for  colored  children,  is  a  violation  of  any  of  these 

"^!  Legal  rights  must,  after  all,  depend  upon  the  provisions  of  law ;  certainly  all  those 
rights  of  individuals  which  can  be  asserted  and  maintained  ,n  any  judical  tr  hnnal. 
The  proper  province  of  a  declaration  of  rights  and  constitution  of  go^^rnment,  after 
direcfmrits  form,  regulating  its  organization  and  the  distribution  of  its  powers,  ,s  to 
tcTare  great  priniples  and  fundamental  truths,  to  influence  and  direct  the  judgment 
an  conSence^f  legislators  in  making  laws,  rather  than  to  lim  t  and  control  them,  by 
d  recting  what  precife  laws  they  shall  make.  The  provision,  that  ,t  shall  be  the  duty 
of  ir^  fat'res  and  magistmtes  to  cherish  the  interests  of  literature  and  the  sciences 
^pelilyXuniversit^y  at  Cambridge,  public  schools,  and  grammar  -^ools  in  the 
towns,  is  precisely  of  this  character.  Had  the  legislature  faded  to  ^^^b  J  ^  this 
n  unction  and  neglected  to  provide  public  schools  in  the  towns  or  shoud  they  so  far 
fjl  in  their  duty  as  to  repeal'all  laws  on  the  subject,  and  leave  all  education  to  depend 
VOL.  I.  —  37 


678  IN   RE   LOOK   TIN   SING.  [CHAP.  IV. 


In  re  look  tin   SING. 
Circuit  Court  of  the  United  States,  California.     1884. 

[10  Saivyer,  353.] 

Before  Field,  Circuit  Justice,  Sawyer,  Circuit  Judge,  and  Sabin, 
District  Judge.^ 

T.  D.  Hiordan  and  William  M.  Stewart,  for  the  petitioner ;  S.  G. 
Hilborn^  United  States  Attorne}-,  Carroll  Cook^  Assistant  United 
States  Attorne}',  and  John  N.  Fomeroy,  for  the  United  States. 

By  the  Court,  Field,  Circuit  Justice.     The  petitioner  belongs  to  the 

on  private  means,  strong  and  explicit  as  the  direction  of  the  Constitution  is,  it  would 
afford  no  remedy  or  redress  to  the  thousands  of  the  rising  generation,  who  now  depend 
on  these  schools  to  afford  them  a  most  valuable  education,  and  an  introduction  to  use- 
ful life. 

"  We  must  then  resort  to  the  law,  to  ascertain  what  are  the  rights  of  individuals,  in 
regard  to  the  schools.     By  the  Rev.  Sts.  c.  23,  the  general  system  is  provided  for.  .  .  . 

"  In  the  absence  _of  special  le,o;is1nt,ion  on  this  subject,  the  law  has_^veste 
in  the  committee  to  regulate  the  system  of  distribution  and  classification.i_aud_ 
this  power  IS  reasonably  exercised,  witliout  being  abused  r.r  pprvprrpd  hy  pplnral.lA 
pretences,  the  decision  of  the  committee  must  be  deemed  conclusive.  The  committee, 
apparently  upon  great  deliberation,  have  come  to  the  conclusion,  that  the  good  of  both 
classes  of  schools  will  be  best  promoted,  by  maintaining  the  separate  primary  schools 
for  colored  and  for  white  children,  and  we  can  perceive  no  ground  to  doubt,  that  this 
is  the  honest  result  of  their  experience  and  judgment. 

"  It  is  urged,  that  this  m.aintpiianpp  nf  sppnr.itp  .gphools  tends  to  dppppn  nnd  perpetu- 
ate  the  odious  distinction  of  caste,  founded  in  a  deep-rootpd  prejudice  in  public  opinion. 
This  prejudice,  if  it  exists,  is  not  created  by  law,  and  probably  cannot  be  chang^ed  by 
law.  Whether  this  distmction  and  prejudice,  existing  in  the  opinion  and  feelings  of 
the  community,  would  not  be  as  effectually  fostered  by  compelling  colored  and  white 
children  to  associate  together  in  the  same  schools,  may  well  be  doubted ;  at  all  events, 
it  is  a  fair  and  proper  question  for  the  committee  to  consider  and  decide  upon,  having 
in  view  the  best  interests  of  both  classes  of  children  placed  under  their  superintendence, 
and  we  cannot  say,  that  their  decision  upon  it  is  not  founded  on  just  grounds  of  reason 
and  experience,  and  in  the  results  of  a  discriminating  and  honest  judgment. 

"The  increased  distance,  to  which  the  plaintiff  was  obliged  to  go  to  school  from  her 
father's  house  is  not  such,  in  our  opinion,  as  to  render  the  regulation  in  question  unrea- 
sonable, still  less  illegal. 

"  On  the  whole  the  court  are  of  opinion,  that  upon  the  facts  stated,  the  action  cannot 
be  maintained."  Plaintiff  nonsuit. 

Compare  West  Chester,  ^-c.  R.  R.  Co.  v.  Miles,  55  Pa.  St.  209  (1867).  In  Board  of  Edu- 
cation V.  Tinnon,  26  Kans.  1  (1881),  it  was  held  that  in  the  absence  of  clear  legislative 
authority,  a  board  of  education  could  not  establish  separate  schools  for  white  and  col- 
ored persons.  For  the  purpose  of  the  opinion  it  was  assumed,  although  doubt  was  inti- 
mated, that  the  legislature  might  authorize  such  a  separate  system.  Brewer,  J., 
dissented. 

With  this  case  is  People  v.  The  Board  of  Education,  101  111.  308  (1882).  Compare 
Coger  v.  N.  W.  Packet  Co.,  37  Iowa,  145  (1873);  The  Sue,  22  Fed.  Rep.  843  (1885); 
Lofjwood  Y.Memphis,  ^c.  R.  Co.,  23  Fed.  Rep.  318  (1885);  The  Civil  Rights  Bill, 
Hughes,  541   (1875).— Ed. 

'  JrnoE  Hoffman  did  not  sit  on  the  hearing  of  this  case,  but  he  was  on  the  Bench 
when  the  opinion  was  delivered,  and  concurred  in  the  views  expressed. 


CHAP.  IV.]  IN   RE   LOOK  TIN   SING.  579 

Chinese  race,  but  he  was  born  in  Mendocino,  in  the  State  of  California, 
in  1870.  In  1879  he  went  to  China,  and  returned  to  the  port  of  San 
Francisco  during  the  present  raontli  (September,  1884),  and  now  seelis 
to  land,  claiming  the  right  to  do  so  as  a  natural-born  citizen  of  the  United 
States.'  It  is  admitted  by  an  agreed  statement  of  facts  that  his  parents 
are  now  residing  in  Mendocino,  in  California,  and  have  resided  there  for 
the  last  twenty  years  ;  that  they  are  of  the  Chinese  race,  and  have  al- 
ways been  subjects  of  the  Emperor  of  China  ;  that  his  fatlier  sent  the 
petitioner  to  China,  but  with  the  intention  that  he  should  return  to  this 
country  ;  that  the  father  is  a  merchant  at  Mendocino,  and  is  not  here  in 
any  diplomatic  or  other  official  capacity  under  the  Emperor  of  China. 
The  petitioner  is  without  any  certificate,  under  the  Act  of  1882,  or  of 
1884,  and  the  District  Attorney  of  the  United  States,  intervening  for 
the  government,  objects  to  his  landing  for  the  want  of  such  certificate. 

The  first  section  of  the  Fourteenth  Amendment  to  the  Constitution 
declares  that  "  all  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and 
of  the  State  wherein  they  reside."     This  language  would  seem  to  be 
sufficiently  broad  to  cover  the  case  of  the  petitioner.     He  is  a  person 
born  in  the  United  States.     Any  doubt  on  the  subject,  if  there  can  be 
any,  must  arise  out  of  the  words  "  subject  to  the  jurisdiction  thereof. 
They  alone  are  subject  to  the  jurisdiction  of  the  United  States  whojire_ 
.^ithi^jj^^^^ininnc.  nnd  nndpr  th^^-otection  of  their  laws,  and  with 
the  consequent  obligation  to  obey  them,  when  obedience  can  be  ren- 
d^i:gdr^^icrm^lyTiiose  thus  subject  bxJheLr  bjrth  or  naturalization  are 
^dthm  the  terms_of_the_nniPndment.     The  jurisdiction  over  these  latter 
mTTst  at  thp  ih^he  both  actual  and  exclusive.     The  words  mentioned 
except  from  citizenship  children  born  in  the  United  States  of  persons 
engaged  in  the  diplomatic  service  of  foreign  governments,  such  as  min- 
ister? and  ambassadors,  whose  residence,  by  a  fiction  of  public  law,  is 
regarded  as  part  of  their  own  country.    This  extra-territoriality  of  their 
residence  secures  to  their  children  born  here  all  the  rights  and  privileges 
which  would  inure  to  them  had  they  been  born  in  the  country  of  iheir 
parents.     Persons  born  on  a  public  vessel  of  a  foreign  country,  whilst 
within  the  waters  of  the  United  States,  and  consequently  within  their 
territorial  jurisdiction,  are  also  excepted.     They  are  considered  as  born 
in  the  country  to  which  the  vessel  belongs.     In  the  sense  of  public  law, 
they  are  not  born  within  the  jurisdiction  of  the  United  States. 

The  language  used  has  also  a  more  extended  purpose.  It  was  designed 
fnj^^^r.pj^i^'from  citizenship  persons  who,  though  born-pr  naTuralizcd;  in 
the  United  States,  have  renounced  their  allegiance  to  our  government^ 
n'ndthus  dissolved  their  political  connection  with  the 'country.  The 
tMteTStates  recognized  the  right  of  every  one  to  expatriate  bimself 
and  choose  another  country.  This  right  would  seem  to  follow  from  the 
greater  right  proclaimed  to  the  world  in  the  memorable  document^  in 
which  the^American  colonies  declared  their  independence  and  separation 
from  the  British  Crown,  as  belonging  to  every  human  being  —  God-given 


580  IN   RE   LOOK   TIN    SING.  [CHAP.  IV. 

and  inalienable  —  the  right  to  pursue  his  own  happiness.  The  English 
doctrine  of  perpetual  and  unchangeable  allegiance  to  the  government  of 
one's  birth,  attending  the  subject  wherever  he  goes,  has  never  taken  root 
in  this  country,  although  there  are  judicial  dicta  that  a  citizen  cannot 
renounce  his  allegiance  to  the  United  States  without  the  permission  ui 
the  government,  under  regulations  prescribed  by  law  ;  and  this  woukl 
seem  to  have  been  the  opinion  of  Chancellor  Kent  when  he  published  his 
Commentaries.  But  a  different  doctrine  prevails  now.  The  naturaliza- 
tion laws  have  always  proceeded  upon  the  theory  that  an}-  one  can 
change  his  home  and  allegiance  without  the  consent  of  his  government. 
And  we  adopt  as  citizens  those  belonging  to  our  race,  who,  coming  from 
other  lands,  manifest  attachment  to  our  institutions  and  desire  to  be  in- 
corporated with  us.  So  profoundly  convinced  are  we  of  the  right  of 
these  immigrants  from  other  countries  to  change  their  residence  and 
allegiance,  that  as  soon  as  they  are  naturalized  they  are  deemed  entitled, 
with  the  native-born,  to  all  the  protection  which  the  government  can  ex- 
tend to  them  wherever  they  may  be,  at  home  or  abroad.  And  the  same 
right  which  we  accord  to  them  to  become  citizens  here  is  accorded  to 
them  as  well  as  to  the  native-born,  to  transfer  their  allegiance  from  our 
government  to  that  of  other  States. 

In  an  opinion  of  Attorney-General  Black,  in  the  case  of  a  native 
Bavarian,  who  came  to  this  countrj',  and,  after  being  naturalized,  re- 
turned to  Bavaria,  and  desired  to  resume  his  status  as  a  Bavarian,  this 
doctrine  is  maintained.  "  There  is,"  he  says,  *'  no  statute  or  other  law 
of  the  United  States  which  prevents  either  a  native  or  naturalized  citi- 
zen from  severing  his  political  connection  with  this  government,  if  he 
sees  proper  to  do  so  in  time  of  peace,  and  for  a  purpose  not  directly 
injurious  to  the  interests  of  the  countr}-.  There  is  no  mode  of  renunci- 
ation prescribed.  In  my  opinion,  if  he  emigrates,  carries  his  family  and 
effects  with  him,  manifests  a  plain  intention  not  to  return,  takes  up  his 
permanent  residence  abroad,  and  assumes  the  obligation  of  a  subject  to 
a  foreign  government,  this  would  imply  a  dissolution  of  his  previous 
relations  to  the  United  States,  and  I  do  not  think  we  could,  or  would 
afterward  claim  from  him  any  of  the  duties  of  a  citizen."  9  Opin 
Atty.-Gens.  62. 

The  doctrine  thus  stated  has  long  been  received  in  the  United  States 
as  a  settled  rule  of  public  law  ;  and  in  the  treaty  of  1868  between  China 
and  this  countr}',  the  right  of  man  to  change  his  home  and  allegiance  is 
recognized  as  "inherent  and  inalienable."  16  Stats.,  p.  740,  art.  5. 
And  in  the  recital  of  an  Act  of  Congress  passed  neark  at  the  same  time 
with  the  signing  of  the  treaty,  this  right  is  assumed  to  be  "a  natural 
and  inherent  right  of  all  people,  indispensable  to  the  enjoyment  of  the 
rights  of  life,  liberty,  and  the  pursuit  of  happiness  ;  "  and  in  the  bod}' 
of  the  Act,  "  any  declaration,  instruction,  opinion,  order,  or  decision  ot 
any  officers  of  this  government  which  denies,  restricts,  impairs,  or 
questions  the  right  of  expatriation,"  is  declared  to  be  "inconsistent 
with  the  fundamental  principles"  of  our  government.     13  Stats.  223; 


CHAP.  IV.]  IN   RE   LOOK   TIN   SING.  581 

R.  S.,  sect.  1999.  So,  therefore,  if  persons  born  or  naturallzgd-iu-ilie 
United  States  have  removed  from  the  countr}'  and  renounced,  in  any  of 
the  onfinary  modes  of  renunciation,  their  citizenship,  theythenceforth 
cease  to  be  subject  to  the  jurisdiction  of  the  United  States. 

With  tliis  explanation  of  the  meaning  of  the  words  in  the  Fourteenth 
Amendment,  "  subject  to  the  jurisdiction  thereof,"  it  is  evident  that 
they  do  not  exchide  the  petitioner  from  being  a  citizen.  He  is  not  within 
any  of  the  chisses  of  persons  excepted  from  citizenship  ;  and  the  juris- 
diction of  the  United  States  over  him  at  the  time  of  his  birth  was  ex- 
chisive  of  that  of  any  other  country. 

The  clause  as  to  citizenship  was  inserted  in  the  amendment  not  merely 
as  an  authoritative  declaration  of  the  generally  recognized  law  of  the 
country  so  far  as  the  white  race  is  concerned,  but  also  to  overrule  the 
doctrine  of  the  Dred  Scott  Case,  affirming  that  persons  of  the  African 
race  brought  over  to  this  country  and  sold  as  slaves,  and  their  descend- 
ants, were  not  citizens  of  the  United  States  nor  capable  of  becoming 
such.  19  How.  393.  The  clause  changed  the  entire  status  of  these 
people.  It  lifted  them  from  their  condition  of  mere  freedmen  and  con- 
ferred upon  tliem,  equall}'  with  all  other  native-born,  the  rights  of  citizen- 
ship. When  it  was  adopted,  the  naturalization  laws  of  the  United 
States  excluded  colored  persons  from  becoming  citizens,  and  the  freed- 
men and  their  descendants,  not  being  aliens,  were  without  the  purview 
of  those  laws.  So  the  inability  of  persons  to  become  citizens  under 
those  laws  in  no  respect  impairs  the  effect  of  their  birth,  or  of  the  birth 
of  their  children,  upon  the  status  of  either  as  citizens  under  the  amend- 
ment in  question. 

Independently  of  the  constitutional  provision,  it  has  always  been  the 
doctrine  of  this  country',  except  as  applied  to  Africans  brought  here  and 
sold  as  slaves,  and  their  descendants,  that  birth  within  the  dominions 
and  jurisdiction  of  the  United  States  of  itself  creates  citizenship.  This 
subject  was  elaborately  considered  by  Assistant  Vice-Chancellor  Sand- 
ford  in  Lynch  v.  Clarke,  found  in  the  first  volume  of  his  reports.  1 
Sandf.  583.  In  that  case  one  Julia  Lynch,  born  in  New  York,  in  1819, 
of  alien  parents,  during  their  temporary  sojourn  in  that  citj',  returned 
with  them  the  same  year  to  their  native  country,  and  always  resided 
there  afterwards.  It  was  held  that  she  was  a  citizen  of  the  United 
States. 

After  an  exhaustive  examination  of  the  law,  the  Vice-Chancellor  said 
that  he  entertained  no  doubt  that  every  person  born_within  the  domin- 
ions  and  allegiance  of  the  United  States,  whatever^  the  situation  of  hi^ 
parents,  was  a  natural-born  citizen  j^ and  added,  that  this  was  the  gen- 
eral  understanding  of  the  l^gal  profession,  and  the  universal  impression 
of  the  public  mind.  In  illustration  of  this  general  understanding,  he 
mentions  the  fact,  that  when  at  an  election  an  inquir}'  is  made  whether 
the  person  offering  to  vote  is  a  citizen  or  an  alien,  if  he  answers  that  he 
IS  a  native  of  this  country  the  answer  is  received  as  conclusive  that  he 
is  a  citizen  ;  that  no  one  inquires  further ;    no  one  asks  whether  his 


582  IN   KE   LOOK  TIN   SING.  [CHAP.  IV. 

parents  were  citizens  or  foreigners  ;  it  is  enough  that  he  was  born  here 
whatever  was  the  status  of  his  parents.  He  shows  also  that  legislative 
expositions  on  the  subject  speak  but  one  language,  and  he  cites  to  that 
effect  not  only  the  laws  of  the  United  States,  but  the  statutes  of  a  great 
number  of  the  States,  and  establishes  conclusively  that  there  is  on  this 
subject  a  concurrence  of  legislative  declaration  with  judicial  opinion, 
and  that  both  accord  with  the  general  understanding  of  the  profession 
and  of  the  public^ 

Whether  it  be  possible  for  an  alien,  who  could  be  naturalized  under 
our  laws,  to  renounce  for  his  children,  whilst  under  the  age  of  majority, 
the  right  of  citizenship,  which  by  those  laws  he  could  acquire  for  them, 
it  is  unnecessary  to  consider,  as  no  such  question  is  presented  here. 
Nor  is  the  further  question  before  us  whether,  if  he  cannot  become  a 
citizen,  he  can,  by  his  act,  release  any  right  conferred  upon  them  by  the 
Constitution. 

As  to  the  position  of  the  District  Attorney  that  the  Eestriction  Act 
prevents  the  i-e-entry  of  the  petitioner  into  the  United  States,  even  if  he 
be  a  citizen,  only  a  word  is  necessary.  The  petitioner  is  the  son  of  a 
merchant,  and  not  a  laborer  within  the  meaning  of  the  Act.  Being  a 
citizen,  the  law  could  not  intend  that  he  should  ever  look  to  the  govern- 
ment of  a  foreign  country  for  permission  to  return  to  the  United  States, 
and  no  citizen  can  be  excluded  from  this  country  except  in  punishment 
for  crime.  Exclusion  for  any  other  cause  is  unknown  to  our  laws  and 
beyond  the  power  of  Congress.  The  petitioner  must  be  allowed  to 
land,  and  it  is  so  ordered.^ 

1  In  1855  Congress  passed  the  following  Act,  securing  citizenship  to  children  of 
citizens  of  the  United  States  born  without  their  limits :  — 

Chapter  LXXI.  —  An  Act  to  secure  the  Right  of  Citizenship  to  Children  of  Citizens 
of  the  United  States  born  out  of  the  Limits  thereof. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled,  that  persons  heretofore  born,  or  hereafter  to  be  born, 
out  of  tlie  limits  and  jurisdiction  of  the  United  States,  wliose  fathers  were,  or  shall  be 
at  the  time  of  their  birth,  citizens  of  the  United  States,  shall  be  deemed  and  considered, 
and  are  hereby  declared  to  be,  citizens  of  the  United  States ;  provided,  however,  that 
the  rights  of  citizenship  shall  not  descend  to  persons  whose  fathers  never  resided  in  the 
United  States. 

Sec.  2.  And  be  it  further  enacted,  that  any  woman  who  might  lawfully  be  natural- 
ized under  the  existing  laws,  married,  or  who  shall  be  married,  to  a  citizen  of  the  United 
States,  shall  be  deemed  and  taken  to  be  a  citizen. 

Approved  February  10,  1855. 

The  provisions  of  this  statute  are  re-enacted  in  the  Kevised  Statutes  in  sections  1993 
and  1994. 

2  Compare  McKay  v.  Campbell,  2  Sawyer,  U.  S.  C.  C.  Oregon,  118  (1871). 

As  to  the  power  of  the  political  departments  of  the  government  to  keep  out  aliens, 
and  to  remove  them,  see  Chae  Chan  Pinrj  v.  U.  S.,  130  U.  S.  581  (1889);  Nishimura 
Ekiu  V.  U.  S.,  142  U.  S.  651  (1892) ;  and"  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  699,  s.  c. 
ante,  p.  374. — Ed. 


M^ 


CHAP.  IV.]  WOKCESTEK  V.   GEOKGIA.  58^ 


WORCESTER  v.   THE  STATE  OF  GEORGIA. 

Supreme  Court  of  the  United  States.     1832. 

[6  Pet.  515.]  1 

Error  to  the  Superior  Court  for  the  count}-  of  Gwinnett  in  the  State 
of  Georgia.  The  plaintiff  in  error,  being  a  missionary  residing  among 
the  Cherokee  Indians  in  Georgia  by  permission  of  the  United  States, 
was  indicted  under  a  statute  of  Georgia  forbidding  such  residence  with- 
out a  license  from  the  authorities  of  the  State,  and  was  convicted  and 
sentenced  to  imprisonment. 

Sergeant  and  Wirt.,  with  whom  also  was  JElisha  W.  Chester. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  treaties  and  laws  of  the  United  States  contemplate  the  Indian 
terrftory  as  completely  separated  from  that  of  the  States  ;  and  provide 
that  all  intercourse  with  them  shall  be  carried  on  exclusively  by  the 
government  of  the  Union. 

Is  this  the  rightful  exercise  of  power,  or  is  it  usurpation  ? 

While  these  States  were  colonies,  tliis  power,  in  its  utmost  extent, 
was  admitted  to  reside  in  the  Crown.  When  our  Revolutionary  struggle 
commenced,  Congress  was  composed  of  an  assemblage  of  deputies  act- 
ing under  specific  powers  granted  by  the  legislatures,  or  conventions 
of  the  several  colonies.  It  was  a  great  popular  movement,  not  per- 
fectly organized  ;  nor  were  the  respective  powers  of  those  who  were 
intrusted  with  the  management  of  affairs  accurately  defined.  The 
necessities  of  our  situation  produced  a  general  conviction  that  those 
measures  which  concerned  all,  must  be  transacted  by  a  body  in  which 
the  representatives  of  all  were  assembled,  and  vi^hich  could  command 
the  confidence  of  all :  Congress,  therefore,  was  considered  as  invested 
with  all  the  powers  of  war  and  peace,  and  Congress  dissolved  our  con- 
nection  with  the  mpthpi-  f^nnnt.ryj  nnd  r]po^arpr\  f.hpsp.  United_CoIoni(!S  to 
be  independent  States.  Without  any  written  definition  of  powers,  the\' 
employed  diplomatic  agents  to  represent  the  United  States  at  the  sev- 
eral courts  of  Europe  ;  offered  to  negotiate  treaties  with  them,  and  did 
actually  negotiate  treaties  with  France.  From  the  same  necessity,  . 
and  on  the  sameprinciples.  Congress  assumed  the  management  of 
Iiulian  affairs  ;"lirst  m  tiie  name  of  these  United  Colonies ;  and,  after" 
wards,  in  the  name  of  the  United  States.  Early  attempts  were  made 
at  negotiation,  and  to  regulate  trade  with  them.  These  not  proving 
successful,  war  was  carried  on  under  the  direction,  and  with  the  forces 
of  the  United  States,  and  the  efforts  to  make  peace,  by  treaty,  were 
earnest  and  incessant.  The  confederation  found  Congress  in  the  execc 
cise  of  the  same  powers  of  j^eace  ami  war,  in  our  relations  witiiJiidiaiL 
nationsTas  with  those  of  Europe. 

1  The  statement  of  facts  is  shortened.  —  Ed. 


584  WORCESTER   V.   GEORGIA.  [CHAP.  IV. 

Such  was  the  state  of  things  when  the  confederation  was  adopted. 
That  instrument  surrendered  the  powers  of  peace  and  war  to  Con- 
gress, and  prohibited  them  to  the  States,  respective!}-,  unless  a  State  be 
actually  invaded,  "  or  shallteve  received  certain  advice  of  a  resolution 
being  formed  by  some  nation  of  Indians  to  invade  such  State,  and  the 
danger  is  so  imminent  as  not  to  admit  of  delay  till  the  United  States  in 
Congress  assembled  can  be  consulted."  This  instrument  also  gave  the 
United  States  in  Congress  assembled  the  sole  and  exclusive  right  of 
"'regulating  the  trade  and  managing  all  the  affairs  with  the  Indians, 
not  members  of  any  of  the  States:  provided,  that  the  legislative  power 
of  any  State  within  its  own  limits  be  not  infringed  or  violated." 

The  ambiguous  phrases  which  follow  the  grant  of  power  to  the  United 
States  were  so  construed  by  the  States  of  North  Carolina  and  Georgia 
as  to  annul  the  power  itself.  The  discontents  and  confusion  resulting 
from  these  conflicting  claims,  produced  representations  to  Congress, 
which  were  referred  to  a  committee,  who  made  their  report  in  W87. 
The  report  does  not  assent  to  the  construction  of  the  two  States,  but 
recommends  an  accommodation,  b^'  liberal  cessions  of  territory-,  or  b}' 
an  adn)ission,  on  their  part,  of  the  powers  claimed  by  Congress.  The 
correct  exposition  of  this  article  is  rendered  unnecessary  by  the  adop- 
tion of  om'  existing  ConstitutioiL Iliat-instrument  confers  on  CongLCSs 

the  powers  of  war  and  ppanft ;  of  mnkiiig  ti-pfljjps^^rid  of  regulating 
r-f>minprcp  wjjji  fnivitTn  ii.at.ians.,and  nnirmg  t.hp  spvoi-nl  StntPS,juuj_\Yij_[i 
the  Indian  tribes^  These  powers  cqtnpi'ehend  _alLthat_is  i^uired  for 
the  regulation  of  our  intercourse  with  the  Indians.  They  are  not  limited 
by  any  restrictiQiia_aa-tlieii'  free  actions.  Tlie  shackles  imposed  on  this 
power,  in  the  confederations-are  diseaid^d. 

The  Indian  nations  had  always  been  considered  as  distinct,  independ- 
ent political  communities,  retaining  their  original  natural  rights,  as  the 
undisputed  possessors  of  the  soil,  from  time  immemorial,  with  the  single 
exception  of  that  imposed  by  irresistible  power,  which  excluded  them 
from  intercourse  with  any  other  European  potentate  than  the  first  dis- 
coverer of  the  coast  of  the  particular  region  claimed :  and  this  was  a 
restriction  which  those  European  potentates  imposed  on  themselves,  as 
well  as  on  the  Indians.  The  very  term  "  nation,"  so  generally  applied 
to  them,  means  "  a  people  distinct  from  others."  The  Constitution,  by 
declaring  treaties  already  made,  as  well  as  those  to  be  made,  to  be  the 
sTipreme  law  of  the  land,  has  adopted  and  sanclioned  the  previous  trea- 
ties with  the  Indian  nations,  and  consequently  admits  their  rank  among 
those  {)owers  who  are  capable  of  making  treaties.  The  words  "  treaty  " 
and  "  nation  "  are  words  of  our  own  language,  selected  in  our  diplomatic 
and  legislative  proceedings,  by  ourselves,  having  each  a  definite  and  , 
well-understood  meaning.  We  have  applied  them  to  Indians,  as  we 
have  applied  them  to  the  other  nations  of  the  earth.  They  are  applied 
to  all  in  the  same  sense. 

Georgia,  herself,  has  furnished  conclusive  evidence  that  her  former 
opinions  on  this  subject  concurred  with  those  entertained  by  her  sister 


CHAP.  IV.]  WORCESTER   V.   GEORGIA.  585 

States,  and  by  the  government  of  the  United  States.  Various  Acts  of 
her  Legislature  have  been  cited  in  the  argument,  incUiding  the  contract 
of  cession  made  in  the  year  1802,  all  tending  to  prove  her  acquiescence 
in  the  universal  conviction  that  the  Indian  nations  possessed  a  full  right 
to  the  lands  they  occupied,  until  that  riglit  should  be  extinguished  by 
the  United  States,  with  their  consent :  that  their  territory  was  separated 
from  that  of  any  State  within  whose  chartered  limits  they  might  reside, 
by  a  boundary  line,  established  by  treaties  :  that,  within  their  boundary, 
they  possessed  rights  with  which  no  State  could  interfere :  and  tliat 
the  whole  power  of  regulating  the  intercourse  with  them,  was  vested  in 
the  United  States.  A  review  of  these  Acts,  on  the  part  of  Georgia, 
would  occup}-  too  much  time,  and  is  the  less  necessary,  because  they 
have  been  accurately  detailed  in  the  argument  at  the  Bar.  Her  new 
series  of  laws,  manifesting  her  abandonment  of  these  opinions,  appears 
to  have  commenced  in  December,  1828. 

In  opposition  to  this  original  right,  possessed  by  the  undisputed  occu- 
pants of  every  country  ;  to  this  recognition  of  that  right,  which  is  evi- 
denced by  our  history,  in  ever}"  change  through  which  we  have  passed  ; 
is  placed  the  charters  granted  by  the  monarch  of  a  distant  and  distinct 
region,  parcelling  out  a  territory  in  possession  of  others  whom  he  could 
not  remove  and  did  not  attempt  to  remove,  and  the  cession  made  of  his 
claims  by  the  treat}'  of  peace. 

The  actual  state  of  things  at  the  time,  and  all  history  since,  explain 
these  charters ;  and  the  King  of  Great  Britain,  at  the  treaty  of  peace, 
could  cede  only  what  belonged  to  his  crown.  These  newly  asserted 
titles  can  derive  no  aid  from  the  articles  so  often  repeated  in  Indian 
treaties;  extending  to  thein,  first,  the  protection  of  Great  Britain,  and 
afterwards  that  of  the  United  States.  These  articles  are  associated 
with  others,  recognizing  tlieir  title  to  self-government.  The  very  fact 
of  repeated^treaties  with  them  recognizes  it ;  and  the  settled  doctrinej)f 
the  law  of  nations  is,  that  a  weaker  power  does  not  surrender  its  inde- 
pendence—  its  right  to  self-government,  by  associating  with  a  stronger, 
and  taking  its  protection.  A  weak  State,  in  order  to  provide  for  its 
safety,  ma}^  place  itself  under  the  protection  of  one  more  powerful, 
without  stripping  itself  of  the  right  of  government,  and  ceasing  to  be  a 
State.  Examples  of  this  kind  are  not  wanting  in  Europe.  "  Tril)utar3' 
and  feudatory  States,"  sa^'s  Vattel,  "  do  not  thereb}'  cease  to  be  sovereign 
and  independent  States,  so  long  as  self-government  and  sovereign  and 
independent  authority  are  left  in  the  administration  of  the  State."  At 
the  present  day,  more  than  one  State  may  be  considered  as  holding  its 
right  of  self-government  under  the  guarantee  and  protection  of  one  or 
moi'e  allies. 

yThe  Cherokee  nation,  then,  is  a  distinct  cornmunity,  occupying  its 
owiiterrttory ,  wlth;"bounc1aries  ac£AirateJy  described,  in  which  the  laws 
of  Georgia  can  have  no  forfig.»-.and  which  the  r.itizens-oiLG^orgia  hav© 

no   right  to  enter,  but  with    {l^p.  nsspnt   nf  tlio  ^'llpmLvps-44w^:^vaftIuf»ft^-ac- 

iu  conformity  with  treaties,  and  with  the  Acts  of  Congress. IDi£-athol» 


586  WORCESTER   V.    GEORGIA.  [CHAP.  IV. 

intercourse  between  the  United  States  and  this  nation,  is,  by  our  Con- 
stitulioja^nd Abms,  vested  in  the  government  of  the  United  Slajes. 

The  Act  of  the  State  of  Georgia,  under  which  the  plaintiff  in  error 
was  prosecuted,  is  consequently'  void,  and  the  judgment  a  nuUit^.l  Can 
this  court  revise,  and  reverse  it? 

If  the  ol)jection  to  the  system  of  legislation,  lately-  adopted  liy  the 
Legislature  of  Georgia,  in  relation  to  the  Cherokee  nation,  was  confined 
to  its  extra-territorial  operation,  the  objection,  though  complete,  so  far 
as  respected  mere  right,  would  give  this  court  no  power  over  the  sub- 
ject. But  it  goes  much  further.  If  the  review  wliicli  lins  been  taken  be. 
correct  j^  andwethink  it  is,  the  Acts  of  Georgia  are  repug^n^ut  to  the 
Constitution,  laws,  and  treaties  of  jjip  TTnitpdiitiUw; 

They  interfere  forcibly  with  the  relations  established  between  the 
Unit£.d  States  and  the  Cherokpft  nnfinn  thp  TPgala-tmn  of  which,  accord- 
ing to  the  settled  principles  of  our  Constitution,  are  committed  exclu- 
sivel}'  to  the  government  of  the  Union. 

Thoj'  ^ve.  in  direol,  hostility  with  t.i-pntipSj  rpppgfpr?  in  a  succession  of 
years,  which  mark  out  tlie  boundary  that  separates  the  Cherokee  coun- 
try from  Georgia  ;  guarantee  to  them  all  the  land  within  their  boundary  ; 
solemnly  pledge  the  faith  of  the  United  States  to  restrain  their  citizens 
from  trespassing  on  it ;  and  recognize  the  pre-existing  power  of  the 
nation  to  govern  itself. 

They  are  in  egnnl  Imsfilify  \niJ]_thp_Ap_tc!  nf  Cnnarpss  for  regulating 
this  intercourse,  and  giving  effect  to  the  treaties. 

The  forcible  seizure  and  abduction  of  the  plaintiff  in  error,  who  was 
residing^  in  the  nation  with  its  permission,  and  by  authority  of  the  Pres]^ 
dent  of  the  United  States,  is  also  a  violation  of  the  Acts  which  authorize 
thp  fhia£-mtigi^tratp  to  q^^^ercise  this  anthoiitv . 

Will  these  powerful  considerations  avail  the  plaintiff  in  error?  "We 
think  the}'  will.  He  was  seized,  and  forcibly  carried  away,  while  under 
guardianship  of  treaties  guaranteeing  the  country  in  which  he  residedj 
and^taking  it  under  the  protection  of  the  United  States.  He  was  seized 
w^hile_performing.  under  the  sanction  of  tlie_£hief  niagistnits,  of  the 
Union,  those  duties  which  the  humane  policv  adopted  by  Cougress  had 
recommended.  iHe  was  apprehended,  tried,  and  condemned,  under 
color  of  a  law  w^ich  has  been  shown  to  ^f"  rpiingngnt  to_theConstitii-_ 
tion.  laws,  and  trfntips  of  thp  TTnifpfl  StnfpR,J  Had  a  judgmentTnable 
to  the  same  objections,  been  rendered  for  pTOpert}',  none  would  ques- 
tion the  jurisdiction  of  this  court.  It  cannot  be  less  clear  when  the 
judgment  affects  personal  liberty,  and  inflicts  disgraceful  punishment, 
if  punishment  could  disgrace  when  inflicted  on  innocence.  The  plaintiff 
in  error  is  not  less  interested  in  the  operation  of  this  unconstitutional 
law  than  if  it  affected  his  property.  He  is  not  less  entitled  to  the  protec- 
tion of  the  Constitution,  laws,  and  treaties  of  his  country. 

This  point  has  been  elaborately  argued  and,  after  deliberate  con- 
sideration, decided,  in  the  case  of  Cohens  v.  The  Commonwealth  of 
Virginia,  6  Wheat.  264. 


CHAP.  IV.]  ELK  V.   WILKINS.  587 

It  is  the  opinion  of  this  court  that  the  judgment  of  the  Superior  Court 
for  the  county  of  Gwinnett,  in  the  State  of  Georgia,  condemning  Samuel 
A.  Worcester  to  hard  hibor,  in  the  penitentiar}'  of  the  State  of  Georgia, 
for  four  years,  was  pronounced  b}' that  court  under  color  of  a  law  which 
is  void,  as  being  repugnant  to  the  Constitution,  treaties,  and  laws  of  the 
United  States,  and  ought,  therefore,  to  be  reversed  and  annulled. 

[The  concurring  opinion  of  McLean,  J.,  and  the  dissenting  opinion 
of  Baldwin,  J.,  are  omitted.]  ^ 

In  Elk  V.  Wllkins,  112  U.  S.  94  (1884),  on  error  to  the  Circuit 
Court  of  the  United  States  for  the  District  of  Nebraska,  the  plaintiff,  an 
Indian,  had  brought  an  action  against  the  defendant,  the  registrar  of  a 
■ward  in  Omaha,  for  refusing  to  register  him  as  a  qualified  voter.  The 
case  turned  on  the  question  whether  the  plaintiff  was  a  citizen  of  the 
United  States.  The  court  (Gray,  J.)  in  holding  that  he  was  not,  said : 
'■^The  question  then  is,  whether  an  Indian,  born  a  member  of  one  of 
the  Indian  tribes  within  the  United  States,  is,  merely  by  reason  of  his 
birth  within  the  United  States,  and  of  his  afterwards  voluntarily  sepa- 
rating himself  from  his  tribe  and  taking  up  his  residence  among  white 
citizens,  a  citizen  of  the  United  States,  within  the  meaning  of  the  first 
section  of  the  Fourteenth  Amendment  of  the  Constitution. 

"  Under  the  Constitution  of  the  United  States,  as  originally  estab- 
lished, '  Indians  not  taxed  '  were  excluded  from  the  persons  according 
to  whose  numbers  representatives  and  direct  taxes  were  apportioned 
among  the  several  States ;  and  Congress  had  and  exercised  the  power 
to  regulate  commerce  with  the  Indian  tribes,  and  the  members  thereof, 
whether  within  or  without  the  boundaries  of  one  of  the  States  of  the 
Union.  The  Indian  tribes,  being  withiii— Lhe, temtoriaLijmits  of.the_ 
United  States,  were  not,  strictly  spftaking.  foreign  States ;  buL^hfi^ 
were  alien  nations,  distinct  political  commmiillesriwitlL  whom  tli£_ 
United  Spates. miglii  and  J'lihilnfi^^y  ^'d  dpal,  as  t.|ipy  f:hnno;lit  fit,  eitheiL 
through  treatl&s_made  by  th^  Pi-psidpnt  nnd  Spnntc,  or-through  Acts  q£ 
Congress  in  the  oi'dinnvy  fnrm<i  nf  Ipmglqtinn.  The  members  of  those 
tribes  owed  immediate  allegiance  to  their  several  tribes,  and  were  not 
part  of  the  people  of  the  United  States.  They  were  in  a  dependent 
condition,  a  state  of  pupilage,  resembling  that  of  a  ward  to  his  guardian. 
Indians  and  their  property,  exempt  from  taxation  by  treaty  or  statute 
of  the  United  States,  could  not  be  taxed  by  any  State.  General  Acts 
of  Congress  did  not  apply  to  Indians,  unless  so  expressed  as  to  clearly 
manifjist  an  intention  to  include  them.   .   .   . 

' ' |The  alien  and  dependent  condition  of  the,  members  of  jbejnjian 
tribes  could  rr.t.  hp  pnt,  off  nf,  t.hpir  Qwn  will  ^without  the  actiLOi-^ 
"assent  ot  the  United  States,  they  were  never  ^eem£d_^iiiz£ns-o£-the 
United  States^,  except  under  explicit  provisions  of  Jrcnty  €>r  ^■afatutp 
to  that  effect,   either  declaring  a  certain  tribe,  or  such  members  of 

1  See  Cherokee  Nation  v.  Ga.,  5  Pet.  1  (1831).  — Ed, 


588  ELK   V.   WILKIXS.  [CHAP.  iV. 

it  as  chose  to  remain  behind  on  the  removal  of  the  tribe  westward,  to 
be  citizens,  or  authorizing  individuals  of  particular  tribes  to  become 
citizens  on  application  to  a  court  of  the  United  States  for  naturalization, 
and  satisfactory  proof  of  fitness  for  civilized  life.   .   .   . 

"  The  distinction  between  citizenship  bv  birth  and  citizenship  b\' 
naturalization  is  clearly  marked  in  the  provisions  of  the  Constitution, 
b}'  which  '  no  person,  except  a  natural-born  citizen,  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President ; '  and  '  the  Congress  shall  have 
power  to  establish  an  uniform  rule  of  naturalization.'  Constitution, 
art.  2,  sect.  1  ;  art.  1,  sect.  8.  .  .  . 

"  This  section  [Amendment  XIV.,  s.  1]  contemplates  two  sources  of 
citizenship,  and  two  sources  onl}' :  birth  and  naturalization,  frhe^ per- 
sons declared  to  be  citizens  are  '  all  persons  born  or  naturalized  in_th.e 


United  States,  aiid  subject  to  the  junscucTIbn  thereof.'  The  evident 
meaning  of  these  last  worcis  "is,  not  mereh-  subject  in  gome  respect  or 
degree  to  the  jurisdiction  of  the  United  States,  but  cojupletely  subject 
to  their  political  jurisdiction,  and  owing  them  directt  and  immediate 
allegiance.  And  the  words  relate  to  the  time  of  birth  in  the  one  case, 
as  the}'  do  to  the  time  of  naturalization  in  the  other.  ^Persons  not  thus 
subject  to  the  jurisdiction  of  the  United  States  at  the  time  of  birth 
camiot  become  so  afterwards,  except  bv  being  naturalized,  either 
individually,  as  by  proceedings  under  the  Naturalization  Acts,  or 
collectively,  as. by  the  force  of  a  treaty  by  which  foreign  territory  is 
ac^uired/^ 

"Indians  born  within  the  territorial  limits  of  the  United  States,  mem- 
bers of,  and  owing  immediate  allegiance  to,  one  of  the  Indian  tribes 
(an  alien,  though  dependent,  power),  although  in  a  geographical  sense 
born  in  the  United  States,  are  no  more  '  born  in  the  United  States  and 
subject  to  the  jurisdiction  thereof,'  within  the  meaning  of  the  first  sec- 
tion of  the  Fourteenth  Amendment,  than  the  children  of  subjects  of  any 
foreign  government  born  within  the  domain  of  that  government,  or  the 
children  born  within  the  United  States,  of  ambassadors  or  other  public 
ministers  of  foreign  nations.  ... 

"  Such  Indians,  then,  not  being  citizens  by  birth,  can  onh'  become 
citizens  in  the  second  wa}'  mentioned  in  the  Fourteenth  Amendment, 
by  being  '  naturalized  in  the  United  States/  by  or  under  some  treaty 
or  statute.   .  .  . 

"  Since  the  ratification  of  the  Fourteenth  Amendment,  Congress  has 
passed  several  Acts  for  naturalizing  Indians  of  certain  tribes,  which 
would  have  been  superfluous  if  the}*  were,  or  might  become,  without 
any  action  of  the  government,  citizens  of  the  United  States.  .  .  . 

"There  is  nothing  in  the  statutes  or  decisions,  referred  toby  counsel, 
to  control  the  conclusion  to  which  we  have  been  brought  by  a  consider- 
ation of  the  language  of  the  Fourteenth  Amendment,  and  of  the  condi- 
tion of  the  Indians  at  the  time  of  its  proposal  and  ratification. 

"  The  Act  of  July  27, 1868,  ch.  249,  declaring  tlie  right  of  expatriation 


CHAP.  IV.]  ELK  V.  WILKINS.  589 

to  be  a  natural  and  inherent  right  of  all  people,  and  reciting  that  '  in 
the  recognition  of  this  principle  this  government  has  freely  received 
emigrants  from  all  nations,  and  invested  them  with  the  rights  of  citi- 
zenship,' while  it  aflirmsJh(^righlof,evejx_rnanto^exj3atriate  himself 
fmm^m2e^ountrNT7;^itains  nothing  tojenable  him  to  become  a  citizeu 
Jf^qther^thcMbein&^^  ^^  ^^^^-  ^'^"^ ' 

R^Stat.  §  1999.  ,   o  .0^1     u   1  .n  .w 

"  The  provision  of  the  Actof  Congr^ss^Marchj,JL8iL  ch.  120,  that 
'  hereafter  no  Indian  nation  or  tribe  within  the  Territory  o^the  United 
States  shall  be  acknowledged  or  recognized  as  an  independ^  nation, 
tribe  or  power  with  whom  the  United  States  may  contract  b3\^eaty, 
is  coupled  with  a  provision  that  the  obligation  of  any  treaty  aWdy 
lawfully  made  is  not  to  be  thereby  invalidated  or  impaired ;  and^ 
utmost  possible  effect  is  to  require  the  Indijji  tribes  to  b_e_dealt  with_ 
foHhe  fuUu;e  tlirough  the  legislative  and  noLiliroUgU  thejraaty- making 
power.     16  Stat.  566TRev.  Stat.  §  2079. 

"In  the  case  of  United  States  v.  Elm,  23  Int.  Rev.  Rec.419,  decided 
by  Jud-e  Wallace  in  the  District  Court  of  the  United  States  for  the  , 
Northern  District  of  New  York,  the  Indian  who  was  held  to  have  a 
ri-ht  to  vote  in  1876  was  born  in  the  State  of  New  York,  one  of  the 
remnants  of  a  tribe  which  had  ceased  to  exist  as  a  tribe  in  that  State  ; 
and  by  a  statute  of  the  State  it  had  been  enacted  that  any  native  Indian 
inio-ht  purchase,  take,  hold  and  convey  lands,  and,  whenever  he  should 
have  become  a  freeholder  to  the  value  of  one  hundred  dollars,  should  be 
liable  to  taxation,  and  to  the  civil  jurisdiction  of  the  courts,  in  the  same 
manner  and  to  the  same  extent  as  a  citizen.     N.  Y.  Stat.  1843,  ch.  87. 
Tlie  condition  of  the  tribe  from  which  he  derived  his  origin,  so  far  as 
any  fragments  of  it  remained  within  the  State  of  New  York,  resembled 
the  coirdition  of  those  Indian   nations  of  which  Mr.  Justice  Johnson 
said  in  Fletcher  v.  Peck,  6  Cranch,  87,  146,  that  they  '  have  totally 
extino-uished  their  national  fire,  and  submitted  themselves  to  the  laws 
of  the  States  ; '  and  which  Mr.  Justice  McLean  had  in  view,  when  he 
observed  in  Worcester  v.  Georgia,  6  Pet.  515,  580,  that  in  some  of  the 
old    States,  '  where  small  remnants  of  tribes   remain,  surrounded  by 
white  population,  and  who,  by  their  reduced  numbers,  had  lost  the 
power  of  self-government,  the  laws  of  the  State  had  been  extended  over 
them,  for  the  protection  of  their  persons  and  property.'     See  also,  as 
to  the  condition  of  Indians  in  Massachusetts,  remnants  of  tribes  never 
recognized   by  the   treaties   or   legislative   or  executive  Acts  of  the 
United  States  as  distinct  political  communities,  Da7izell  v.  Webqmsh, 
108  Mass.  133  ;  Fells  v.  Webqmsh,  129  Mass.  469  ;  Mass.  Stat.  1862, 
ch.  184;  1869,  ch.  463.  .  . 

-  The  passages  cited  as  favorable  to  the  plaintiff  from  the  opinions 
delivered  in  Fx  parte  Kenyon,  5  Dillon,  385,  390,  in  Ex  parte  Rey- 
voids,  5  Dillon,  394,  397,  and  in  United  States  v.  CrooTc,  5  Dillon,  453, 
464,  were  obiter  dicta.  The  Case  of  Beynolds  was  an  indictment  in 
the  Circuit  Court  of  the  United  States  for  the  Western  District  of 


590  ELK   V.    WILKINS.  [CIIAP.  lY. 

Arkansas  for  a  murder  iu  the  Indian  country,  of  which  that  court  had 
jurisdiction  if  either  the  accused  or  the  dead  man  was  not  an  Indian, 
and  was  decided  by  Judge  Parker  in  favor  of  the  jurisdiction,  upon  the 
ground  that  both  were  white  men,  and  that,  conceding  the  one  to  be 
an  Indian  b}"  marriage,  the  other  never  was  an  Indian  in  any  sense. 
5  Dillon,  397,  404.  Each  of  the  other  two  cases  was  a  writ  of  habeas 
coqnis  ;  and  any  person,  whether  a  citizen  or  not,  unlawfully  restrained 
of  liis  liberty,  is  entitled  to  that  writ.  Case  of  the  Hottentot  Venus, 
13  East,  195;  Case  of  Dos  Santos,  2  Brock.  493;  In  re  Kaine,  14 
How.  103.  In  Keriyon's  Case,  Judge  Parker  held  that  the  court  in 
which  the  prisoner  had  been  convicted  had  no  jurisdiction  of  the  sub- 
ject-matter, because  the  place  of  the  commission  of  the  act  was  be3'ond 
the  territorial  limits  of  its  jurisdiction,  and,  as  was  trul}'  said,  '  this 
alone  would  be  conclusive  of  this  case.'  5  Dillon,  390.  In  United 
States  V.  Crook,  the  Ponca  Indians  were  discharged  b}-  Judge  Dund}" 
because  the  militar}-  officers  who  held  them  were  taking  them  to  the 
Indian  Territory  hy  force  and  without  any  lawful  authority  (5  Dillon, 
468),  and  in  the  case  at  bar,  as  the  record  before  us  shows,  that 
learned  judge  concurred  in  the  judgment  below  for  the  defendant. 

"The  law  upon  the  question  before  us  has  been  well  stated  by  Judge 
Deady  in  the  District  Court  of  the  United  States  for  the  District  of 
Oregon.  In  giving  judgment  against  the  plaintiff  in  a  case  resembling 
the  case  at  bar,  he  said:  '  Being  born  a  member  of  "  an  independent 
political  community  "  —  the  Chinook  —  he  was  not  born  subject  to  the 
jurisdiction  of  the  United  States  —  not  born  in  its  allegiance.'  McKay 
V.  Campbell,  2  Sawyer,  118,  134.  And  in  a  later  case  he  said:  '  But 
an  Indian  cannot  make  himself  a  citizen  of  the  United  States  without 
the  consent  and  co-operation  of  the  government.  The_fact_tlial_lie 
has  abandoned  his  nomadic  life  or  tribal  relations,  and  adopted  the 
habits  and  manners  of  civilized  people,  may  be  a  good  reason  why  he. 
shoiilct  be  made  a  citizen  of  the  United  States,  but  does  not  of  itself  make 
him  one.  To  be  a  citizen  of  the  United  States  is  a  political  privilege 
which  no  one,  not  born  to,  can  assume  without  its  consent  in  some 
form.  The  Indians  in  Oregon,  not  being  born  subject  to  the  jurisdic- 
tion of  the  United  States,  were  not  born  citizens  tliereof.  and  I  am  not 
aware  of  nny  law  nr  trpnty  V>y  n-h^r.]i  any  nf  thpm  hnv(>  been  made  SO 
sinpp.'      United  States  v.  Osbor?ie,  6  Sawyer,  406,  409. 

"  Upon  the  question  whether  any  action  of  a  State  can  confer  rights 
of  citizenship  on  Indians  of  a  tribe  still  recognized  by  the  United  States 
as  retaining  its  tribal  existence,  we  need  not,  and  do  not,  express  an 
opinion,  because  the  State  of  Nebraska  is  not  shown  to  have  taken  any 
action  affecting  the  condition  of  this  plaintiff.  See  Chirac  v.  ChiraCy 
2  Wheat.  259  ;  Fellows  v.  Blacksmith,  19  How.  366  ;  United  States 
V.  Holliday,  3  Wall.  407,  420 ;  United  States  v.  Joseph,  94  U.  S. 
614,  618. 

"  The  plaintiff,  not  being  a  citizen  of  the  United  States  under  the 
Fourteenth  Amendment  of  the  Constitution,  has  been  deprived  of  no 


CHAP.  IV.]  UNITED   STATES   V.   KAGAMA.  591 

right  secured  by  the  Fifteenth  Amendment,  and  cannot  maintain  this 
action."  Judgment  affirmed. 

[Harlan,  J.,  for  himself,  and  Woods,  J.,  gave  a  dissenting  opinion  in 
which  it  was  said  that  ''according  to  the  doctrines  of  the  court,  in 

this  case if  we  do  not  wholly  misapprehend  the  effect  of  its  decision 

—  the  plaintiff,  if  born  while  his  parents  were  members  of  an  Indian 
tribe,  would  not  be  embraced  by  the  amendment,  even  had  he  been,  at 
the  time  it  was  adopted,  a  permanent  resident  of  one  of  the  States,  sub- 
ject to  taxation,  and,  in  fact,  paying  property  and  personal  taxes,  to 
the  full  extent  required  of  the  white  race  in  the  same  State."]  ^ 


UNITED   STATES   v.  KAGAMA. 
Supreme  Court  of  the  United  States.     1886. 

[118  f/.  5.375.] 

Mr.  Solicitor- General,  for  plaintiff  in  error.  Mr.  Joseph  B.  Bedding^ 
for  defendants  in  error. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  case  is  brouglit  here  by  certificate  of  division  of  opinion  between 
the  Circuit  Judge  and  the  District  Judge  holding  the  Circuit  Court  of 
the  United  States  for  District  of  California. 

The  questions  certified  arise  on  a  demurrer  to  an  indictment  against 
two  Indians  for  murder  committed  on  the  Indian  reservation  of  Hoopa 
Valley,  in  the  State  of  California,  the  person  murdered  being  also  an 
Indian  of  said  reservation. 

Though  there  are  six  questions  certified  as  the  subject  of  difference, 
the  point  of  them  all  is  well  set  out  in  the  third  and  sixth,  which  are  as 
follows  :  — 

"3.  Whether  th_e_pTOyisions  of  said  section  9  (of  the  Act  of  Congress 
of  March  37^885),  making  it  a  crime  for  one  Indian  to  commit  murder 

1  By  the  United  States  Land-in-Severalty  Act  of  February  8,  1887,  s.  6  (1  Supp.  to 
Rev.  St.  U.  S.  536),  "Every  Indian  born  v^ithin  the  territorial  limits  of  the  United 
States  who  has  voluntarily  taken  up,  witliin  said  limits,  his  residence  separate  and 
apart  from  any  tribe  of  Indians  therein  and  has  adopted  the  habits  of  civilized  life,  is 
hereby  declared  to  be  a  citizen  of  the  United  States." 

A 3 "to  the  status  of  tribal  Indians  in  the  different  States,  see  Danzell  v.  Wehquish, 
lOS  Mass.  133;  Seneca  Nation  v.  Christie,  126  N.  Y.  122;  State  v.  Newell,  24  Atl. 
Kep.  943  (Maine,  1892) ;  The  Cherokee  Trust  Funds,  117  U.  S.  288,  303.  In  the  last- 
named  case  it  is  said  of  eleven  or  twelve  hundred  Cherokees  who  remained  at  the  East 
when  the  "  Nation  "  was  removed  to  the  West,  "  They  ceased  to  be  a  part  of  the 
Clierokee  Nation,  and  henceforth  they  became  citizens  of  and  were  subject  to  the  laws 
of  the  State  in  which  they  resided."  In  State  v.  Newell,  this  language  is  quoted  as 
applicable  to  all  the  Indians  of  Maine.  In  Massachusetts  by  a  statute  of  1869  (c.  463, 
8.  1)  all  Indians  in  the  State  were  declared  to  be  "citizens  of  the  Commonwealth." 
—  Ed. 


592  UNITED   STATES   V.   KAGAMA.  [CHAP.  IV. 

r.[)oi)  another  Indian,  upon  an  Indian  reservation  situated  wholly  within 
the  limits  of  a  State  of  the  Union,  and  making  such  Indian  so  commit- 
ting the  crime  of  murder  within  and  upon  such  Indian  reservation  'sub- 
ject to  the  same  laws '  and  subject  to  be  '  tried  in  the  same  courts,  and 
in  the  same  manner,  and  subject  to  the  same  penalties  as  are  all  other 
persons'  committing  the  crime  of  murder  '  within  the  exclusive  jurisdic- 
tion of  the  United  States,'  is  a  constitutional  and  valid  law  of  the  United 
States?" 

"  G.  Whether  the  courts  of  the  United  States  have  jurisdiction  or 
authorit_y  to  try  and  punish  an  Indian  belonging  to  an  Indian  tribe  for 
committing  the  crime  of  murder  upon  another  Indian  belonging  to  the 
same  Indian  tribe,  both  sustaining  the  usual  tribal  relations,  said  crime 
having  been  committed  upon  an  Indian  reservation  made  and  set  apart 
for  the  use  of  the  Indian  tribe  to  which  said  Indians  both  belong?" 

The  indictment  sets  out  in  two  counts  that  Kagama,  alias  Pactah 
Billy,  an  Indian,  murdered  lyouse,  alias  Ike,  another  Indian,  at  Hum- 
boldt County,  in  the  State  of  California,  within  the  limits  of  the  Hocpa 
Valley  Reservation,  and  it  charges  Mahawaha,  alias  Ben,  also  an  Indian, 
with  aiding  and  abetting  in  the  murder. 

The  law  referred  to  in  the  certificate  is  the  last  section  of  the  Indian 
Appropriation  Act  of  that  year,  and  is  as  follows  :  — 

"§  9.  That  immediately  upon  and  after  the  date  of  the  passage  of 
this  Act  all  Indians  conunitting  against  the  person  or  property  of  another 
Indian  or  other  person  an}'  of  the  following  crimes,  namel}',  murder, 
manslaughter,  rape,  assault  with  intent  to  kill,  arson,  burglary  and  lar- 
ceny, within  any  Territory  of  the  United  States,  and  cither  within  or 
without  the  Indian  reservation,  shall  be  subject  therefor  to  the  Inws  of 
said  Territory  relating  to  said  crimes,  and  shall  be  tried  therefor  in  the 
same  courts  and  in  the  same  manner,  and  shall  be  subject  to  tlie  same 
penalties,  as  are  all  other  persons  charged  with  the  commission  of  the 
said  crimes,  respectively  ;  and  the  said  courts  are  hereby  given  juris- 
diction in  all  such  cases  ;  and  all  such  Indians  committing  an}-  of  the 
above  crimes  against  the  person  or  property  of  another  Indian  or  other 
person,  within  the  boundaries  of  any  State  of  the  United  States,  and 
within  the  limits  of  any  Indian  reservation,  shall  be  subject  to  the  same 
laws,  tried  in  the  same  courts  and  in  the  same  manner,  and  subject  to 
the  same  penalties,  as  are  all  other  persons  committing  any  of  the  above 
crimes  within  the  exclusive  jurisdiction  of  the  United  States."  23  Stat. 
ch.341,  362;  §  9,385. 

The  above  enactment  is  clearly  separable  into  two  distinct  definitions 
of  the  conditions  under  which  Indians  may  be  punished  for  the  same 
crimes  as  defined  hy  the  common  law.  The  first  of  these  is  where  the 
ofl!ence  is  committed  within  the  limits  of  a  territorial  government,  whether 
on  or  off  an  Indian  reservation.  In  this  class  of  cases  the  Indian 
charged  with  the  crime  shall  be  judged  by  the  laws  of  the  Territory  on 
that  subject,  and  tried  by  its  courts.  This  proposition  itself  is  new  in 
legislation  of  Congress,  which  has  heretofore  only  undertaken  to  punish 


CHAP.  IV.]  UNITED    STATES   V.    KAGAMA.  593 

an  Indian  who  sustains  the  usual  relation  to  his  tribe,  and  who  commits 
the  offence  in  the  Indian  country,  or  on  an  Indian  reservation,  in  excep- 
tional cases  ;  as  where  the  offence  was  against  the  person  or  property 
of  a  white  man,  or  was  some  violation  of  the  trade  and  intercourse 
regulations  imposed  by  Congress  on  tlie  Indian  tribes.  It  is  news 
because  it  now  proposes  to  punish  these  offences  when  they  are  com- 
mitted by  one  Indian  on  the  person  or  property  of  another. 

The  second  is  where  the  offence  is  ccMumitted  by  one  Indian  against 
the  person  or  property  of  another,  within  the  limits  of  a  State  of  the 
Union,  but  on  an  Indian  reservation.  In  this  case,  of  which  the  State 
and  its  tribunals  would  have  jurisdiction  if  the  offence  was  committed 
by  a  white  man  outside  an  Indian  reservation,  the  courts  of  the  United 
States  are  to  exercise  jurisdiction  as  if  the  offence  had  been  committed 
at  some  place  within  the  exclusive  jurisdiction  of  the  United  States. 
The  first  clause  subjects  all  Indians  guilty  of  these  crimes  committed 
within  the  limits  of  a  Territory,  to  the  laws  of  that  Territory,  and  to  its 
courts  for  trial.  The  second,  which  applies  solely  to  offences  by  Indians 
which  are  committed  within  the  limits  of  a  State  and  the  limits  of  a 
reservation,  subjects  the  offenders  to  the  laws  of  the  United  States 
passed  for  the  government  of  places  under  the  exclusive  jurisdiction  of 
those  laws,  and  to  trial  by  the  courts  of  the  United  States.  This  is  a 
still  further  advance,  as  asserting  tliis  jurisdiction  over  the  Indians 
within  the  limits  of  the  States  of  the  Union. 

Although  the  offence  charged  in  this  indictment  was  committed  within 
a  State  and  not  within  a  Territory,  the  considerations  which  are  neces- 
sary to  a  solution  of  the  problem  in  regard  to  the  one  must  in  a  large 
degree  affect  the  other. 

The  Constitution  of  the  United  States  is  almost  silent  in  regard  to 
the  relations  of  the  government  which  was  established  by  it  to  the 
numerous  tribes  of  Indians  within  its  borders. 

In  declaring  the  basis  on  which  representation  in  the  lower  branch  of 
the  Congress  and  direct  taxation  should  be  apportioned,  it  was  fixed 
that  it  should  be  according  to  numbers,  excluding  Indians  not  taxed, 
which,  of  course,  excluded  nearly  all  of  that  race,  but  which  meant  that 
if  there  were  such  within  a  State  as  were  taxed  to  support  the  govern- 
ment, they  should  be  counted  for  representation,  and  in  the  computation 
for  direct  taxes  levied  by  the  United  States.  This  expression,  exclud- 
ing Indians  not  taxed,  is  found  in  the  XlVth  amendment,  where  it  deals 
withJiiP  ^«'"P  ^u^^j'^'^'t  unr^Pf  ^^f'  "e^  conditions  produced  by  the  emaii- 
^j£|vtjrm_2p_fhp  clnvPQ  IVpi'tliPr  nf  t.hpsp  shpd  mnnh  light  on  tliejjower 
of  Congress  «^YPr  tbp  TnrHQnc  in  tViPir  Pvist.pnfp  fls  tribes,  distinct  from 
the  ordinary  citizens  of  a  State  or  Territory. 

The  mention  of  Indians  in  the  Constitution  which  has  received  most 
attention  is  tliat  found  in  the  clause  which  gives  Congress  "power  to 
regulate  commerce  with  foreign  nations  and  among  the  several  States, 
and  with  the  Indian  tribes." 

This  clause  is  relied  on   in  the  argument  in  the  present  case,  the 
VOL.  I.  —  38 


594  UNITED    STATES   V.    KAGAMA.  [CIIAP.  IV. 

proposition  being  that  the  statute  under  consideration  is  a  regulation 
of  commerce  with  the  Indian  tribes.     But  wcjiiiiik  it  would  be  a  vt^ry 
strained  construction  of  this  ckma.e^  tliat  n,  system  of  criminal  laws  for 
1 1 1  dians  livjng  peaceably  in  their  reservations,  whicli  left  out  the  enti  re 
code  of  trade  and  intercourse  laws  justly  enacted  under  thatjjTm-ision, 
and  established  |)unishmeula-J!oi'  the  commoivjaAv  crinjcs   of  murder, 
manslaugliter,  arson,  burglary,  larc^eny,  and  thejike,  widiioi.it  any  refer- 
ence to  their  relation  to  any  kinil  of  commerce,  was  autlioijzecl  by  ttifi. 
grant  of  power  to  regulate  conmierce  with  the  Indian  tribes.  1  While  we 
are  not  able  to  see,  in  either  of  these  clauses  of  the  Constitution  and  its 
amend  in  e  n  ts,  any  delegation  of  power  to  enact  a  code  of  criminal  law 
fo r  the  pumshment^pf  the  worst  chss  of  ci'inies  known  to  civi]i?:ed-44fe 
when  committed   by  Indian&.-tlierfi_Js  n,  snggeslion  in  tlie  mnnn<M'  in 
which  the  Indian  tribes  arejntrodiK^d  into  tliat  cl^uise,^ wliicli  may  have 
a  bearing  on  the  subject  before  us.    The  commerce  witii  foreign  nations 
is  distinctly  stated  as  submitted  to  the  control  of  Congress.    "Were  the 
Indian  tribes  foreign  nations?     If  so,  they  came  within  the  first  of  the 
three  classes  of  commerce  mentioned,  and  did  not  need  to  be  repeated 
as  Indian  tribes.    WovpjUjpy  nntiiMis,  in  the  minds  ofJlieJVamers  of  the 
Constitution ?_  If  so,  the  natural  phrase  wouUL  have  been  '^foreign 
nations  and"lndian  nations,"  or,  in  the  terseness  of  language  unU'onnlv 
u^ecl  by  the  framers  of  tlie  instinmpnt,  it  would  naturally  have  been 
"  foreign  and  Indian  nations^'    And  so  in  the  case  of  The  Cherokee 
Nation  V.  The  State  of  Georgia,  5  Pet.  1,  20,  brought  in  the  Supreme 
Court  of  the  United  States,  under  the  declaration  that  the  judicial  power 
extends  to  suits  between  a  State  and  foreign  States,  and  giving  to  the 
Supreme  Court  original  jurisdiction  where  a  State  is  a  party,  it  was 
conceded  that  Georgia  as  a  State  came  within  the  clause,  but  held  that 
the  Cherokees  were  not  a  State  or  nation  within  the  meaning  of  the 
Constitution,  so  as  to  be  able  to  maintain  the  suit. 

But  these  Indians  are  within  the  geographical  limits  of  the  United 
States.     The   soil  and  the   peoule  wjthin jLliese  liniits   are  untkrjhe 

political    control    '^^   ^^^^    gnvprnrnpnt.    nf   tlip    TTnifpd    St^itpg^    nr    pf^thft 

States  of  the  Upion.  Tiiere  exist  within  the  broad  domain  of  sover- 
eignty but  these  two.  There  may  be  cities,  counties,  and  other  organ- 
ized bodies  with  limited  legislative  functions,  but  they  are  all  derived 
from,  or  exist  in,  subordination  to  one  or  the  other  of  these.  The  terri- 
torial governments  owe  all  their  powers  to  the  statutes  of  the  United 
States  conferring  on  them  the  powers  which  they  exercise,  and  which 
are  liable  to  be  withdrawn,  modified,  or  repealed  at  any  time  by  Con- 
gress. What  authority  the  State  governments  may  have  to  enact  crimi- 
nal laws  for  the  Indians  will  be  presently  considered.  But  this  power  oi. 
r^moi-^^Qg  to  oro-nnizp.  fpi-i-ifni-inl  trovprnnipntfi,  npd  mnl-p  Inws  for  their 
inhabitaivN.  ^'-J^^"  "^''  «^  much  from  the  clause  in  the  Constitution  in 
regard  to  disposing;  of  and  making  rules  and  regulations  concern i n g 
t,hp  Tonitory  and  other  property  of  the  United  States,  as  from  the 
ownership  of  the  cr>ni^try  '"  whif^h  the  Tpn-itoiips;  nrPj  nnd  t.lip  right  of 


CHAP.  IV.]  UNITED   STATES   V.    KAGAMA.  595 

exclusive  sovereignty  which  must  exist  in  the  national  government. 
aTKTcan  belbund  uowliere_eke.    Murphy  v.  Ramsey,  114  U.  S.  15,  44. 

In  tlie  case  of  American  Ins.  Co.  v.  Canter.,  1  Pet.  511,  542,  in 
which  the  condition  of  the  people  of  Florida,  then  under  a  territorial 
government,  was  under  consideration,  Marshall,  Cliief  Justice,  said  : 
''Perliaps  the  power  of  governing  a  Territory  belonging  to  the  United 
States,  which  has  not,  by  becoming  a  State,  acquired  the  means  of  self- 
government,  ma}'  result  necessarily  from  the  fact  that  it  is  not  within 
the  jurisdiction  of  any  particular  State,  and  is  within  the  power  and 
jurisdiction  of  the  United  States.  The  right  to  govern  may  be  the 
inevitable  consequence  of  the  right  to  acquire  territory.  Whichever 
may  be  the  source  whence  the  power  is  derived,  the  possession  of  it  is 
unquestioned." 

In  the  case  of  the  United  States  v.  liogers.,  4  How.  567,  572,  where 
a  white  man  pleaded  in  abatement  to  an  indictment  for  nmrder  com- 
mitted in  the  country  of  the  Cherokee  Indians,  that  he  had  been  adopted 
by  and  become  a  member  of  the  Cherokee  tribe.  Chief  Justice  Taney 
said:  "The  country  in  which  the  crime  is  charged  to  have  been  com- 
mitted is  a  part  of  the  teriitory  of  the  United  States,  and  not  within 
the  limits  of  any  particular  State.  It  is  true  it  is  occupied  by  the 
Cherokee  Indians.  But  it  has  been  assigned  to  them  by  the  United 
States  as  a  place  of  domicil  for  the  tribe,  and  they  hold  with  the  assent 
of  the  United  States,  and  under  their  authority."  After  referring  to 
the  policy  of  the  European  nations  and  the  United  States  in  asserting 
dominion  over  all  the  country  discovered  by  them,  and  the  justice  of 
this  course,  he  adds:  "But  had  it  been  otherwise,  and  were  the  right 
and  the  propriet}-  of  exercising  this  power  now  open  to  question,  yet  it 
is  a  question  for  the  law-making  and  political  departments  of  the  gov- 
ernment, and  not  for  the  judicial.  It  is  our  dut}'  to  expound  and  execute 
the  law  as  we  find  it,  and  we  think  it  too  firmly  and  clearly  established 
to  admit  of  dispute,  that  the  Indian  tribes,  residing  within  the  territorial 
limits  of  the  United  States,  are  subject  to  their  authorit}',  and  when  the 
countr}'  occupied  b}'  one  of  them  is  not  within  the  limits  of  one  of  the 
States,  Congress  ma}-  by  law  punish  any  offence  committed  there,  no 
matter  whether  the  offender  be  a  white  man  or  an  Indian." 

The  Indian  reservation  in  the  case  before  us  is  land  bought  b}'  the 
United  States  from  Mexico  by  the  treaty  of  Guadaloupe  Hidalgo,  and 
the  whole  of  California,  with  the  allegiance  of  its  inhabitants,  man}'  of 
whom  were  Indians,  was  transferred  by  that  treaty  to  the  United  States. 

The  relation  of  the  Indian  tribes  living  within  the  borders  of  the 
United  States,  both  before  and  since  the  Revolution,  to  the  people  of 
the  United  States  has  always  been  an  anomalous  one  and  of  a  complex 
character. 

Following  the  policy  of  the  European  governments  in  the  discovery 
of  America  towards  the  Indians  who  were  found  here,  the  colonies 
before  the  Revolution  and  the  States  and  the  United  States  since,  have 
recognized  in  the  Indians  a  possessory  right  to  the  soil  over  which  they 


596  UNITED   STATES   V.   KAGAMA.  [gHAP,  IV. 

roamed  and  hunted  and  established  occasional  villages.  But  they 
asserted  an  ultimate  title  in  the  land  itself,  by  which  the  Indian  tribes 
were  forbidden  to  sell  or  transfer  it  to  other  nations  or  peoples  without 
the  consent  of  this  paramount  authority.  When  a  tribe  wished  to  dis- 
pose of  its  land,  or  an}'  part  of  it,  or  the  State  or  the  United  States 
wished  to  purchase  it,  a  treaty  with  the  tribe  was  the  only  mode  in 
which  this  could  be  done.  The  United  States  recognized  no  right  in 
private  persons,  or  in  other  nations,  to  make  such  a  i)urchase  by  treat}' 
or  otherwise.  With  the  Indians  themselves  these  relations  are  equally 
difficult  to  define.  They  were,  and  always  have  been,  regarded  as 
having  a  spmi-inrlpppnHpnt  position  when  Jlio}'  presoi'ved  their-trilial 
relations  ;  not  «<&  States  not  ns  nations^  not  as  possessed  of  thp  full 
attributes^  of  sovereignty,  but  as  a  separate  peoph^,  witli  the  power  of 
regulating  their  internal  and  sot-inl  relntions,  nnd  thus  fnv-not,  brought. 
under  the  laws  of  the  Union  or  of  the  State  within  whose  limits  they 
resided. 

Perhaps  the  best  statement  of  their  position  is  found  in  the  two  opin- 
ions of  this  court  by  Chief  Justice  ^larshall  in  the  case  of  The  Cherokee 
Nation  V.  Georgia^  5  Pet.  1,  and  in  the  case  of  Worcester  v.  State  of 
Georgia,  6  Pet.  515,  536.  These  opinions  are  exhaustive;  and  in  the 
separate  opinion  of  Mr.  Justice  Baldwin,  in  the  former,  is  a  ver}-  valu- 
able resume  of  the  treaties  and  statutes  concerning  the  Indian  tribes 
previous  to  and  during  the  confederation. 

In  the  first  of  the  above  cases  it  was  held  that  these  tribes  were 
neither  States  nor  nations,  had  only  some  of  the  attributes  of  sover- 
eignty, and  could  not  be  so  far  recognized  in  that  capacity  as  to  sustain 
a  suit  in  the  Supreme  Court  of  the  United  States.  In  the  second  case 
it  was  said  tliat  they  were  not  subject  to  the  jurisdiction  asserted  over 
them  by  the  State  of  Georgia,  which,  because  they  were  within  its 
limits,  where  they  had  been  for  ages,  had  attempted  to  extend  her  laws 
and  the  jurisdiction  of  her  courts  over  them. 

In  the  opinions  in  these  cases  they  are  si)oken  of  as  "wards  of  the 
nation,"  "pupils,"  as  local  dependent  communities.  In  this  spirit  the 
United  States  has  conducted  its  relations  to  them  from  its  organization 
to  this  time.  But,  after  an  experience  of  a  hundred  years  of  the  treaty- 
making  system  of  government,  uongress  has  deteunined  upon  aTnew 
departure  —  to  govern  them  by  Acts  of  Congress.  This  is  seen  in  the 
Act  of  March  3,  1871,  embodied  in  §  2079  of  the  Revised  Statutes: 

"  No  Indian  nation  or  tribe,  within  the  territory  of  the  United  States, 
shall  be  acknowledged  or  recognized  as  an  independent  nation,  tribe, 
or  power,  with  whom  the  United  States  may  contract  by  treaty  ;  but 
no  obligation  of  any  treat}'  lawfully  made  and  ratified  with  any  such 
Indian  nation  or  tribe  prior  to  March  third,  eighteen  hundred  and 
seventy-one,  shall  be  hereby  invalidated  or  impaired." 

The  case  of  Crow  Dog,  109  U.  S.  556,  in  which  an  agreement  with 
the  Sioux  Indians,  ratified  by  an  Act  of  Congress,  was  supposed  to 
extend  over  them  the  laws  of  the  United  States  and  the  jurisdiction  of 


CHAP.  IV.]  UNITED   STATES    V.    KAGAMA.  597 

its  courts,  covering  murder  and  other  grave  crimes,  shows  the  purpose 
of  Congress  in  this  new  departure.  The  decision  in  that  case  admits 
that  if  the  intention  of  Congress  had  been  to  punish,  by  the  United 
States  courts,  the  murder  of  one  Indian  by  another,  the  law  would  have 
been  valid.  But  the  court  could  not  see,  in  the  agreement  with  the 
Indians  sanctioned  by  Congress,  a  purpose  to  repeal  §  2146  of  the  Re- 
vised Statutes,  which  expressly  excludes  from  that  jurisdiction  the  case 
of  a  crime  committed  by  one  Indian  against  another  in  the  Indian 
country.  The  passage  of  the  Act  now  under  consideration  was  designed 
to  remove  that  objection,  and  to  go  further  by  including  such  crimes  on 
reservations  lying  within  a  State. 

Is  this  latter  fact  a  fatal  objection  to  the  law?  The  statute  itself 
contains  no  express  limitation  upon  the  powers^ of  a  State  or  the  Juris-_ 
diction  of  Tts~courts.  If  there  be  any  limitation  in  either  of  these,  it 
grows  out  of  the_implication  arising  from  the  fact  that  Congress  has 
defined  a  crime  committed  within  the  State,  and  made  it  punishable  in 
the  courts  of  the  United  States.  But  Congress  has  done  this,  and  can 
do  it,  with  regardTo  airofFencesTela^tnglolnatters^to  whichJhjL^fidetal 
fljlthnrity  extends^    Does  that  authority_extend  to  this  ease? 

It  will  be  seen  at  once  that  the  nature  of  the  offence  (murder)  is  one 
which  in  almost  all  cases  of  its  commission  is  punishable  by  the  laws  of 
the  States,  and  within  the  jurisdiction  of  their  courts.  The  distinction 
is  claimed  to  be  that  the  offence  under  the  statute  is  committed  by  an 
Indian,  that  it  is  committed  on  a  reservation  set  apart  within  the  State 
for  residence  of  the  tribe  of  Indians  by  the  United  States,  and  the  fair 
inference  is  that  the  offending  Indian  shall  belong  to  that  or  some  other 
tribe.  It  does  not  interfere  with  the  process  of  the  State  courts  within 
the  reservation,  nor  with  the  operation  of  State  laws  upon  white  people 
found  there.  Its  effect  is  confined  to  the  acts  of  an  Indian  of  some  tribe, 
of  a  criminal  character,  committed  within  the  limits  ^f  the  reservation. 

It  seems  to  us  that  this  is  within  the  competencv  of  Congress.  These 
Indian  tribes  are  the  wards  of  the  nation.  [Xhe.y  are  communities 
dependent  on  the  United  States._I)ependent  nirgely  for  their  dail}- 
food.  Dependent  for  their  politicalTlglvts: — Uieyowejo  allegiance  to 
the  States,  and  receive  from  them  no  protection.  Because  of  the  local 
ill  feeling,  the  people  of  the  Sta^es-wtlerethey  are  found  are  often  their 
deadliest  enemies.  Fjom  tfieir  ver}"  weakness_And  helplessness,  s^ 
largel}- due  to  the  course  of  dealing  of  the  Fedei'al  government  with 
thppi  nnri  tlip  t.rpnt.ipfi  in  wbifh  if.  has  been  promised,  t.hp-re  ari^ps  Hip 
duty  of  protection,  and  wi^'^  '<^  \\\^  pnt^-or  J  This  has  always  been  recog- 
nized b}'  the  Executive  and  b}-  Congre^,  and  by  this  court,  whenever 
the  question  has  arisen. 

In  the  case  of  Worcester  v.  The  State  of  Georgia,  above  cited,  it  was 
held  that,  though  the  Indians  had  b}-  treaty  sold  tlieir  land  within  that 
State,  and  agreed  to  remove  away,  wliich  they  had  failed  to  do,  the 
State  could  not,  while  the^'  remained  on  those  lands,  extend  its  laws, 
criminal  and  civil,  over  the  tribes  ;  that  the  duty  and  power  to  compel 


598  UNITED    STATF.S   V.    KAGAMA.  [CHAT.  IV. 

their  removal  was  in  the  United  States,  and  the  tribe  was  under  their 
protection,  and  couUl  not  be  subjected  to  tlie  laws  of  the  State  and  the 
process  of  its  courts. 

The  same  thing  was  decided  in  the  case  oi  Fellows  v.  Blachsmitli  c£- 
Others,  19  How.  oG6.  In  this  case,  also,  the  Indians  had  sold  their 
lands  under  supervision  of  the  States  of  Mavssachusetts  and  of  New 
York,  and  had  agreed  to  remove  within  a  given  time.  "When  the  time 
came  a  suit  to  recover  some  of  the  land  was  bronglit  in  the  Supreme 
Court  of  New  York,  which  gave  judgment  for  the  plaintiff.  But  this 
court  held,  on  writ  of  error,  that  the  State  could  not  enforce  this  removal, 
but  the  duly  and  the  power  to  do  so  was  in  the  United  States.  See 
also  tlie  case  of  the  Katisas  Indians^  5  Wall.  737  ;  Keic  York  Indians, 
5  Wall.  761. 

•  The  power  of  the  general  government  over  these  remnants  of  a  race 
once  powerful,  now  weak  and  diminished  in  numbers,  is  necessary  to 
their  protection,  as  well  as  to  the  safety  of  those  among  whom  they 
dwell.  It  must  exist  in  that  government,  l)ecause  it  never  has  existed 
anywhere  else,  because  the  theatre  of  its  exercise  is  within  the  geo- 
graphical limits  of  tlie  United  States,  because  it  has  never  been  denied, 
and  because  it  alone  can  enforce  its  laws  on  all  the  tribes. 

We  ansicer  the  questions  jyropounded  to  us,  that  the  dth  section  of  the 
Act  of  March,  1885,  is  a  valid  law  in  both  its  branches,  and  that 
the  Circuit  Court  of  the  United  /States  for  the  District  of  Calif ornia 
has  Jurisdiction  of  the  offence  charged  in  the  indictment  in  this 
case.^ 

1  vSee  also  Gon-shay-ee,  Pet'r,  130  U.  S.  343  (1889),  and  U.  S.  v.  Oshoiiie,  6  Sawyer, 
U.  S.  C.  C.  Rep.  (Oregon)  406  (1880). 

The  legal  and  political  condition  of  the  tribal  Indians  was  carefully  treated,  in  1891, 
in  two  articles  entitled  "A  People  without  Law,"  in  the  October  and  Noveniljer  numbers 
of  the  "  Atlantic  Monthly,"  Vol.  68,  pp.  540,  676.  Of  tiie  leading  modern  statutes,  of 
general  application,  relating  to  these  people,  it  is  there  said  (p.  676)  :  "Tiiree  impor- 
tant laws  regarding  the  Indians  remain  to  be  mentioned,  one  of  which  was  incorporated 
in  the  Revised  Statutes. 

"(«)  A  statute  of  March  3,  1871,  reads:  'Xo  Indian  nation  or  tribe  within  the  terri- 
tory of  the  United  States  shall  be  acknowledged  or  recognized  as  an  independent  nation, 
tribe,  or  power  with  whom  the  United  States  may  contract  by  treaty,'  —  saving,  how- 
ever, the  obligation  of  previous  treaties.  .  .  .  Yet  we  do  make  'agreements'  with 
them  as  with  a  separate  people ;  and  the  chief  result  of  this  law  is,  and  was  intended 
to  be,  that  it  is  no  longer  the  President  and  Senate  (the  treaty-making  power)  that 
conclude  these  measures,  but  the  legislative  body,  Congress.  This  statute  was  the 
result  of  a  struggle  on  the  part  of  the  House  of  Representatives  to  share  in  these  pro- 
ceedings, and  was  forced  upon  the  Senate  on  the  last  day  of  a  session  by  putting  it  into 
an  appropriation  bill.  It  was  thought  at  the  time  by  so  competent  an  observer  as 
General  Walker,  formerly  Commissioner  of  Indian  Affairs,  to  be  'a  deadly  blow  at  the 
tribal  autonomy ; '  and  so  it  was,  in  the  logic  of  it.  But  the  step  was  not  then  followed 
up,  for  it  did  not  represent  any  clear  determination  of  Congress  to  end  the  old  methods  ; 
and  this  .strange  notion  "^  rpfnsinjr  fn  mal-P  trpai-!ps  with  .n  ppoplp  with  whom  wp  con- 
tinue to  go  to  war  has  remained  on  onr  statute-book  as  another  of  the  many  p""rrmi;pg 
that  mark  onr  Tnflian  pnlipy.    .    .   . 

"  (/))  The  second  statute  is  that  of  March  3,  1885.  It  followed  up  timidly  the  logic  of 
the  law  of  1871,  though  for  only  a  step  or  two ;  but  it  marked  the  greatest  advance  yet 


CHAP.  IV.]  UNITED    STATES    V.   KAGAMA.  599 

reached  in  the  process  of  assuming  the  direct  government  of  the  Indians.  The  law 
provided  that  thereafter  Indians  should  be  puni.shed  for  committing  upon  Indians  or 
others  any  one  of  seven  leading  crimes  (murder,  manslaughter,  assault  with  intent  to 
kill,  rape,  arson,  burglary,  or  larceny) :  if  in  a  Territory  (whether  on  or  off  a  reserva- 
tion), under  the  territorial  laws  and  in  the  territorial  courts;  and  if  in  a  iState  and  on 
a  reservation,  then  under  the  same  laws  and  in  the  same  courts  as  if  tiie  act  were  done 
in  a  place  within  the  exclusive  jurisdiction  of  the  United  States.  This  is  a  very  impor- 
tant statute.  In  principle  it  claims  for  the  United  States  full  jurisdiction  over  the 
Indians  upon  their  reservations,  whether  in  a  State  or  Territory.  Heretofore,  the  laws, 
for  example,  the  statute  of  1817  and  tlie  renewals  of  it,  liad  excepted  the  acts  of  Indians 
committed  upon  their  fellows  within  tlie  Indian  country.  The  acts  of  Indians  against 
wliite  persons  or  of  whites  against  Indians  had  been  dealt  with,  but  the  internal  economy 
of  Indian  government  was  not  invaded  in  its  dealing  or  refusing  to  deal  with  the  rela- 
tions of  members  of  the  tribe  to  one  another.  The  constitutionality,  even,  of  such 
legislation  as  this  of  1885  had  been  denied.  Judges  had  been  careful  to  avoid  asserting 
this  full  power  in  cases  where  the  reservation  was  in  a  State.  Thus  the  Supreme  Court 
of  tlie  United  States,  in  1845,  in  holding  good  the  law  of  1817,  which  punished  (in  this 
particular  case)  the  act  of  a  white  man  against  a  white  man  in  the  Indian  country, 
among  the  Cherokees,  said  :  '  Where  tlie  country  occupied  by  them  is  not  within  the 
limits  of  one  of  the  States,  Congress  may  by  law  punish  any  offence  committed  there, 
no  matter  whether  the  offender  be  a  white  man  or  an  Indian.'  Tnjj.34,  Mr.  Justice 
McLean  had  denied  the  power  of  Congress  to  legislate  in  this  way  for  an  Indian  reser- 
vatjon  in  a  stnj^P  wjiilg  ndmifting.it,  iii  a  T'erritor^;  and  in  December,  1870,  the  judi- 
ciary~committee  of  tiie  Senate  of  the  Uiiit^d-States  even  went  so  far  as  to  say,  'An 
Act  of  Congress  which  should  assuniej^-'tfeat  tlie  members  of  a  tribe  as  subject  to  the 
municipal  jurisdiction  of  the  UijitetTStates  would  be  unconstitutional  and  void.'  But 
the  air  was  at  last  cleared,iH'T886,  when  the  Supreme  Court  of  the  United  States  had 
to  deal  with  the  indietTnent,  under  this  .statute,  of  one  Indian  for  the  inurder  of  another 
Indian  on  ax6«6fvation  in  the  State  of  California.  .  .  . 

:>vwtanr-o  nf  fhlg  right  anri  pnM-t^r  -iiwl  ihf  plear  nrn\  ^uthoritatlve  declaratioD 
of  it  bv  the  Supreme  Court  of  the  United  States  for  the  first  time  in  1886,  have  brought 
home  to  the  Congress  of  the  United  StnfiP.s  and  t^  us  all,  n""-  'vithi"  thocA  r-A^Apt  ypnrs, 
a  great  weight  of  responsibility.  It  may  have  been  thought  possible  before  to  deny  the 
legal  power  fully  to  govern  the  Indians  Tt.  rannnt.  hft  denied  dow\  Under  such  cir- 
cumstances, the  mere  neglect  or  refusal  to  act  is  itself  action,  and  action  of  the  worst 
kind. 

"  {c)  The  third  and  last  of  these  statutes  —  and  the  last  upon  which  I  shall  comment 
- — is  the  General  Land-in-Severalty  Law  (often  known  as  the  Dawes  Bill).  This  was 
passed  in  February,  1887,  within  nine  months  of  the  great  decision  upon  which  I  have 
just  been  remarking:  the  dates  are  ]\Lay  10,  1886,  and  February  8,  1887.  But  it  was 
pending  in  Congress  at  the  time  of  that  decision,  and  had  long  been  pending  there 
under  bitter  opposition.  This  great  enactment  opens  the  way,  within  a  generation  or 
two,  to  settle  the  whole  Indian  question.  "Whether  it  is  to  be  regarded  as  a  good  la^y 
or  a  bad  one,  however,  depends  on  the  moderation  with  which  it  is  administered.  The 
peculiarity  of  it  is  not  that  its  methods  are  new,  for  similar  arrangements  had  repeatedly 
been  made,  for  a  score  of  years  before,  in  the  case  of  particular  tribes,  as  the  Winne- 
bagoes  in  186.3,  the  Stockbridge  Muusee  Indians  in  1871,  the  Utes  in  1880,  and  the 
Omahas  in  1 882.  But  now,  by  a  general  law  applicable  to  all  reservations,  the  Presi- 
dent is  given  power  to  make  almost  every  reservation  Indian  outside  t^he  civilized 
tribes  a  land-owner  in  severalty  and  a  citizen  of  the  United  States  against  his  ic'dl.  The 
r i ght  of  citizenship  is  made  to  follow  the  ownership  of  land." 

See  also  a  yaluable  article  on  "The  Legal  Status  oFthe  Indian,"  by  George  F. 
Canfield,  Esq.,  now  of  the  Bar  of  the  City  of  New  York,  in  15  Am.  Law  Rev.  21 
(1881).  — Ed. 


600  MUKKAY    V.    HUBOKKN    LAND,    ETC.    CO.  [CFiAP.  IV. 


DEN   d.  MURRAY  et  al.  v.  THE   HOBOKEN   LAND,   etc. 

COMPANY. 

Supreme  Court  of  the  United  States.     1855. 

[18  How.  272.]  1 

Mr.  Van  Winkle  and  Mr.  Wood,  for  the  plaintiffs.  3Ir.  Zabriskie, 
Mr.  Gillett,  Mr.  Butler,  and  3Ir.  Bradley,  for  the  defendants. 

Mr.  Justice  Curtis  delivered  the  opinion  of  the  court. 

This  case  comes  before  us  on  a  certificate  of  division  of  opinion  of 
the  judges  of  the  Circuit  Court  of  the  United  States  for  the  District  of 
New  Jerse}',  It  is  an  action  of  ejectment,  in  which  both  parties  claim 
title  under  Samuel  Swartwout  —  the  plaintiffs,  under  the  levy  of  an 
execution  on  the  10th  day  of  April,  1839,  and  the  defendants,  under 
a  sale  made  by  the  marshal  of  the  United  States  for  the  District  of 
New  Jersey,  on  the  1st  day  of  June,  1839  —  by  virtue  of  what  is  de- 
nominated a  distress  warrant,  issued  b}'  the  solicitor  of  the  treasury' 
under  the  Act  of  Congress  of  May  15,  1820,  entitled,  "An  Act  pro- 
viding for  the  Better  Organization  of  the  Treasury  Department."  This 
Act  having  provided,  by  its  first  section,  that  a  lien  for  the  amount  due 
should  exist  on  the  lands  of  the  del)tor  from  the  time  of  the  levy  and 
record  thereof  in  the  office  of  the  District  Court  of  the  United  States 
for  the  proper  district,  and  the  date  of  that  levy  in  this  case  being  prior 
to  the  date  of  the  judgment  under  which  the  plaintiffs'  title  was  made, 
the  question  occurred  in  the  Circuit  Court,  '•  whether  the  said  warrant 
©f  distress  in  the  special  verdict  mentioned,  and  the  proceedings  thereon 
and  anterior  thereto,  under  which  the  defendants  claim  title,  are  suffi- 
cient, under  the  Constitution  of  the  United  States  and  the  law  of  the 
land,  to  pass  and  transfer  the  title  and  estate  of  the  said  Swartwout  in 
and  to  the  premises  in  question,  as  against  the  lessors  of  the  plaintiff." 
Upon  this  question,  the  judges  being  of  opposite  opinions,  it  was  certi- 
fied to  this  court,  and  has  been  argued  by  counsel. 

No  objection  has  been  taken  to  the  warrant  on  account  of  an}-  defect 
or  irregularity  in  the  proceedings  which  preceded  its  issue.  It  is  not 
denied  that  they  were  in  conformit}'  with  the  requirements  of  the  Act 
of  Congress.  The  special  verdict  finds  that  Swartwout  was  collector  of 
the  customs  for  the  port  of  New  York  for  eight  years  before  the  29th  of 
March,  1838  :  that,  on  the  10th  of  November,  1838,  his  account,  as  such 
collector,  was  audited  b}'  the  first  auditor,  and  certified  bv  the  first 
comptroller  of  the  treasury  ;  and  for  the  balance  thus  found,  amount- 
ing to  the  sum  of  $1,374,119  y^'^^,  the  warrant  in  question  was  issued 
by  the  solicitor  of  the  treasury.  Its  validity  is  denied  by  the  plaintiffs, 
upon  the  ground  that  so  much  of  the  Act  of  Congress  as  authorized 
it,  is  in  conflict  with  the  Constitution  of  the  United  States. 

1  The  statement  of  facts  is  omitted,  —  Ed. 


CHAP.  IV.]  MURRAY   V.    HOBOKEN   LAND,   ETC.   CO.  601 

In  support  of  this  position,  the  plaintiff  relies  on  that  part  of  the 
first  section  of  the  third  article  of  the  Constitution  which  requires  the 
judicial  power  of  the  United  States  to  be  vested  in  one  Supreme  Court 
and  in  such  inferior  courts  as  Congress  ma}-,  from  time  to  time,  ordain 
and  establish  ;  the  judges  whereof  shall  hold  their  offices  during  good 
behavior,  and  shall,  at  stated  times,  receive  for  their  services  a  compen- 
sation, which  shall  not  be  diminished  during  their  continuance  in  office. 
Also,  on  the  second  section  of  the  same  article,  which  declares  tliat  the 
judicial  power  shall  extend  to  controversies  to  which  the  United  States 
shall  be  a  party. 

It  must  be  admitted  that,  if  the  auditing  of  this  account,  and  the 
ascertainment  of  its  balance,  and  the  issuing  of  this  process,  was  an 
exercise  of  the  judicial  power  of  the  United  States,  the  proceeding 
was  void ;  for  the  officers  who  performed  these  Acts  could  exercise  no 
part  of  that  judicial  power.  They  neither  constituted  a  court  of  the 
United  States,  nor  were  they,  or  either  of  them,  so  connected  with  any 
such  court  as  to  perform  even  any  of  the  ministerial  duties  which  arise 
out  of  judicial  proceedings. 

The  question,  whether  these  Acts  were  an  exercise  of  the  judicial 
power  of  the  United  States,  can  best  be  considered  under  another 
inquiry,  raised  b}'  the  further  objection  of  the  plaintitf,  that  the  effect 
of  the  proceedings  authorized  by  the  Act  in  question  is  to  deprive  the 
party,  against  whom'tlie  warrant  issues,  of  his  liberty'  and  property, 
"  without  due  process  of  law;"  and,  therefore,  is  in  conflict  with  the 
fifth  article  of  the  amendments  of  the  Constitution. 

Taking  these  two  objections  together,  they  raise  the  questions, 
whether,  under  the  Constitution  of  the  United  States,  a  collector  of  the 
customs,  from  whom  a  balance  of  account  has  been  found  to  be  due 
by  accounting  officers  of  the  treasur}*,  designated  for  that  purpose  by 
law,  can  be  deprived  of  his  libert}-,  or  propert}',  in  order  to  enforce 
pa3ment  of  that  balance,  without  the  exercise  of  the  judicial  power  of 
the  United  States,  and  yet  by  due  process  of  law,  within  the  meaning 
of  those  terms  in  the  Constitution  ;  and  if  so,  then,  secondlj',  whether 
the  warrant  in  question  was  such  due  process  of  law  ? 

The  words,  ^'  due  process  of  law,"  were  undoubtedly  intended  to 
convey  the  same  meanmg  as  the  words,  *^by  the  law,  of  the  land,"  in 
Magna  Charta.  Lord  Coke,  in  his  commentary  on  those  words  (2  Inst. 
50),  says  they  mean  due  process  of  law.  The  constitutions  which  had 
been  adopted  by  the  several  States  before  the  formation  of  the  Federal 
Constitution,  following  the  language  of  the  great  charter  more  closelv, 
generally  contained  the  words,  "  but  by  the  judgment  of  his  peers,  or  the 
law  of  the  land."  The  ordinance  of  Congress  of  July  13,  1787,  for 
the  government  of  the  territory  of  the  United  States  northwest  of  the 
river  Ohio,  used  the  same  words. 

The  Constitution  of  the  United  States,  as  adopted,  contained  the 
provision,  that  "  the  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury."     When  the  fifth  article  of  amendment  contain- 


602  MURRAY   V.   HOBOKEN   LAND,   ETC.   CO.  [CHAP.  IV. 

ing  the  words  now  in  question  was  made,  the  trial  by  jury  in  criminal 
cases  had  thus  already  been  provided  for.  By  the  sixth  and  seventh 
articles  of  amendment,  further  special  provisions  were  separately  made 
for  that  mode  of  trial  in  civil  and  criminal  cases.  To  have  followed, 
as  in  the  State  constitutions,  and  in  the  ordinance  of  1787,  the  words 
of  IVIagna  Charta,  and  declared  that  no  person  shall  be  deprived  of  his 
life,  liberty,  or  property  but  by  the  judgment  of  his  peers  or  the  law  of 
the  land,  would  have  been  in  part  superfluous  and  inappropriate.  To 
have  taken  the  clause,  "  law  of  the  land,"  without  its  immediate  con- 
text, might  possibly  have  given  rise  to  doubts,  which  would  be  effect- 
ually dispelled  by  using  those  words  which  the  great  commentator  on 
Magna  Charta  had  declared  to  be  the  true  meaning  of  the  phrase,  "law 
of  the  land,''  in  that  instrument,  and  which  were  undoubtedly  then 
received  as  their  true  meaning. 

That  the  warrant  now  in  question  is  legal  process,  is  not  denied.  It 
was  issued  in  conformity  with  an  Act  of  Congress.  But  is  it  "due 
process  of  law"?  The  Constitution  contains  no  description  of  those 
processes  which  it  was  intended  to  allow  or  foi'bid.  It  does  not  even 
declare  what  principles  are  to  be  api)lied  to  ascertain  whether  it  be  due 
process.  It  is  manifest  that  it  was  not  left  to  the  legislative  power  to 
enact  any  process  which  might  be  devised.  The  article  is  a  restraint  on_ 
the  legislative  as  well  as  on  the  exccutiyc_and  judicial  po\vers  of  the 
government,  and  cannot  be  so  construed  as  to  leave  Congress  free  to 
make  any  process  "  due  process  of  law,"  by  its  mere  will.  To  what 
principles,  then,  are  we  to  resort  to  ascertain  whether  this  process, 
enacted  by  Congress, is  due  process?  To  this  the  answer  must  be  tvvo- 
fold.  We  must  exaniine  the  Constitution  itself,  to  see  whether  this 
process  be  in  conflict  with  any  of  its  provisions.  If  not  found  to  he 
so,  we  must  look  to  those  seMlpfl  nsngps  nnd  moflps  of  proceeding- 
existing  in  the  common  and  statute  law  of  England,  before  the  emigra- 
tion of  our  ancestors,  and  which  are  shown  not  to  have  been  unsuited 
to  their  civil  and  political  condition  by  having  been  acted  on  b}-  them 
after  the  settlement  of  this  country.  We  apprehend  there  has  been  ng 
period,  since  the  establishment  of  the  English  monarchy^when  there 
has  not  been,  bY_ihP  low  of  the  land,  a  summary  method  for  the  re- 
covery of_debtS-jduo  to  the  Crown,— '^nd  pspppjnily  thosp  due  from 
receivers  nf  \\\^  rpvpmum.  It  is  difficult,  at  this  day,  to  trace  with 
precision  all  the  proceedings  had  for  these  purposes  in  the  earliest 
ages  of  the  common  law.  That  the}-  were  summary-  r.nd  severe,  and 
had  been  used  for  purposes  of  oppression,  is  inferable  from  the  fact 
that  one  chapter  of  Magna  Charta  treats  of  their  restraint.  It  declares  : 
"  We  or  our  bailiffs  shall  not  seize  any  land  or  rent  for  any  debt  as  long 
as  the  present  goods  and  chattels  of  the  debtor  do  suffice  to  pay  the 
debt,  and  the  debtor  himself  be  ready  to  satisfy  therefor.  Neither  shall 
the  pledges  of  the  debtor  be  distrained,  as  long  as  the  principal  debtor 
is  sufficient  for  the  payment  of  the  debt ;  and  if  the  principal  debtor 
fail  in  payment  of  the  debt,  having  nothing  wherewith  to  pay,  or  will 


CHAP.  IV.]  MURRAY   V.    HOBOKEN   LAND,   P:TC.   CO.  603 

not  pay  where  he  is  able,  the  pledges  shall  answer  for  the  debt.  And 
it"  they  will,  they  shall  have  the  lands  and  rents  of  the  debtor  nntil  they 
be  satisfied  of  the  debt  which  they  before  paid  for  him,  except  that  the 
principal  debtor  can  show  himself   to  be  acquitted  against   the   said 

sureties." 

By  the  common  law,  the  body,  lands,  and  goods  of  the  king's  debtor 
were  liable  to  be  levied  on  to  obtain  payment.  In  conformity  with  the 
above  provision  of  Magna  Charta,  a  conditional  writ  was  framed,  com- 
manding the  sheriff  to  inquire  of  the  goods  and  chattels  of  the  debtor, 
and,  if  they  were  insufficient,  then  to  extend  on  the  lands.  3  Co.  12  ?>; 
Com.  Dig.,  Debt,  G.  2  ;  2  Inst.  19.  But  it  is  said  that  since  the  statute 
33  Hen.^VIII.c.  39,  the  practice  has  been  to  issue  the  writ  in  an  abso- 
lute form,  without  requiring  any  previous  inquisition  as  to  the  goods. 
Gilbert's  Exch.  127. 

To  authorize  a  writ  of  extent,  however,  the  debt  must  be  matter  of 
record  in  the  king's  exchequer.  The  33  Hen.  VIII.  c.  39,  §50,  made  all 
specialty  debts  due  to  the  king  of  the  same  force  and  effect  as  debts 
by  statute  staple,  tiius  giving  to  such  debts  the  effect  of  debts  of  record. 
In  regard  to  debts  due  upon  simple  contract,  other  than  those  due  from 
collect  n-s  of  the  revenue  and  other  accountants  of  the  Crown,  the 
practice,  from  very  ancient  times,  has  been  to  issue  a  commission  to 
inquire  as  to  the  existence  of  the  debt. 

This  commission  being  returned,  the  debt  found  was  thereby  evi- 
denced by  a  record,  and  an  extent  could  issue  thereon.  No  notice  was 
required  to  be  given  to  the  alleged  debtor  of  the  execution  of  this 
commission  (2  Tidd's  Pr.  1047),  though  it  seems  that,  in  some  cases, 
an  order  for  notice  miglit  be  obtained.  1  Ves.  269.  Formerly,  no 
witnesses  were  examined  by  the  commission  (Chitty's  Prerog.  2G7  ; 
West,  22)  ;  the  affidavit  prepared  to  obtain  an  order  for  an  immediate 
extent  being  tlie  only  evidence  introduced.  But  this  practice  has  been 
recently  changed.  11  Price,  29.  By  the  statute  13  Eliz.  ch.  4,  balances 
due  from  receivers  of  the  revenue  and  all  other  accountants  of  the 
Crown  were  placed  on  the  same  footing  as  debts  acknowledged  to  be 
due  by  statute  staple.  These  balances  were  found  by  auditors,  the 
particular  officers  acting  thereon  having  been,  from  time  to  time,  varied 
by  legislation  and  usage.  The  dilTerent  methods  of  accounting  in 
ancient  and  modern  times  are  described  in  Mr.  Price's  Treatise  on  the 
Law  and  Practice  of  the  Exchequer,  ch.  9.  Such  balances,  when  found, 
were  certified  to  what  was  called  the  pipe  office,  to  be  given  in  charge 
to  the  sheriflTs  for  their  levy.     Price,  231. 

If  an  accountant  failed  to  render  his  accounts,  a  process  was  issued, 
termed  a  capias  nomine  districtionis^  against  tlie  body,  goods,  and 
lands  of  the  accountant.     Price,  162,  233,  note  3. 

This  brief  sketch  of  the  modes  of  proceeding  to  ascertain  anjjjvForce 
payment  of  balancps-jjufi  from  rpceivprs  of  thp  revenue  injuglancl^is 
sufficient  to  show  th.nt  the  methods  of  ascertaining  the  existence  and 
awmnt^nf  snoh    dpbts,    and    poinpp11'"2i    ^''"'''    P«y'TiP"^'i    ^^^v^    varied 


604  MURRAY   V.    HOBOKEN   LAND,   ETC.    CO.  [cHAP.  IV. 

widely  from  the  usual  course  of  the  cotpjoaQn  law  on  other  subjects ; 
nnH  t|)at.^  ps  lesppf'ts  snoli  debts  ^liifi  fmrn^stiinh  offif-pis^  "  the  law  of 
the  land "  authorized  the  emplo3-ment  of  auditors,  and  an  inquisi- 
tlon  without  notice,  and  a  spp<-ips  of  pvppiitinn  bf^^dri^"  verj  close 
resemblance  to  what  is  termed  a  witrnnf  nf  di^frpss  in  thp  AotnJLJ^^ 
now  in  questioiu 

It  is  certain  that  this  diversit}'  in  "  the^law  of  the  land"  between 
public  defaulters^  and  ordinary  debtors  was  understood  in  this  countr3% 
and  entered  into  the  legislation  of  the  colonies  and  provinces,  and  more 
especially  of  the  States,  after  the  Declaration  of  Independence  and  be- 
fore the  formation  of  the  Constitution  of  the  United  States.  Not  onl}' 
was  the  process  of  distress  in  nearly  or  quite  universal  use  for  the 
collection  of  taxes,  but  what  was  generall}'  termed  a  warrant  of  distress, 
running  against  the  body,  goods,  and  chattels  of  defaulting  receivers 
of  public  mone}^,  was  issued  to  some  public  officer,  to  whom  was  com- 
mitted the  power  to  ascertain  the  amount  of  the  default,  and  by  such 
warrant  proceed  to  collect  it.  AVithout  a  wearisome  repetition  of 
details,  it  will  be  sufficient  to  give  one  section  from  the  Massachusetts 
Act  of  1786  :  "  That  if  any  constable  or  collector,  to  whom  any  tax  or 
assessment  shall  be  committed  to  collect,  shall  be  remiss  and  negligent 
of  his  dut}',  in  not  levying  and  paying  unto  the  treasurer  and  receiver- 
general  sucli  sum  or  sums  of  money  as  he  shall  from  time  to  time  have 
received,  and  as  ought  by  him  to  have  been  paid  within  the  respective 
time  set  and  limited  by  the  assessor's  warrant,  pursuant  to  law,  the 
treasurer  and  receiver-general  is  hereb}'  empowered,  after  the  expira- 
tion of  the  time  so  set,  bj'  warrant  under  his  hand  and  seal,  directed 
to  the  sheriff  or  his  deputy,  to  cause  such  sum  and  suras  of  money  to 
be  levied  by  distress  and  sale  of  such  deficient  constable  or  collector's 
estate,  real  and  personal,  returning  the  overplus,  if  any  there  be  ;  and, 
for  want  of  such  estate,  to  take  the  body  of  such  constable  or  collector, 
and  imprison  him  until  he  shall  pay  the  same ;  which  warrant  the 
sheriff  or  his  deputy  is  hereb}'  empowered  and  required  to  execute 
accordingl}'."  Then  follows  another  provision,  that  if  the  deficient 
sum  shall  not  be  made  by  the  first  warrant,  another  shall  issue  against 
the  town ;  and  if  its  proper  autliorities  shall  fail  to  take  the  prescribed 
means  to  raise  and  pa}'  the  same,  a  like  warrant  of  distress  shall  go 
against  the  estates  and  bodies  of  the  assessors  of  such  town.  Laws  of 
Massachusetts,  vol.  i.  p.  266.  Provisions  not  distinguishable  from 
these  in  principle  may  be  found  in  the  Acts  of  Connecticut,  Revision 
of  1784,  p.  198;  of  Pennsylvania,  1782,  2  Laws  of  Penn.  13;  of  South 
Carolina,  1788,  5  Stats,  of  S.  C.  55;  New  York,  1788,  1  Jones  «fe 
Varick's  Laws,  34  ;  see  also  1  Henning's  Stats,  of  Virginia,  319,  343  ; 
12  Ibid.  562  ;  Laws  of  Vermont,  1797,  1800,  340.  Since  the  formation 
of  the  Constitution  of  the  United  States,  other  States  have  passed 
similar  laws.  See  7  Louis.  An.  R.  192.  Congress,  from  an  early 
period,  and  in  repeated  instances,  has  legislated  in  a  similar  manner. 
By  the  fifteenth  section  of  the  "  Act  to  lay  and  collect  a  direct  tax 


CHAP.  IV.]  MURRAY   V.    HOBOKEN   LAND,   ETC.   CO.  605 

within  tlie  United  States,"  of  July  14,  1798,  the  supervisor  of  each 
district  was  authorized  and  required  to  issue  a  warrant  of  distress 
a-ainst  any  delinquent  collector  and  his  sureties,  to  be  levied  upon  the 
aoods  and  chattels,  and  for  want  thereof  upon  the  body  of  such  co  - 
Fector;  and,  tailing  of  satisfaction  thereby,  upon  the  goods  and  cha^ 
tels  of  the  sureties.  1  Stats,  at  Large,  602.  And  again  in  1813  3 
Stats,  at  Large,  33,  §  28,  and  1815,  3  Stats,  at  Large,  1/7,  §  33,  the 
comptroller  of  the  treasury  was  empowered  to  issue  a  similar  wari-ant 
a-ainst  collectors  of  the  customs  and  their  sureties.  1  his  legislative 
construction  of  the  Constitution,  commencing  so  early  in  the  govern- 
ment, when  the  first  occasion  for  this  manner  of  proceeding  arose, 
continued  throughout  its  existence,  and  repeatedly  acted  on  by  the  judici- 
ary and  the  executive,  is  entitled  to  no  inconsiderable  weight  upon  the 
question  whether  the  proceeding  adopted  by  it  was  -due  process  of 
law  "  Prigg  v.  PennsyUania,  16  Pet.  621  ;  United  States  v.  Nourse, 
9  Pet.  8  ;  Randolph's  Case,  2  Brock.  447  ;  Nourse's  Case,  4  Cranch,  .. 
C   R  151  ;  Bullock's  Case,  cited  6  Pet.  485,  note. 

JTested  by  the  common  and  statute  law  of  Englai£pvwt^^ 
gi'Si^^r^ran^ni^estoTsTand  by-^^^ 

t^  oFth^loption  of  this^mendmMtake4^IQgegdings  authorizedjjl 
th^-Act^ofTBTO  T^nnot  be  denied_to_be  due  process  of  law,  when 
£^ink(r^Jhe_asceitaimTl^^^ 

gov^i^^^^i^^from  a  collector  of  customs,  unless  there__existsmthe_ 
fenitiUOion  some  othiri)>ovision  which  restrains  Cojigr^isl^ral^uthor- 
i^h^sII^M^i^^^iidh^gs-l  For,  though  -  due  process  of  law  general  y 
hiiTfe-^ridli^dlldis,  acfor,  reus  Judex,  regular  allegations,  opportunity 
to  answer,  and  a  trial  according  to  some  settled  course  of  judicial  pro- 
ceedings (2  Inst.  47,  50;  7/o^^e  v.  Henderson,  4  Dev.  N.  C.  Rep.  15; 
Taylor  v.  Porter,  4  Hill,  146 ;  Van  Zandt  v.  Waddel,  2  Yerger,  260 ; 
State  Bank  v.  Cooper,  Ibid.  599  ;  Jones's  Heirs  v.  Perry,  10  Ibui  59  ; 
Greenev.  Brigqs,  1  Curtis,  311),  yet,  this  is  not  universally  true.  Phere 
mav  be,  and  we  have  seen  that  there  are,  cases,  under  the  law  of  li.ng- 
land  after  Magna  Cliarta,  and  as  it  was  brought  to  this  country  and 
acted  on  here,  in  which  process,  in  its  nature  final,  issues  against  the 
body,  lands,  and  goods  of  certain  public  debtors  without  any  such  trial ; 
and  this  brings  us  to  the  question,  whether  those  provisions  of  the  Con- 
stitution wliich  relate  to  the  judicial  power  are  incompatible  with  these 
r)roceedin*''s  ? 

That  th°e  auditing  of  the  accounts  of  a  receiver  of  public  moneys 
may  be,  in  an  enlarged  sense,  a  judicial  act,  must  be  admitted.  So  are 
allthose  administrative  duties  the  performance  of  which  involves  an 
inquiry  into  the  existence  of  facts  and  the  application  to  them  ot  rules 
of  law.  In  this  sense  the  act  of  the  President  in  calling  out  the  militia 
under  the  Act  of  1795,  12  Wheat.  19,  or  of  a  commiss  oner  who  makes 
a  certificate  for  the  extradition  of  a  criminal,  under  a  treaty,  is  judicial. 
But  it  is  nnf^nffioipnt  to  brincr  such  matters  underjlic  iudicial  pow^ 
that  t'hiThi^^d^the  exercise  of  judgmentjijJorU^ILar^  Cnitea 


606  MURRAY   V.    HOBOKEN    LAND,   ETC.    CO.  [CHAP.  IV. 

States  V.  Ferreira,  13  How.  40.  Itjs_ncccssary  to  go  further,  and  sliow 
not  only  that  the  adjustment  of  the  balance&_iiue  froin  accaiinlkig 
officers  nia^-  be,  hut  from  their  na^turejnnst  Iw,  fontroviii-sies  t.r>  whifli 
the  United  States  is  a  party,  witliin  the  meaning  oiLthe-  second  auction 
of  the  third  article  of  the  Constit,»4,4on.  We  do  not  doubt  the  power 
of  Congress  to  provide  by  law  that  such  a  question  shall  form  the 
subject-matter  of  a  suit  in  which  the  judicial  power  can  be  exerted. 
The  Act  of  1820  makes  such  a  provision  for  reviewing  the^  decision  of 
the  accounting  officers  of  the  treasur}'.  But,  until  reviewed,  it  is  final 
and  binding;  and  the  question  is^  whethei^its^ubject-matter  is  neces- 
sarily, and  without  regard  to  the  consent  of  Congress,  a  judicial  con- 
troversy.    And  we  are  of  opinion  it  is  not. 

Ajnamr  the  legislative  powers  of  Congress_are  the  powersj^'to  lay  and 
collect  tax£s^  duties,  imposts,  and  excises,  to  pay  the  debts,  and  provide 
for  the  coninionderene5-ttttti--vw4£ai:e_^  the  United  States  ;  to  raise  and 
support  armies  ;  to  provide  and  maintaiirarTia\y-;>J^"d  tojnake  all  laws 
vvliich  may  be  necessary  and  i^roper  for  carrying  into  execution  those 
powers."  What  officers  should  be  ai)pointed  to  collect  the  revenue  thus 
authorized  to  be  raised,  and  to  disburse  it  in  payment  of  the  debts  of  the 
United  States  ;  what  duties  should  be  required  of  them  ;  when  and  how, 
and  to  whom  they  should  account,  and  what  security  they  should  furnish, 
and  to  what  remedies  they  sliould  be  subjected  to  enforce  the  proper  dis- 
charge of  their  duties,  Congress  was  to  determine.  In  the  exercise  of 
their  powers,  they  have  required  collectors  of  customs  to  be  appointed; 
made  it  incumbent  on  them  to  account,  from  time  to  time,  with  cer- 
tain officers  of  the  treasury  department,  and  to  furnish  sureties,  by 
bond,  for  the  payment  of  all  balances  of  the  public  mone}'  which  may 
become  due  from  them.  And  by  the  Act  of  1820,  now  in  question, 
they  have  undertaken  to  provide  summary  means  to  compel  these 
officers  —  and  in  case  of  their  default,  their  sureties  —  to  pa}-  such 
balances  of  the  public  raone}'  as  may  be  in  their  hands. 

The  power  to  collect  and  disburse  reveiiue,  and  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  that  power  into  effect, 
includes  all  known  and  appropriate  jneans  of  effe.ctiia11y  collecting  and 
disbursing  that  revenue,  unless  some  such  mcans_shauld  he.--fctfbidden 
in  some  other  part  of  the  Constitution.  The  power  has  not  been  ex- 
hausted  by  tne  receipt  of  the^ money  b}-  ihe  collector.  Its  purpose  is 
to  raise  mone}'  and  use  it  in  payment  of  the  debts  of  the  government : 
and,  whoever  ma}'  have  possession  of  the  public  mone}-,  until  it  is 
actually  disbursed,  the  power  to  use  those  known  and  appropriate 
means  to  secure  its  due  application  continues. 

As  we  have  alread}'  shown,  the  means  provided  b}-  the  Act  of  1820, 
(]o  not  cIiTIeV  111  piiiicipltTfrom  tlio"se  employed  in  England  from  remote 
antiquity  —  and  in  many  of  the  States,  so  far  as  we  know  without 
objection  —  for  this  pnrpos"  Tit  l^-"  ti'^"  rh°  ^'^nstitnti'^n  wfl°  fr^vmo/i 
It  may  be  addpd,  that  probably  there  are  few  governments  which  do 
or  can  permit  their  claims  for  public  taxes,  either  on  the  citizen  or  the 


CHAP.  IV.]  MUKEAY    V.    HOBOKEN    LAND,    ETC.    CO. 


607 


officer  employed  for  their  collection  or_d|sbursement,  to  become  subjects. 
ofjudiclal  controversy,  accoidiiig  to  the  course  of  the  law  of  the  laiKJ. 
Imperative  necessityjias^forced  a  distin(;tion  between  such  claims  and 
aTTothers, Which  has  sometimes  been  carried  out  by  summary  methods 
of  proceeding,  and  sometimes  by  systems  of  fines  and  penalties,  but 
always  in  some  way  observed  and  yielded  to. 

It  is  true  that  in  EnglandjdUhese  proceedings  were  had  in  what  is 
denominated  the  Uourfof  Excliequer,  in  which  Lord  Coke  says,  4  Inst. 
115,  the  barons  are  the  sovereign  Auditors  of  the  kingdom.  But  the 
barons  exercise  in  person  no  judic^ial  power  in  auditing  accounts,  and 
it  is  necessary  to  remember  that  tlfte  Exchequer  includes  two  distinct_or- 
ganizations,  one  of  which  has  charge  of  the  revenues  of  the  Crown,  anjj, 
the  other  hasToTig^been  in  fact,  and  now  is  for  all  purposes,  one -of  the 
judiciarcourti~bf  the]k[iigdom,  whose  proceedings  are  and  have  been 
as  distinct^  in  most  respects,  f\om  those  of  the  revenue  side  of  the  P^x- 
chequer,  as  the  proceedings  o\  the  Circuit  Court  of  this  district  are 
from  those  of  the  treasury  ;  and\t  would  be  an  unwarrantable  assump- 
tion  to  conclude  tliat^  because  the  accounts  of  receivers  of  revenue 
were  settled  in  what  was  denomTnatcd  the^jCourtj)f  PLxchequei',  they 
were  judicial  controversies  between  JiieJang_iuiiLMs_suljjects,  according, 
to  the  orcdiiaix  course  of  thTcommonJaw_0£  e^tUJtj:-  '^^^  fi^t;t,  as  we 
have  already  seen,  was  otherwise. 

It  was  strongly  urged  by  the  plaintiffs  counsel,  that  though  the 
government  might  have  the  rightful  power  to  provide  a  summary 
remedy  for  the  recovery  of  its  public  dues,  aside  from  any  exercise  of 
the  judicial  power,  yet  it  had  not  done  so  in  this  instance.  That  it  had 
enabled  the  debtor  to  apply  to  the  judicial  power,  and  having  thus 
brought  the  subject-matter  under  its  cognizance,  it  was  not  for  the 
government  to  say  that  the  subject-matter  was  not  within  the  judicial 
power.  That  if  it  were  not  in  its  nature  a  judicial  controversy,  Con- 
gress could  not  make  it  such,  nor  give  jurisdiction  over  it  to  the  district 
courts.  In  shoil^  the  argument  is,  that  ifjhisjwere  not,,lD_i-ta_iiaturej^ 
ajudicial  controversy,  Congress .eoiild  not  have.conferred  on  the  district 
court  power  to  determine  it  upon  a  bill  filed_by  the^coljc^or.  If  it^ 
besucli  a  controversy,  then  it  is  subject  to  the  judicial  _poweiL.alone_^ 
andjhejjet  tfiMt  (Congress  h.qc;  pnnj^led  thp  flistrjct.  court  to  pasS  upQU 
it,  is  conclusive  evidence  t,>'"t^^  '^^  '^^  fl  judir^inl   nonlrnversy. 

We  cannot  admit  the  correctness  of  the  last  position.  If  we  were 
of  opinion  that  this  subject-matter  cannot  be  the  subject  of  a  judicial 
controversy,  and  that,  consequently,  it  cannot  be  made  a  subject  of 
judicial  cognizance,  the  consequence  would  be,  that  the  attempt  to 
bring  it  under  tlie  jurisdiction  of  a  court  of  the  United  States  would  bo 
ineffectual.  But  the  previous  proceedings  of  the  executive  depart- 
ment would  not  necessarily  be  affected  thereby.  They  might  be  final, 
instead  of  being  subject  to  judicial  review. 

But  the  argument  leaves  out  of  view  an  essential  element  in  the  case, 
and  also  assumes  something  which  cannot  be  admitted. 


608 


MURRAY   V.    HOBOKEN    LAND,   ETC.    CO. 


[chap.  IV. 


It  assumes  that  the  entire  subject-matter  is  or  is  not,  in  every  mode 
of  presentation,  a  judicial  controvers}',  essential!}- and  in  its  own  nature, 
aside  from  the  will  of  Congress  to  permit  it  to  be  so  ;  and  it  leaves  out 
of  view  the  fact  that  the  United  States  is  a  part}'. 

It  is  necessary  to  take  into  view  some  settled  rules. 

Though,  oenerallv,  both  public  and  private  wrongs  are  redressed 
through  judicial  action,  tliere  are  more  summary  extra-judicial  reniecHes 
for  both.  An  instance  of  extra-judicial  redress  of  a^private  wrong  is, 
the  recapture  of  goods  by  their  lawful  owner;  of_ a  public  wrong^^bj' 
a  private  person,  is  the  abatement  of  a  public  nuisance^_aiKJ^  the  re- 
covery of  public  dues  by  a  summary  process  of  distresSj_issued  by 
some  public  officer  authorized  _by  Jaw,  j^s  an  instance  of  redress  of  a 
particularlnnd  of  public  wrongs  by  _th.e  aci^of-ilnL  public  through  its 
authorized  agents.  There  is,  however,  an— impoJlajlL  distinction  be- 
tween_Jliese.  Though  a  private  person  may  retake  his  property,  or_ 
abate  a  nuisance,  he  is  directly  responsiljle  for  his  aet^_to_Alie_propei* 
judicial  tribunals.  His  authority  to  do  tliese-acts-depeuds^ iioLjn e rely 
on  the  law,  bu^t_upon  the  existence  of  such  facts  as  are,  in^  poiiit  of 
law,  sufficient  to  constitute  that  authority  ;  and  he  may  be  required,  by 
an  action  at  law,  to_j)rove  those  fa_ets ;  but  a  public  agenjt,  who  acts 
pursuant  to  the  command  of  a  legal  precept,  can  justify  his  act  by   the 

production  of  such    precept. He  cannot  be  made  responsible  in_a 

jjidi^inl  t'i^iin-il  fQjW2l>eyilUiLll^^-lB^^'^"^  command  of  the  government: 
and  thc^  goverumentjtsclf,  which  gave  the  command.  cannot__be  sued 
without  its  own  cou^en t. 

At  the  same  time  there  can  be  no  doubt  that  the  niere  question, 
whether  a  collector  of  the  customs  is  indebted— to  -the  4J nited- States, 
may  be  one  of  judicial  cognizance.     It  iscompetent  for  the^Un^tjed 

States  to  sue  any  of  its  debtqi'S jn  a  fom-t.   nf  In^^      Tf.   is_Pj:][na11jw-^lp5ir 

that  the  United  States  may  consent  to  be  sued,  and  may  yield  lliis 
consent  upon  such  terms_find  nnder  agoh  i-psti-iftions  as  it  ma^ think 
just.     Though  both  the  marshal  and  the  government  are  exempt  from 

suit,  for  anything  rlnnp  hy  [Hp  fm-mpr  in  nh^rl ipn<-pJo_legal  prOCCSS,  Still, 

Congress  maji provide  by  Inw^  tlt.at.-bQtlt,  or  pilherp  shall,  in  a  particiy- 
lar  class  of  cases,  and  under  siuih -restrictions  as  they  may  thinkjji'^per 
to  impose,  come  jnt"  "^  pniLiit.-n.fL  law  or  equity  and  abidc~by_its  deter- 
mination. The  United  Sia.tpjjtjmfly  tbns  place  t.hp  o;ovprnmpnt,  npnn_tbp 
same  ground  which  is  oycnpiecl  by_private-^»efSQjQS_who  proceed  to  take 
ext ra  j nd'pi-'^l  rpmpdips  fnv  t.hpir  wrnitgii^-a.nd  they  .miU"  do  SO  to  SUCh 
extent,  and  with  such  resti-'c^'*^"^    «"  "^^y  hp  thmight  fit 

Wli£D.,  therefore,  the  Act  of  1820  enacts,  tliat  after  the  levy  of  the 
distress  warrant  has  been  begun,  tlie  collector  ma}'  bring  before  a  d|s- 
trict  court  the  question,  whether  he  is  indebted  as  recited  in  the 
warrant,  it  simply  wah'^s  a.  pHvilegp  which  belongs  to  tlie  govprnmervL 
and  consents  to  make  the  legality  of  its  future  proceedings  dependent 
on  the  j"udgment  of  the  court ;  as  we  have  already  statedin  case  of  a 
private  i)erson,  every  fact  upon  which  the  legality'  of  the  extra-judicial 


CHAP.  IV.]  MURKAY   V.    HOBOKEN   LAND,    ETC.    CO.  609 

remedy  depends  may  be  drawn  in  question  b}'  a  suit  against  liim.  The 
United  States  ccTnscnts  that  this  fact  of  indebtedness  may  be  drawn 
in  question  by  a  suit  against  them.  Though  they  might  have  witlilieTd 
their  consent^jve^  think  that^  bj'  granting  it,  nothing  which  may  not 
be  a  subject  of  judicial  cognizance  i^  brought  before  the  court. 

To  avoid  misconstruction  upon  so  grave  a  subject,  we  tliink  it  proper 
to  state  that  we  do  noT~consider  Congress~can  either  witluiraw  trom 
judfcial  cognizance  an}-  matter  whicli,  from  its  nature,  is  the  subject 
of  a  suit  at  the  common  law,  or  in  equit}-,  or  admiralty  ;  nor,  on  the 
other  band,  can  it  bring  under  the  judicial  power  a  matter  which,  from 
itsjiature,  is  not  a  subject  for JudixdaL  determination.  At  the  same 
time  there  are  matters,  inyolviiig  public  rights,  whij^mjy^be  presented 
in  such  form  that  the  judicial  power  Js  capable  of  acting_pjj__them,  aiiTT 
wliich  are  susceptible  of  Judicial  determination,  but  which  Congress 
may  or  may  not  bring  within  the  cognizance  of  the  courts  of  The  United 
States,  as  it  ma^^de^m  proper.  Equitable  claims  to  land  by  the  inhab- 
itants  of  ceded  territories  form  a  striking  instance  of  such  a  class  of 
cases  ;  and  as  it  depends  upon  the  will  of  Congress  whether  a  remedy 
in  the  courts  shall  be  allowed  at  all,  in  such  cases,  the}'  may  regulate  it 
and  prescribe  such  rules  of  determination  as  they  may  think  just  and 
needful.  Thus  it  has  been  repeatedly  decided  in  this  class  of  cases, 
that  upon  their  trial  the  acts  of  executive  officers,  done  under  the 
authority  of  Congress,  were  conclusive,  either  upon  particular  facts 
involved  in  the  inquiry  or  upon  the  whole  title.     Foley  v.  Harrisoyi, 

15  How.  433 ;  Burgess  v.  Gray,  16  How.  48  ;  v.  The  Minnesota 

Mining  Company  at  the  present  term. 

It  is  true,  also,  that  even  in  a  suit  between  private  persons  to  try  a 
question  of  private  right,  the  action  of  the  executive  power,  upon  a 
matter  committed  to  its  determination  by  the  Constitution  and  laws,  is 
conclusive.  Luther  v.  Borden^  7  How.  1  ;  Doe  v.  Braden^  16  How. 
635. 

To  apply  these  principles  to  the  case  before  us,rwe  say  that,  though 
a  suit  may  be  brought  against  the , jiiarahaL f aL_se 05ing_prope rt}^  u nder^ 
such  a  warrant  of  distress,  and  he  may  be  put  to  show  his  justification  ; 
yet  the  action  of  the  exgcutLve  power  in  isfining  t.h£_jvarnint,j)ursuartt 
to  the  Act  of  1820,  passed  under  the  powers  to  collect  and  disburse  the 
revenue  granted  by  the  Cnnstjf.nt.jnn,  is  ponfln^iyp  PvirlpriPP  r>f  jhe_ia£ts 
recited  in  it,  and  of  the  authority  to  make  the  levy  ;  that  though  no 
suit  can  be  brought  against  the  United  States  witliout  the  consentjof 
Congress,  vet  Cimoiress  may  consent  to  have  a  suit  brnnorlif._,_jnj^fv^ 
the. question  whether  the  collector  be  indebted,  that  being  a^sul)joct 
capable  of  judicial  determination,  and  may  empower  a  court^to  act  on 
that  determination,  and  restrnin  the  levy  of  the  warrant  of  distress 
withjn  the  limits  c?  t.lip  rlphf  judicially  found  tQ_je2dst!\ 

It  was  further  urged  that,  by  thus  subjecting  the  proceeding  to  the 
determination  of  a  court,  it  did  conclusively  appear  that  there  was  no 
such  necessity  for  a  summary  remedy,  by  the  action  of  the  executive 
VOL.  I.  — 39 


610  DAVIDSON    V.    NEW   ORLEANS.  [CIIAT.  IV. 

power,  as  was  esseutial  to  enable  Congress  to  authorize  this  mode  of 
proceeding. 

But  it  seems  to  us  that  the  justjnference  from  the  entire  law  is,  tlial 
therewas  such  a  necessityJor_tlie_vza]XanL,and  the_comraenccmentjif 
the  levy,  but  not  for  its_compl^ion,  if  the  collector  shoulclinterpiiac, 
and  file  his  bill  and  give  secm'ity.  The  provision  that  he  may  file  his 
bill  and  give  security,  and  thus  arrest  the  summary  proceedings,  only 
proves  that  Congress  thought  it  not  necessary  to  pursue  them,  after 
such  security  should  be  given,  until  a  decision  should  be  made  by  the 
court.  It  has  no  tendency  to  prove  they  were  not,  in  the  judgment  of 
Congress,  of  the  highest  necessit}'  under  all  other  circumstances ;  and 
of  this  necessity  Congress  alone  is  the  judge. 

The  remaining  objection  to  this  warrant  is,  that  it  was  issued  without 
the  support  of  an  oath  or  affirmation,  and  so  was  forbidden  bj-  the 
fourth  article  of  the  amendments  of  the  Constitution.  But  this  article 
has  no  reference  to  civil  proceedings  for  the  recovery  of  debts,  of  which 
a  search-warrant  is  not  made  part.  The  process,  in  this  case,  is 
termed,  in  the  Act  of  Congress,  a  warrant  of  distress.  The  name-be=. 
stowed  upon  it  cannot  affect  its  constitutional  validity.  In  substance, 
it  is  an  extent  authorizing  a  levy  for  the  satisfaction  of  a  debt ;  and 
as  no  other  authority  is  conferred,  to  make  searclies_or_S£izm:es,  than 
is  ordinarily  embraced  in  every  execution  issued  upon  a  recognizance, 
or  a  stipulation  in  the  admiralty,  we  are  of  opinion  it  was  not  invalid 
for  this  cause. ^  .  .  . 


DAVIDSON   V.   NEW   ORLEANS. 

Supreme  Court  of  the  United  States.      1877. 

[96  U.  S.  97.] 

Error  to  the  Supreme  Court  of  the  State  of  Louisiana. 

On  the  7th  of  December,  1871,  the  petition  of  the  cit^'  of  New  Or- 
leans and  the  administrators  thereof  was  filed  in  the  Seventh  District 
Court  for  the  parish  of  Orleans,  setting  forth  an  assessment  on  certain 
real  estate,  made  under  the  statutes  of  Louisiana,  for  draining  the  swamp 
lands  within  the  parishes  of  Carroll  and  Orleans  ;  and  asking  that  the 
assessment  should  be  homologated  by  the  judgment  of  the  court.  The 
estate  of  John  Davidson  was  assessed  for  various  parcels  in  different 
places  for  about  $50,000.  His  widow  and  testamentary  executrix  ap- 
peared in  that  court  and  filed  exceptions  to  the  assessment ;  and  the 
court  refused  the  order  of  homologation,  and  set  aside  the  entire  assess- 
ment, with  leave  to  the  plaintiffs  to  present  a  new  tableau. 

On  appeal  from  this  decree,  the  Supreme  Court  of  Louisiana  reversed 
it,  and  ordered  the  dismissal  of  the  oppositions,  and  decreed  that  the 

1  And  so  Palmer  v.  McMahon,  133  U.  S.  660,  669  (1889).  —  Ed. 


CHAP.  IV.]  DAVIDSON  V.   NEW  ORLEANS.  611 

assessment-roll  presented  be  approved  and  homologated,  and  that  the 
approval  and  homologation  so  ordered  should  operate  as  a  judgment 
against  the  property  described  in  the  assessment-roll,  and  also  against 
the  owner  or  owners  thereof.  Mrs.  Davidson  then  sued  out  the  writ  of 
error  b}'  which  this  judgment  is  now  brought  here  for  review. 

Mr.  James  D.  Hill  and  Mr.  John  D.  McPherson,  for  the  plaintiff  in 
error. 

3Ir.  Philip  Phillips,  contra. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  objections  raised  in  the  State  courts  to  the  assessment  were  nu- 
merous and  varied,  including  constitutional  objections  to  the  statute 
under  which  the  assessment  was  made,  and  alleged  departures  from  the 
requirements  of  the  statute  itself.  And  although  counsel  for  the  plain- 
tiff in  error  concede,  in  the  first  sentence  of  their  brief,  that  the  onlv 
Federal  question  is,  whether  the  judgment  is  not  in  violation  of  that 
provision  of  the  Constitution  which  declares  that  "no  State  shall  de- 
prive an}'  person  of  life,  liberty,  or  property  without  due  process  of 
law,"  the  argument  seems  to  suppose  that  this  court  can  correct  any 
other  error  which  may  be  found  in  the  record. 

1.  It  is  said  that  the  legislature  had  no  right  to  organize  a  private 
corporation  to  do  the  work,  and,  by  statute,  to  fix  the  price  at  which 
the  work  should  be  done. 

2.  That  the  price  so  fixed  is  exorbitant. 

3.  That  there  may  be  a  surplus  collected  under  the  assessment  be- 
yond what  is  needed  for  the  work,  which  must  in  that  event  go  into  the 
cit}'  treasury'. 

Can  it  be  necessar}'  to  say,  that  if  the  work  was  one  which  the  State 
had  authorit}'  to  do,  and  to  pay  for  it  by  assessments  on  the  property 
interested,  that  on  such  questions  of  method  and  detail  as  these  the  ex- 
ercise of  the  power  is  not  regulated  or  controlled  by  the  Constitution  of 
the  United  States? 

Of  a  similar  character  is  the  objection  much  insisted  on,  that,  under 
the  statute,  the  assessment  is  actually  made  before,  instead  of  after,  the 
"work  is  done.  As  a  question  of  wisdom,  — of  judicious  economy,  —  it 
would  seem  better  in  this,  as  in  other  works  which  require  the  expendi- 
ture of  large  sums  of  mone}',  to  secure  the  means  of  pa3-ment  before 
becoming  involved  in  the  enterprise  ;  and  if  this  is  not  due  process  of 
law,  it  ought  to  be- 
There  are  other  objections  urged  by  counsel  which  ma}'  be  referred  to 
hereafter,  but  we  pause  here  to  consider  a  moment  the  clause  of  the 
Constitution  relied  on  b}-  plaintiff  in  error.  It  is  part  of  sect.  1  of 
the  Fourteenth  Amendment.  The  section  consists  of  two  sentences. 
The  first  defines  citizenship  of  the  States  and  of  the  United  States.  The 
next  reads  as  follows  :  — 

"No  State  shall  make  or  enforce  an}-  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States  ;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property  without  due  pro* 


612  DAVIDSON   V.    NEW   ORLEANS.  [CHAP.  IV. 

cess  of  law,  nor  deny  to  an}'  person  within  its  jurisdiction  the  equal 
protection  of  the  law." 

The  section  was  the  subject  of  very  full  and  mature  consideration  in 
Slaughter- House  Cases,  16  Wall.  36.  In  those  cases,  an  Act  of  the 
Louisiana  Legislature,  which  liad  granted  to  a  corporation  created  for 
the  purpose  the  exclusive  right  to  erect  and  maintain  a  building  for  the 
slaughter  of  live  animals  within  the  cit}',  was  assailed  as  being  in  con- 
flict with  this  section.  The  right  of  the  State  to  use  a  private  corpora- 
tion and  confer  upon  it  the  necessary  powers  to  carry  into  effect  sanitary 
regulations  was  affirmed,  and  the  decision  is  applicable  to  a  similar 
objection  in  the  case  now  before  us.  The  argument  of  counsel  and  the 
opinion  of  the  court  in  those  cases  were  mainl}'  directed  to  that  part  of 
the  section  which  related  to  the  privileges  and  immunities  of  citizens ; 
and,  as  the  court  said  ia  the  opinion,  the  argument  was  not  much 
pressed,  that  the  statute  deprived  the  butchers  of  their  propert}'  without 
due  process  of  law.  The  court  held  that  the  provision  was  inapplicable 
to  the  case. 

The  prohibition  against  depriving  the  citizen  or  subject  of  his  life, 
liberty,  or  property  without  due  process  of  law,  is  not  new  in  the  con- 
stitutional history  of  the  English  race.  It  is  not  new  in  the  constitu- 
tional history  of  this  countr}',  and  it  was  not  new  in  the  Constitution  of 
the  United  States  when  it  became  a  part  of  the  Fourteenth  Amend- 
ment, in  the  year  1866. 

The  equivalent  of  the  phrase  "  due  process  of  law,"  according  to  Lord 
Coke,  is  found  in  the  words  "law  of  the  land,"  in  the  Great  Charter, 
in  connection  with  the  writ  of  habeas  corjyiis,  the  trial  by  jur}',  and  other 
guarantees  of  the  rights  of  the  subject  against  the  oppression  of  the 
Crown.  In  the  series  of  amendments  to  the  Constitution  of  the  United 
States,  proposed  and  adopted  immediately  after  the  organization  of  the 
government,  which  were  dictated  by  the  jealousy  of  the  States  as  further 
limitations  upon  the  power  of  the  Federal  government,  it  is  found  in  the 
fifth,  in  connection  with  other  guarantees  of  personal  rights  of  the  same 
character.  Among  these  are  protection  against  prosecutions  for  crimes, 
unless  sanctioned  by  a  grand  jury ;  against  being  twice  tried  for  the 
same  offence  ;  against  the  accused  being  compelled,  in  a  criminal  case, 
to  testify  against  himself;  and  against  taking  private  property  for  pub- 
lic use  without  just  compensation. 

Most  of  these  provisions,  including  the  one  under  consideration,  either 
in  terms  or  in  substance,  have  been  embodied  in  the  constitutions  of  the 
several  States,  and  in  one  shape  or  another  have  been  the  subject  of 
judicial  construction. 

It  must  be  confessed,  however,  that  the  constitutional  meaning  or 
value  of  the  phrase  "  due  process  of  law,"  remains  to-day  without  that 
satisfactory  precision  of  definition  which  judicial  decisions  have  given  to 
nearly  all  the  other  guarantees  of  personal  rights  found  in  the  constitu- 
tions of  the  several  States  and  of  the  United  States. 

It  is  easy  to  see  that  when  the  great  barons  of  England  wrung  from 


CHAP.  IV.]  DAVIDSON   V.   NEW   ORLEANS.  61?!^ 

King  John,  at  the  point  of  the  sword,  the  concession  that  neither  their 
lives  nor  their  property  should  be  disposed  of  by  the  Crown,  except  as 
provided  by  the  law  of  the  land,  the}'  lueant  b}-  "  law  of  the  land  "  the 
ancient  and  customary  laws  of  the  English  people,  or  laws  enacted  by 
the  Parliament  of  which  those  barons  were  a  controlling  element.  It 
was  not  in  their  minds,  therefore,  to  protect  themselves  against  the  en- 
actment of  laws  by  the  Parliament  of  England.  But  when,  in  the  year 
of  grace  1866,  there  is  placed  in  the  Constitution  of  the  United  States 
a  declaration  that  "  no  State  shall  deprive  any  person  of  life,  libert}',  or 
property  without  due  process  of  law,"  can  a  State  make  anything  due 
process  of  law  which,  by  its  own  legislation,  it  chooses  to  declare  such? 
To  affirm  this  is  to  hold  that  the  prohibition  to  the  States  is  of  no  avail, 
or  has  no  application  where  the  invasion  of  private  rights  is  effected 
under  the  forms  of  State  legislation.  It  seems  to  us  that  a  statute 
which  declares  in  terms,  and  without  more,  that  the  full  and  exclusive 
title  of  a  described  piece  of  land,  which  is  now  in  A.,  shall  be  and  is 
hereby  vested  in  B.,  would,  if  effectual,  deprive  A.  of  his  property 
without  due  process  of  law,  within  the  meaning  of  the  constitutional 
provision. 

A  most  exhaustive  judicial  inquiry  into  the  meaning  of  the  words 
"  due  process  of  law,"  as  found  in  the  Fifth  Amendment,  resulted  in  the 
unanimous  decision  of  this  court,  that  they  do  not  necessarily  imply  a 
regular  proceeding  in  a  court  of  justice,  or  after  the  manner  of  such 
courts.  Mun-ay's  Lessee  et  al.  v.  Hoboken  Land  and  Improvement  Co., 
18  How.  272.  .  .  .   [Here  follows  a  statement  of  this  case.] 

It  is  not  a  little  remarkable,  that  while  this  provision  lias  been  in  the 
Constitution  of  tlie  United  States,  as  a  restraint  upon  the  authority'  of 
the  Federal  government,  for  nearl}'  a  century*,  and  while,  during  all  that 
time,  the  manner  in  which  the  powers  of  that  government  have  been 
exercised  has  been  watched  with  jealous}',  and  subjected  to  the  most 
rigid  criticism  in  all  its  branches,  this  special  limitation  upon  its  powers 
has  rarel}'  been  invoked  in  the  judicial  forum  or  the  more  enlarged 
theatre  of  public  discussion.  But  while  it  has  been  a  part  of  the  Con- 
stitution, as  a  restraint  upon  the  power  of  the  States,  onl}'  a  very  few 
years,  the  docket  of  this  court  is  crowded  with  cases  in  which  we  are 
asked  to  hold  that  State  courts  and  State  legislatures  have  deprived 
their  own  citizens  of  life,  liberty,  or  property  without  due  process  of 
law.  There  is  here  abundant  evidence  that  there  exists  some  strange 
Imisconception  of  the  scope  of  this  provision  as  found  in  the  Fourteenth 
Amendment.  In  fact,  it  would  seem,  from  the  character  of  manv  of 
the  cases  before  us,  and  the  arguments  made  in  them,  that  the  clause 
under  consideration  is  looked  upon  as  a  means  of  bringing  to  the  test 
of  the  decision  of  this  court  the  abstract  opinions  of  every  unsuccessful 
litigant  in  a  State  court  of  the  justice  of  the  decision  against  him,  and  of 
the  merits  of  the  legislation  on  which  such  a  decision  may  be  founded. 
If,  there<bre,  it  were  possible  to  define  what  it  is  for  a  State  to  deprive 
a  person  of  life,  liberty,  or  property  without  due  process  of  law,  in  terras 


614  DAVIDSON   V.    NEW   ORLEANS.  [CHAP.  IV. 

which  would  cover  every  exercise  of  power  thus  forljitklen  to  the  State, 
and  exclude  those  which  are  not,  no  more  useful  construction  could  be 
furnished  by  this  or  any  other  court  to  any  part  of  the  fundamental 
law. 

But,  apart  from  the  imminent  risk  of  a  failure  to  give  any  definition 
which  would  be  at  once  perspicuous,  comprehensive,  and  satisfactory, 
there  is  wisdom,  we  think,  in  the  ascertaining  of  the  intent  and  applica- 
tion of  such  an  important  phrase  in  the  Federal  Constitution,  by  the 
gradual  process  of  judicial  inclusion  and  exclusion,  as  the  eases  pre- 
sented for  decision  shall  require,  with  the  reasoning  on  which  such  de- 
cisions may  be  founded.  This  court  is,  after  an  experience  of  nearly  a 
century,  still  engaged  in  defining  the  obligation  of  contracts,  the  regula- 
tion of  commerce,  and  other  powers  conferred  on  the  Federal  govern- 
ment, or  limitations  imposed  upon  the  States. 

As  contributing,  to  some  extent,  to  this  mode  of  determining  what 
class  of  cases  do  not  fall  within  its  provision,  we  lay  down  the  following 
proposition,  as  applicable  to  the  case  before  us  :  — 

That  whenever  by  the  laws  of  a  State,  or  by  State  authority,  a  tax, 
assessment,  servitude,  or  other  burden  is  imposed  upon  property  for  the 
public  use,  whether  it  be  for  the  whole  State  or  of  some  more  limited 
portion  of  the  community,  and  those  laws  provide  for  a  mode  of  confirm- 
ing or  contesting  the  charge  thus  imposed,  in  the  ordinary  courts  of 
justice,  with  such  notice  to  the  person,  or  such  proceeding  in  regard  to 
the  property  as  is  appropriate  to  the  nature  of  the  case,  the  judgment 
in  such  proceedings  cannot  be  said  to  deprive  the  owner  of  his  prop- 
erty without  due  process  of  law,  however  obnoxious  it  may  be  to  other 
objections. 

It  may  violate  some  provision  of  the  State  Constitution  against  un- 
e^uaTtaxation  ;  but  the  Federal  Constitution  imposes  no  restraints  on^ 
the  States  in  that  regard.  ..lIL^riyate  property  be  jtaken  for  public  uses 
without  just  compensation,  it  must  be  rememberedlbat,  when  the  Four- 
teenth Amendment  was_  adopted,  the  provision  on  Jhat_subject,  in  im- 
jnediate  juxtaposition  m  the  Fifth  Ameudment  with  the  one  we  are_ 
construing,~was  left  out,  and  thisjvas  taken.  It  may  possibly  violate 
some  of  those  principles  of  general  constitutional  law,  of  which  we  could 
take  jurisdiction  if  we  were  sitting  in  review  of  a  circuit  court  of  the 
United  States,  as  we  were  in  Loan  Association  v.  Topeka,  20  Wall. 
655.  But  however  this  may  be,  or  under  whatever  other  clause  of  the 
Federal  Constitution  we  may  review  the  case,  it  is  not  possible  to  hold 
that  a  party  has,  without  due  process  of  law,  been  deprived  of  his  prop- 
erty, when,  as  regards  the  issues  affecting  it,  he  has,  by  the  laws  of  the 
State,  a  fair  trial  in  a  court  of  justice,  according  to  the  modes  of  pro- 
ceeding applicable  to  such  a  case.  Tiiis  was  clearly  stated  by  this  court, 
speaking  by  the  Chief  Justice,  in  Kennard  v.  Morgan,  92  U.  S.  480, 
and,  in  substance,  repeated  at  the  present  term,  in  McMillan  v.  Ander- 
eon,  95  U.  S.  37. 

This  proposition  covers  the  present  case.    Before  the  assessment  could 


615 

CH\P.  IV.]  DAVIDSON    V.   NEW    OKLEANS. 

assess,ne„ts  sUoukl  l"^  "  >'  »  "^,1^,^^  ti,„e  to  object,  should 
lUatpevsoaa  ^^^^^^^^^^^  .->  within  .-each  of  process 
be  senert  on  all  ownc  s  wno  unknown,  or  could 

-'^''-/''\"-'X"w:s  con    li:i  V  t",   and  the  party  cou.p.ainu,, 

irri^riui^  - 1:;:  ttr;:: r i:.  nim.  as  used .  t. 

"t^o  errors  assigned,  and  not  n,entioned  in  the  earlier  part  of 

this  opinion,  deserve  a  word  or  two.  ,,,eviouelv  been  assessed 

It  is  said  that  the  planrtitl  s  propeitj  had  "•"»"«  3  be  meant  to 
for  the  same  purpose,  and  the  assessracu  P  ^;  ^  '^^^  "^^/^  ,,„,, 
aeny  the  right  of  "»/,;:';tuio:'i„  t  fXII^  Constitution  which 
purpose,  we  know  of  no   "o^'^""    »  by  the  States.     If  the 

forbids  this,  or  wh.ch  forbids  "'''-•V'^  /^^f  """j/;,  .^lied  „n  as  a  con- 
Act  under  which  the  former  --'^^^l^'l^^l^^^^.^Z  ,«  concur  with 

^"ijTalso  said  that  part  of  the  P.o>-'l-/jt'f  Ltr 'of  deSr^Uh 
is  not  benefited  by  tl>e  "ni"ovem»t.  ^  ^^  ^ J^  .^^^but  it  is  hard  to 
which  tins  court  cannot  mterfe  e  .f  '' ;;'",^'"";y ^'^^m  not  be  bene- 

Li  ^rLi^rrrr  r:r;  iriiirich  are ....  ... 

""Id-lastly,  and  most  strongly,  it  is  urged  that  ti-  eotjrt  renclerc^  a 
personal  Judgment  ..gainst  the  owner  for  t  e  a^oun   ^   '"  ;-;_"'^;,, 

personal  liability  can  be  imposed  on  ^m.  m  regarf  o  .t^  If  th.s  we  ^ 
'proposition  -'f 'f^- fg^^r  we"  ^.Mtbe  c'riled  upon  to  cicide 
n^tr If 2tiyr:«  r ;;  of  tl.  provision  ^  the  Fede.l 
constitution  authorizes  us  to  reverse  «'^J«f  ™"    »  ,f,Xse  "   <!"" 

;':rr:ftw,..t,:i  n^  xre^iiSirot^— :  ^  ..sent 

"as  there  is  no  error  in  the  Judgment  of  the  Supreme  Court  ^^Louisi- 
ana,  of  which  this  court  has  cognizance,  it  is  M 

TVIR   TusTiCE  Bradley  gave  a  concurring  opinion,  in  which  he  said : 
.  ftMi^r  thl  opinion  'of  the  court]  narrows  the  scope  of  inquiry  a 
to  what  is  due  process  of  law  more  tlian  it  should  do 1  thinK, 


616  HUKTADO    V.   CALIFOKNIA.  [CHAP.  IV. 

therefore,  we  are  entitled,  under  the  Fourteenth  Amendment,  not  only 
to  see  that  there  is  some  process  of  law,  but  'due  process  of  law,' 
provided  by  the  State  law  Vvhen  a  citizen  is  deprived  of  his  properly  ; 
and  that,  in  judging  what  is  'due  process  of  law,'  respect  must  be  had 
to  the  cause  and  object  of  the  taking,  whether  under  the  taxing  power, 
the  power  of  eminent  domain,  or  the  power  of  assessment  for  local  im- 
provements, or  none  of  these  :  and  if  found  to  be  suitable  or  admissible 
in  the  special  case,  it  will  be  adjudged  to  be  '  due  process  of  law ; ' 
but  if  found  to  be  arbitrary,  oppressive,  and  unjust,  it  ma}-  be  declared 
to  be  not  '  due  process  of  law.'  Such  an  examination  may  be  made 
without  interfering  with  that  large  discretion  which  every  legislative 
power  has  of  making  wide  modifications  in  the  forms  of  procedure  in  each 
case,  according  as  the  laws,  habits,  customs,  and  preferences  of  the 
people  of  the  particular  State"  may  require." 


HURTADO   V.  CALIFORNIA. 

Supreme  Court  of  the  United  States,     1883. 

[110  U.  S.  516.] 

The  Constitution  of  the  State  of  California,  adopted  in  1879,  in 
Article  I.,  section  8,  provides  as  follows :  — - 

"  Otfences  heretofore  required  to  be  prosecuted  by  indictment  shall 
be  prosecuted  by  information,  after  examination  and  commitment  by 
a  magistrate,  or  b}'  indictment,  with  or  without  such  examination  and 
commitment  as  may  be  prescribed  by  law.  A  grand  jury  shall  be  drawn 
and  summoned  at  least  once  a  3-ear  in  each  county."  .   .  . 

[Hurtado  was  charged  with  murder,  b}-  an  information  filed  b}'  the 
District  Attorney  of  Sacramento  County  in  the  local  court,  in  February, 
1882  ;  on  his  arraignment  pleaded  not  guilty  ;  and  was  tried  by  jury, 
found  guilty,  and  sentenced  to  be  hanged.  He  filed  objections  to  the 
execution  of  this  judgment,  to  the  effect,  among  other  things,  that  the 
proceeding,  upon  information,  was  contrary  to  the  Fourteenth  Amend- 
ment. These  objections  were  overruled  by  the  local  court  and,  on  ap- 
peal, by  the  Supreme  Court  of  California  ;  and  they  were  now  brought 
up,  on  error,  to  the  Supreme  Court  of  the  United  States.] 

3Ir.  A.  L.  Hart,  for  plaintiff  in  error. 

3Ir.  John  T.  Vary,  for  defendant  in  error. 

Mr.  Justice  Matthews  delivered  the  opinion  of  the  court.  After 
reciting  the  facts  in  the  foregoing  language,  he  continued  :  — 

It  is  claimed  on  behalf  of  the  prisoner  that  the  conviction  and  sen- 
tence are  void,  on  the  ground  that  they  are  repugnant  to  that  clause  of 
the  Fourteenth  Article  of  Amendment  of  the  Constitution  of  the  United 
States,  which  is  in  these  words  :  — 


CHAP.  IV.]  HURTADO   V.   CALIFORNIA.  617 

"Nor  shall  any  State  deprive  any  person  of- life,  liberty,  or  property 
without  due  process  of  law." 

The  proposition  of  law  we  are  asked  to  affirm  is  that  an  indictment 
or  presentment  by  a  grand  jury,  as  known  to  the  common  law  of  Eng- 
land, is  essential  to  that  "  due  process  of  law,"  when  applied  to  prose- 
cutions for  felonies,  which  is  secured  and  guaranteed  by  this  provision 
of  the  Constitution  of  the  United  States,  and  which  accordingly  it  is 
forbidden  to  the  States  respectively  to  dispense  with  in  the  administra- 
tion of  criminal  law.  .  .  . 

It  is  maintained  on  behalf  of  the  plaintiff  in  error  that  the  phrase 
"due  process  of  law"  is  equivalent  to  "law  of  the  land,"  as  found  in 
the  29th  chapter  of  Magna  Charta  ;  that  by  immemorial  usage  it  has 
acquired  a  fixed,  definite,  and  technical  meaning ;  that  it  refers  to  and 
includes,  not  only  the  general  principles  of  public  liberty  and  private 
right,  which  lie  at  the  foundation  of  all  free  government,  but  the  very 
institutions  which,  venerable  by  time  and  custom,  have  been  tried  by 
experience  and  found  fit  and  necessary  for  the  preservation  of  those  prin- 
ciples, and  which,  having  been  the  birthright  and  inheritance  of  every 
English  subject,  crossed  the  Atlantic  with  the  colonists  and  were  trans- 
planted and  estal)lished  in  the  fundamental  laws  of  the  State  ;  that,  hav- 
ing been  originally  introduced  into  the  Constitution  of  the  United  States 
as  a  limitation  upon  the  powers  of  the  government,  brought  into  being 
by  that  instrument,  it  has  now  been  added  as  an  additional  security  to 
the  individunl  against  oppression  by  the  States  themselves ;  that  one 
of  these  institutions  is  that  of  the  grand  jury,  an  indictment  or  present- 
ment by  which  against  tlie  accused  in  cases  of  alleged  felonies  is  an 
essential  part  of  due  process  of  law,  in  order  that  he  may  not  be 
harassed  or  destroyed  by  prosecutions  founded  only  upon  private  malice 
or  popular  fury. 

This  view  is  certainly  supported  by  the  authority  of  the  great  name 
of  Chief  Justice  Shaw  and  of  the  court  in  which  he  presided,  which,  in 
Jones  V.  Robbins,  8  Gray,  329,  decided  that  the  12th  article  of  the  Bill 
of  Rights  of  Massachusetts,  a  transcript  of  Magna  Charta  in  this  re- 
spect, made  an  indictment  or  presentment  of  a  grand  jury  essential  to 
the  validity  of  a  conviction  in  cases  of  prosecutions  for  felonies.  .  .  . 
[Here  follows  a  consideration  of  this  case  and  of  certain  language  of 
Coke.] 

This  view  of  the  meaning  of  Lord  Coke  is  the  one  taken  by  Mer- 
rick, J.,  in  his  dissenting  opinion  in  Jones  v.  Robbins,  8  Gray,  329,  who 
states  his  conclusions  in  these  words  :  "  It  is  the  forensic  trial,  under  a 
broad  and  general  law,  operating  equally  upon  every  member  of  our 
connnunity.  which  the  words  '  by  the  law  of  the  land,'  in  Magna  Charta, 
and  in  every  snbspqnent  dpnltivgtinn  cf  rights  which  has  borrowed  its 
plu-aseology,  make  essential  to  the  -safetv  of  the  citizen,  securing 
thereby  both  his  liberty  and  his  prooertv,  by  preventing  the  unlawful 
arrest  of  his  person  or  any  unlawful  interference  with  his  estate."  See 
also  State  v.  Starling,  15  Rich.  (S.  C.)  Law,  120. 


618  HUKTADO   V.    CALIFORNIA.  [CHAP.  IV. 

Mr.  Reeve,  in  2  HistoiT  of  Eng.  Law,  43,  translates  the  phrase,  nisi 
per  legale  judicium  parium  suorum  vel  per  legetn  terrce,  "  But  by  the 
judgment  of  his  peers,  or  by  some  other  legal  process  or  proceeding 
adapted  by  the  law  to  the  nature  of  the  case." 

Chancellor  Kent,  2  Com.  13,  adopts  this  mode  of  construing  the 
phrase.  Quoting  the  language  of  Magna  Charta,  and  referring  to  Lord 
Coke's  comment  upon  it,  he  sa\s  :  ''The  better  and  larger  definition  of 
due  jjrocess  oflcno  is  that  it  means  law  in  its  regular  course  of  adminis- 
tration through  courts  of  justice." 

This  accords  with  what  is  said  in  Westervelt  v.  Gregg,  12  N.  Y.  202, 
by  Denio,  J.,  p.  212  :  "The  provision  was  designed  to  protect  the  citizen 
against  all  mere  acts  of  power,  whether  flowing  from  the  legislative  or 
executive  branches  of  the  government." 

The  principal  and  true  meaning  of  the  phrase  has  never  been  more 
tersely  or  accurateh'  stated  than  b^'  Mr.  Justice  Johnson,  in  Hank  of 
Columbia  v.  Okely,  4  Wheat.  235-244  :  "As  to  the  words  from  Magna 
Charta,  incorporated  into  the  Constitution  of  Maryland,  after  volumes 
spoken  and  written  uTfirarview'~i«--th£ir_exposition,  the  good  sense  of 
mankind  has  at  last  settled  down  to  tliir^^-rkat  tlu-y  vypvp  jnfpndpd  to 
secure  the  individiinl  from  the  arbitrary  exercise  of  the  powders  oj"  gov- 
ernment, unrestrained  bv  the  established  principles  of  private  light  and,^ 
distributive  justice." 

And  the  conclusion  rightly  deduced  is,  as  stated  by  Mr.  Cooley,  Con- 
stitutional Limitations,   356  :   '•  The   principles,  then,  upon  which  the 

process  ij_J_^f>g^^i    g*-^  tn  rlotoirm'nn  wlintlinr    it    ic     ^  fliio  pvn^pss  '    Or  nohj 

and  not  any  considerations  of  mere  form.  Administrative  a nd  rem edial 
process  may  be  changed  from  time  to  time,  but  f)nly  with  due  regnirl  t^ 
the  landmarks  established  for  the  protection  of  the  citizen." 

It  is  urged  upon  us,  however,  in  argument,  that  the  claim  made  in 
behalf  of  the  plaintiff  in  error  is  supported  by  the  decision  of  this  court 
in  Murray's  Lessee  v.  Hohoken  Land  &  Lmprovemeut  Comically,  18 
How.  272,  .  .  .  [Here  follows  a  passage  from  this  opinion.] 

This,  it  is  argued,  furnishes  an  indispensable  test  of  what  consti- 
tutes "  due  process  of  law  ;  "  that  an}-  proceeding  otherwise  authorized 
by  law,  w'hich  is  not  thus  sanctioned  by  usage,  or  which  supersedes  and 
displaces  one  that  is,  cannot  be  regui'ded  as  due  process  of  law. 

But  this  inference  is  unwarranted.  The  real  syllabus  of  the  passage 
quoted  is,  that  a  process  of  law,  which  is  not  otherwise  forbidden,  must 
be  taken  to  be  due  process  of  law,  if  it  can  show  the  sanction  of  settled 
usage  Dotn  \n  l^.^ngianci  and  in  tins  country  ;  but  it  bv  no  means  follows 
that  nothing  else  can  be  due  process  of  law.  The  point  in  the  case 
cited  arose  in  reference  to  a  summar}'  proceeding,  questioned  on  that 
account,  as  not  due  process  of  law.  The  answer  was :  however  ex- 
ceptional it  ma}'  be,  as  tested  b}*  definitions  and  principles  of  ordinar}' 
procedure,  nevertheless,  this,  in  substance,  has  been  immemorially  the 
actual  law  of  the  land,  and,  therefore,  is  due  process  of  law.  But  to 
hold  that  such  a  characteristic  is  essential  to  due  process  of  law,  would 


CHAP.  IV.]  HURTADO    V.    CALIFORNIA.  6^-9 

be  to  deny  every  quality  of  the  law  but  its  age,  and  to  render  it  incapa- 
ble of  progress  or  improvement.  It  ^^on\d  be  to  stamp  upon  our  juris- 
prudence  the  unchangeableness  attributed  to  the  laws  of  the  Medes  and 

Persians.  .  .        ....        •  i   „„^ 

This  would  be  all  the  more  singular  and  surprising,  in  this  quiclv  ana 
active  age,  when  we  consider  that,  owing  to  the  progressive  develop- 
ment of  legal  ideas  and  institutions  in  England,  the  words  of  Magna 
Charta  stood  for  very  different  things  at  the  time  of  the  separation  of 
the  American  colonies  from  what  they  represented  originally.  ... 

The  Constitution  of  the  United  States  was  ordained,  it  is  true,  by 
descendants  of  Englishmen,  who  inherited  the  traditions  of  English  law 
and  history  ;  but  it  was  made  for  an  undefined  and  expanding  future, 
and  for  a  people  gathered  and  to  be  gathered  from  many  nations  and  of 
many  tongues.     And  whilejvejakejust  j^ 

,,^L^^,,,,^r  th.  nnn-T^T;^7.rk^^rVr^  not  to  forget  that  in  lands 
>';to7oth^r;^tems  of  iurisprudence  prevaUjja^leas  and  processes 
of  civil  ia'stice  are  also  noLunklM^m.  Due  process  of  law,  m  spite  ot 
the  absolutism  of  continental  governments,  is  not  alien  to  that  code 
which  survived  the  Roman  Empire  as  the  foundation  of  modern  civili- 
zation in  Europe,  and  which  has  given  us  that  fundamental  maxim  of 
distributive  justice, -si«m  cidque  tribuere.  There  is  nothing  in 
Magna  Charta,  rightly  construed  as  a  broadj^harlf.''  <>f  public  right  and 
]:^~TrT;r.;T77;T^^urf7^T^^  best  ide.^[r7Jlaisyst_ems  and  of  every 
...-  nnrl  ..s  it  was -thrcharacteristic  principle  of  the  common  lawjg 
-dfcfits  ins^i-ation  from  eveixJountainoOll^^  ^^'^  "Q^  ^Q  ^"""S^ 
t~b^tThe  sources  of  its  supply  have  been_exliaustedL.  On  the  contrary, 
v^hould  expect  that  the  new  and  variousexperiences  of  our  own  sit_Li: 
atlmrandTystem  will  mould  and  shape  it  uito  new_jinljioUess_useliLl 

forms.  . 

T-he  concessions  of  Magna  Charta  were  wrung  from  the  king  as  guar- 
antees acrainst  the  oppressions  and  usurpations  of  his  prerogative.  It 
did  not  enter  into  the  minds  of  the  barons  to  provide  security  against 
their  own  body  or  in  favor  of  the  Commons  by  limiting  the  power  of 
Parliament ;  so  that  bills  of  attainder,  ex  post  facto  laws,  laws  declar- 
ino-  forfeitures  of  estates,  and  other  arbitrary  acts  of  legislation  which 
occur  so  frequently  in  English  history,  were  never  regarded  as  incon- 
sistent with  the  law  of  the  land  ;  for  notwithstanding  what  was  attrib- 
uted to  Lord  Coke  in  Bonham's  Case,  8  Rep.  11 5, 118  «,  the  omnipotence 
of  Parliament  over  the  common  law  was  absolute,  even  against  common 
rio-ht  and  reason.  The  actual  and  practical  security  for  English  liberty 
against  legislative  tyranny  was  the  power  of  a  free  public  opinion  rep- 
resented by  the  Commons. 

In  this  country  written  constitutions  were  deemed  essential  to  protect 
the  rights  and  liberties  of  the  people  against  the  encroachments  of 
power  delegated  to  their  governments,  and  the  provisions  of  Magna 
Charta  were  incorporated  into  bills  of  rights.  They  were  limitations 
upon  all  the  powers  of  government,  legislative  as  well  as  executive  and 
judicial. 


620  HURTADO    V.    CALIFORNIA.  [CHAP.  IV. 

It  necessarily  happened,  therefore,  that  as  these  broad  and  general 
maxims  of  liberty  and  justice  lield  in  our  system  a  different  place  and 
performed  a  different  function  from  their  position  and  office  in  English 
constitutional  history-  and  law,  the}'  would  receive  and  justify  a  corre- 
sponding and  more  comprehensive  interpretation.  Applied  in  England 
onh'  as  guards  against  executive  usurpation  and  tyranny,  here  they 
have  become  bulwarks  also  against  arbitrary  legislation  ;  but,  in  that 
application,  as  it  would  be  incongruous  to  measure  and  restrict  them  by 
the  ancient  customarj'  English  law,  they  must  be  held  to  guarantee,  not 
particular  forms  of  procedure,  but  the  very  substance  of  individual 
rights  to  life,  libert}',  and  property. 

Restraints  that  could  be  fastened  upon  executive  authority  with  pre- 
cision and  detail,  might  prove  obstructive  and  injurious  when  imposed 
on  the  just  and  necessary'  discretion  of  legislative  power  ;  and,  while  in 
every  instance,  laws  that  violated  express  and  specific  injunctions  aud 
p^roliLbitions  might,  without  embarrassment,  be  judiciallv  declared  to  be 
void,  yet,  any  general  principle  or  maxim,  founded  on  the  essentiaj_ 
nature  of  In^^  ^g  «  j"^^  Q"^^  v<:.Qcr>nqKiQ  oyprps^sion  of  the  public  will  and 
of  government,  as  instituted  by  popular  consent  and  for  the  general 
good,  can  onl}'  be  applied  to  cases  coming  clearly  within  the  scope  of 
its  spirit  and  purpose,  and  not  to  legislative  provjpiinps  mprply  oafii-h- 
lishing  forms  and  modes  of  attainment.     Such  regulations,  to  adopt  a 

sentence  of  Burke's.    ^^  may  alter   th^    mnrlft    nnrl    gpplipnt.iQn^    hnt    VnvP 

no  j^ower  over  thp  siilvst.nnce  of  original  justice."  Tract  on  the  Popery 
Laws,  6  Burke's  Works,  ed.  Little  &  Brown,  3^3. 

Such  is  the  often-repeated  doctrine  of  this  court.  .  .  .  [Here  follow 
citations  from  Mutm  v.  JIL,  94  U.  S.  113  ;  Walker  v.  Savwet,  92  U.  S. 
90  ;  Kennard  v.  Louisiana,  92  U.  S.  480  ;  Davidsoti  v.  N.  0.,  96 
U.  S.  97.] 

We  are  to  construe  this  phrase  in  the  Fourteenth  Amendment  by  the 
usiis  Inqiiendi  of  the  Constitution  itself.  The  same  words  are  contained 
in  the  Fifth  Amendment.  That  article  makes  specific  and  express  pro- 
vision for  perpetuating  the  institution  of  the  grand  jur}',  so  far  as 
relates  to  prosecutions  for  the  more  aggravated  crimes  under  the  laws 
of  the  United  States.     It  declares  that,  — 

"  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infa- 
mous crime,  unless  on  a  presentment  or  indictment  of  a  grand  jur}-, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia 
when  in  actual  service  in  time  of  war  or  public  danger ;  nor  shall  an}' 
person  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy 
of  life  or  limb ;  nor  shall  he  be  compelled  in  any  criminal  case  to  be 
witness  against  himself."  [It  then  immediately  adds:]  "Nor  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of  law." 

According  to  a  recognized  canon  of  interpretation,  especially  applicajjie 
to  formal  and  ■^oli^mn  in?^'-"'T^o"<^g  r\f  pon«tit"tional  law,  we  are  forbid- 
den to  assume  wifhnnt  nlpnv  rpqsir>n  fn  \\^^  oontrarv,  that  any  part  of jLlus 
most  important  amendment  is  superfluous.     The  natural  and  obvious 


CHAP.  IV.]  HURTADO   V.   CALIFOllNIA.  621 

ference  is,  thatjTn  thesense  of  the  Constitution^  /'  due  process  of  law  " 
as  not  meanfo?  intended  to,  include,  ex  vi  termini,  the  iiistitiitimi 


in 
was 


aMpFocedure  of  a  grand  jury  in  any  case.  The  conclusion  is  eciually 
irresistibleTthat  when  the  s^me  phrase  was  employed  in  the  FouileenUi 
Amend ment  tb^restrain  the  action  of  the  Elates,  it  jvas  used  in  the 
g^JTHTsgnse  and  witirnogreater  extent ;  and_tLiikt  if_in_the  adQplion_Ql 
tiiat  amendment  it  had  been__partof  its  purp,ose,to.pei:ii(^t»ate  the  in^tj- 
tnti^r^Ttbi^rand  jury  in  all  the  States,  it  wouM  have^em]2odied,_as 
tlid  the  l^'itWAmendment,_ex])ress,declaratiQns  ta tliat  effect^J)ue_pro- 
cess  of  law  in  the  latter  refers  to  that  law  o.f  the  land  which  derives  its 
authority  from  the  legislative  powers  conferred  upon  Congress  byjhe 
C^IIinu?tion"of  the  jJnited  Stotes^  exerelsecl  j^lthin  the  limits  therein 
lli^scribed,  and  interpreted  accqrdi.iig.  to,  the^  i),riiii;iplea_QLlhe_cDniiiifln 
'fc^r  In  the  Fourteenth  Amendment,  by  paritjviof  reason^lLrejersJo 
th^thiw  of  the  land  in  each  State  which  denycsJts_authority_from  the 
inherent  andTeierved  powers  of  the  State,  exerted  within  the  limits  of 
those  fundamTIitol  principles  of  liberty  and  justice  which  lie  at  the  base 
7;f^"^n-ojj73nl  and  political  institutionsland  the  greatest  security  for 
^dmiTTTisid^n  the  right  of  the  people  lo  malce~their  own  laws,  and 
alter  them  atjheii-  pleasure.  .  .  . 
~BnriUrm5jolbe_sup4iQS£^ 

ami  despotic,^ajidJhaLthe  an>e"dment  prescribing  due  process  of  law  is_ 
too  vague  and  indefinite  to  opei^atg  as  a_pi-actical  restrajiU.  It  is  not 
every  act,  legislative  in  form,  that  is  law.  Law  is  sometjitfig  more  tlian 
mere  will  exerted  as  an  act  of  power.  It  must  be  not'a  special  rule  for 
a  particular  person  or  a  particular  case,  but,  ip-<he  language  of  Mr. 
Webster,  in  his  familiar  definition,  "  the  general  law,  a  law  which  hears 
before  it  condemns,  which  proceeds  upon  inquiry,  and  renders  judg- 
ment only  after  trial,"  so  "  that  every  citizen  shall  hold  his  life,  liberty, 
property,*  and  immunities  under  the  protection  of  the  general  rules 
which  govern  society  ;  "  and  thus  excluding,  as  not  due  process  of  law, 
acts  of  attainder,  bills  of  pains  and  penalties,  acts  of  confiscation,  acts 
reversing  judgments,  and  acts  directly  transferring  one  man's  estate  to 
another,  legislative  judgments  and  decrees,  and  other  similar  special, 
partial,  and  arbitrary  exertions  of  power  under  the  forms  of  legislation. 
^^jrbitraiy-PQw:e4v^iforcing  ita-edicts  talhe  injury  of  the  persons  and 
propertv  of  its  subjects,  is  not  law,  whether  manifested  as  the  decree  of^ 
a  personal  monarch  or  of  an  impersonal  multitude.  And  the  limita- 
tions imposed  by  our  constitutional  law  upon  the  action  of  the  govern- 
ments, both  State  and  national,  are  essential  to  the  preservation  of 
public  and  private  rights,  notwithstanding  the  representative  character 
of  our  political  institutions.  The  enforcement  of  these  limitations  by 
judicial  process  is  the  device  of  self-governing  communities  to  protect 
the  rights  of  individuals  and  minorities,  as  well  against  the  power  of 
numbers  as  against  the  violence  of  public  agents  transcending  the  limits 
of  lawful  authority,  even  when  acting  in  the  name  and  wielding  the 
force  of  the  government. 


G22  HUKTADO   V.    CALIFORNIA.  [CHAP.  IV. 

The  Supreme  Court  of  Mississippi,  in  a  well-considered  case,  — 
Brown  v.  Levee  (Jommissioners,  50  Miss.  468,  —  speaking  of  the  mean- 
ing of  the  phrase  "due  process  of  law,"  says:  '•'-  The  i)rincii)Ie  does  not 
(jmrianfi  ti^nt  thf  laws  pyisting  q.t  nn^^nini.  of  timo  shall  be  jrrepealable, 
jnvj,h"t  nny  forms  of  remedies  shall  necessarily  continue.  ._It  refers  to 
certain  fundamental  rights  which  that  system  of  jurisprudence,  ^3f_which^ 
ours  is  a  derivative^  has  always  recognized.  If  any  of  these  are  disre- 
garded in  the  proceedings  by  which  a  person  is  condemned  to  tjie  loss 
of  life,  liberty,  or  property^  then  the  deprivatioa  has  not  been  by_^'  due 
process  of  law.' "... 

It  follows_thatIan3^  leg^l  proceeding  enforced  by  public  authority, 
whether  sanctioneo'  b}'  a^  and  custom,  or  newly  devised  in  the  discre- 
tion  of  the  legislative  power,  in  furtherance  of  the  general  public  good, 
which  regards  and  preserves  these  principles  of  liberty  and  justice, 
must  be  held  to  be  due  process  of  law.^ 

The  Constitution  of  Connecticut^  adopted  in  1818  and  in  force 
when  the  Fourteenth  Amendment  took  effect,  requires  an  indictment 
or  presentment  of  a  grand  jury  only  in  cases  where  the  punishment 
of  the  crime  charged  is  death  or  imprisonment  for  life,  and  yet  it  also 
declares  that  no  person  shall  "  be  deprived  of  life,  liberty,  or  property 
but  b}'  due  course  of  law."  It  falls  siiort,  therefore,  of  that  measure  of 
protection  which  it  is  claimed  is^  guaranteed  by  Magna  Charta  to  the  right 
of  personal  libert}" ;  notwithstanding  which,  it  is  no  doubt  justly  said  in 
Swift's  Digest,  17,  that  "this  sacred  and  inestimable  right,  without 
which  all  others  are  of  little  value,  is  enjoyed  b}-  the  people  of  this  State 
in  as  full  extent  as  in  any  countr}'  on  the  globe,  and  in  as  high  a 
degree  as  is  consistent  with  the  nature  of  civil  go-vernment.  No  indi- 
vidual or  body  of  men  has  a  discretionar\'  or  arbitrary'  power  to  com- 
mit any  person  to  prison  ;  no  man  can  be  restrained  of  his  liberty,  be 
prevented  from  removing  himself  from  place  to  place  as  he  chooses, 
be  compelled  to  go  to  a  place  contrary  to  his  inclination,  or  be  in  any 
way  imprisoned  or  confined,  unless  by  virtue  of  the  express  laws  of  the 
land." 

Tried  by  these  principles,  we  are  unable  to  say  that  the  substitution 
for  a  presentment  or  indictment  by  a  grand  jury  of  the  proceeding  by 
information,  after  examination  and  commitment  by  a  magistrate,  certi- 
fying to  the  probable  guilt  of  the  defendant,  with  the  right  on  his  part 
to  the  aid  of  counsel,  and  to  the  cross-examination  of  the  witnesses 
produced  for  the  prosecution,  is  not  due  process  of  law.  It  is,  as  we 
have  seen,  an  ancient  proceeding  at  common  law,  which  might  include 
every  case  of  an  offence  of  less  grade  than  a  felony,  except  misprision  of 
treason ;  and  in  ever}'  circumstance  of  its  administration,  as  authorized 
by  the  statute  of  California,  it  carefully  considers  and  guards  tlie  sub- 
stantial interest  of  the  prisoner.  It  is  merely  a  preliminary  proceeding, 
and  can  result  in  no  final  judgment,  except  as  the  consequence  of  a  reg- 
ular judicial  trial,  conducted  precisely  as  in  cases  of  indictments. 

In  reference  to  this  mode  of  proceeding  at  the  common  law,  and 


CHAP.  IV.]  BAKBIER   V.    CONNOLLY.  623 

which  he  says  "is  as  ancient  as  the  common  law  itself,"  Bliickstone 
adds  (4  Com.  305)  :  — 

"  And  as  to  those  offences  in  which  informations  were  allowed  as 
well  as  indictments,  so  long  as  they  were  confined  to  this  high  and 
respectable  jurisdiction,  and  were  carried  on  in  a  legal  and  regular 
course  in  his  Majesty's  Court  of  King's  Bench,  the  subject  had  no  rea- 
son to  com[)lain.  The  same  notice  was  given,  the  same  process  was 
issued,  the  same  pleas  were  allowed,  the  same  trial  by  jury  was  had, 
the  same  judgment  was  given  by  the  same  judges,  as  if  the  prosecution 
had  originally  been  by  indictment." 

For  these  reasons,  finding  no  error  therein,  the  judgment  of  the 
Supreme  Court  of  California  is  Affirmed} 

[Harlan,  J.,  gave  a  dissenting  opinion.] 


BARBIER  V.    CONNOLLY. 
Supreme  Court  of  the  United  States.     1885. 

[113   U.  S.  27.] 

On  the  8th  of  April,  1884,  the  Board  of  Supervisors  of  the  cit}-  and 
county  of  San  Francisco,  the  legislative  authorit}'  of  that  municipality, 
passed  an  ordinance  reciting  that  the  indiscriminate  establishment  of 
public  laundries  and  wash-houses,  where  clothes  and  other  articles  were 
cleansed  for  hire,  endangered  the  public  health  and  the  public  safet}', 
prejudiced  the  well-being  and  comfort  of  the  communit}',  and  depreci- 
ated the  value  of  propert}'  in  their  neigliborhood  ;  and  then  ordaining, 
pursuant  to  authority  alleged  to  be  vested  in  the  Board  under  provisions 
of  the  State  Constitution,  and  of  the  Act  of  April  19,  1856,  consolidat- 
ing the  government  of  tlie  city  and  count}',  that  after  its  passage  it 
<  should  be  unlawful  for  any  person  to  establish,  maintain,  or  cany  on  the 
business  of  a  public  laundry  or  of  a  public  wash-house  within  certain 
designated  limits  of  the  city  and  county,  without  first  having  obtained  a 
certificate,  signed  bj-  the  health  oflBcer  of  the  municipalit}-,  that  the 
premises  were  properly  and  suflSciently  drained,  and  that  all  proper 
arrangements  were  made  to  carry  on  the  business  without  injury  to  the 
sanitary  condition  of  the  neighborhood  ;  also  a  certificate  signed  by  the 
Board  of  Fire  Wardens  of  the  municipality,  that  the  stoves,  washing 
and  drying  apparatus,  and  the  appliances  for  heating  smoothing-irons, 
were  in  good  condition,  and  that  their  use  was  not  dangerous  to  the  sur- 
rounding propert}'  from  fire,  and  that  all  proper  precautions  were  taken 
to  comph'  with  the  pi'ovisions  of  the  ordinance  defining  the  fire  limits  of 

1  And  so  HaUinger  v.  Davis,  146  U.  S.  314.     See  also  the  full  discussions  in  W^jnt' 
hamer  v.  The  People,  13  N.  Y.  378  (1856).  —Ed. 


624  BARBIER   V.    CONNOLLY.  [CHAP.  IV. 

the  txiy  and  count}-,  and  making  regulations  concerning  the  erection  and 
use  of  buildings  therein. 

The  ordinance  required  the  health  officer  and  Board  of  Fire  Wardens, 
upon  application  of  an\-  one  to  open  or  conduct  the  business  of  a  public 
laundry,  to  inspect  the  premises  in  which  it  was  proposed  to  carr}-  on 
the  business,  in  order  to  ascertain  whether  they  are  provided  with  proper 
drainage  and  sanitary  appliances,  and  whether  the  provisions  of  the  fire 
ordinance  have  been  complied  with  ;  and,  if  found  satisfactory-  in  all 
respects,  to  issue  to  the  applicant  the  required  certificates  w-ithont  charge 
for  the  services  rendered.  Its  fourth  section  declared  that  no  person 
owning  or  employed  in  a  public  laundry  or  a  public  wash-house  within 
the  prescribed  limits  shall  wash  or  iron  clothes  between  the  hours  of  ten 
in  the  evening  and  six  in  the  morning  or  upon  an\-  portion  of  Sunday  ; 
and  its  fifth  section,  that  no  person  engaged  in  the  laundry  business 
within  those  limits  should  permit  any  one  suffering  fiom  an  infectious 
or  contagious  disease  to  lodge,  sleep,  or  remain  upon  the  premises. 
The  violation  of  any  of  these  several  provisions  was  declared  to  be  a 
misdemeanor,  and  penalties  were  prescribed  differing  in  degree  accord- 
ing to  the  nature  of  the  offence.  The  establishing,  maintaining,  or 
carrying  on  the  business,  without  obtaining  the  certificates,  was  punish- 
able by  fine  of  not  more  than  $1,000,  or  by  imprisonment  of  not  more 
than  six  months,  or  by  both.  Carrying  on  the  business  outside  of  tlie 
hours  prescribed,  or  permitting  persons  with  contagious  diseases  on  tl)e 
premises,  was  punishable  b}-  fine  of  not  less  than  $5  or  more  than  §50, 
or  by  imprisonment  of  not  more  than  one  month,  or  by  both  such  fine 
and  imprisonment. 

The  petitioner  in  the  court  below,  the  plaintiff  in  error  here,  was  con- 
victed in  the  Police  Judge's  Court  of  the  City  and  County  of  San  Fran- 
cisco, under  the  fourth  section  of  the  ordinance,  of  washing  and  ironing 
clothes  in  a  public  laundry,  within  the  prescribed  limits,  between  the 
hours  of  ten  o'clock  in  the  evening  of  May  1,  1884,  and  six  o'clock  in 
the  morning  of  the  following  day,  and  w-as  sentenced  to  imprisonment 
in  the  county  jail  for  five  days,  and  w-as  accordingly  committed,  in  exe- 
cution of  the  sentence,  to  the  custody  of  the  sheriff  of  the  city  and 
countv,  who  was  keeper  of  the  county  jail.  That  court  had  jurisdiction 
to  try  him  for  the  alleged  offence,  if  the  ordinance  was  valid  and  bind- 
ing. But,  alleging  that  his  arrest  and  imprisonment  were  illegal,  he  ob- 
tained from  the  Superior  Court  of  the  city  and  county  a  writ  of  habeas 
corpus^  in  obedience  to  which  his  bod}-  was  brought  before  the  court  by 
the  sheriff,  w-ho  returned  that  he  was  held  under  the  commitment  of  the 
police  judge  upon  a  conviction  of  a  misdemeanor,  the  commitment  and 
sentence  being  produced. 

The  petitioner  thereupon  moved  for  his  discharge  on  the  ground  that 
the  fourth  section  of  the  ordinance  violates  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States,  and  certain  sections  of  tlie 
Constitution  of  the  State.  The  particulars  stated  in  which  such  alleged 
violations  consist  were  substantially  these,  —  omitting  the  repetition  of 


CHAP.  IV.]  BAKBIER   V.    CONNOLLY.  '^^^ 

•fi^n    ^'  that  the  section  discriminated  between  the  class  of 

acquire  propert)      ^^;^.* ^^  ;^\^^^.  ^j.  ^,,  Francisco;  and  that  it  wa. 

""Mr.  A.  C.  Searle,  Mr.  H.  (?.  Sieber.,,  and  *.  Alfred  Clarke,  for 

plaintiff  in  error. 

No  appearance  for  defendant  in  error. 

Mr   Justice  Field  delivered  the  opinion  of  the  couit.     He  leciteci 

r  S:rt  '    O,       .  uSon  is  confined  to  a  consideration  of  thejede™ 

r^rco"  ruir  :;r  U^d  Ltes.     «»  ..e..  ,..  of  .e  an,ena. 
mcnt  lias  any  possible  application.  ^^^^^^.^  ^1^^ 

"dtto:;  em^^in?of  thV^  clay.     The  prohibition  a^t 

o  clock  on  tt^e  mon  .j,^^    proyisiorii^jmiel^i-Mi^^ 

labor  on  Sunday  is  not  "^\^^'^'''  .-^--^---^^ 
ulationwithiiUliP  r-ompet^iicy  of  f">.  ?^""^^-^^^f^^^ 

;^Z7rc,cniv  measure  of  precaution  in  a  cit}  composed  i'"o«'^ 

tauXc^    iTe  San  Francisco,  that  occnpations  in  wb.ch  fires  are  con- 

The  same  municipal  anlhority  «hieh  directs  the  cessa  ,on  of  labor  mu 
Scessru  prescribe  the  limits  within  which  it  shall  be  «'f<"jf  •  /'  '' 
does  the  imits  in  a  city  within  which  wooden  buddn.gs  -""«'  be  co  - 
su-ucted.  There  is  no  invidions  f-^l^^^^^^^^  T r  ^nia- 
,„„  proscribed  "f'^^^^--^^'^:  :  raiion  ^  '  he  "im"L  within  w'hich 
;::\;;;S:s™ur:arrirn^:Tth:„t  the  corti«cates  of  the  health 
VOL  I.  —  40 


626  BARBIER  V.    CONNOLLY.  [CHAP.  IV. 

officer  and  Board  of  Fire  Wardens  is  merely  a  designation  of  the  por- 
tion of  the  city  in  which  the  precuulionary  measures  against  fire  and  to 
secure  proper  drainage  must  be  talicn  for  the  public  hejilth  and  safetj'. 
It  is  not  legislation  discriminating  against  any  one.  T  All  ijersons  en- 
gaged in  the  same  business  within  it  are  treated  alilc(^;  are  subject  to 
the  same  restrietions  and  are  entitled  to  the  same  privileges  under 
similar  conditions."^ 

The  Fourteenth  Amendment,  in  declaring  that  no  State  "  shall  deprive 
any  person  of  life,  liberty,  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  witliin  its  jurisdiction  the  equal  protection  of  the 
laws,"  undoubtedly  intended  not  only  that  there  should  be  no  arbitrar}' 
deprivation  of  life  or  liberty,  or  arbitrary  spoliation  of  property,  but 
that  equal  protection  and  security  should  be  given  to  all  under  like  cir- 
cumstances in  the  enjoyment  of  their  personal  and  civil  rights  ;  that  all 
persons  should  be  equally  entitled  to  pui^ue  their  happiness  and  acquire 
and  enjo}'  property  ;  that  they  should  have  like  access  to  the  courts  of 
the  country  for  the  protection  of  their  persons  and  propert}',  the  preven- 
tion and  redress  of  wrongs,  and  the  enforcement  of  contracts  ;  that  no 
impediu)ent  should  be  interposed  to  the  pursuits  of  any  one  except  as 
applied  to  the  same  pursuits  b}-  others  under  like  circumstances;  that 
no  greater  burdens  should  be  laid  upon  one  than  are  laid  upon  others  in 
the  same  calling  and  condition,  and  that  in  the  administration  of  criminal 
justice  no  different  or  higher  punishment  should  ])e  imposed  upon  one 
than  such  as  is  prescribed  to  all  for  like  offences.  But_  neither  iiic 
amendment  —  broad  and  comprehensive  as  it  is  —  nor  anv  other  amend- 
ment, was  designed  to  interfere  with  the  ijower  of  the  State,  sometimes 
teruied  its  police  uowej,  to  prescribe  regulations  to  promote  the  health, 
peace,  morals,  education,  and  good  order  of  the  people,  and  to  legislate 
so  as  to  increase  the  industries  of  the  State,  develop  its_resourceSj_and 
add  to  its  w^f  jth  nnd  piT>gpoi-ity  From  the  very  necessities  of  society, 
legislation  of  a  special  character,  having  these  objects  in  view,  must 
often  be  had  in  certain  districts,  such  as  for  draining  marshes  and  irri- 
gating arid  plains.  Special  burdens  are  often  necessary  for  general 
benefits  —  for  supplying  water,  preventing  fires,  lighting  districts,  clean- 
ing streets,  opening  pai'ks,  and  many  other  objects.  Regulations  fur 
these  purposes  mav  press  with  more  or  less  weight  upon  one  than  upon 
another,  but  tj).^y  ^'-^  ilocignprl^  nnf  tn  iinpnsf;  iiiipqiinl  or  unnecessaiy 
restrictions  upon  anv  one,  bnt  tn  promote,  with  as  little  individual  in- 
convenience as  possible,  the  general  good.  Though,  in  many  respects, 
necessarily  special  in  their  character,  they  do  not  furnish  justground  of 
fomplfiinf  if  ilioy  /^povitr.  oHi-o  npon  .nl]  porsons  and  property  under  the 
same  circumstances  and  conditions.  fClass  leoislntion.  diserimin.nting 
auamst  some  and  favoring  others,  is  prohibited,  but  leoislation  whicli. 
in  carrying  out  a  public  pur|)ose,  is  limited  in  its  application,  if  vviihin 
the  si)hcre  of  its  operation  it  affects  alike  all  pfrs<^"s  similni-1y  situated. 

is  not  within  t.hf  nnippdinf ntj 

In  the  execution  of  admitted  powers  unnecessary  proceedings  are  often 


CHAP.  IV.]  IN   THE    MATTER   OF   JACOBS.  627 

required  which  are  cumbersome,  dilator}',  and  expensive,  3'et,  if  no  dis- 
crimination against  an}-  one  be  made  and  no  substantial  right  be  impaired 
by  them,  tliey  are  not  obnoxious  to  any  constitutional  objection.  The 
inconveniencies  arising  in  the  administration  of  the  laws  from  this  cause 
are  inaLtcrs  ehtirelyTor  the  consideration  of  the  State  ;  they  can  be 
remedied  only  by  the  State!  In  t.hp.  r^nsp.  bpfnrp  na  thp  pi-nviair^nc  i-o- 
quiring  certificates  from  the  health  officer  and  the  Board  of  Fire  Wardens 
ma}',  in  some  instances,  be  unnecessary,  and  the  changes  to  be  made  to 
nieet  the  conditions  prescribed  may  be  T)urdensome,  but,  as  we  have 
said,  this  is  a  rnatteiiJor  the  deternunation  of  tha-mnni(;ipa]ity  ip  thp 

execution  of  its   police   powers,  nnd    npt;   a   vinl-ntinn  nf  any   enhs:fi]ntj;i] 

right  of  the  individual.  Juchjment  affirmed} 


In  the  Matter  of  THE  APPLICATION   OF  JACOBS. 
New  Yohk  Court  of  Appeals.     1885. 
■   [98  iV.  Y.  98.] 

Peter  B.  Olnejj,  District  Attorne}',  for  appellant. 

Wtn.  M.  Evarts^  A.  J.  Dittenhoeffer,  and  Jlorris  S.  Wise,  for 
respondent. 

P^ARL,  J.  The  relator  Jacobs  was  arrested  on  the  14th  da}'  of  May, 
1884,  on  a  warrant  issued  by  a  police  justice  in  the  city  of  New  York 
under  the  Act  chapter  272  of  the  Laws  of  1884,  passed  May  12,  entitled 
"  An  Act  to  improve  the  Public  Health  by  prohibiting  the  Manufacture 
orCigars  and  Preparation  of  Tobacco  in  any  form  in  Tenement-houses  in 
certain  Cases,  and  regulating  the  Use  of  Tenement-houses  in  certain 
Cases."  On  the  evidence  of  the  complainant  he  was  by  the  justice  com- 
mitted for  trial,  and  thereafter  upon  his  petition,  a  justice  of  the  Supreme 
Court  granted  a  writ  of  habeas  corpus,  to  which  a  return  was  made,  and 
upon  the  hearing  thereon  the  justice  made  an  order  dismissing  the  writ 
and  remanding  him  to  prison.  From  that  order  he  appealed  to  the 
General  Term  of  the  Supreme  Court,  which  reversed  the  order  and  dis- 
charged him  from  prison,  on  the  ground  that  the  Act  under  which  he 
was  arrested  was  unconstitutional  and  therefore  void.  The  district 
attorney  on  behalf  of  the  people  then  appealed  to  this  court,  and  the 
sole  question  for  our  determination  is,  whether  the  Act  of  1884  creat- 
ing the  offence  for  which  the  relator  was  arrested  was  a  constitutional 
exercise  of  legislative  power. 

The  facts  as  they  appeared  before  the  police  justice  were  as  follows  : 
The  relator  at  the  time  of  his  arrest  lived  with  his  wife  and  two  chil- 
dren in  a  tenement-house  in  the  city  of  New  York  in  which  three  other 
families  also  lived.  There  were  four  floors  in  the  house,  and  seven 
rooms  on  each  floor,  and  each  floor  was  occupied  by  one  family  living 

1  And  so  Soon  Ring  v.  Crowley,  113  U.  S.  "03.  —  Ed. 


628  IN   THE   MATTER   OF  JACOBS.  [CHAP.  IV. 

independently  of  the  others,  and  doing  their  cooking  in  one  of  the 
rooms  so  occupied.  The  relator  at  the  time  of  his  arrest  was  engaged 
in  one  of  his  rooms  in  preparing  tobacco  and  making  cigars,  but  there 
was  no  smell  of  tobacco  in  any  part  of  the  house  except  the  room  where 
be  was  thus  engaged. 

These  facts  showed  a  violation  of  the  provisions  of  the  Act  which 
took  effect  immediately  upon  its  passage  and  the  material  portions  of 
which  are  as  follows:  "Section  1.  The  manufacture  of  cigars  or  pre- 
paration of  tobacco  in  any  form  on  any  floor,  or  in  any  part  of  any 
floor,  in  any  tenement-house  is  hereby  prohibited,  if  such  floor  or  any 
part  of  such  floor  is  by  any  person  occupied  as  a  home  or  residence  for 
the  purpose  of  living,  sleeping,  cooking,  or  doing  any  household  work 
therein.  Section  2.  Any  house,  building,  or  portion  thereof  occupied 
as  the  home  or  residence  of  more  than  three  families  living  indepen- 
dently of  one  another,  and  doing  their  cooking  upon  the  premises,  is  a 
tenement-house  within  the  meaning  of  this  Act.  Section  3.  The  first 
floor  of  said  tenement-house  on  which  there  is  a  store  for  the  sale  of 
cigars  and  tobacco  shall  be  exempt  from  the  prohibition  provided  in 
section  one  of  this  Act.  Section  5.  Every  person  who  shall  be  found 
guilty  of  a  violation  of  this  Act,  or  of  having  caused  another  to  commit 
such  violation,  shall  be  deemed  guilt}'  of  a  misdemeanor,  and  shall  be 
punished  for  every  offence  b}'  a  fine  of  not  less  than  ten  dollars  and  not 
more  than  one  hundred  dollars  or  by  imprisonment  for  not  less  than  ten 
days  and  not  more  than  six  months,  or  both  such  fine  and  imprison- 
ment. Section  6.  This  Act  shall  apply  only  to  cities  having  over  five 
hundred  thousand  inhabitants." 

What  does  this  Act  attempt  to  do?  In  form,  it  makes  it  a  crime  for  a 
cigar-maker  in  New  York  and  Brooklyn,  the  only  cities  in  the  State  hav- 
ing a  population  exceeding  500,000,  to  carry  on  a  perfectly  lawful  trade 
in  his  own  home.  Whether  he  owns  the  tenement-house  or  has  hired  a 
room  therein  for  the  purpose  of  prosecuting  his  trade,  he  cannot  manu- 
facture therein  his  own  tobacco  into  cigars  for  his  own  use  or  for  sale, 
and  he  will  become  a  criminal  for  doing  that  which  is  perfectly'  lawful 
outside  of  the  two  cities  named  —  everywhere  else,  so  far  as  we  are 
able  to  learn,  in  the  whole  world.  He  must  either  abandon  the  trade 
b}'  which  he  earns  a  livelihood  for  himself  and  familv,  or,  if  able,  pro- 
cure a  room  elsewhere,  or  hire  himself  out  to  one  who  has  a  room  upon 
such  terms  as,  under  the  fierce  competition  of  trade  and  the  inexorable 
laws  of  supply  and  demand,  he  ma\'  be  able  to  obtain  from  his  employer. 
He  may  choose  to  do  his  work  where  he  can  have  the  supervision  of  his 
family  and  their  help,  and  such  choice  is  denied  him.  He  may  choose 
to  work  for  himself  rather  than  for  a  taskmaster,  and  he  is  left  without 
freedom  of  choice.  He  may  desire  the  advantage  of  cheap  production 
in  consequence  of  his  cheap  rent  and  famil}'  help,  and  of  this  he  is  de- 
prived. In  the  unceasing  struggle  for  success  and  existence  which  per- 
vades all  societies  of  men,  he  may  be  deprived  of  that  which  will  enable 
him  to  maint  lin  his  hold,  and  to  survive.     He  may  go  to  a  tenement- 


CHAP.  IV.]  IN   THE   MATTER   OF   JACOBS.  629 

house,  and  finding  no  one  living,  sleeping,  cooking,  or  doing  any  house- 
hold work  upon  one  of  the  floors,  hire  a  room  upon  such  floor  to  carry 
on  his  trade,  and  afterward  some  one  may  commence  to  sleep  or  to  do 
some  household  work  upon  such  floor,  even  without  his  knowledge,  and 
he  at  once  becomes  a  criminal  in  consequence  of  another's  act.  He 
may  go  to  a  tenement-house,  and  finding  but  two  families  living  therein 
independently,  hire  a  room,  and  afterward  by  subdivision  of  the  families, 
or  a  change  in  their  mode  of  life,  or  in  some  other  way,  a  fourth  famil}' 
begins  to  live  therein  independently,  and  thus  he  may  become  a  crimi- 
nal without  the  knowledge,  or  possibly-  the  means  of  knowledge  that  he 
was  violating  any  law.  Itjs,  therefore,  plain  that  this  law  interferes 
with  the  profitable  and  free  use  of  his  property  by  the  owner  or  lessee 
of  a  tenement-house  who  is  a  cigar-maker,  and  trammels  liim  in  the  ap- 
plication ofjusjm^nstry  and  the  disposition  of  his  labor,  and  thus,  in  a 
strictly  legitimate  sense,  it  nrbitrn.rily  deprives  him  of  his  property  and 
of  some  portion  nf  His  ppr>tonnl  liberty . 

The  consTitutional  guarantee  that  no  person  shall  be  deprived  of  his 
i3roDertv  without  due  process  of  law  may  be  violated  without  the  physi- 
cal  taking  of  property  for  public  or  private  use.  Property  may  be 
destroyed,  or  its  value  may  be  annihilated ;  it  is  owned  and  kept  for 
some  useful  purpose  and  it  has  no  valw^  unless  it  can  be  used.  Its 
capability  for  enjoyment  and  adaptabilitj*  to  some  use  are  essential 
characteristics  and  attribut<?s  without  which  property  cannot  be  con- 
ceived ;  and  hence  n^  Inw  wlnVrli  destroys  it  or  jts  value,  or  takes 
away  any  of  its  essential  attributes,  deprives  the  owner  of  his  propert}' 

The  constitutional  guarantee  would  be  of  little  worth,  if  the  legisl 
ture  could,  without  compensation,  destroy  propertj-  or  its  value,  depinve 
the  owner  of  its  use,  deny  him  the  right  to  live  in  his  own  house,  pr  to 
work  at  any  lawful  trade  therein.  Of  the  legislature  has  the  ^^ower  ^-•^*-*-*^ 
under  the  Constitution  to  prohiliit  the  prosecution  of  one  lawf^il  trade 
in  a  tenement-house,  then  it  may  prevent  the  prosecution  of  ^all  trades 
therein.^  "  Questions  of  power,"  says  Chief  Justice  Marshall  in  Bro%o7i 
V.  Stati  of  Maryland^  12  Wheat.  419,  ''do  not  depend  /Upon  the  de- 
gree to  which  it  may  be  exercised.  If  it  may  be  exercised  at  all  it  must 
be  exercised  at  the  will  of  tliose  in  whose  hands  it  is/f)laced."  Black- 
stone  in  his  classification  of  fundamental  rights  says /"  The  third  abso- 
lute right  inherent  in  every  Englishman  is  that/of  property  which 
consists  in  the  free  use,  enjoyment,  and  disposal  m  all  his  acquisitions 
without  any  control  or  dmiinution,  save  only  bvyxhe  law  of  the  land." 
1  Com.  138.  In  Pumpelly  v.  Green  Ba;/  CV,  13  Wall.  166,  177, 
Miller,  J.,  savs  :  "There  mav  be  such  seriouiyinterrui^tlon  to  the  com- 
mon  and  necessar}-  use  of  property  as  will/be  equivalent  to  a  taking 
within  the  meaning  of  the  Constitution."  Ln  Wijnehamer  v.  People,  13 
N.  Y.  378,  398,  Comstock,  J.,  says:  'y\Vhcn  a  law  annihilates  the 
value  of  property  and  strips  it  of  its  attributes,  bv  which  alone  it  is  dis^ 
tinguished  as  property,  the  owner  is  deprived  of  it  according  to  the 
plainest  interpretation,  and  certainly  within  the  constitutional  provision 


630  IN   THE   MATTER    OF   JACOBS.  [cHAP.  IV. 

intended  expressl}'  to  shield  personal  rights  from  the  exercise  of  arbi- 
trary  poNVfiiJ'  In  Ptople  v.  Olis,  90  N.  Y.  48,  Andrews,  J.,  says: 
"  Depriving  an  owner  of  property-  of  one  of  its  attribntes  is  depriving 
him  of  liis  property  within  the  constitutional  piovision." 

Soj^  toOj_oiie  may  be  deprived  of  his  liberty  and  jiis  constitutional 
rio:hts  thereto  violated  without  the  actuaL impiisonment  or  restraint  of 
his  person^  Liberty,  in  its  broad  sense  as  understood  in  this  country, 
means  the\  right,  not  only  of  freedom  from  actual  servitude,  imprison- 
ment, or  restraint,  but  the  right  of  one  to  use  his  faculties  in  all  lawful 
ways,  to  li\\e  and  work  where  he  will,  to  earn  his  livelihood  in  an}'  law- 
ful calling,  and  to  pursue  any  lawful  trade  or  avocation.  All  laws, 
therefore,  wnich  impair  or  trammel  these  rights,  which  limit  one  in  his 
choice  of  a  tirade  or  profession,  or  confine  him  to  work  or  live  in  a  speci- 
fied locality,  or  exclude  him  from  his  own  house,  or  restrain  his  other- 
wise lawful  itaovemcnts  (except  as  such  laws  may  be  passed  in  the 
exercise  by  tie  legislature  of  the  police  power,  which  will  be  noticed 
later),  are  infmngements  upon  his  fundamental  rights  of  liberty,  which 
are  under  constitutional  protection.  In  ButcJiers'  Union  Company  v. 
Crescent  CitiACo.,  Ill  U.  S.  746,  Field.  J.,  says:  That  among  the 
inalienable  rights  as  proclaimed  in  the  Declaration  of  Independence  "  is 
the  right  of  men  to  pursue  any  lawful  business  or  vocation  in  any  man- 
ner not  inconsis^tent  with  the  equal  rights  of  others,  which  may  increase 
their  property  ol-  develop  their  faculties,  so  as  to  give  them  their  highest 
enjoyment.  Th^  common  business  and  callings  of  life,  the  ordinary 
trades  and  pursi\its  which  are  innocent  in  themselves,  and  have  been 
followed  in  all  communities  from  time  immemorial,  must,  therefore,  be 
free  in  this  counivy  to  all  alike  upon  the  same  terms.  The  right  to 
pursue  them  witiiout  let  or  hindrance,  except  that  which  is  applied  to 
all  persons  of  the,  same  age,  sex,  and  condition,  is  a  distinguishing 
privilege  of  citizen^  of  the  United  States,  and  an  essential  element  of 
that  freedom  which^they  claim  as  their  birthright."  In  the  same  case 
Bradley,  J.,  says  :  V  1  bold  that  the  liberty  of  pursuit,  the  right  to  fol- 
low any  of  the  ordinary  callings  of  life,  is  one  of  the  privileges  of  a  citi- 
zen of  the  United  States,"  of  which  he  cannot  be  deprived  without 
invading  his  right  to  liberty  within  the  meaning  of  the  Constitution.  In 
Lice-Stocky  etc.,  Association  v.  Crescent  Citt/,  etc.,  Company,  1  Abb. 
U.  S.  388.  398,  the  learned  presiding  justice  says  :  "  There  is  no  more 
sacred  right  of  citizenship  than  the  right  to  pursue  unmolested  a  law- 
ful employment  in  a  laWful  manner.  It  is  nothing  more  nor  less  than 
the  sacred  right  of  labiftr."  In  Wynehamer  v.  People,  Johnson,  J., 
says  :  "  That  a  law  which  should  make  it  a  crime  for  men  either  to  live 
in,  or  rent  or  sell  their  hAuses,"  would  violate  the  constitutional  guor- 
antee  of  personal  liberty.  \ln  BerthoJf  v.  QRexlly,  74  N.  Y.  509,  515, 
Andrews,  J.,  says:  That  ^ne_.con1'l  ^^  be  deprived  of  his  libertv  in  a 
cpnstitution_al  sense  witiiout  putting  his  ppTgr^n  in  confinement."  and 
that  a  man's  right  to  lihpi-tv  iiip]iif1prl  ^^  tho  vight.  to  exercise  his  facul- 
ties,  and  to  follow  a  lawful  avocation  for  the  support  of  life."  .  .  . 


CHAr.  IV.] 


IN   THE   MATTER   OF   JACOBS.  631 


These  citations  are  sufficient  to  show  that  the  police  power  is  not  with- 
out limitations,  and  that  in  its  exercise  the  legislature  must  respect  the 
o-reat  fundamental  rights  guaranteed  by  the  Constitution.  If  this  were 
otherwise,  the  power  of  the  legislature  would  be  practically  without 
limitation.  In  the  assumed  exercise  of  the  police  power  in  the  interest 
of  the  health,  the  welfare,  or  the  safety  of  the  public,  every  right  of  the 
citizen  mio-ht  be  invaded  and  every  constitutional  barrier  swept  away. 

Generafly  it  is  for  the  legislature  to  determine  what  laws  and  reguhi- 
tions   are  needed  to  protect  the  public  health  and  secure  the  pubUc 
comfort  and  safety,  and  while  its  measures  are  calculated,  intended, 
convenient,  and  appropriate  to  accomplish  these  ends,  the  exercise  of 
its  discretion  is  not  subject  to  review  by  the  courts.     But  they  must 
have  some  relation  to  these  ends.      Under  the  mcLe  ^iis^_oL-LX)licc, 
reo-ulationsM)cvsonal_rlghts_amLj2liy3te  property  cannoU)e_juMi:arilL 
\^o.d.  and  th^eterminalLion  of  the  legislature  is  not  final  oi:_conclu:. 
sb^      If  it  passes  anTct  ostensibly  for  the  public  health,  and  thereby 
d^^fe)V^or  takes  away  the  property  of  a  citizen,  or  interferes  with  his 
persoiialWtv,  then  it  is  for  the  courts  to  scrutinize  the  Act  and  see 
whether  it  i-S>4:elates  to  and  is  convenient  and  appropriate  to  pro- 
mote tlie  public  lieSttKpt  matters  not  that  theUegislatm:e_may^_iu_^ULe 
title  to  the  Act^--'-  '"^  hodv.  declare  thiU  it^.intended  for  the  lin^ 
,';7;;^^:;^^;;rg"th^iMil)lic  health.     SiiduLdoclan^tioMoes  not  concludii. 
thT^^ITrtiZiMSS^^^  and  enfoi:ce 

the  supremelaw.  ...  ,  ,. 

^TtTspjai^I^^  this  is'  not-  a-heftUh.-kwH^wl  tlvat  it  has  no  rela.tmiL 
whlt^^to  the  public  health^  Uij(ler.tho  guise  of  promoting  .\h^n}h- 
liTh^Idtirthri^gi^ture  migKl  as  welHiaveJxinisjied^cigaiMTaaking  from 
all  thedties.ojJhcJtai£^.or  mnliiiedlt  to  a  single  cityjaLJowayOrJiaYfi    ^ 
^J^^;;^;^^^;]^^  of^a_tjiilor,_pf  a  shoe- 

maker,  of  a  woodcai^r,  or  of  any  otlier  of  the  innocuous  trades  earned 
on  by'artisans  in  their  own  homes.  The  power  would  have  been  tlic 
same,  and  its  exercise,  so  far  as  it  concerns  fundamental,  constitutional 
viohts,  could  have  been  justified  by  the  same  arguments.  Such  legisla- 
tion may  invade  one  class  of  rights  to-day  and  anotlier  to-morrow,  and 
if  it  can  be  sanctioned  under  the  Constitution,  while  far  removed  in 
time  we  will  not  be  far  away  in  practical  statesmanship  from  those  ages 
when  governmental  prefects  supervised  the  building  of  houses,  the  rear- 
ing of°cattle,  the  sowing  of  seed,  and  the  reaping  of  grain,  and  govern- 
mental ordinances  regulated  the  movements  and  labor  of  artisans,  the 
rate  of  wa^^es,  the  price  of  food,  the  diet  and  clothing  of  the  people, 
and  a  large  range  of  other  affairs  long  since  in  all  civilized  lands  re- 
garded as  outside  of  governmental  functions.  Such  governmental 
Tnterferences  disturb  the  normal  adjustments  of  the  social  fabric,  and 
usually  derange  the  delicate  and  complicated  machinery  of  industry  and 
cause  a  score  of  ills  while  attempting  the  removal  of  one.  •  •  • 

The  order  should  be  affirmed.     All  concur.  Order  affirmed. 


632  PEOPLE   V.    MARX.  [CHAP.  IV. 


PEOPLE   V.  MARX. 
New  York  Court  of  Appeals.     1885. 

[99  N.  Y.  377.] 

i^.  B.  Coudert  and  Wheeler  H.  Peckham ,  for  appellant. 

Samuel  Hand^  for  respondent. 

Rapallo,  J.  The  defendant  was  convicted  in  the  Court  of  General 
Sessions  of  the  city  and  county  of  New  York,  of  a  violation  of  the 
sixth  section  of  an  Act  entitled  "  An  Act  to  prevent  Deception  in  Sales 
of  Dairy  Products."  Chap.  202  of  the  Laws  of  1884.  On  appeal  to 
the  General  Term  of  the  Supreme  Court  in  the  first  department,  the 
conviction  was  affirmed,  and  the  deferidant  now  appeals  to  this  court 
from  the  judgment  of  affirmance. 

The  main  ground  of  the  appeal  is  that  the  section  in  question  is  un- 
constitutional and  void. 

The  section  provides  as  follows  : 

"  §  6.  No  person  shall  manufacture  out  ^f  any  oleaginous  sub- 
stances, or  any  comi)Ound  of  the  same,  other  than  that  produced  from 
unadulterated  milk  or  of  cream  from  the  same,  any  article  designed  to 
take  the  place  of  butter  or  cheese  produced  from  pure  unadulterated 
milk  or  cream  of  the  same,  or  shall  sell  or  offer  to  sell  the  same  as  an 
article  of  food.  This  provision  shall  not  apply  to  pure  skim-milk 
cheese  produced  from  pure  skim-milk."  The  rest  of  the  section  sub- 
jects to  heavy  punishments  by  fine  and  imprisonment,  "  whoever 
violates  the  provisions  of  this  section." 

The  indictment  charged  the  defendant  with  having  on  the  31st  of 
October,  1884,  at  the  city  of  New  York,  sold  one  pound  of  a  certain 
article  manufactured  out  of  divers  oleaginous  substances  and  com- 
pwmds  thereof,  other  than  those  produced  from  unadulterated  milk, 
to  one  J.  M.,  as  an  article  of  food,  the  article  so  sold  being  designed 
to  take  the  place  of  butter  produced  from  pure  unadulterated  milk  or 
cream.  It  is  not  charged  that  the  article  so  sold  was  represented  to  be 
butter,  or  was  sold  as  such,  or  that  there  was  any  intent  to  deceive  or 
defraud,  or  that  the  article  was  in  any  respect  unwholesome  or  delete- 
rious, but  simply  that  it  was  an  article  designed  to  take  the  place  of 
butter  made  from  pure  milk  or  cream. 

On  the  trial  the  prosecution  proved  the  sale  by  the  defendant  of  the 
article  known  as  oleomargarine  or  oleomargarine  butter.  That  it  was 
sold  at  about  half  the  price  of  ordinary  dairy  butter.  The  purchaser 
testified  that  the  sale  was  made  at  a  kind  of  factory,  having  on  the 
outside  a  large  sign  "Oleomargarine."  That  he  knew  he  could  not 
get  butter  there,  but  knew  that  oleomargarine  was  sold  there.  And 
the  district  attorney  stated  that  it  would  not  be  claimed  that  there  was 
nny  fraudulent  intent  on  the  part  of  the  defendant,  but  that  the  whole 


CHAP.  IV.]  PEOPLE   V.    MARX.  633 

claim  on  the  part  of  the  prosecution  was  that  the  sale  of  oleomargarine 
as  a  substitute  for  dairy  butter  was  prohibited  by  the  statute. 

On  the  part  of  the  defendant  it  was  proved  b}'  distinguished  chem- 
ists that  oleomargarine  was  composed  of  the  same  elements  as  dairy 
butter.  That  the  onlj'  difference  between  them  was  that  it  contained  a 
smaller  proportion  of  a  fatty  substance  known  as  butterine.  That  this 
butterine  exists  in  dairy  butter  only  in  a  small  proportion  —  from  three 
to  six  per  cent.  That  it  exists  in  no  other  substance  than  butter  made 
from  milk  and  it  is  introduced  into  oleomargarine  butter  b}'  adding  to 
the  oleomargarine  stock  some  milk,  cream  or  butter,  and  churning, 
and  when  this  is  done  it  has  all  the  elements  of  natural  butter,  but 
there  must  always  be  a  smaller  percentage  of  butterine  in  the  manu- 
factured product  than  in  butter  made  from  milk.  The  only  effect  of 
the  butterine  is  to  give  flavor  to  the  butter,  having  nothing  to  do  with 
its  wholesomeness.  That  the  oleaginous  substances  in  the  oleomar- 
garine are  substantially  identical  with  those  produced  from  milk  or 
cream.  Professor  Chandler  testified  that  the  only  difference  between 
the  two  articles  was  that  dair^'  butter  had  more  butterine.  That  oleo- 
margarine contained  not  over  one  per  cent  of  that  substance,  while 
dairy  butter  might  contain  four  or  five  per  cent,  and  that  if  four  or  five 
per  cent  of  butterine  were  added  to  the  oleomargarine,  there  would 
be  no  difference ;  it  would  be  butter ;  irrespective  of  the  sources, 
they  would  be  the  same  substances.  According  to  the  testimon}*  of 
Professor  Morton,  whose  statement  was  not  controverted  or  ques- 
tioned, oleomargarine,  so  far  from  being  an  article  devised  for  pur- 
poses of  deception  in  trade,  was  devised  in  1872  or  1873  b}-  an 
eminent  French  scientist  who  had  been  employed  by  the  French  gov- 
ernment to  devise  a  substitute  for  butter. 

Further  testimony  as  to  the  character  of  the  article  being  oflfered, 
the  district  attorney  announced  that  he  did  not  propose  to  controvert 
that  already  given.  Testimony  having  been  given  to  the  effect  that 
oleomargarine  butter  was  precisely  as  wholesome  as  dairy  butter,  it 
was,  on  motion  of  the  district  attorney,  stricken  out,  and  the  defend- 
ant's  counsel  excepted.  The  broad  ground  was  taken  at  the  trial,  and 
boldly  maintained  on  the  argument  of  this  appeal,  that  the  manufacture 
or  sa.e  of  any  oleaginous  compound,  however  pure  and  wholesome,  as 
an  article  of  food,  if  it  is  designed  to  take  the  place  of  dairy  butter,  is 
by  this  act  made  a  crime.  The  result  of  the  argument  is  that  if,  in 
the  progress  of  science,  a  process  is  discovered  of  preparing  beef 
tallow,  lard,  or  any  other  oleaginous  substance,  and  communicating 
to  it  a  palatable  flavor  so  as  to  render  it  serviceable  as  a  substitute 
for  dairy  butter,  and  equally  nutritious  and  valuable,  and  the  article 
can  be  produced  at  a  comparatively  small  cost,  which  will  place  it 
within  the  reach  of  those  who  cannot  afford  to  buy  dairy  butter,  the 
ban  of  this  statute  is  upon  it.  Whoever  engages  in  the  business  of 
manufacturing  or  selling  the  prohibited  product  is  guilty  of  a  crime  ; 
the  industry  must  be  suppressed  ;  those  who  could  make  a  livelihood 


634  PEOPLE  V.   MARX.  [cHAP.  IV. 

by  it  are  deprived  of  that  privilege,  tlic  capital  invested  in  the  busi- 
ness must  be  sacrificed,  and  sucli  of  the  people  of  the  State  as  cannot 
afford  to  buy  dairv  butter  must  eat  their  bread  unbuttered. 

The  references  which  have  been  here  made  to  the  testimony'  on  the 
trial  are  not  with  the  view  of  instituting  any  comparison  between  the 
relative  merits  of  oleomargarine  and  d:iir\-  butter,  but  rather  as  illus- 
trative of  the  character  and  effect  of  the  statute  whose  validity  is  in 
question.  The  indictment  upon  which  the  defendant  was  convicted 
does  not  mention  oleomargarine,  neither  does  the  section  (§  6)  of  the 
statute,  altliough  the  article  is  mentioned  in  other  statutes,  which  will 
be  referred  to.  All  the  witnesses  who  have  testified  as  to  the  qualities 
of  oleomargarine  ma}'  be  in  error,  still  that  would  not  change  a  par- 
ticle the  nature  of  the  question,  or  the  principles  by  which  the  validity 
of  the  act  is  to  be  tested.  Section  G  is  broad  enough  in  its  terms  to 
embrace  not  only  oleomargarine,  but  any  other  compound,  however 
wholesome,  valuable,  or  cheap,  which  has  been  or  may  be  discovered 
or  devised  for  the  purpose  of  being  used  as  a  substitute  for  butter. 
Every  such  product  is  rigidl>'  excluded  from  manufacture  or  sale  in 
this  State. 

One  of  the  learned  judges  who  delivered  opinions  at  the  General 
Term  endeavored  to  sustain  the  Act  on  the  ground  that  it  was  intended 
to  prohibit  the  sale  of  an}-  artificial  compound,  as  genuine  butter  or 
cheese  made  from  unadulterated  milk  or  cream.  That  it  was  that 
design  to  deceive  which  the  law  rendered  criminal.  If  that  were  a 
correct  interpretation  of  the  Act,  we  should  concur  with  the  learned 
judge  in  his  conclusion  as  to  its  validity,  but  we  could  not  concur  in 
his  further  view  that  such  an  offence  was  charged  in  the  indictment, 
or  proved  upon  the  trial.  The  express  concessions  of  the  prosecuting 
officer  are  to  the  contrary.  We  do  not  think  that  section  6  is  capable 
of  the  construction  claimed.  The  prohibition  is  not  of  the  manu- 
facture or  sale  of  an  article  designed  as  an  imitation  of  dairy  butter 
or  cheese,  or  intended  to  be  passed  off  as  such,  but  of  an  article 
designed  to  take  the  place  of  dairy  butter  or  cheese.  The  artificial 
product  might  be  green,  red,  or  white  instead  of  yellow,  and  totally 
dissimilar  in  appearance  to  ordinary  dairy  butter,  yet  it  might  be  de- 
signed as  a  substitute  for  butter,  and  if  so,  would  fall  within  the  pro- 
hibition, of  the  statute.  Simulation  of  butter  is  not  the  act  prohib- 
ited.  There  are  other  statutory  provisions  fully  covering  that  subject. 
Chapter  215  of  the  Laws  of  1882,  entitled  "An  Act  to  regulate  the 
Manufacture  and  Sale  of  Oleomargarine,  or  any  Form  of  Imitation 
Butter  and  Lard,  or  any  Form  of  Imitation  Cheese,  for  the  Prevention 
of  Fraud,  and  the  Better  Protection  of  the  Public  Health,"  by  its  first 
section  prohibits  the  introduction  of  any  substance  into  imitation  butter 
or  cheese  for  the  purpose  of  imparting  thereto  a  color  resembling  that 
of  yellow  butter  or  cheese.  The  second  section  prohibits  the  sale  of 
oleomargarine  or  imitation  butter  thus  colored,  and  the  third  section 
prohibits  the  sale  of  any  article  in  semblance  of  natural  cheese,  not  the 


CHAP.  IV.]  PEOPLE   V.    MAKX.  635 

legitimate  product  of  the  dairy,  unless  plainly  marked"  imitation  cheese." 
Chapter  238  of  the  Laws  of  1882  is  entitled  "  An  Act  for  the  Protec- 
tion of  Dairymen,  and  to  prevent  Deception  in  the  Sales  of  Butter  and 
Cheese,"  and  provides  (§1)  that  every  person  who  shall  manufacture 
for  sale,  or  offer  for  sale,  or  export  any  article  in  semblance  of  butter 
or  cheese,  not  the  legitimate  product  of  the  dairy,  must  distinctly  and 
durably  stamp  on  the  side  of  every  cheese,  and  on  the  top  and  side  of 
every  tub,  firkin,  or  package,  the  words  "oleomargarine  butter,"  or  if 
containing  cheese,  "  imitation  cheese,"  and  chapter  246  of  the  Laws 
of  1882,  entitled  "  An  Act  to  prevent  Fraud  in  the  sale  of  Oleomarga- 
rine, Butterine,  Suine,  or  other  Substance  not  Batter,"  makes  it  a  mis- 
demeanor to  sell  at  wholesale  or  retail  any  of  the  above  articles 
representing  them  to  be  butter.  These  enactments  seem  to  cover  the 
entire  subject  of  fraudulent  imitations  of  butter,  and  of  sales  of  other 
compounds  as  dairy  products,  and  they  are  not  repealed  by  the  Act  of 

1884,  although  that  Act  contains  an  express  repeal  of  nine  other 
statutes,  eight  of  which  are  directed  against  impure  or  adulterated 
dairy  products,  and  one  against  the  use  of  certain  coloring  matter  in 
oleomargarine.  Tlie  provisions  of  this  last  Act  are  covered  by  one  of 
the  Acts  of  18S2  above  cited,  and  the  provisions  of  the  repealed  Acts 
in  relation  to  dairy  products  are  covered  by  substituted  provisions  in 
the  Act  of  1884,  but  the  statutes  directed  against  fraudulent  simula- 
tions of  butter,  and  the  sale  of  any  such  simulations  as  dairy  butter, 
are  left  to  stand.     Further  statutes  to  the  same  effect  were  enacted  in 

1885.  Consequently,   if    the   provisions  of  section   6  should   be   held 
invalid,  there  would  stiTTT^T ample  piotection  in  the  statutes  against 
fraudulent"  imitations^'of  dairy  butter,  or  sales  of  such  imitations  asj 
geniune. 

It  appears  to  us  quite  clear  that  the  object  and  effect  of  the  enact- 
ment under  consideration  w^ere  not  to  supplement  the  existing  pro- 
visions against  fraud  and  deception  by  means  of  imitations  of  dairy 
butter,  but  to  take  a  further  and  bolder  step,  and  by  al)solutely  pro- 
hibiting the  manufacture  or  sale  of  any  article  which  could  be  used 
as  a  substitute  for  it,  however  openly  and  fairly  the  character  of  the 
substitute  might  be  avowed  and  published,  to  drive  the  substituted 
article  from  the  market,  and  protect  those  engaged  in  the  manufac- 
ture of  dairy  products,  against  the  competition  of  cheaper  substances, 
capable  of  being  applied  to  the  same  uses,  as  articles  of  food. 

The  learned  counsel  for  the  respondent  frankly  meets  this  view,  and 
claims  in  his  points,  as  he  did  orally  upon  the  argument,  that  even  if 
it  were  certain  that  the  sole  object  of  the  enactment  was  to  protect 
the  dairy  industry  in  this  State  against  the  substitution  of  a  cheaper 
article  made  from  cheaper  materials,  this  would  not  be  beyond  the 
power  of  the  legislature.  This  we  think  is  the  real  question  presented 
in  the  case.  Conceding  that  the  only  limits  upon  the  legislative  power 
of  the  State  are  those  imposed  by  the  State  Constitution  and  that  of 
the  United  States,  we  are  called  upon    to  determine  whether  or  not 


(^36  PKOI'LE    V.    MARX.  [CHAP.  IV, 

those  limits   are  transgfesscd    by   an   enactment  of  this  description. 
These  limitations  upon  legislative  power  are  necessarily  very  general 
in  their  terms,  but  are  at  the  same  time   very  comprehensive.     The 
Constitution    of  the  State   provides  (art.   1,  §  1),  that  no  member  of 
this  State  shall  be  disfranchised,  or  deprived  of  any  of  the  rights  and 
privileges  secured  to  any  citizen  thereof,  unless  by  the  law  of  the  land, 
or  the  judgment  of  his  peers.     Section  6  of  article  1  provides  that  no 
person  shall  be  deprived  of  life,  liberty,  or  property,  without  due  pro- 
cess of  law.     And  the  Fourteenth  Amendment  to  the  Constitution  of 
the  United  States  provides  that  ''  no  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States,  nor  shall  any  State  deprive  any  person  of  life,  liberty, 
or   property,   without  due    process   of  law,   nor   deny  to   any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws."     These  con- 
stitutional safeguards  have   been  so    thoroughly  discussed  in    recent 
cases  that  it  would  be  superfluous  to  do  more  than  refer  to  the  con- 
clusions which  have  been    reached,  bearing    upon    the   question    now 
under  consideration.     Among  these  no  proposition  is  now  more  firmly 
settled  than  that  it  is  one  of  the  fundamental  rights  and  privileges  of 
every  American  citizen  to  adopt  and  follow  such  lawful  i ndustrial  pur- 
suit, not  injurious, to  the  community,  as  he  may  see  fit.     Lice- Stock 
Ass'n  V.  The  Crescent  City,  etc.  1  Abb.  [U.S.]  398  ;   Slcnighter-Hoiise 
Cases,  16  Wall.  lOG  ;    Corfiekl  v.  Coryell,  4  Wash.  C.  C.  380;  Matter 
of  Jacobs,  98  N.  Y.  98.     The  term  "  liberty,"  as  protected  by  the 
Constitution,  is  not  cramped  into  a  m-ere  freedom   from  physical  re- 
straint of  the  person  of  the  citizen,  as  by  incarceration,  but  is  deemed 
to  embrace  the  rigiit  of  man  to  be  free  in  the  enjoyment  of  the  faculties 
with  which  he  has  been  endowed  by  his  Creator,  subject  only  to  such 
restraints  as  are  necessary  for  the  common  welfare.     In  the  language 
of  Andrews,  J.,   in   Bertholfw  O'Reilly,  74  N.  Y.  515,  the   right  to 
liberty  embraces  the  right  of  man  "  to  exercise  his  faculties  and  to 
follow  a  lawful  avocation  for  the  support  of  life,"  and  as  expressed 
by  Earl,  J.,  in  In  re  Jacobs,   "one  may  be  deprived  of  his  liberty, 
and  his  constitutional  right  thereto  violated,   without  the  actual  re- 
straint of  his  person.     Liberty  in  its  broad  sense,   as   understood  in 
this  country,   means  the  right  not  only  of  freedom    from   servitude, 
imprisonment,  or  restraint,  but  the  right  of  one  to  use  his  faculties 
in  all  lawful  ways,  to  live  and  work  where  he  will,  to  earn  his  live- 
lihood   in   any   lawful   calling,    and   to   pursue    any   lawful   trade   or 
avocation." 

[who  will  have  the  temerity  to  say  that  these  constitutional  princU 
plesare  not  violated  bv  an  enactment  which  absolutely  prohibits  an 
important  branch  of  industry  for  the  sole  reason  that  it  competes 
with  another,  and  may  reduce  the  price  of  an  article  of  food  for  the 
human   raoe?l 

Measures  <5r  this  kind  are  dangerous  even  to  their  promoters.     If 
the  argument  of  the  respondent  in  support  of  the  absolute  power  of 


CHAP.  IV.]  POWELL  V,   PENNSYLVANIA.  637 

the  legislature  to  prohibit  one  branch  of  industry  for  the  purpose  of 
protecting  another  with  which  it  competes  can  be  sustained,  why  could 
not  the  oleomargarine  manufacturers,  should  the}'  obtain  sufficient 
power  to  influence  or  control  the  legislative  councils,  prohibit  the 
manufacture  or  sale  of  dairy  products?  Would  arguments  then  be 
found  wanting  to  demonstrate  the  invalidity  under  the  Constitution 
of  such  an  act?  The  principle  is  the  same  in  both  cases.  The  num- 
bers engaged  upon  each  side  of  the  controversy  cannot  influence  the 
question  here.  Equal  rights  to  all  are  wluit  are  intended  to  be  secured 
bj'  the  establishment  of  constitutional  limits  to  legislative  power,  and 
impartial  tribunals  to  enforce  them. 

Illustrations  might  be  indefinitely  multiplied  of  the  evils  which 
would  result  from  legislation  which  should  exclude  one  class  of  citi- 
zens from  industries,  lawful  in  other  respects,  in  order  to  protect 
another  class  against  competition.  We  cannot  doubt  that  such  legis- 
lation is  violative  of  the  letter,  as  well  as  of  the  spirit  of  the  consti- 
tutional provisions  before  referred  to,  nor  that  such  is  the  character 
of  the  enactment  under  which  the  appellant  was  convicted. 

The  judgment  of  the  General  Term  and  of  the  Court  of  Sessions 
should  be  reversed. 

All  concur.  Judgment  reversed.^ 


POWELL   V.   PENNSYLVANIA. 
Supreme  Coukt  of  the  United  States.     1888. 
[127  (7.  S.  678.] 

The  case  is  stated  in  the  opinion. 

Mr.  D.  T.  Watson  and  Mr.  Lyman  D.  Gilbert^  for  plaintiff  in 
error.     Mr.  W.  B.  Rodgers  was  with  them  on  the  brief. 

Mr.  Wayne  MacVeagh,  for  defendant  in  error.  Mr.  A.  H.  Winter- 
steen  was  with  him  on  the  brief. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  writ  of  error  brings  up  for  review  a  judgment  of  the  Supreme 
Court  of  Pennsylvania,  sustaining  the  validity  of  a  statute  of  that 
Commonwealth  relating  to  the  manufacture  and  sale  of  what  is  com- 
monh'  called  oleomargarine  butter.  That  judgment,  the  plaintiff"  in 
error  contends,  denies  to  him  certain  rights  and  privileges  specialh' 
claimed  under  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States. 

By  Acts  of  the  General  Assemblj'  of  Penns3'lvania,  one  approved 
May  22,  1878,  and  entitled  "  An  Act  to  prevent  Deception  in  the  Sale  of 
Butter  and  Cheese,"  and  the  other  approved  May  24,  1883,  and  entitled 

1  And  so  People  v.  Gillson,  109  N.  Y.  389  (1888).  Compare  People  v.  Rosenberg,  138 
N.  Y.  410  (1893).  — Ed. 


638  POWMLL   V.    PENNSYLVANIA.  [CHAP.  IV. 

"An  Act  for  the  Protection  of  Dairymen,  and  xo  prevent  Deception  in 
Sales  of  Butter  and  Cheese,"  provision  was  made  for  the  stamping, 
branding,  or  marking,  in  a  prescribed  mode,  manufactured  articles  or 
substances  in  semblance  or  imitation  of  butter  or  cheese,  not  the  legiti- 
mate product  of  the  dairy,  and  not  made  exclusively  of  milk  or  cream, 
but  into  which  oil,  lard,  or  fat,  not  produced  from  milk  or  cream,  entered 
as  a  component  part,  or  into  which  melted  butter  or  any  oil  thereof  had 
been  introduced  to  take  the  place  of  cream.  Laws  of  Pennsylvania, 
1878,  p.  87  ;  1883,  p.  43. 

But  this  legislation,  we  presume,  failed  to  accomplish  the  objects  in- 
tended by  the  legislature.  For,  by  a  subsequent  Act,  approved  May  21, 
1885,  and  which  took  effect  July  1,  1885,  entitled  "An  Act  for  the 
Protection  of  the  Public  Health  and  to  prevent  Adulteration  of  Dairy 
Products  and  Fraud  in  the  Sale  thereof,"  Laws  of  Pennsylvania,  1885, 
p.  22,  No.  25,  it  was  provided,  among  other  things,  as  follows  : 

"Section  1.  That  no  person,  firm,  or  corporate  body  shall  manu- 
facture out  of  any  oleaginous  substance  or  any  compound  of  the  same, 
other  than  that  produced  from  unadulterated  milk  or  of  cream  from  the 
same,  any  article  designed  to  take  the  place  of  butter  or  cheese  produced 
from  pure  unadulterated  milk  or  cream  from  the  same,  or  of  any  imita- 
tion or  adulterated  butter  or  cheese,  nor  shall  sell  or  offer  for  sale,  or 
have  in  his,  her,  or  their  possession,  with  intent  to  sell  the  same,  as  an 
article  of  food. 

"  Section  2.  Fvery  sale  of  such  article  or  substance,  which  is  pro- 
hibited by  the  first  section  of  this  Act,  made  after  this  Act  shall  take 
effect,  is  hereby  declared  to  be  unlawful  and  void,  and  no  action  shall 
be  maintained  in  any  of  the  courts  in  this  State  to  recover  upon  any 
contract  for  the  sale  of  any  such  article  or  substance. 

"  Section  3.  Every  person,  company,  firm,  or  corporate  body  who 
shall  manufacture,  sell,  or  offer  or  expose  for  sale  or  have  in  his,  her, 
or  their  possession  with  intent  to  sell,  any  substance,  the  manufacture 
and  sale  of  which  is  prohibited  by  the  first  section  of  this  Act,  shall,  for 
every  such  offence,  forfeit  and  pay  the  sum  of  one  hundred  dollars, 
which  shall  be  recoverable  with  costs  by  any  person  suing  in  the  name 
of  the  Commonwealth  as  debts  of  like  amounts  are  bylaw  recoverable  ; 
one  half  of  which  sum,  when  so  recovered,  shall  be  paid  to  the  proper 
county  treasurer  for  the  use  of  the  county  in  which  suit  is  brought  and 
the  other  half  to  the  person  or  persons  at  whose  instance  such  a  suit 
shall  or  may  be  commenced  and  prosecuted  to  recovery. 

"  Section  4.  Every  person  who  violates  tlie  provisions  of  the  first 
section  of  this  Act,  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon 
conviction  shall  be  punished  by  a  fine  of  not  less  than  one  hundred  dol- 
lars, nor  more  than  three  hundred,  or  by  imprisonment  in  the  county 
jail  for  not  less  than  ten  nor  more  than  thirty  days,  or  both  such  fine 
and  imprisonment  for  the  first  oflTence,  and  imprisonment  for  one  year 
for  every  subsequent  offence." 

The  plaintiff  in  error  was  indicted,  under  the  last  statute,  in  the 


CHAP.  IV.]  POWELL   V.   PENNSYLVANIA.  639 

Court  of  Quarter  Sessions  of  the  Peace  in  Dauphin  County,  Pennsyl- 
vania. The  charge  in  the  first  count  of  the  indictment  is,  that  lie 
unlawfully  sold,  "  as  an  article  of  food,  two  cases,  containing  five  pounds 
each,  of  an  article  designed  to  talie  the  place  of  butter  produced  from 
pure,  unadulterated  milk  or  cream  from  nn\k,  the  said  article  so  sold, 
as  aforesaid,  being  an  article  manufactured  out  of  certain  oleaginous 
substances  and  compounds  of  the  same  other  than  that  produced  from 
unadulterated  milk  or  cream  from  milk,  and  said  article  so  sold,  as 
aforesaid,  being  an  imitation  butter."  In  the  second  count  the  charge 
is  that  he  unlawfully  had  in  his  possession,  "with  intent  to  sell  the 
same,  as  an  article  of  food,  a  quantity,  viz.,  one  hundred  pounds,  of 
imitation  butter,  designed  to  take  the  place  of  butter  produced  from 
pure,  unadulterated  milk  or  cream  from  the  same,  manufactured  out  of 
certain  oleaginous  substances,  or  compounds  of  the  same  other  than 
that  produced  fi-om  milk  or  cream  from  the  same." 

It  was  agreed,  for  the  purposes  of  the  trial,  that  the  defendant,  on 
July  10,  1885,  in  the  city  of  Harrisburg,  sold  to  the  prosecuting  witness, 
as  an  article  of  food,  two  original  packages  of  the  kind  described  in  the 
first  count ;  that  such  packages  were  sold  and  bought  as  butterine,  and 
not  as  butter  produced  from  pure,  unadulterated  milk  or  cream  from 
unadulterated  milk  ;  and  that  each  of  said  packages  was,  at  the  time  of 
sale,  marked  with  the  words,  "  Oleomargarine  Butter,"  upon  the  lid 
and  side  in  a  straight  line,  in  Roman  letters  half  an  inch  long. 

It  was  also  agreed  that  the  defendant  had  in  his  possession  one  hun- 
dred pounds  of  the  same  article,  with  intent  to  sell  it  as  an  article  of 
food. 

This  was  the  case  made  by  the  Commonwealth. 

The  defendant  then  offered  to  prove  by  Prof.  Hugo  Blanck  that  he 
saw  manufactured  the  article  sold  to  the  prosecuting  witness  ;  that  it 
was  made  from  pure  animal  fats  ;  that  the  process  of  manufacture  was 
clean  and  wholesome,  the  article  containing  the  same  elements  as  dairy 
butter,  the  only  difference  between  them  being  that  the  manufactured 
article  contained  a  smaller  proportion  of  the  fatty  substance  known  as 
butterine  ;  that  this  butterine  existed  in  dairy  butter  in  the  proportion 
of  from  three  to  seven  per  cent,  and  in  the  manufactured  article  in  a 
smaller  proportion,  and  was  increased  in  the  latter  by  the  introduction 
of  milk  and  cream  ;  that  this  having  been  done,  the  article  contained 
all  the  elements  of  butter  produced  from  pure  unadulterated  milk  or 
cream  from  the  same  except  that  tiie  percentage  of  butterine  was  slightly 
smaller  ;  that  the  only  effect  of  butterine  was  to  give  flavor  to  the  butter 
and  tliat  it  had  nothing  to  do  with  its  wholesomeness ;  that  the  oleagi- 
nous substances  in  the  manufactured  article  were  substantially  identical 
with  those  produced  from  milk  or  cream  ;  and  that  the  article  sold  to 
the  prosecuting  witness  was  a  wholesome  and  nutritious  article  of  food, 
in  all  respects  as  wholesome  as  butter  produced  from  pure  unadulterated 
milk  or  cream  from  unadulterated  milk. 

The  defendant  nlso  offered  to  prove  that  he  was  engaged  in  the  gro- 
cery and  provision  business  in  the  city  of  Harrisburg,  and  that  the 


640  POWELL   V.    PENNSYLVANIA.  [cHaP.  IV. 

article  sold  by  him  was  part  of  a  large  and  valuable  quantit}-  manufac- 
tured prior  to  the  21st  of  May,  1885,  in  accordance  with  the  laws  of  this 
Commonwealth  relating  to  the  manufacture  and  sale  of  said  article,  and 
so  sold  by  him ;  that  for  the  purpose  of  prosecuting  that  business  large 
investments  were  made  by  him  in  the  purchase  of  suitable  real  estate, 
in  the  erection  of  i)roper  buildings,  and  in  the  purchase  of  the  necessaiy 
machinery  and  ingredients ;  that  in  his  traffic  in  said  aiticle  he  made 
large  profits ;  and,  if  prevented  from  continuing  it,  the  value  of  his 
property  employed  therein  would  be  entirely  lost,  and  he  be  deprived 
of  the  means  of  livelihood. 

To  each  offer  the  Commonwealth  objected  upon  the  ground  that  the 
evidence  proposed  to  be  introduced  was  immaterial  and  irrelevant. 

The  purpose  of  these  offers  of  proof  was  avowed  to  be  :  (1)  To  show 
that  the  article  sold  was  a  new  invention,  not  an  adulteration  of  dair}' 
products,  nor  injurious  to  the  public  health,  but  wholesome  and  nutri- 
tious as  an  article  of  food,  and  that  its  manufacture  and  sale  were  in 
conformity  to  the  Acts  of  May  22,  1878,  and  May  24,  1883.  (2)  To 
sliow  that  the  statute  upon  which  the  prosecution  was  founded,  was 
unconstitutional,  as  not  a  lawful  exercise  of  police  power,  and,  also, 
because  it  deprived  tlie  defendant  of  the  lawful  use  "  of  his  property, 
liberty,  and  faculties,  and  destroys  his  property  without  making  com- 
pensation." 

The  court  sustained  the  objection  to  each  offer,  and  excluded  the 
evidence.     An  exception  to  that  ruling  was  duly  taken  by  the  defendant. 

A  verdict  of  guilty  having  been  returned,  and  motions  in  arrest  of 
judgment  and  for  a  new  trial  having  been  overruled,  the  defendant  was 
adjudged  to  pay  a  fine  of  one  hundred  dollars  and  costs  of  prosecution, 
or  give  bail  to  pay  the  same  in  ten  days,  and  be  in  custody  until  the 
judgment  was  performed.  That  judgment  was  aflSrmed  by  the  Supreme 
Court  of  the  State.     114  Penn.  St.  265. 

This  case,  in  its  important  aspects,  is  governed  by  the  principles 
announced  in  Mugler  v.  Kansas,  123  U.  S.  623. 

It  is  immaterial  to  inquire  whether  the  acts  with  which  the  defendant 
is  charged  were  authorized  by  the  statute  of  May  22,  1878,  or  by  that 
of  May  24,  1883.  The  present  prosecution  is  founded  upon  the  statute 
of  ]May  21,  1885  ;  and  if  that  statute  be  not  in  conflict  with  the  Consti- 
tution of  the  United  States,  the  judgment  of  the  Supreme  Court  of 
Pennsylvania  must  be  affirmed. 

It  is  contended  that  the  last  statute  is  void  in  that  it  deprives  all 
coming  within  its  provisions  of  rights  of  liberty  and  propert}-  without 
due  process  of  law,  and  denies  to  them  the  equal  protection  of  the  laws  ; 
rights  which  are  secured  by  the  Fourteenth  Amendment  to  the  Consti- 
tution of  the  United  States. 

It  is  scarcely  necessary  to  say  that  if  this  statute  is  a  legitimate  exer- 
cise of  the  police  power  of  the  State  for  the  protection  of  the  health  of 
the  people,  and  for  the  prevention  of  fraud,  it  is  not  inconsistent  with 
tliat  amendment;  for  it  is  the  settled  doctrine  of  this  court  that,  as 
govc-i-nment  is  organized  for  the  purpose,  among  others,  of  preserving 


CHAP.  IV.]  POWELL   V.   PENNSYLVANIA.  641 

the  public  health  and  the  public  morals^  it  cannot  divest  itself  of  the 
power  to  provide  for  those  objects  ;  and  that  the  Fourteenth  Amend- 
ment was  not  designed  to  interfere  with  the  exercise  of  that  power  by 
the  States^  'Mugler  \.  Kansas,  123  U.  S.  663;  Butchers''  Union  Co. 
V.  Crescent  City  Co..,  Ill  U.  S.  746,  751  ;  Barbier  v.  Connolly.,  113 
U.  S.  27;    Yick  Wo  v.  Hopkins,  118  U.  S.  356. 

The  question,  therefore,  is  whether  the  prohibition  of  the  manufacture 
out  of  oleaginous  substances,  or  outof  any  compound  thereof  other  than 
that  produced  from  unadulterated  milk  or  cream  from  unadulterated 
milk,  of  an  article  designed  to  take  the  place  of  butter  or  cheese  pro- 
duced from  pure  unadulterated  milk  or  cream  from  unadulterated  milk, 
or  the  prohibition  upon  the  manufacture  of  an}'  imitation  or  adulterated 
butter  or  cheese,  or  upon  the  selUng  or  offering  for  sale,  or  having  in 
possession  with  intent  to  sell,  the  same,  as  an  article  of  food,  is  a  law- 
ful exercise  by  the  State  of  the  power  to  protect,  by  police  regulations, 
the  public  health. 

The  main  proposition  advanced  by  the  defendant  is  that  his  enjoy- 
ment upon  terms  of  equalit}'  with  all  others  in  similar  circumstances  of 
thi3  privilege  of  pursuing  an  ordinary  calling  or  trade,  and  of  acquiring, 
holding,  and  selling  property,  is  an  essential  part  of  his  rights  of  liberty 
and  property,  as  guaranteed  by  the  Fourteenth  Amendment.  The  court 
assents  to  this  general  proposition  as  embodying  a  sound  principle  of 
constitutional  law.  But  it  cannot_ad judge  that  the  defendant's  rights 
of  liberty  and  property,  as  thus  defined,  have  been  infringed  by  the 
statute  of  Pennsylvania,  without  holding  that,  although  it  may  have 
been  enacted  in  good  faith  for  the  objects  expressed  in  its  title,  namely, 
to  protect  the  i)ublic  health  and  to  prevent  the  adulteration  of  dairy 
products  and  fraud  in  the  sale  thereof,  it  has,  in  fact,  no  real  or  sub- 
stantial relation  to  those  objects.  Muyler  v.  Kansas,  123  U.  S.  623, 
661.  The  court  is  unable  to  affirm  that  this  legislation  has  no  real  or 
substantial  relation  to  such  objects. 

TTwill  be  observed  that  the  offer  in  the  court  below  was  to  show  by 
proof  that  the  particular  articles  the  defendant  sold,  and  those  in  his 
possession  for  sale,  in  violation  of  the  statute,  were,  in  fact,  wholesome 
or  nutritious  articles  of  food.  It^s_cntirelv  consistent  with  lhaL-Q.6xir 
that  many,  indeed,  that  most  kinds  of  oleomargnrir*^  hnHpr  \n  thp 
market  contain  ingredients  that  are  or  may  bet^omp  I'njnrj/^ns  to  hf^lth 
The  court  cannot  say,  from  anything  of  which  it  mny  take  judicial  cog- 
nizance, that  such  is  not  the  fact.  Under  the  circumstances  disclosed 
in  the  record,  and  in  obedience  'to~"s5ttted-4ailesof  constitutional  con- 
struction, it  must  be  assumed  that  such  is  thefactT'-^J^very  possible 
presumption,"  Chief  Justice  Waite  said,  speaking  for  the  cotiryn,SJnk- 
ing  Fund  Cases,  99  tJ.  S.  7U0,  VIH,  ^^  is  in"  favor  of  the  validity  of_a 
statute,  and  this  continues  until  the  contrary  is  shown  beyond  a  ration.<il 
doubt.  Une  brancti  ot  the  government  cannot  encroach  on  the  domain 
of  another  without  danger.  The  safety  of  our  institutions  depends  in  no 
small  degree  on  a  strict  observance  of  this  salutary  rule."  See,  also, 
VOL.  1   — 41 


642  POWELL   V.    PENNSYLVANIA.  [CHAP.  IV, 

Fletcher  v.  Peck,  6  Crancb,  87, 128  ;  Dartmouth  College  v.  Woodward, 
4  Wheat.  518,  625  ;  Licingston  v.  Darlington,  101  U.  S.  407. 

nVhetber  the  manufactiiie  of  oleomarojaniig^,  or  imitation  butter,  of 
the  kind  described  in  the  statute,  is,  or  may  be>eQnducted  in  sucli  a 
way,  or  with  such  skill  and  secrecy,  as  to  baffle  ordina^pwisijection,  or 
whether  it  involves  such  danger  to  thejJubUc  health  as  to  rP(r^^T>V.fv>'' 
tbc  protection  of  the  peopje,  tl'p  entii-p  suppression  of  the  business, 
ratlier  than  its  regulatimrlTi  sucli  manner  as  to  permit  the  manufacture 
and  sale  of^rtitiTeTof  that  class  that  do  not  contain  noxious  ingredients, 
ajifirfflTeltions  of  fact  and  of  ))ublic  policy  which  belong  to  the  legislative 
department  to  determine.  And  asj^does  not^appear  upon  the  face_af 
the  statute,  or  from  any  facts  ofwhicli  'the"~court  musttake  Judicial 

cognizance,  thnt  it.  ii^fi-inges  rjglits!  sPfiii-pd   by  t.hp  fnndamenffll  Inw,  tlie 

legislative  determination  of  tliose  questions  is  conclusive  upon  the  courtsj 
It  IS  not  a  part  of  their  functions  to  conduct  investigations  of  fac^ 
entering  into  questions  of  public  policy  merely,  and  to  sustain  or  frus- 
trate the  legislative  will,  embodied  in  statutes,  as  they  may  happen  to 
approve  or  disapprove  its  determination  of  such  questions.  The  power 
which  the  legislature  has  to  promote  the  general  welfare  is  very  great, 
and  the  discretion  which  that  department  of  the  government  has,  in  the 
employment  of  means  to  that  end,  is  very  large.  While  both  its  power 
and  its  discretion  must  be  so  exercised  as  not  to  impair  the  fundamental 
rights  of  life,  liberty,  and  property  ;  and  while,  according  to  the  prin- 
ciples upon  which  our  institutions  rest,  "  the  very  idea  that  one  man 
may  be  compelled  to  hold  his  life,  or  the  means  of  living,  or  any  material 
right  essential  to  the  enjoyment  of  life,  at  the  mere  M'ill  of  another, 
seems  to  be  intolerable  in  any  country  where  freedom  prevails,  as  being 
the  essence  of  slavery  itself;"  yet,  "in  many  cases  of  mere  adminis- 
tration, the  responsiliility  is  purely  political,  no  appeal  lying  except  to 
the  ultimate  tril)unal  of  the  public  judgment,  exercised  either  in  the 
pressure  of  public  opinion  or  b}-  means  of  the  suffrage."  Yick  Wo  v. 
Ifopki?is,  118  U.  S.  370.  The  case  before  us  belongs  to  the  latter  class. 
The  Legislature  of  Pennsylvania,  upon  the  fullest  investigation,  as  we 
must  conclusively  presume,  and  upon  reasonable  grounds,  as  must  be 
assumed  from  the  record,  has  determined  that  the  prohibition  of  the 
sale,  or  offering  for  sale,  or  having  in  possession  to  sell,  for  purposes  of 
food,  of  any  article  manufactured  out  of  oleaginous  substances  or  com- 
pounds other  than  those  produced  from  unadulterated  milk  or  cream 
from  unadulterated  milk,  to  take  the  place  of  butter  produced  from  un- 
adulterated milk  or  cream  from  unadulterated  milk,  will  promote  the 
public  health,  and  prevent  frauds  in  the  sale  of  such  articles.  If  all  that 
can  be  said  of  this  legislation  is  that  it  is  unwise,  or  unnecessarily 
oppressive  to  tliose  manufacturing  or  selling  wholesome  oleomargarijTe, 
nsjjnTi  rt^tMeofjOod .  their  fippenl  must  be  to  the  legislature,  or  to_the 
ballot-box,  jTOt_tQ  thp  jndioiary.  The  Inttpy  cannot  interfere  without 
usurping  powers  compiitt^rl  tr>  pnnthpr  dppnrtTTient  of  government. 
It  is  argued,  in  behalf  of  the  defendant,  that  if  the  statute  in  question 


CHAP.  IV.]  POWELL   V.   PENNSYLVANIA.  643 

is  sustained  as  a  valid  exercise  of  legislative  power,  then  nothing  stands 
in  the  wa}*  of  the  destruction  b}-  the  legislative  department  of  the  con- 
stitutional guarantees  of  liberty  and  property-.  But  the  possibilitjiJlL 
the  abuse  of  legislative  power  does  not  disprove  its  existence.  That 
possibility  exists  even  in  reference  to  powers  that  are  conceded  to  exist. 
Besides,  the  judiciary  department  is  bound  not  to  give  effect  to  statutory' 
enactments  that  are  plainly  forbidden  by  the  Constitution.  This  duty, 
the  court  has  said,  is  always  one  of  extreme  delicacy  ;  for,  apart  from 
the  necessity  of  avoiding  conflicts  between  co  ordinate  branches  of  the 
government,  whether  State  or  national,  it  is  often  difficult  to  determine 
whether  such  enactments  are  within  the  powers  granted  to  or  possessed 
b}'  the  legislature.  Nevertheless,  if  the  incompatibility  of  the  Constitu- 
tion and  the  statute  is  clear  or  palpable,  the  courts  must  give  effect  to 
the  former.  And  such  would  b^tbe  duty  of  the  court  if  the  State  legis- 
lature, under  the  pretence_of_g.uardi_ng  the  public  health,  the  public 
morals,  or  the  public_saMy:»_slioiilrl  invade  thft_j:ights  of  life,  liberty,  or 
property roi^ther~rjghts,  secured  by  the  suprenie  law  of  the  land. 

The  objection  that  the  statute  is  repugnant  to  the  clause  of  the  Four- 
teenth  Amendment  forbidding  the  denial  by  the  State  to  any  person 
within  its  jurisdiction  of  the  equal  protection  of  the  laws,  is  untenable. 
The  statute  places  under  the  same  restrictions,  and  sul^ectstolike 
penalties  and  burdens,  all  who  manufacture,  or~seli,  or  offer  for  sale,  or 
keep  in  possessToifto  sell,  the  articles  embraced  b}'  its  pi;ohibitions ; 
thus  recognizilTg~ajicLj2i:ei£mii^^p  prinriplp  of^fj^^iality  among  those 
engaged  in  the  same  business.  JBarbier  v.  Connolly,  113  U.  S.  27; 
Soon  Hing  v7  Croviley,  113  U.  S.  703  ;  Missouri  Pacific  Railway  Co. 
V.  Humes,  11.5  U.  S.  512,  519. 

It  is  also  contended  that  the  Act  of  May  21,  1885,  is  in  conflict  with 
the  Fourteenth  Amendment  in  that  it  deprives  the  defendant  of  his 
propert}'  without  that  compensation  required  by  law.  This  contention 
is  without  merit,  as  was  held  in  3Iugler  v.  Kansas. 

Upon  the  whole  case,  we  are  of  opinion  that  there  is  no  error  in  the 
judgment,  and  it  is,  therefore,  Affirmed."^ 

[Field,  J.  gave  a  dissenting  opinion  in  the  course  of  which  he  said : 
"  Two  questions  are  thus  distinctly'  presented  :  first,  whether  a  State 
can  lawfull}'  prohibit  the  manufacture  of  a  healthy  and  nutritious  article 
of  food  designed  to  take  the  place  of  butter,  out  of  an}'  oleaginous  sub- 
stance, or  compound  of  the  same,  other  than  that  produced  from  pure 
milk  or  cream,  and  its  sale  when  manufactured  ?  and,  second,  whether 
a  State  can,  without  compensation  to  the  owner,  prohibit  the  sale  of  an 
article  of  food,  in  itself  healthy  and  nutritious,  which  has  been  manu- 
factured in  accordance  with  its  laws  ? 

"  These  questions  are  not  presented  in  the  opinion  of  the  court  as 
nakedly  and  broadly  as  here  stated,  but  they  nevertheless  truly  indicate 
the  precise  points  involved,  and  nothing  else.  .  .  . 

1  See  Weidemnn  v.  The  State,  56  N.  W.  Rep.  688  (Minn.  1893).— Ed. 


644  POWELL   V.    PENNSYLVANIA.  [CHAP.  IV. 

*'  It  is  the  clause  [of  the  Fourteenth  Amendment]  declaring  that  no 
State  shall  '  deprive  any  person  of  life,  liberty,  or  propeity  without  due 
process  of  law,'  which  applies  to  the  present  case.  This  provision  is  found 
in  the  constitutions  of  nearly  all  the  States,  and  was  designed  to  prevent 
the  arbitraiy  deprivation  of  life  and  liberty,  and  the  arbitrary  spoliation 
of  property.  As  I  said  on  a  former  occasion,  it  means  that  neither  can 
be  taken,  or  the  enjoyment  thereof  impaired,  except  in  the  course  of  the 
regular  administration  of  the  law  in  tlie  established  tribunals.  It  has 
always  been  supposed  to  secure  to  every  person  the  essential  conditions 
for  the  pursuit  of  happiness,  and  is  therefore  not  to  be  construed  in  a 
narrow  or  restricted  sense.     Mx parte  Virginia,  100  U.  S.  339,  3G6. 

"  By  '  liberty,'  as  thus  used,  is  meant  something  more  than  freedom 
from  ph3sical  restraint  or  imprisonment.  It  means  freedom  not  merely 
to  go  wherever  one  may  choose,  but  to  do  such  acts  as  he  may  judge 
best  for  his  interest  not  inconsistent  with  the  equal  rights  of  others  ; 
that  is,  to  follow  such  pursuits  as  may  be  best  adapted  to  his  faculties, 
and  which  will  give  to  him  the  higliest  enjoyment.  As  said  b^'  the  Court 
of  Appeals  of  New  Yoik,  in  People  v.  Marx,  'the  term  "  libertv,"  as 
protected  by  the  Constitution,  is  not  cramped  into  a  mere  freedom  from 
physical  restraint  of  the  person  of  the  citizen,  as  by  incarceration,  but 
is  deemed  to  embrace  the  right  of  man  to  be  free  in  the  enjoyment  of 
the  faculties  with  which  he  has  been  endowed  by  his  Creator,  subject 
on!}'  to  such  restraints  as  are  necessary  for  the  common  welfare,'  99 
N.  Y.  377,  386  ;  and  again,  In  the  Matter  of  Jacobs :  '  Liberty,  in  its 
broad  sense,  as  understood  in  this  country,  means  the  right  not  only  of 
freedom  from  actual  servitude,  imprisonment,  or  restraint,  but  the  right 
of  one  to  use  his  faculties,  in  all  lawful  ways,  to  live  and  work  where 
he  will,  to  earn  his  livelihood  in  any  lawful  calling,  and  to  pursue  any 
lawful  trade  or  vocation.'     98  N.  Y.  98. 

"  With  the  gift  of  life  there  necessarily  goes  to  ever}"  one  the  right  to 
do  all  such  acts,  and  follow  all  such  pursuits,  not  inconsistent  with  the 
equal  rights  of  others,  as  may  support  life  and  add  to  the  happiness  of 
its  possessor.  The  right  to  pursue  one's  happiness  is  placed  by  the 
Declaration  of  Independence  among  the  inalienable  rights  of  man,  with 
which  all  men  are  endowed,  not  by  the  grace  of  emperors  or  kings,  or 
by  force  of  legislative  or  constitutional  enactments,  but  by  their  Creator  ; 
and  to  secure  them,  not  to  grant  them,  governments  are  instituted 
among  men.   [The  rig;ht  to  procure  healthy  and  nutritious  food,  byjihidji 

life  mav  be  Drcservprl    nnd    pnjoypfl,     P"^    ^^    mnniifnctnvP    it,    i^;    nmnna 

these  inalienable  rights,  which,  in  my  judgment,  no  State  can  give  an(  1 
no  State  c--^"  t.^^kp  ?^wny  p-^^»p<-  in  puni'^llPl^n^  ^^''  t^rime. — Itjs iriiiahieil. 
inthe  right  to  pursue  one's  happineas!^    This  doctrine  is  happily  ex- 
pressed and  illustrated  in  People  v.   3farx,   cited   above,   where  the 
precise  question  here  was  presented."]  ^ 

^  "Our  American  constitutions  .  .  .  are  historical  instruments,  the  possessions  of  a 
people  with  a  legal  history  heginnuf^^jjot  with  the  Declaration  of  Independence,  but 
with  that  of  their  English  brethren.     TK^y^gre  not  the  beginning,  but  the  end :  lor 


CHAP.  IV.]  POWELL   V.    PENNSYLVANIA.  645 

tliey  represent  the  last  stage  in  a  series  of  chauges,  the  great  landmarks  of  which  are 
the  Ma^ia  (Jlfarta,  the  Petition  of  Kight,  t^he  Habeas  Corpus  Act,  and  the  Bill  of 
RightSj 

"  It  is  obvious,  therefore,  that  one  who  seeks  to  put  a  true  construction  on  any  part  of 
our  constitutions  must  have  a  constant  eye  to  its  history,  and  this  is  particularly  the 
case  wlien  one  is  dealing  with  a  clause  in  a  bill  of  rights,  because  an  American  bill  of 
rights  is  a  collection  of  words  and  clauses,  many  of  which  have  had  a  definite  meaning 
for  centuries.  It  may  be  true  that  if  our  constitutions  are  to  meet  all  the  requirements 
of  a  constantly  advancing  civilization,  they  must  receive  a  broad  and  progressive  inter- 
pretation. It  is  also  true  that  upon  no  legal  principle  can  an  interpretation  be 
supported,  which  ignores  the  meauiug  universally  accorded  to  a  word  or  clause  for 
centuries,  and  the  meaning  which  must,  therefore,  have  been  intended  by  those  who 
inserted  it  in  the  Constitution.  It  is  perhaps  well  to  bear  tliis  in  mind  at  a  time  when 
tiiere  is  a  manifest  tendency  to  regard  constitutional  prohibitions  as  a  panacea  for 
moral  and  political  evils,  to  look  upon  courts  of  law,  as  distinguished  from  legislatures, 
as  the  only  real  protectors  of  individual  rights,  and  to  trust  to  the  courts  for  remedies 
for  evils  resulting  entirely  from  a  failure  to  attend  to  political  duties, — at  a  time,  that 
is  to  say,  when  there  is  danger  of  loose  and  unhistorical  constitutional  interpre- 
tation. .  .  . 

"  It  may,  however,  he  contended  that  although  the  term  '  liberty '  is  not  used  in  the 
clauses  under  discussion  in  it.s  broadest  sense  to  include  all  the  rights  oneTias  in  a  body 
politic,  it  does  include  other  great  and  important  righ ts  besides  t hat  of _  persimal  liberty, 
as,  for  example,  religious  liberty,  liberty  of  speech  and  of  [tress,  lil)erty  to  Itear  arnjs, 
of  petition  and  discussion,  liberty  to  obtain  justice  in  the  courts,  and  many  othei'S,  all 
01  wincn  are  to-clay  regarded  as  funilamentnl  riglit:<;  ir^  f.hin  or,ul7\J^^  i  It  may  be  argued, 
in  other  words,  that  the  term  '  liberty  '  is  a  broader  one  than  the  ter^is  used  in  Magna 
Charta,  and  may  well  be  interpreted  to  include  other  rights  besides  that  of  personal 
freedom,  for  the  reason  that  it  was  probably  intended  so  to  do  by  the  fraihere  of  our 
constitutions.  There  are  several  answers  to  this  argument.  In  the  first  plae&sthe 
clauses  in  our  American  constitutions  are,  as  we  have  seen,  mere  copies  of  the  thirty- 
uiutli  article  of  Magna  Charta,  which  knows  nothingliFsuch  rights  as  the  above.  la 
tne  secoud  place,  the  term  -liBerty,'  while  it  was  not  ¥sed~in  the  thirty-ninth_axtkJe, 
was  used  in  its  present  connection  with  the  t&fms^'  life '  and  '  property  '  long  before 
the  framing  of  our  Aniericaii  fonsitil-nfinnt^^  ^tnd  when  so  iiseil  meant,  simply  personal 
liberty.  It  would,  therefore,  naturally  be  used  by  the  framers  of  our  constitutions  in 
that  sense.  To  establish  this  it  is  only  necessary  to  refer  to  Blackstone.  In  one  place 
Blackstone  remarks  :  '  The  Great  Charter  protected  every  individual  of  the  nation  in 
the  free  enjoyment  of  his  life,  liberty,  and  property  unless  declared  to  be  forfeited  by 
the  judgment  of  his  peers  or  the  law  of  the  land,'  referring,  of  course,  to  the  thirty- 
ninth  article.  In  anotlier  place  he  discusses  the  subject  more  at  length,  and  after  de- 
fining the  absolute  rights  of  individuals,  '  which  are  usually  called  their  liberties,'  to 
be  '  those  rights  which  are  so  in  their  primary  and  strictest  sense,  such  as  would  belong 
to  their  persons  merely  in  a  state  of  nature,  and  which  every  man  is  entitled  to  enjoy 
whether  out  of  society  or  in  it,'  he  goes  on  to  enumerate  them  :  '  These  rights  may 
be  reduced  to  three  principal  or  primary  articles :  the  right  of  personal  security ' 
(under  which  he  includes  life,  limb,  health,  and  reputation,  the  same  rights  which  Coke 
and  other  commentators  on  the  thirty-ninth  article  include  under  the  terms  '  aliquo 
modo  destruatur,'  and  which  may  fairly  be  included  under  the  term  'life'  in  our  con- 
stitutions), 'the  right  of  personal  liberty,  and  the  right  of  private  property,  because,  as 
there  is  no  other  known  method  of  compulsion  or  of  abridging  man's  natural  free  will 
but  by  an  infringement  of  one  or  the  other  of  these  important  rights,  the  preservation 
of  these,  inviolate,  may  justly  be  said  to  include  the  preservation  of  our  civil  immunities 
in  their  largest  and  most  extensive  sense.'     1  Bl.  Com's,  chapter  on  'Absolute  Rights 

^  See  Judge  Cooley's  discussion  of  the  Fourteenth  Amendment  in  the  Appendix  of 
his  edition  of  Story  on  the  Constitution.  See  also  his  discussion  of  "  Civil  Rights  "  in 
the  "  Principles  of  Constitutional  Law." 


G46  MISSOUKI   I'AC.    li'Y   CO.   V.   MACKEY.  [CHAP.  IV. 

In  3Iissouri  Fac.  R' y  Co.  v.  Mickey,  127  U.  S.  205  (1888).  In 
holding  valid  a  law  of  the  State  of  Kansas  which  made  railroad  coni- 
panies  responsible  to  their  servants  for  ngiuies  from  the  negligence  or 
misconduct  of  their  fellow-servants,  Mu.  Justice  Field,  for  the  court, 
said  :  "  The  objection  that  the  law  of  1874  deprives  the  railroad  com- 
panies of  the  equal  protection  of  the  laws  is  even  less  tenable  than  the 
one  considered.  It  seems  to  rest  upon  the  theory  that  legislation  which 
is  special  in  its  character  is  necessarih'  within  the  constitutional  inhibi- 
tion ;  but  nothing  can  be  further  from  the  fact.  The  greater  part  of  all 
legislation  is  special,  either  in  the  objects  sought  to  be  attained  by  it, 
or  in  the  extent  of  its  application.  Laws  for  the  improvement  of  muni- 
cipalities, the  opening  and  widening  of  particular  streets,  the  intro- 
duction of  water  and  gas,  and  other  arrangements  for  the  safety  and 
convenience  of  their  inhabitants,  and  laws  for  the  irrigation  and  drain- 
age of  particular  lands,  for  the  construction  of  levees  and  the  bridging 
of  navigable  rivers,  are  instances  of  this  kind.     Such  legislation  does 


of  Persous.'  Blackstone  defines  personal  liberty  to  be  the 'power  of  locomotion,  of 
chaugiug  situation,  or  moving  oue's  person  to  whatever  place  one's  inclination  may 
direct,  without  iniprisouinent  or  restraint,  unless  by  due  course  of  law,'  and  he  ob- 
serves that  it  is  perhaps  the  most  important  of  all  civil  rights.  He  means  by  personal 
liberty  simply  freedom  from  restraint  of  tiie  person.  It  is  instructive  to  note  that 
Blackstone,  in  discussing  eacii  '  absolute  '  right,  points  out  that  it  is  declared  and 
secured  by  the  famous  article  of  tiie  Cireat  Charter.  He  cites  the  words  'uullus  liber 
homo  aliquo  modo  destruatur '  as' the  constitutional  security  for  tiie  right  of  life  or 
personal  security ;  the  words  '  capiatur  vel  iniprisonetur  '  for  the  right  of  personal 
liberty,  and  the  words  '  dissaisiatur  de  libero  tenemcnto  '  for  the  right  of  private  prop- 
erty. It  is  evident,  tlierefore,  that  his  classification  of  fundamental  rights  under  the 
terms  '  life,'  '  liberty,'  and  '  property,'  like  that  of  all  other  commentators,  is  derived 
from  the  thirty -ninth  article.  It  is  evident,  also,  that  he  had  no  conception  of  religious 
liberty,  liberty  of  press  and  speech,  or  political  liberty  (meaning  thereby  the  right 
to  take  part  in  the  government,  e.r/.,  the  right  to  vote)  as  absolute  rights  of  individuals. 
They  are  not  mentioned  in  his  discussion  of  the  subject.  He  does,  indeed,  name  cer- 
tain other  important  individual  rights  besides  those  of  life,  personal  freedom,  and 
propertv,  such  as  the  right  of  petition,  of  securing  justice  in  the  courts,  and  of  bearing 
arms;  but  he  says  tliat  these  'serve  principally  as  networks  or  barriers  to  protect  and 
maintain  inviolate  the  tliree  great  and  primary  rigiits.' 

"  In  '  Care's  English  Liberties,' a  collection  of  important  English  charters  which 
had  a  wide  circulation  in  the  American  colonies,  the  fifth  edition  of  which  was  pub- 
lished in  Boston  in  1721,  we  find  the  same  classification  of  rights  in  the  same  terms, 
and  in  every  case  the  term  '  liberty '  is  explained  to  mean  freedom  of  the  person  from 
restraint.  For  example,  in  his  comment  on  the  Habeas  Corpus  Act,  the  author  says  : 
'There  are  three  things  which  the  law  of  England  (which  is  a  law  of  mercy)  princi- 
pallv  regards  and  taketh  care  of,  i-iz.,  life,  liberty,  and  estate.  Next  to  a  man's  life  the 
nearest  thing  that  concerns  him  is  freedom  of  his  person  ;  for  indeed,  what  is  imprison- 
ment but  a  kind  of  civil  deaSh  ?  Therefore,  saith  Fortescue,  cap  42,  the  laws  of  Eng- 
land do,  in  all  cases,  favor  liberty.  The  writ  of  habeas  coi-pus  is  a  remedy  given  by 
the  common  law,  for  such  as  were  unlawfully  detained  in  custody,  to  procure  their 
liberty.'     Care's  Engli,sh  Liberties  (Ed.  1721)   p.  185. 

"Chancellor  Kent  made  precisely  the  same  enumeration  of  fundamental  rights,  with 
religious  liberty  added  as  a  distinct  and  separate  right.  Kent's  Corn's,  vol.  2,  chap.  1. 
There  is  no  suggestion  of  its  being  included  in  the  clauses  in  question.  "  —  Meaning  oj 
the  term  "  LIberti/  "  in  Federal  and  State  Constitutions,  by  Ch.\rles  E.  Suattuck,  4 
Harv.  Law  Rev.  365.  —  Ed- 


CHAP.  IV.]  SPENCER   V.    MERCHANT.  6-47 

notinfringe  upon  the  clause  of  the  Fourteenth  Amendment  requiring 
equal  protection  of  the  laws,  because  it  is  special  in  its  character  ;  if  in 
conflict  at  all  witli  tliat  clause,  it  must  be  on  other  grounds.  And  when 
legislation  applies  to  particular  bodies  or  associations,  imposing  upon 
them  additional  liabilities,  it  is  not  oj^en  to  the  objection  that  it  denies 
to  tliem  thp  pqnnl  pi-ntpft.ion  of  the  laws,  if  all  persons  bjXHight  under 
its  influence  are  fipjitpd  nliL-p  untlm-tho  B'amo  pnnrlifinng  A  law  giving 
to  mechanics  a  lien  on  buildings  constructed  or  repaired  by  them,  fur 
the  amount  of  tlieir  work,  and  a  law  requiring  railroad  corpoiations  to 
erect  and  maintain  fences  along  their  roads,  separating  them  from  land 
of  adjoining  proprietors  so  as  to  keep  cattle  off  their  tracks,  are  in- 
stances of  this  kind.  Such  legislation  is  not  obnoxious  to  the  last 
clause  of  the  Fourteenth  Amendment,  if  all  persons  subject  tO"  it  are 
treated  alike  under  similar  circumstances  and  conditions  in  respect 
botli  of  tlie  privileges  conferred  and  the  liabilities  imposed.  It  is  con- 
ceded that  corporations  are  persons  within  the  meaning  of  the  amend- 
ment.  Santa  Clara  Countj  v.  Southern  Pacific  Railroad  Company^ 
118  U.  S.  394  ;  Pembina  Consolidated  Silcer  Mining  and  Milling  Co. 
V.  Pennsylvania,  125  U.  S.  187.  But  the  hazardous  character  of  the 
business  of  operating  a  railway  would  seem  to  call  for  special  legisla- 
tion with  respect  to  railroad  corporations,  having  for  its  object.the 
protection  of  tlieir  emi)loye's  as  well  as  the  safet}'  of  the  public.  Txhe 
business  of  other  corporationj_[s  not  subject  to  similar  dangers  to  tlieir 
employes,  and  no  objections,  therefore,  can  be  made  to  tlie  legislation 
on  the  ground  of  its  making  an  unjust  discrimination.  It  meets  a 
particular  necessity,  and  all  railroad  corpioration-S  are,  withont  distine- 
flon,  made  subject  to  the  same  liabilities.^  As_SJiLdJjy_the_COiirtJ>elow, 
It  is  simply  a  question  of  legislative  discretion  whether  the  same  liabili- 
ties shall  be  applied  to  carriers  by  ean.'il  nnd  f^tf\^(^  pnaphpg  nnrl  tr. 
perso)^s  and  corporations  using  steam  in  manufactories.  See  Missouri 
Pacific  Eailway  Co.  v.  Humes,  115  U.  S.  512,  523  ;  Barhier  v.  Con- 
nolly, 113  U.  S.  27  ;   Soon  Hing  v.  Crowley,  113  U.  S.  703. 

Judgment  affirmed" 


SPENCER  V.  MERCHANT. 
Supreme  Court  of  the  United  States.     1888. 

[125  U.  S  34.5.]  1 

This  case  was  submitted  to  the  general  term  in  Kings  County  of  the 
Supreme  Court  of  the  State  of  New  York  under  §  1279  of  the  Code  of 
Civil  Procedure,  without  process,  upon  an  agreed  statement  of  facts 
signed  by  the  parties,  the  substance  of  which,  and  of  the  statutes  therein 
referred  to,  was  as  follows :  .  .   .   [The  plaintiff  agreed  to  sell  certain 

^  The  statement  of  facts  is  shortened.  —  Ed. 


648  SPENCER   V.    MEUCHANT.  [CHAP.  IV. 

land  to  the  defendant,  and  to  give  a  deed  with  a  covenant  against  all 
incumbrances.  The  defendant  paid  a  part  of  tlie  consideration,  and  in 
examining  the  title  found  an  unpaid  assessment  on  the  land  for  the 
opening  of  a  street.] 

The  case  stated  b}-  the  parties,  after  setting  forth  the  foregoing  facts, 
continued  and  concluded  as  follows  : 

"  The  plaintifl"  claims  that  said  assessment  of  1881  in  question  is  not 
a  lien  or  cloud  on  the  title  to  said  premises  ;  and  the  defendant  refuses 
to  pay  the  balance  of  said  consideration  until  the  plaintiff  allows  it  to 
be  deducted  from  the  consideration  money  or  pays  the  same,  neither 
of  whicii  is  the  plaintiff  willing  to  do  ;  and  the  plaintiff  also  claims  that 
the  statute  of  1881,  c.  689,  is  unconstitutional,  and  therefore  void,  for 
the  reason  that  it  is  an  attempt  made  b}'  the  legislature  of  this  State 
to  validate  a  void  assessment  (and  to  do  the  same  without  giving  the 
property-holders  an  opi)ortunity  to  be  heard  as  to  the  total  amount  of 
the  assessment,  only  providing  for  a  hearing  on  the  apportionment), 
which  was  levied  upon  said  premises  under  and  pursuant  to  c.  217  of 
the  laws  of  1869,  as  amended  by  c.  619  of  the  laws  of  1870  ;  and  that 
the  statute  of  1881  is  clearly  void  for  the  further  reasons  that  the  defect 
in  the  former  assessment  was  jurisdictional,  and  it  has  been  so  declared 
and  decided  by  the  Court  of  Appeals  in  the  case  of  Stuart  v.  Pulmer, 
74  N.  Y.  183,  and  is  special  and  invidious,  and  unjustly  and  illegallv 
apportioned  upon  certain  individuals  without  reference  to  a  uniform 
standard,  and  is  an  arbitrary  exaction,  and  is  levied  on  an  individual 
or  individuals  to  the  exclusion  of  others  in  the  same  district.  Tlie 
defendant  doubts  the  said  claim  of  the  plaintiff.  The  question  sub- 
mitted to  the  court  upon  thiB  case  is  as  follows  : 

"  Is  the  assessment  levied  on  the  property  in  1881  in  question  a  good 
and  valid  lien  or  cloud  on  said  property? 

"  If  this  question  is  answered  in  the  affirmative,  then  judgment  is  to 
be  rendered  in  favor  of  the  defendant  and  against  the  plaintiff,  requir- 
ing the  plaintiff  to  pay  said  assessment  to  deliver  a  deed  according  to 
contract. 

"  If  it  be  answered  in  the  negative,  then  judgment  is  to  be  rendered 
in  favor  of  the  plaintiff,  requiring  the  defendant  to  take  title  to  said 
premises  in  accordance  with  the  contract  above  mentioned,  without  the 
plaintiff  paying  said  assessment  or  tax,  and  without  deducting  the  same 
out  of  the  consideration  money." 

The  Supreme  Court  of  New  York  gave  judgment  for  the  defendant, 
and  the  plaintiff  appealed  to  the  Court  of  Appeals,  which  affirmed  the 
judgment  and  remitted  the  case  to  the  Supreme  Court.  100  N.  Y.  585. 
The  plaintiff  sued  out  this  writ  of  error,  and  assigned  for  error  that  it 
appeared  b}'  the  record  that  both  those  courts  held  that  the  statute  of 
1881,  c.  689,  and  the  proceedings  luider  it  were  constitutional  and 
valid,  "  whereas  the  said  courts  should  have  decided  that  the  said 
statute  and  tlie  proceedings  thereunder  were  in  violation  of  the  Consti- 
tution of  the  United  States  and  were  void,  for  the  reason  that  they 


CHAP.  IV.]  SPENCER   V.    MERCHANT.  649 

deprived  the  said  plaintiff  and  the  other  persons  assessed  thereunder  of 
their  property  without  due  process  of  law." 

3Ir.  Matthew  Hale  and  Mr.  Albert  Day,  for  plaintiff  in  error. 

31r.  Walter  E.  Ward,  for  defendant  in  error. 

Mr.  Justice  Gray,  after  stating  the  case  as  above  reported,  delivered 
the  opinion  of  the  court. 

The  leading  facts  of  this  case  are  as  follows  :  The  original  assess- 
ment of  the  expenses  of  regulating,  grading  and  preparing  the  street 
for  travel  was  laid  by  commissioners,  as  directed  by  §  4  of  the  statute 
of  1869,  upon  all  the  lands  lying  within  three  hundred  feet  on  either 
side  of  the  street,  and  which,  in  the  judgment  of  the  commissioners, 
would  be  benefited  by  the  improvement.  After  the  sums  so  assessed 
upon  some  lots  had  been  paid,  the  Court  of  Appeals  of  the  State 
declared  that  assessment  void,  because  the  statute  (although  it  made 
ample  provision  for  notice  of  and  hearing  upon  the  previous  assessment 
for  laying  out  the  street  under  §  3),  provided  no  means  by  which  the 
land-owners  might  have  any  notice  or  opportunity  to  be  heard  in  regard 
to  the  assessment  for  regulating,  grading,  and  preparing  the  street  for 
travel  under  §  4.  Stuart  v.  Palmer,  1\  N.  Y.  183.  The  lots,  the  sums 
assessed  upon  which  had  not  been  paid,  were  isolated  parcels,  not  con- 
tiguous, and  some  of  them  not  fronting  upon  the  street.  By  the  statute 
of  1881,  a  sum  equal  to  so  much  of  the  original  assessment  as  remained 
unpaid,  adding  a  proportional  part  of  the  expenses  of  making  that 
assessment,  and  interest  since,  was  ordered  by  the  legislature  to  be 
levied  and  equitably  apportioned  by  the  supervisors  of  the  county  upon 
and_  among  these  lots,  after  public  notice  to  all  parties  interested  to 
appear  and  be  heard  upon  the  question  of  such  apportionment ;  and 
tliat  sum  was  levied  and  assessed  accordingly  upon  these  lots,  one  of 
which  was  owned  by  the  plaintiff. 

The  question  submitted  to  the  Supreme  Court  of  the  State  was 
■whether  this  assessment  on  the  plaintiff's  lot  was  valid.  He  contended 
that  the  statute  of  1881  was  unconstitutional  and  void,  because  it  was 
an  attempt  by  the  legislature  to  validate  a  void  assessment,  without 
giving  the  owners  of  the  lands  assessed  an  opportunity  to  be  heard 
upon  the  whole  amount  of  the  assessment.  He  thus  directly,  and  in  apt 
words,  presented  the  question  whether  he  had  been  unconstitutionally 
deprived  of  his  property  without  due  process  of  law,  in  violation  of  the 
first  section  of  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States,  as  well  as  of  art.  1,  sec.  7,  of  the  Constitution  of  New 
York  ;  and  no  specific  mention  of  eitlier  constitutional  provision  was 
necessary  in  order  to  entitle  him  to  a  decision  of  the  question  by 
any  court  having  jurisdiction  to  determine  it.  The  adverse  judgment 
of  the  Supreme  Court,  affirmed  by  the  Court  of  Appeals  of  the  Statc^ 
necessarily  involved  a  decision  against  a  rio^/^1«imRd  imder  the  Four.- 
teenth  Amendment  to  the  Constitution  of  the  United  States,  which  this 
court  has  jurisdiction  to  review.  Bridge  Proprietors  v.  Ilohoken  Co., 
1  Wall.  116,  142;  Murray  v.  Charleston,  96  U.  S.  432,  412  ;  Farman 


650  SPENCi:R   V.    MERCHANT.  [cHAP.  IV. 

V.  Nichol,  8  Wall.  44,  56  ;   Chicago  Life  Lis.  Co.  v.  Needles,  113  U.  S. 
574,  579. 

The  jurisdictiou  of  this  court,  as  is  well  understood,  does  not  extend 
to  a  review  of  the  jud^^a^ut  of  tho  State  oo\irt;  sn  fiir  as  it  dependod 
upon  the  Constitutiuu  of  the  State.  Provident  Listitution  for  Sacings 
V.  Jersey  City.,  113  U.  S.  50G,  514.  Yet,  as  the  words  of  the  two  con- 
stitutions are  alike  in  this  respect,  the  decisions  of  the  highest  court  of 
the  State  upon  the  effect  of  these  words  are  entitled  to  great  weight. 
The  substance  of  the  former  decisions,  and  the  grounds  of  the  judg- 
ment sought  to  be  reviewed,  can  hardly  be  more  compactly  or  forcibly 
stated  than  they  have  been  by  Judge  Finch  in  delivering  the  opinion  of 
the  Court  of  Appeals,  as  follows  : 

' '  The  Act  of  1881  determines  absolutel}'  and  conclusively  the  amount 
of  tax  to  be  raised,  nnd  jhhp_pt-oppi-ty  to  he  nssessed  and  npon  which 
it  is  to  be  apportioned.  Each  of  these_things  was  wuthin  the  ])ower  of 
the  legislature,  whose  action  cannot  be  reviewed  in  the  cpints  upon 
tlie  grouna  that  it  acted  unjustly  or  without  appropriate  and  adequate 
reason.  "LiJcJiJieMrw .  Vernon]  41  N.  Y.  123,  141 ;  People  v.  Brooklyn, 
TN.  Y.  427  ;  People  v.  Fiagg,  46  N.  Y.  405  ;  Horn  v.  Xeic  Lots,  83 
N.  Y.  100;  Cooley  on  Taxation,  450.  The  legislature  may  commit  the 
ascertainment  of  the  sum  to  be  raised  and  of  the  benefited  district  to 
commissioners,  but  it  is  not  bound  to  do  so,  and  ma}'  settle  both  ques- 
tions for  itself;  and  when  it  does  so,  its  action  is  necessarily  conclusive 
and  beyond  review.  Here  an  improvement  has  been  ordered  and  made, 
the  expense  of  which  might  justly  have  been  imposed  upon  adjacent 
property  benefited  by  the  change.  By  the  Act  of  1881,  the  legislature 
imposes  the  unpaid  portion  of  the  cost  and  expense,  with  the  interest 
thereon,  upon  that  portion  of  the  propert\-  benefited  which  has  thus  far 
borne  none  of  the  burden.  In  so  doin^,  it  necessarily  determines  two 
things,  viz.,  the  amount  to  be  realized,  and  the  jxmperty  fipocially 
benefited  bv  the  expenditure  of  that  amoiiiU^  The  lands  might  have 
been  benefited  by  the  improvement,  and  so  the  legislative  determina- 
_tion  that  thev  were,  and  to  what  a"mount  or  proportion  of  the  cost,  even 
if  it  ma}-  have  been  mistakenly  unjust,  is  not  open  to  our -review  ^  TIip 
question  of  special  benefit  and  the,  property  to.  wlii eh  it  extendi!  ia  of 
necessity  a  question  of  fact,  and  when  the  legislature  determines, it^^a^ 
case  within  its  general  power,  its  decision  iTiust  of  course  be  final.  "We 
can  see  in  the  determination  reached  possible  sources  of  error  and 
perhaps  even  of  injustice,  but  we  are  not  at  libert}'  to  say  that  the 
tax  on  the  property  covered  by  the  law  of  1881  was  imposed  without 
reference  to  special  benefits.  The  legislature  practically  determined 
that  the  lands  described  in  that  Act  were  peculiarly  benefited  by  the 
improvement  to  a  certain  specified  amount  which  constituted  a  just  pro- 
portion of  the  whole  cost  and  expense  ;  and  while  it  may  be  that  the 
process  bv  which  the  result  wns  rpnr-hpd  was  not  the  best  attainable, 
aiid  some  other  might  have  been  more  accurate  and  iu.sL_we  cannot  foi 
that  reasoi]_£uestion  an  enaetment  within  the  general  legislative  power 


CHAP.  IV.]  SPENCER  V.   MERCHANT.  ^  C51 

That  power  of  taxation  is  ^milimUe^rej^eei^^tb^t  it  muet  be  oxercispd 
fbr  public^jiuipoae^  Weismer  v.  Douglas,  64  N.  Y.  91.  Ceituinly  if 
the  Acts  of  1869  and  1870  iiad  never  been  passed,  but  the  improve- 
ment of  Atlantic  Avenue  had  been  ordered,  the  legislature  might  have 
imposed  one  part  or  proportion  of  the  cost  upon  one  designated  district 
and  the  balance  upon  another.  Practically  just  that  was  done  in  this 
case.  In  Re  Van  Antwerj),  56  N.  Y.  261,  an  assessment  for  a  street 
improvement  had  been  declared  void  by  reason  of  failure  to  procure 
necessary  consents  of  property-owners.  The  legislature  made  a  reas- 
sessment, imposing  two  thirds  of  the  expense  upon  a  benefited  district 
and  one  third  upon  the  city  at  large.  The  Act  was  held  valid  as  a  new 
assessment  and  not  an  efibrt  to  validate  a  void  one. 

"  These  views  furnish  also  an  answer  to  the  objection  that  the  only 
hearing  given  to  the  land-owner  relates  to  the  apportionment  of  the 
fixed  amount  among  the  lots  assessed,  and  none  is  given  as  to  the 
aggregate  to  be  collected.     No  hearing  would  open  the  discretion  of 
the  legislature,  or  be  of  any  avail  to  review  or  change  it.     A  hearing 
is  given   by  the  Act  as  to  the  apportionment  among  the  land-owners, 
whlcli  furnishes  to  them  an  opportunity  to  raise  all  pertinent  and  avail- 
able questions,  and  dispute  their  liability,  or  its  amount  and  extent. 
The  precise  wrong  of  which  complaint  is  madejipj^eai's  to  be  that  the 
land-owners  now"assessed  never  had  ODPortunity  to  be  heard  as  to  the 
original  apportionment,  andjind  themselves  now  practically  boundJu: 
it  as  between  their  lotTamPthose_(:)f  the,  owners  who" paid.     But  that 
objection  becomes  a  criticism  upon  the  action_ortbe  legislature  and  the 
jn-ofPss  by  which  it  determined  the  anrounti  to  bft  raj^^d  i\M  tl'e  prOji.- 
erty  to  be  assessed.     Unless  by  speci.al   permission,  ^W  '^  "  iienrinp[ . 
never  granted  in  the  process  of  taxation,   Qli"  1po,Mntnrn  rintnrminor 
expenditures  and   amounts  to  be  raised   for  their  payment,  the   whole 
A\^oi1^^\nn    and    all    questions   of   pnuy^nfP    nnd    prnprietv    nnd    iustlrfi 
hpjnff  confided  to  its   jurisdiction.      ^^  mny  orr    hnt   the  ponrts  nnnnot 
TPVTPw  lis  discretionT^  In  this  case,  it  kept  within   its  power  when  it 
fixed,  first,  the  amoCint  to  be  raised  to  discharge  the  improvement  debt 
in(!urred  by  its  direction  ;  and,  second,  when  it  designated  the  lots  and 
property,  which  in  its  judgment,  by  reason  of  special  benefits,  should 
bear  the  burden  ;  and  having  the  power,  we  cannot  criticise  the  reasons 
or  manner  of  its  action.     The  land-owners  were  given  a  hearing,  and 
so  there  was  no  constitutional  objection  in  that  respect.     Nor  was  that 
hearing  illusory.     It  opened  to  the  land-owner  an  opportunity  to  assail 
the  constitutional  validity  of  the  Act  under  which  alone  an  apportion- 
ment could  be  made,  and  that  objection  failing,  it  opened  the  only  other 
possible  questions,   of  the   mode   and   amounts  of  the  apportionment 
itself.     We  think   the  Act  was  constitutional."     100  N.  Y.  587-589. 
The  general  principles,  upon  which  that  judgment  rests,  have  been 
affirmed  by  the  decisions  of  this  court. 

Thn  power  to  tax  belongs  exclusively  to  the  legislativejiranch  of  the . 
government.     United  States  v.  JVew  Orleans,  98  U.  S.  381,  392  ;  Meri- 


652  SPENCER   V.    MERCHANT.  [CHAP.  IV. 

wether  v.  Garrett^  102  U.  S.  472.  In  the  words  of  Chief  Justice  Chase, 
condensing  what  had  been  said  long  before  by  Chief  Justice  Marshall, 
"  The  judicial  department  cannot  prescribe  to  the  legislative  depart- 
ment limitations  upon  the  exercise  of  its  acknowledged  powers.  JThe^ 
power  to  tax  may  be  exercised  oppressively'  upon  persons  ;_but  the 
responsibility  of  the  legislature  is  not  to  the  courtsT  but  to  the  people 
by  whom  its  members  are  elected."  Veazie  Bank  v.  Fenno,  8  Wall. 
533,  548;  McCulloch  \.  Maryland,  4  Wheat.  316,  428;  Providence 
Bank  v.  Billings,  4  Pet.  514,  5G3.  See  also  Kirtland  v.  Jlotchkiss, 
100  U.  S.  491,  497.  Whether  the  estimate  of  the  value^land  for  the 
purpose  of  taxation  exceeds  its  true  value,  this  court  on  wjjLoI-eju-or 
to  a  State  court  cannot  inquire.    Melly  v.  Pittsburgh,  104  U.  S.  78,  80. 

The  legislature,  in  the  exercise  of  its  power  of  taxation,  has  the  right 
to  direct~the  whole  or  a  part  of  the  expeiise|grari5ubl]c_jipprovement^ 
such  as  the  laying  out,  grading  or  repairing  of  a  street,  to  be  assessed 
upon  the  owners  of  lands  benefited  thereby ;  and  the  determination  of 
tlie  territorial  district  which  should  be  taxed  for  a  local  improvement  is 
within  the  province  of  legislative  discretion^  Willard  v.  Presbury, 
14  Wall.  676  ;  Davidson  v.  JVew  OrUarTs,  96  U.  S.  97  ;  3Iobile  County 
v.  Khnb<(ll,  102  U.  S.  69KJ7037'704  ;  ILtgar  v.  Reclamation  District, 
111  U.  S.  701.  IXJ^Kflegislature  provides  for  notice  to  and  hearing  of 
each  pi'oprietor,  at  some  stage  ot  the  pioc^eedings, 'lipoOJie^  question 
whnt  propoj;tioiiof  theTa^~5tetll  be  assessed  HuponHiisJajidj.  tjif'^  '-^  "^ 
taking  ofhis  prop'crty  without  due  processjiOaw^  McMillen  v.  Ander- 
son,  95  U.  S-  37 ;  Davidson  v.  J^^ew  Orleans,  and  Hagar  v.  Reclama- 
tion District,  above  cited. 

In  Davidson  v.  New  Orleans,  it  was  held  that  if  the  work  was  one 
which  the  State  had  the  authority  to  do,  and  to  pay  for  by  assessments 
on  the  property  benefited,  objections  that  the  sum  raised  was  exorbitant, 
and  that  part  of  the  property  assessed  was  not  benefited,  presented  no 
question  under  the  Fourteenth  Amendment  to  the  Constitution,  upon 
which  this  court  could  review  the  decision  of  the  State  court.    96  U.  S. 

100,  106. 

In  the  absence  of  any  more  specific  constitutional  restriction  than 
the  general  prohibition  against  taking  property  without  due  process  of 
law,  the  legislature  of  the  State,  having  the  power  to  fix  the  sum  neces- 
sary to  be  levied  for  the  expense  of  a  public  improvement,  and  to  order 
it  to  be  assessed,  either,  like  other  taxes,  upon  property  generally,  or 
only  upon  the  lands  benefited  by  the  improvement,  is  authorized  to 
determine  both  the  amount  of  the  whole  tax,  and  the  class  of  lands 
which  will  receive  the  benefit  and  should  therefore  bear  the  burden, 
although  it  may,  if  it  sees  fit,  commit  the  ascertainment  of  either  or 
both  of  these  facts  to  the  judgment  of  commissioners. 

When  the  determination  of  the^nds  to  be  benefited  is  intrusted  to 
commissioners,  thp  nwnerg^mny  hn  ftnti'tlorl  tp  notice  and  hearing  upon 


the  Question  whether  their  lands  are  hpnofited  nnd  how_rmu^h. But.^|lii 

legislature  has  the  power  to  determine,  by  the  statute  imposing.  tlieJas^ 


CHAP.  IV. 


1  SPENCER   V.    MERCHANT.  653 


what  lands,  which  migh^  be  beuefiteiLb^:lhe_  Improvement,  arc  in  fact 
benefited  ;  and  IF  it  does  so,  its  determination  is  conclusive  upon  the 
owners  and  the  courts,  and  the  owners  have  no  right  to  be  heard  upon 
the  question  whether  their  land8~are _benefited  or  not,  but  only  upon  the 
validity  of  the  asses^ent,  and  its  apportionn^ent  among  the  ditferent 
parcels  of  the  class  which  the  legislature  has  conclusively  determined 
to  be  benefited7\ 

'In  determinilig  what  lands  are  benefited  by  the  improvemeut,  the 
leo-islature  may  avail  itself  of  such  information  as  it  deems  sufficient, 
either  through  investigations  by  its  committees,  or  by  adopting  as  its 
own  the  estimates  or  conclusions  of  others,  whether  those  estimates  or 
conclusions  previously  had  or  had  not  any  legal  sanction. 

In  §  4  of  the  statute  of  18G9,  the  assessment  under  which  was  held 
void  in  Stuart  v.  Palmer,  74  N.  Y.  183,  for  want  of  any  provision 
whatever  for  notice  or  hearing,  the  authority  to  determine  what  lands, 
lying  within  three  hundred  feet,  on  either  side  of  the  street,  were  actually 
benefited,  was  delegated  to  commissioners. 

But  inthe  statute  of  1881  the  legislature  itself  determined  what  lands 
^T,^^vH^w£fitP£l  nnd  should  be  assessed.  By  this  statute  the  leglslatureV 
in  substance  and  effect,  assumed  that  all  the  lands  within  the  district 
TlpfinPfMn  the  statute  of  18^9  were  benefited  in  a  sum  equal  to  the 
amoiuit  of  M^pnvip;'nn]  nssf'ssmenf,  thp  ftxpensc  of  levyino-  it,  and 
i,yj^>j-ogj_|^nr^^ii  ;  and  dftrrmj i'^ ^'"'^  ^>'»  ^^t^  upon  wliich  no  part  of 
that  assessment  had  been  paid,  and  which  had  therefore  as  yet  borne 
TTrr^T^nrnnf  thf>  bnidpn,  wf^  ht^npfifo*!  tn  thp  pvtpnt  of  a  certain  portion 
""^f  this  siun^J^at  these  lots  as  a  whole  had  been  benefited_tQ_this. 
extent  was  conclusively  settJ[e(U)^^_theJeg[slature^  The  statute  o_fJ881 
afforded  to  the  owners~liotice  and  heari ng  upon  the  question  of  the 
equitable  apportionment  among  them^fjhe  sum  directed  to  be  levied 
upon  all  of  them,  and  ttmsTnabled  tliemjojonte^.  the  constitutionality 
of  the  statute  ;  ancrTEat  was  all  tlle'liotice  and  hearing  to  which  they 
were  entitled,  "l 

It  is  objected  to  the  validity  of  the  new  assessment,  that  it  included 
interest  upon  the  unpaid  part  of  the  old  assessment,  and  a  proportionate 
part  of  the  expense  of  levying  that  assessment.  But,  as  to  these  items, 
the  case  does  not  substantially  differ  from  what  it  would  have  been 
if  a  sum  equal  to  the  whole  of  the  original  assessment,  including  the 
expense  of  levying  it,  and  adding  the  interest,  had  been  ordered  by 
the  statute  of  1881  to  be  levied  upon  all  the  lands  within  the  district, 
allowing  to  each  owner,  who  had  already  paid  his  share  of  the  original 
assessment,  a  credit  for  the  sum  so  paid  by  him,  with  interest  from 
the  time  of  payment.  Judgment  affirmed. 

[The  dissenting  opinion  of  Matthews,  J.  (for  himself  and  Har 
LAN,  J.),  is  omitted.] 


654  LENT   V.   TILLSON.  [CHAP.  IV. 


LENT  V.   TILLSON. 
Supreme  Court  of  the  United  States.     1890. 

[140  U.  S.  316] 

The  case,  as  stated  by  the  court,  was  as  follows  :  — 

This  suit,  which  was  commenced  April  5,  1879,  arises  out  of  an  Act 
of  the  Legislature  of  California,  approved  March  23,  1876,  entitled 
"An  Act  to  authorize  the  widening  of  Dupont  Street  in  the  City  of 
San  Francisco."  An  assessment  was  made  to  meet  the  cost  incurred 
in  its  execution.  Provision  was  made  in  the  Act  to  issue  and  sell 
bonds  to  meet  such  cost  in  the  first  instance,  and  for  the  levy  of  an 
annual  tax  on  the  lands  benefited,  in  proportion  to  benefits,  to  pay  the 
interest  on  the  bonds,  and  to  create  a  sinking  fund  for  the  payment  of 
the  principal  debt.  Bonds,  dated  Januar}-  1,  1876,  to  the  amount  of 
one  million  dollars,  were  issued  in  the  name  of  the  cit^'  and  county 
of  San  Francisco,  and  made  payable  to  the  holder  in  gold  coin  of 
the  United  States,  twenty  years  after  date,  with  interest,  payable  half 
yearly,  at  the  rate  of  seven  per  cent  per  annum.  The  bonds  recited 
that  they  were  issued  under  the  above  Act,  were  to  be  paid  out  of  the 
fund  raised  by  taxation  as  therein  provided,  and  were  taken  by  the  holder 
subject  to  the  conditions  expressed  in  its  22d  section  to  be  hereafter  re- 
ferred to.  They  were  signed  b^-  the  mayor,  auditor,  and  county  sur- 
veyor, and  attested  b}-  the  official  seal  of  the  city  and  count}'.  The 
plainrifl["s  in  error,  who  were  the  plaintiflls  below,  being  owners  of  lots  or 
parcels  of  land  within  the  district  subject  to  the  assessment,  and  claim- 
ing that  the  statute  was  unconstitutional  and  void,  brought  this  suit  to 
obtain  a  decree  perpetually  enjoining  the  defendant  in  error,  tax  collec- 
tor of  the  city  and  county  of  San  Francisco,  from  selling  their  propert}' 
under  the  assessment.  Holders  of  the  bonds  to  a  large  amount  inter- 
vened and  were  made  defendants.  The  court  of  original  jurisdiction  — 
the  Superior  Court  of  the  city  and  county  of  San  Francisco  —  rendered 
a  decree  giving  the  relief  asked.  Upon  appeal  to  the  Supreme  Court  of 
California  that  decree  was  reversed  and  the  cause  remanded  with  direc- 
tions to  dissolve  the  injunction  and  dismiss  the  complaint. 

The  statute  in  question  contains  many  provisions.  .  .  .  [Here  follows 
a  long  statement  of  these  provisions.] 

3Ir.  Joseph  H.  Choate,  for  plaintiffs  in  error.  Mr.  John  Garher  and 
Mr.  T.  B.  Bishop  also  filed  a  brief  for  same. 

Mr.  A.  H.  Garland  (with  whom  were  Mr.  John  3Iullan  and  3Ir. 
H.  J.  3Iay  on  the  brief) ,  for  defendant  in  error. 

Mr.  Justice  Harlan,  after  making  the  above  statement,  delivered 
the  opinion  of  the  court. 

The  Chief  Justice  of  the  Supreme  Court  of  California,  under  its  order, 
made  his  certificate  to  the  effect  that  in  this  suit  and  appeal  there  was 
drawn  in  question  the  validity  of  the  above  Act  of  March  23,  1876,  and 


CHAP.  IV.]  LENT    V.    TILLSON.  655 

the  authority  exercised  and  the  proceedings  taken  under  it,  on  the 
ground  that  the  statute  and  said  authority  and  proceedings  were  repug- 
nant to  the  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States,  and  that  the  decision  of  that  court  was  in  favor  of  their  validity 
The  provisions  of  the  statute,  to  which  we  have  referred,  sufficiently 
indicate  its  scope  and  effect,  and  enable  us  (without  referring  to  others 
that  relate  to  matters  of  mere  detail)  to  determine  whether  or  not  the 
Act,  upon  its  face  or  by  its  necessary  operation,  is  repugnant  to  thr.t 
clause  of  the  Constitution  declaring  that  no  State  shall  deprive  u::y 
person  of  property  without  due  process  of  law. 

We  have  seen  that  the  statute  defined  the  district  benefited  by  the 
widening  of  Dupont  Street,  and  upon  which  the  assessment  to  meet 
the  cost  of  the  work  was  to  be  imposed  ;  made  it  a  condition  precedent 
to  the  proposed  improvement  that  it  should  be  declared  by  resolution  or 
order  of  the  Board  of  Supervisors  of  the  city  and  county  to  be  expedient ; 
directed  that,  after  the  passage  of  such  a  resolution  or  order,  the  Du- 
pont Street  Commissioners  should  publish,  for  not  less  than  ten  days, 
in  two  daily  papers  in  San  Francisco,  a  notice  informing  property 
owners  along  the  line  of  the  street  of  its  organization,  and  inviting  all 
persons  interested  in  property  sought  to  be  taken,  or  that  would  be  in- 
jured by  the  widening  of  that  street,  to  present  descriptions  of  their 
respective  lots,  and  a  statement  in  writing  of  their  interest  in  them  ; 
allowed  the  majority  in  value  of  owners  of  property  within  the  district 
embracing  the  lands  of  the  plaintiffs,  at  any  time  within  thirty  days 
after  the  last  publication  of  the  above  notice,  by  written  protest  filed 
with  the  Board  of  Commissioners,  to  defeat  altogether  the  proposed 
widening  of  Dui)ont  Street ;  required  the  board  to  prepare  a  written 
reporf  showing  the  description  and  actual  cash  value  of  the  several  lots 
and  subdivisions  of  land  and  buildings  included  in  the  land  proposed  to 
be  taken  for  the  widening  of  the  street,  the  value  and  damage  deter- 
mined upon  for  the  same  respectively  and  the  amount  in  which,  accord- 
ing to  its  judgment,  each  lot  had  been  or  would  be  benefited  by  reason 
of  the  widening  of  the  street,  relatively  to  the  benefits  accruing  to  other 
lots  of  land  within  the  designated  district ;  and  directed  such  report,  as 
soon  as  completed,  to  he  left  at  the  office  of  the  board  daily,  during  ordi- 
nary business  hours,  for  the  free  inspection  of  all  persons  interested,  and 
notice  of  the  same  being  open  for  inspection  at  such  time  and  place  pub- 
lished by  the  board  daily,  for  twenty  days,  in  two  daily  newspapers 
printed  and  published  in  the  city  and  county. 

But  this  was  not  all.  For  any  person  interested,  and  who  felt  him- 
self aggrieved  by  the  action  or  determination  of  the  board,  as  indicated 
by  its  report,  was  permitted,  at  any  time  within  the  above  thirty  days, 
to  apply  by  petition  to  the  county  court  of  the  city  and  county,  showing 
his  interest  in  the  proceedings  of  the  Board  of  Commissioners,  and  his 
objections  thereto,  for  an  order  that  would  bring  before  that  court  the 
report  of  the  board,  together  with  such  pertinent  documents  or  data  as 
were  in  its  custody,  and  were  used  in  preparing  its  report.    It  was  made 


656  LKNT   V.    TILLSON.  [CHAP,  IV. 

the  duty  of  the  party  filing  the  petition  to  serve,  on  the  same  day,  a 
copy  thereof  on  at  least  one  of  the  members  of  the  Board  of  Commis- 
sioners, who  were  at  liberty  to  ai)pear  by  counsel,  or  otherwise,  and 
make  answer  to  it.  The  court  was  also  empowered  to  hear  the  petition, 
and  set  it  down  for  hearing  within  ten  days  from  its  being  filed.  Pro- 
vision was  made  for  the  taking  of  testimony  upon  the  hearing,  and  the 
court  was  authorized  to  use  its  process  to  compel  the  attendance  of 
witnesses  and  the  production  of  books,  papers,  or  maps  in  tlie  custody 
of  the  board,  or  otherwise.  The  discretion  given  to  the  court,  after 
hearing  and  considering  the  application,  to  allow  or  to  deny  the  order 
prayed  for  was,  of  course,  to  be  exercised  judiciall}',  according  to  the 
showing  made  by  the  petitioners.  And  that  complete  justice  might  be 
done,  the  court  was  invested  with  power,  not  simpl}-  to  approve  and 
confirm  the  report  of  the  board,  but  to  refer  it  back  with  directions 
to  alter  or  modify  the  same  in  the  particulars  specified  b^'  the  court. 
Until  such  alterations  and  modifications  were  made,  the  court  was 
under  no  duty  to  api)rove  or  confirm  the  report ;  and  until  it  was  ap- 
proved and  confirmed,  the  board  was  without  authority  to  proceed  at  all 
in  the  work  committed  to  it  by  the  statute. 

Were  not  these  provisions  in  substantial  conformit}'  with  the  require- 
ments of  "  due  process  of  law  "  as  recognized  in  the  decisions  of  this 
court?  In  Davidson  v.  Ncic  Orleans^  96  U.  S.  97,  104,  it  was  said 
that  "  whenever,  by  the  laws  of  a  State,  or  by  State  authority,  a  tax, 
assessipf^nt.  spivit.i|.]p,  nr  ntlip)-  )>inden  is  imposed  upon  property  for  the 
public  use,  whether . it  bi-  ^i^v  the  whole  State  or  of  some  niore^Tunited 
portion  of  the  community,  and  those  laws  provide  for  a^  mode  of  con- 
firming  or  contesting  the  charge  thus  imposed,  in  the  ordinary  courts  of 
justice,  witu  such  notice  to  the  person  or  such  proceeding  in  regard  to 
the  property  as  is  appropriate  to  the  nature  of  the  case,  the  judgment 
in  qiiHi  j^r^^'PfdiiiyR  ennnnt  hv  nnid  tn  drprive  the  owner  nf  his  property 
without  due  process  of  ^^^-^  linupv^^r  obnoxious  it  may  be  to  other_ob- 
jections."  So  in  Hagar  v.  liedamation  District,  111  U.  S.  701,  708: 
'•  Undoubtedly,  where  life  and  liberty  are  involved,  due  process  requires 
that  there  be  a  regular  course  of  judicial  proceedings,  which  imply  that 
the  party  to  be  affected  shall  have  notice  and  an  opportunity  to  be 
heard  ;  so,  also,  where  title  or  possession  of  property  is  involved.  But, 
where  the  taking  of  property  is  in  the  enforcement  of  a  tax,  the  pro- 
ceeding is  necessarily  less  formal,  and  whether  notice  to  him  is  at  all 
necessary  ma}-  depend  upon  the  character  of  the  tax  and  the  manner 
in  which  its  amount  is  determinable.  .  .  .  As  stated  by  Mr.  Justice 
Bradle}'  in  his  concurring  opinion  in  Davidson  v.  JVew  Orleans,  '  in 
.Hidging  what  is  due  process  of  law,  respect  must  be  had  to  the 
cause  and  object  of  the  taking;,  whether  the  taxing  powpr,  the  power  of 
pminf^nt  >^nmn|n  <^x  the  power  of  assessment  for  local  improvements,  or 
some  of  these  ;  and,  if  found  to  be  suitable  or  admissible  in  the  special 

case.  It  will  be  aa^UClgeCLLP  '^^  ''  ^"'^  prnopac  n^  low  ;  '*    hnt  if  fnnnfl  tn  ]ip 

arbitrary,  oppressive,  and  unjust,  it  may  be  declared  to  be  not  due 


CHAP.  IV.]  LENT   V.   TILLSON.  657 

process  of  law.*  "  Of  the  different  kinds  of  taxes  which  a  State  ma,y 
impose,  and  of  which  from  their  nature  no  notice  can  be  given,  the 
court,  in  that  case,  enumerates  poll  taxes,  licenses  (not  dependent 
upon  the  extent  of  business)  and  specific  taxes  on  things,  persons, 
or  occupations,     p.  709. 

These  principles  were  reaffirmed  in  Kentucky  Railroad  Tax  Cases. 
115  U.  S.  321,  331,  and  in  Spencer  v.  Merchant^  125  U.  S.  345,  355, 
in  the  latter  of  which  cases  it  was  said  that  "  the  legislature,  in  the 
exercise  of  its  power  of  taxation,  has  the  right  to  direct  the  whole  or 
part  of  the  expense  of  a  pubhc  improvement,  such  as  the  laying,  grad- 
ing, or  repairing  [and,  equally,  the  widening]  of  a  street,  to  be  assessed 
upon  the  owners  of  lands  benefited  thereby  ;  "  and  that,  "  the  determi- 
nation of  the  territorial  district  which  should  be  taxed  for  a  local  im- 
provement is  within  the  province  of  legislative  discretion  ;  "  also,  that, 
"  if  the  legislature  provides  for  notice  to  and  hearing  of  each  proprietor, 
at  some  stage  of  the  proceedings,  upon  the  question  what  proportion  of 
the  tax  shall  be  assessed  upon  his  land,  there  is  no  taking  of  his  prop- 
erty without  due  process  of  law." 

Tested  b}'  these  principles,  the  statute  providing  for  the  widening  of 
Dupont  Street  cannot  be  held  to  be  repugnant  to  the  constitutional  re- 
quirement of  due  process  of  law,  'Fhejiotice  by  publication  to  all  who 
owned  property*  liable  to  be  assessed  for  the  cost  of  that  improvement 
was  appropriate  to  the  nature  of  the  case,  and  was  reasonable  in  respect 
to  the  length  of  tinte  prescril)edjbrthe  publicationj^^^AjTdjmi^^leoppor^ 
"tunity  was  given  to  aTTpersons  interested  to  test  in  a  court  of  competent 
jurisdiction  the  fairness  and  legality  of  any  {issessment  proposed  to  be 
made  upon  their  property  for  the  purposps  indittatpd  ])y  t.h^  stHtiitp. 
That  court  had  power  torequire  such  alterations  or  modifications  of  the 
report  of  the  Board  of  Commissioners  as  justice  demanded.  It  was  not 
bound  to  approve  any  report  that  did  not  conform  to  its  judgment  as  to 
what  was  right;  and  without  snr-h  nnnfivmntion  thn  hnnrtl  '-•oiild  not 
proceed  in  the  execution  of  the  work  contemplated  by  the  Jegislatii re^ 

If  we  had  any  doubt  of  the  correctness  of  these  views,  we  should  ac- 
cept the  interpretation  which  the  highest  court  of  the  State  places  upon 
the  statute.  When  the  inquiry  ia_\\Jiether  a  .State  enactmpnf,  nnde^ 
which  property  is  proposed  to  be  taken  for  a  public  purpose  accords 
full  opportunity  to  the  owner,  at  some  stage  of  the  proceed! ngs  i nvolv- 
ing  his  pi-operty.  to  be  heard  as  to  their  regulnrity  or  vfl]idi<-,y^_wpj2J2^' 
assume  that  the  inferior  courts  and  tribunals  of  tiie  State  wil  1  give  effect 
to  sqph  pnQr.tmpi^t,  as  intpi-preted  by  the  highest  court  of  that  State. 
The  Supreme  Court  of  California,  speaking  by  Mr.  Justice  Temple,  in 
this  case,  has  said:  "  We  are  not  considering  here  a  statute  which  is 
silent  as  to  the  hearing.  The  provisions  in  question  were  undoubtedl}' 
inserted  in  view  of  the  constitutional  requirement,  and  for  the  purpose 
of  affording  that  opportunity  to  be  heard,  without  which  the  law  would 
be  void.  To  give  the  statute  the  construction  contended  for  would  not 
only  defeat  the  evident  purpose,  but  would  make  the  whole  proceeding 
VOL.  I.  —  42 


658  LENT   r.    TILLSOX.  [CHA?.  IV. 

farcical.  And  I  must  confess,  it  seems  to  me,  it  requires  great  industry 
in  t^oing  wrong,  in  view  of  all  the  circumstances,  to  conclude  that  such 
can  be  the  meaning.  Inapt  words  certainl}-  are  found  in  the  section 
[§  8],  but  it  would  not  have  provided  so  elaborately  for  a  thoi'ough  in- 
vestigation for  grievances  if  it  were  not  intended  that  rediess  should  be 
awarded.  The  statute  has  apparently  been  patched  and  tinkeied  after 
it  was  first  drawn^  and  incongruous  matter  injected  into  the  body  of 
it.  But  it  still  provides  for  a  full  hearing,  and  that  the  court  may 
alter  and  modify.  And  it  seems  that  such  action  is  to  be  based  upon 
the  hearing  provided  for.  The  word  '  discretion '  is  used  in  various 
meanings,  but  here,  evidently,  it  was  intended  to  submit  the  whole 
matter  to  the  sound  judgment  of  the  court  to  be  exercised  according  to 
the  rules  of  law."     72  California,  404,  421. 

It  is  said  that  the  county  court  was  without  power  to  adjudge  the 
statute  to  be  unconstitutional,  and  had  no  discretion,  except  to  confirm 
the  report,  or  to  require  it  to  be  altered  or  modified.  We  do  not  i)er- 
ceive  that  this  is  a  material  inquiry,  so  long  as  the  statute  is  not  repug- 
nant to  the  Constitution.  But  we  do  not  admit  tlmt  tlie  county  conrt 
was  without  power  to  liold  it,  to  he  uncnnslilutioual  a.nd  void  —  if  such 
was  its  view  —  and  to  decline,  upon  that  ground  alone,  to  cipnfirm  any 
report  that  the  Board  of  Commissioners  might  have  filed.  jThe  judge 
or  judges  of  that /-oiiit  wore  o])1iood,  by  their  oath  of  office,  and  hi 
fidelity  to  the  supreme  law  of  the  land,  to  refuse  to  give  effect  to  au)' 
statute  that  was  repugnant  to  that  law,  anything  in  the  statute~or  tli£ 
Constitution  of  the  btate  to  the  contrary  notjvjthstandingT  Upon  this 
subject,  as  well  as  in  respect  to  the  power  of  the  county^ioTfrt  to  consider 
objections  of  every  nature  that  might  be  made^le-fhe  confirmation  of  any 
report  from  the  Board  of  County  Comwrssloners,  the  Supreme  Court  of 
the  State  said  :  "  The  statute„fkfgsnot  expressly  authorize  the  court  to 
pass  upon  the  validity  i^f^tlTe  Act,  or  whether  the  Board  of  Supervisors 
had  passed  theu-irecessary  resolution,  or  the  notices  had  been  given. 
But  ti^f,  ^prrt^fr  t^  '^^^  ^hii  ii;  nrfpnnnrily  in^-H'-^'d  in  the  pr':""r  oL_tli.e 
court  to  act  at  all.  It  may  be  that  the  court  could  not  pass  upon  these 
questions  upon  which  its  jurisdiction  depended,  so  as  to  conclude  all 
inquiry  even  on  a  collateral  attack.  It  was  a  constitutional  court,  in- 
vested with  jurisdiction  by  the  constitution  of  special  cases.  The  par- 
ties had  full  notice  of  the  proceeding,  and  of  their  right  to  be  heard." 
Again:  "  The  statute  places  no  limit  upon  the  objections  which  might 
be  made  by  tliose  deeming  themselves  aggrieved  by  the  action  or  deter- 
mination of  the  board  as  shown  in  the  report.  As  all  their  determina- 
tions which  could  affect  any  person  were  required  to  appear  in  the 
report,  this  would  seem  to  include  all  possilile  objections.  Tlie 
determination,  for  instance,  might  have  been  objected  to,  because, 
the  Act  being  invalid  or  the  notices  not  having  been  given,  the 
board  had  no  right  to  proceed  to  act  at  all.  If  this  contention 
were  sustained,  the  result  would  have  been  that  the  court  would 
not    have    confirmed   the    report,    and    the    proceedings    would    ha\e 


CHAP.  IV.] 


LENT   V.    TILLSON.  ^59 


ended  without  fixing  a  charge  upon  the  property  of  plauitiffs.  They 
could  have  comphxined  that  a  wrong  basis  was  adopted  in  estimating 
dama^res  or  benefits  ;  that  the  estimated  cost  was  too  much,  or  for  any 
misconduct  of  the  commissioners  which  could  affect  them,  or  tliat  the 
cost  exceeded  the  estimated  benefits,  and  it  does  not  seem  to  me  that 
the  court  would  have  found  any  difficulty  in  granting  relief."  72  Cali- 
fornia, 404,  422. 

It  is  contended,  however,  that  the  Act  was  so  administered  as  to  le- 
sult  in  depriving  the  plaintiffs  of  their  property  without  due  process  ot 
law  This  contention  is  material  only  so  far  as  it  involves  the  inquiry 
as  to  whether  the  tribunals  charged  by  the  statute  with  the  execution  ot 
its  provisions  acquired  jurisdiction  to  proceed  in  respect  to  the  lots  or 
lands  in  question  and  the  owners  thereof.  Jurisdiction  was,^c^ur§^ 
essential  before  the  plaintiff's  property  could  have  beenj3^idene^i 

tHil^iiiH^it^BuUiam^iiiilie^^ 

I^^nn^flLdii&4^u-isdiction  of  the  subject  and  of  the  parti^a^conld  not 
jii^UfTJaTSiaiUts.^  of  the  judgmf-nt  of  the  binlB 

^;^;;;:i7^^;;;^;r^Ht^^  t,hf^  Statfi-hml  deprived,  or  W{is 

^^^^^^^Ji^p^xa,  the  plaintiffs  otJiieui-propert^^ithout  due  process  ot . 
1^;^;;  WhetheTlt  was  expedient  to_wJden  Pupont_Sti:££Miil-aai£ill£J- 
U^Board  of  Supervisors  should  have_so_declared,  or  whether  the  Board 
oTC^uTlmi^ners  properly  apportioned  the  cofts  of  the  work  or  cor- 
rectly estimated  the  benefits  accruing  to  the  different  owners  of  prop- 
ertv  affected  by  the  widening  of  the  street,  Lr  whether  the  boards 
incUlental  expenses  in  executing  the  statute  wire  too  great,  or  whether 
a  laro-er  amount  of  bonds  were  issued  than  s(hould  have  been,  the  ex- 
cess "if  any,  not  being  so  great  as  to  indicate  upon  the  face  of  the 
transaction  a  palpable  and  gross  departui^  from  the  requirements  of 
the  statute,  or  whether  upon  the  facts  disyClosed  the  report  of  the  com- 
missioners should  have  been  confirmed,  im.  none  of  them,  issues  pre- 
senting Federal  questions,  and  the  judgment  of  the  State  court^_ui2on 
t.hem.  cannot  be  reviewed  here. 

^pon  the  issue  as  to  whether  the  Board  of  Commissioners  and  the 
county  court  acquired  jurisdiction  to  proceed  in  the  execution  of  the 
statute,  the  evidence  is  full  and  satisfactory.  ...  .  <, 

It  is  contended  that  the  notices  required  by  the  different  sections  ot 
the  Act  to  be  published  for  a  designated  number  of  days  were  not  so 
pnblished.  This  contention  rests,  principally,  upon  the  ground  that  the 
notices,  on  some  of  the  days,  appeared  in  a  "  Supplement "  of  some  of 
the  newsnapers,  and  not  in  the  body  of  the  paper  wliere  reading  matter 
was  usually  found.  There  is  no  force  in  this  objection,  and  it  does  not 
deserve  serious  consideration. 

Other  objections  have  been  urged  by  the  plaintiffs  which  we  do  not 
deem  it  necessarv  to  consider.  For  instance,  it  is  said  that  the  mayor 
of  the  city  of  San  Francisco,  one  of  the  Board  of  Commissioners,  was 
himself  the  owner  of  a  lot  on  Dupont  Street,  and,  for  that  reason,  was 
incompetent  to  act  as  one  of  the  Board  of  Street  Commissioners  ;  that 


660  CHICAGO,    ETC.    KAILWAY   CO.   V.   MINNESOTA.        [CHAP.  IV. 

some  of  the  alterations  and  modifications  of  tlie  report  of  the  commis- 
sioners made  upon  the  hearing  iu  the  county  court,  of  the  petitions  filed 
by  different  parties  were  so  made  under  private  arrangements  between 
the  commissioners  and  those  parties,  of  which  other  property  owners 
along  Dupont  Street  had  no  notice,  and  by  which  such  owners  were  in- 
juriously affected ;  that  the  Board  of  Commissioners  selected  experts  to 
"  assist  "  it  iu  estimating  the  damages  for  property  taken  and  injured 
by  the  proposed  improvement  and  the  benefits  accruing  therefrom,  and 
that  the  report  of  those  experts  was  accepted  by  the  commissioners, 
without  themselves  making  or  attempting  to  make  an  appraisement  of 
damages  or  an  assessment  of  benefits  under  the  statute  ;  and  that  such 
appraisement  and  assessment  were  not  in  fact  correct,  fair,  or  just,  but 
were  fraudulent.  In  respect  to  all  these  and  like  objections,  it  is  suffi- 
cient to  say  that  they  do  not  necessarily  involve  any  question  of  a  Fed- 
eral nature,  and,  so  far  as  this  court  is  concerned,  are  concluded  by 
the  decision  of  the  Supreme  Court  of  California. 

We  are  of  opinion,  upon  the  whole  case,  that  the  Supreme  Court  of 
California  correctly  held  that  the  plaintiffs  had  not  been,  or  were  not 
about  to  be,  deprived  of  their  property,  in  violation  of  the  Constitution 
of  the  United  States.  Decree  affirmed. 

Mr.  Justice  Field.     I  dissent. 


CHICAGO,  ETC.  RAILWAY  COMPANY  v.  MINNESOTA. 
Supreme  Court  of  the  United  States.     1889. 

[134  U.  S.  418.]  1 

This  was  a  writ  of  error  to  review  a  judgment  of  the  Supreme  Court 
of  the  State  of  Minnesota,  awarding  a  writ  of  mandamics  against  the 
Chicago,  Milwaukee  &  St.  Paul  Railway  Company. 

The  case  arose  on  proceedings  taken  by  the  Railroad  and  Warehouse 
Commission  of  the  State  of  Minnesota,  under  an  Act  of  the  Legislature 
of  that  State,  approved  March  7,  1887,  General  Laws  of  1887,  c.  10, 
entitled  "  An  Act  to  regulate  Common  Carriers,  and  creating  the  Rail- 
road and  Warehouse  Commission  of  the  State  of  Minnesota,  and  defin- 
ing the  Duties  of  such  Commission  in  Relation  to  Common  Carriers." 
The  Act  is  set  forth  in  full  in  the  margin  [of  134  U.  S.  Reports  at 
pp.  418-434]. 

The  ninth  section  of  that  Act  creates  a  commission  to  be  known  as 
the  "  Railroad  and  Warehouse  Commission  of  the  State  of  Minnesota," 
to  consist  of  three  persons  to  be  appointed  b}'  the  Go\'ernor  bj-  and 
with  the  advice  and  consent  of  the  Senate. 

The  first  section  of  the  Act  declares  that  its  provisions  shall  apply 

1  The  statement  of  facts  is  shortened.  —  Ed. 


UHAP.  IV.]        CHICAGO,   ETC.    RAILWAY   CO.    V.    MINNESOTA.  661 

to  any  common  carrier  "engaged  in  the  transportation  of  passengers 
or  property  wholly  by  railroad,  or  partly  by  railroad  and  partly  by 
water,  when  both  are  used  under  a  common  control,  management  or 
arrangement,  for  a  carriage  or  shipment  from  one  place  or  station  to 
another,  both  being  within  the  State  of  Minnesota." 

The  second  section  declares  "  that  all  charges  made  by  any  common 
carrier,  subject  to  the  provisions  of  this  Act,  for  any  service  rendered 
or  to  be  rendered  in  the  transportation  of  passengers  or  property  as 
aforesaid,  or  in  connection  therewith,  or  for  the  receiving,  delivering, 
storage  or  handling  of  such  property,  shall  be  equal  and  reasonable ; 
and  e^very  unequal  and  unreasonable  charge  for  such  service  is  prohibited 
and  declared  to  be  unlawful." 

The  eighth  section  provides  that  every  common  carrier  subject  to  the 
provision"^  of  the  Act  shall  print  and  keep  for  public  inspection  sched- 
ules of  the  charges  which  it  has  established  for  the  transportation  of 
property ;  that  it  shall  make  no  change  therein  except  after  ten  days' 
pul)lic  notice,  plainlv  stating  the  changes  proposed  to  be  made,  and  the 
time  when  they  will  go  into  effect ;  that  it  shall  be  unlawful  for  it  to 
charge  or  receive  any  greater  or  less  compensation  than  that  so  estab- 
lished and  published,  for  transporting  property  ;  that  it  shall  file  copies 
of  its  schedules  with  the  commission,  and  shall  notify  such  commission 
of  all  changes  proposed  to  be  made  ;  that  in  case  the  commission  shall 
find  at  any°time  that  any  part  of  the  tariffs  of  charges  so  filed  and  pub- 
lished is  in  any  respect  unequal  or  unreasonable,  it  shall  have  the 
power,  and  it  is  authorized  and  directed,  to  compel  any  common  car- 
rier to  change  the   same  and  adopt   such  charge  as  the  commission 
"shall  declare  to  be  equal  and  reasonable,"  to  which  end  the  commis- 
sion shall,  in  writing,  inform  such  carrier  in  what  respect  such  tariff  of 
chaiges  is  unequal  and  unreasonable,  and  shall  recommend  what  tariff 
shalfbe  substituted  therefor ;  that  in  case  the  carrier  shall  neglect  for 
ten  days  after  such  notice  to  adopt  such  tariff  of  charges  as  the  com- 
mission recommends,  it  shall  be  the  duty  of  the  latter  to  immediately 
publish  such  tariff  as  it  has  declared  to  be  equal  and  reasonable,  and 
cause  it  to  be  posted  at  all  the  regular  stations  on  the  line  of  such  car- 
rier in  Minnesota,  and  it  shall  be  unlawful  thereafter  for  the  carrier  to 
chaicre  a  higher  or  lower  rate  than  that  so  fixed  and  published  by  the 
commission ;  and  that,  if  any  carrier  subject  to  the  provisions  of  the 
Act  shall  neglect  to  publish  or  file  its  schedules  of  charges,  or  to  carry 
out  such  recommendation  made  and  published  by  the  commission,  it 
shall  be  subject  to  a  writ  of  mandamus  "  to  be  issued  by  any  judge  of 
the  Supreme  Court  or  of  any  of  the  district  courts"  of  the  State,  on 
application  of  the  commission,  to  compel  compliance  with  the  require- 
ments of  section  8  and  with  the  recommendation  of  the  commission, 
and  a  failure  to  comply  with  the  requirements  of  the  mandamus  shall 
be  punishable  as  and  for  contempt,  and  the  commission  may  apply  also 
to  any  such  judge  for  an  injunction  against  the  carrier  from  receiving 
or  transporting  property  or  passengers  within  the  State  until  it  shall 


662  CHICAGO,    ETC.    RAILWAY    CO.    V.    MINNESOTA.         [CHAP.  IV 

have  complied  with  the  requirements  of  section  8  and  with  the  recom- 
mendation of  tlie  commission,  and  for  any  wilful  violation  or  failure  to 
compl}-  with  such  requirements  or  such  recommendation  ot  tlie  commis- 
sion, the  court  may  award  such  costs,  including  counsel  fees,  by  way  of 
penalty,  on  the  return  of  said  writs  and  after  due  deliberation  thereon, 
as  may  be  just. 

On  the  22d  of  June,  1887,  The  Boards-of-Trade  Union  of  Farming- 
ton,  Northfield,  Faribault,  and  Owatonna,  in  Minnesota,  filed  with  tlie 
commission  a  petition  in  writing,  complaining  that  the  Chicago,  INIil- 
waukee  &  St.  Paul  Railway  Company,  being  a  common  carrier  engaged 
in  the  transportation  of  property  wholly  by  railroad,  for  carriage  or 
shipment  from  Owatonna,  Faribault,  Dundas,  Northfield,  and  Farming- 
ton,  to  the  cities  of  St.  Paul  and  Minneapolis,  all  of  those  i)laces  1)eing 
within  the  State  of  Minnesota,  made  charges  for  its  services  in  the 
transportation  of  milk  from  said  Owatonna,  Faribault,  Dundas,  North- 
field,  and  Farmington  to  St.  Paul  and  Minneapolis,  which  were  unequal 
and  unreasonable,  in  that  it  charged  four  cents  per  gallon  for  the  trans- 
portation of  milk  from  Owatonna  to  St.  Paul  and  Minneapolis,  and 
three  cents  per  gallon  from  Faribault,  Dundas,  Northfield,  and  Farming- 
ton  to  the  said  cities  ;  and  that  such  charges  were  unreasonably  high, 
and  subjected  the  traffic  in  milk  between  said  [)oints  to  unreasonable 
prejudice  and  disadvantage.  The  prayer  of  the  petition  was  that  such 
rates  be  declared  unreasonable,  and  the  carrier  be  compelled  to  change 
the  same  and  adopt  such  rates  and  charges  as  the  commission  should 
declare  to  be  equal  and  reasonable. 

A  statement  of  the  complaint  thus  made  was  forwarded  by  the 
commission,  on  the  29th  of  June,  1887,  to  the  railway  company,  and 
it  was  called  upon  by  the  commission,  on  the  6th  of  July,  1887,  to 
satisfy  the  complaint  or  answer  it  in  writing  at  the  office  of  the  com- 
mission in  St.  Paul,  on  the  13lh  of  July,  1887.  .  .  .  [On  a  hearing 
and  investigation  by  the  commissioners,  the  rate  of  two  and  a  half 
cents  a  gallon,  in  ten-gallon  cans,  was  declared  by  them  to  be  an 
equal  and  reasonable  rate  for  carrying  milk  from  Owatonna  and  Fari- 
bault to  St.  Paul  and  Minneapolis,  and  the  existing  rate  of  three 
cents  a  gallon  was  pronounced  unequal  and  unreasonable,  and  the 
plaintiff  in  error  was  directed  to  change  its  rates  accordingly.  The 
company  neglected  to  obey,  and  the  commission  duly  posted  the  new 
rates  along  the  company's  road,  and  applied  to  the  Supreme  Court  of 
the  State  for  a  writ  of  mandamus  to  compel  the  company's  obedience. 
An  alternative  writ  was  issued.  The  company  answered  denying  the 
power  of  the  legislature  to  delegate  to  a  commission  the  authority  to 
fix  rates  for  transportation,  as  was  attempted  in  the  Act  in  question  ; 
alleging  that  the  State,  in  this  Act,  was  undertaking  to  deprive  it  of 
its  property  without  due  process  of  law  ;  and  that  the  old  rate  was 
reasonable  and  the  new  unreasonable,  and  the  establishing  of  it  a  taking 
of  property  without  due  process  of  law.  At  the  hearing,  the  company 
was  refused  leave  to  take  testimony  as  to  the  reasonableness  of  the  new 


CHAP.  IV.]         CHICAGO,    ETC.    RAILWAY   CO.    f.    MINNESOTA.  6G3 

rate,  and  the  oompaii}-  by  a  peremptoiy  writ  was  ordered  to  cliange  its 
rates  as  required  by  the  commission.  Costs  were  given  against  the 
company  and  a  reargument  was  refused.  Tliereupon  the  company 
brought  this  writ  of  error.] 

3/r.  John  W.  Cary,  for  plaintiff  in  error. 

Mr.  Moses  E.  Clapp  and  3Ir.  IT.  W.  Childs^  for  defendant  in  error. 

3fr.  W.  C.  Goudy,  for  appelhiut. 

Mr.  Justice  Blatchfokd,  after  stating  the  case  as  above  reported, 
delivered  the  opinion  of  the  court. 

The  opinion  of  the  Supreme  Court  of  Minnesota  is  reported  in  38 
Minnesota,  281.  In  it  the  court  in  the  first  place  construed  the  statute 
on  the  question  as  to  whether  the  court  itself  had  jurisdiction  to  enter- 
tain the  proceeding,  and  held  that  it  had.  Of  course,  we  cannot  review 
this  decision. 

It  next  proceeded  to  consider  the  question  as  to  the  nature  and  ex- 
tent of  the  powers  granted  to  the  commission  by  the  statute  in  the  matter 
of  fixing  the  rates  of  charges.  On  that  subject  it  said:  "It  seems  to 
us  that,  if  language  means  anything,  it  is  perfectly  evident  that  the 
expressed  intention  of  tlio  legislature  is  that  the  rates  recommended 
and  published  by  the  comnii.ssion  (assuming  that  they  have  proceeded 
in  the  manner  pointed  ouL  bx  the  j\jttjL_should_be  not  simply  advisory, 
nor  merely  prima  facie  qc[\\q.\  and  reasonable  but  final  and  copt^higivf  nc 
to  what  are  lawful  or  equal  and  reasonable  charges  ;  that,  in  proceed- 
ings to  compel  compliance  with  the  rates  thus  publi^h^d,  the  law  neither 
contemplates  nor  allows  any  issue  to  be  mack,^olMnquiry  had  as  to  their 
equality  and  reasonableness  in  fact.  ^Xj-td^the  provisions  of  th£_Act, 
the  ratesthus  published  are  the  only  ones  that  are  lawful,  and  there- 
fore, in  contemplation  of  law,  the  only  ones  that  are  equal  and  reason- 
til>le  ;  and,  hence,  in  proceedings  like  the  present,  there  is,  as  said 
before,  no  fact  to  traverse,  except  the  violation  of  the  law  in  refusing 
compliance  with  the  recommendations  of  the  commission.  Indeed,  the 
language  of  the  Act  is  so  plain  on  that  point  that  argument  can  add 
nothing  to  its  force." 

It  then  proceeded  to  examine  the  question  of  the  validity  of  the  Act 
under  the  Constitution  of  Minnesota,  as  to  whether  the  legislature  was 
authorized  to  confer  upon  the  commission  the  powers  given  to  the  lat- 
ter by  the  statute.  It  held  that,  as  the  legislature  had  the  power 
itself  to  regulate  charges  by  railroads,  it  could  delegate  to  a  commis- 
sion the  power  of  fixing  such  charges,  and  could  make  the  judgment 
or  determination  of  the  commission  as  to  what  were  reasonable  charges 
final  and  conclusive.  .  .  .  [Here  follows  a  history  of  the  plaintiff  in 
error,  showing  that  it  succeeded  to  the  franchises  of  various  other 
railroad  companies.] 

It  is  contended  for  the  railway  company  that  the  State  of  Minnesota 
is  bound  by  the  contract  made  by  the  Territory  in  the  charter  granted  to 
the  Minneapolis  and  Cedar  Valley  Railroad  Company ;  that  a  contract 
existed  that  the  companj'  should  have  the  power  of  regulating  its  rates 


6G4  CHICAGO,    ETC.    RAILWAY   CO.    V.    MINNESOTA.         [cHAP.  IV. 

of  toll ;  that  any  legislation  by  the  State  infringing  upon  that  right 
impairs  the  obligation  of  the  contract ;  that  there  was  no  provision  in 
the  charter  or  in  any  general  statute  reserving  to  the  Territory'  or  to 
the  State  the  right  to  alter  or  amend  the  charter ;  and  that  no  subse- 
quent legislation  of  the  Territory  or  of  the  State  could  deprive  the 
directors  of  the  company  of  the  power  to  fix  its  rates  of  toll,  sub- 
ject only  to  the  general  provision  of  law  that  such  rates  should  be 
reasonable. 

But  we  are  of  opinion  that  the  general  language  of  the  ninth  section 
of  the  charter  of  the  Minneapolis  and  Cedar  Valley  Railroad  Company 
cannot  be  held  to  constitute  an  irrepealable  contract  with  that  comiian}' 
that  it  should  have  the  right  for  all  future  time  to  prescribe  its  rates  of 
toll,  free  from  all  control  by  the  legislature  of  the  State.  .  .  . 

There  is  nqthing^Jn_tlie  rae_re  grant-Xif-power,  by  section  9  of  the 
charter,  to  the  directors  of  the  company,  to  make  needful  rules  and 
regulations  touching  the  rates  of  toll  and  the  manner  of  collecting  the 
same,  which  can  be  properly  interpreted  as  authoriziiig  us  to  hold  that 
the  State  parted  with  its  gene  ral  authority  itself  to  regulate,  at  any  time 
in  the  future  when  it  mialit^pjTtjrt^dn  so,  the  rates  of  toll  to  be  col- 
lectecFby  the  coliipany. 

In  Stone'xT Farmers'  Loan  and  Trust  Co.,  116  U.  S.  307,  325, 
the  whole  subject  is  fully  considered,  the  authorities  are  cited,  and  the 
conclusion  is  arrived  at,  that  the  right  of  a  State  reasonably  to  limit 
the  amount  of  charges  by  a  railroad  company  for  the_transportation  of 
pei'sons  and  property  within  its  jurisdiction  cannot  be  granted  away  by 
its  legislature_un]£sa-by-words  of  positive  grant  or  words  equivalent  in 
lawj  and  that  a  statute  which  grants  to  a  railroad  compan}'  the  right 
"from  time  to  time  to  fix,  regulate  and  receive  the  tolls  and  charges 
by  them  to  be  received  for  transportation,"  does  not  deprive  the  State 
of  its  power,  within  the  limits  of  its  general  authorit}',  as  controlled  by 
the  Constitution  of  the  United  States,  to  act  upon  the  reasonableness 
of  the  tolls  and  charges  so  fixed  and  regulated.  But,  after  reaching 
this  conclusion,  the  court  said  (p.  331)  :  "  From  what  has  thus  been 
said,  it  is  not  to  be  inferred  that  this  power  of  limitation  or  regulation 
is  itself  without  limit.  This  power  to  regulate  is  not  a  power  to  de- 
stro}',  and  limitation  is  not  the  equivalent  of  confiscation.  Under  pre- 
tence of  regulating  fares  and  freights,  the  State  cannot  require  a 
railroad  corporation  to  carrj-  persons  or  property  without  reward ; 
neither  can  it  do  that  which  in  law  amounts  to  a  taking  of  private 
property  for  public  use  without  just  compensation,  or  without  due 
process  of  law." 

There  being,  thm-afrtrp^  nn  nnnfi-gpf  or  chart^vfd  right  in  the  railroad 
company  which  can  prevent  the  legislature  from  regulating  in  _SQine 
form  the  charges  of  the  company  for  transportation,  the  question  is 
whether  the  form  ado))ted  in  the  present  case  is  valid. 

Tbe-eett^ruction  put  upon  the  statute  bj^lhe  Supreme^X^nin-t  of 
^ianes^la^must  be  ncnepted  by  this  court,  for  the  purposeajof  the  pees- 


CHAP.  IV.]         CHICAGO,    ETC.    RAILWAY   CO.    V.    MINNESOTA.  665 

ent  case,  as  conclusive  and  not  to  be  re-examined  here  as  tojts  propriety 
^7~^;3^J[n^i3]^  "TnieBu]^  authoritatively  declares  that  it  is  tlTe 

e^^^^J^ii^dlntention  of  the  Legislature  of  Minnesota,  by  the  statute,  that 
the  rates  recommended  and  published  by  the  commission,  if  it  proceeds 
in  the  manner  pointed  out  by  tlie  Act,  are  not  simply  advisory,  nor 
merely  i:)rtma/aae  equal  and  reasonable,  but  final  and  conclusive  as 
to  what  are  equal  and  reasonable  charges  ;  that  the  law  neither  con- 
templates nor  allows  any  issue  to  be  made  or  inquiry  to  be  had  as  to 
their  equality  or  reasonableness  in  fact ;  that,  under  the  statute,  the 
rates  pubUshed  by  the  commission  are  the  only  ones  that  are  lawful, 
and,  therefore,  in  contemplation  of  law  the  only  ones  that  are  equal 
and're&sonable  ;  and  that,  in  a  proceeding  for  a  mandamus  under  the 
statute,  there  is  no  fact  to  traverse  except  the  violation  of  law  in  not 
complving  with  the  recommendations  of  the  commission.  In  other 
words,  although  the  railroad  company  is  forbidden  to  establish  rates 
tlaat  are  hofequal  and  reasonable,_Uiere^  is  no_power  in  the  courts  to~ 
stay  the  hands  of  the  commission,  if  it  chooses  to  establish  rates  tliat^ 
are  unequal  and  unreasonable^ 

This  being  the  "construction  of  the  statute  by  which  we  are  bound  in 
considering  Uie  present  case,  we  are  of  opinion  that,  so  construed,  ]^ 
conflicts  with  the  Constitution  of  the  Uni^  States  in  Uie  j)art]culars_ 
cwnpIaTned  of  by  the  railroad  compjiny.  JUt  deprives  the  comijan^jof 
Tl^  right  to  a  judicial  investigation,  by  dueS^rocess  of  law,  under__the, 
forms  and  with  the"  machinery  provided   by  the  wisdom  of  succc^siye^ 
ages  for  the  investigation  judicially  of  the  truth  oL^  matter  in  contro; 
versy,  and  substitutes  therefor,  as  an  absolute  finality;^he_actifin.i)i-a 
railroad  commission  which,  in  view  of  the  powej;s_conceded  to  it  by 
the  State  court,  cannot  be  reganled  as  clothed  witL judicial  functions _ 
orpossesslng-the  machinery  of  a  court  ofjustic^ 

Under  section  8  of  the  statute,  which  the  Sup^me  Court  of  Minne- 
sota says  is  the  only  one  which  relates  to  the  matter  of  the  fixing  by 
the  commission  of  general  schedules  of  rates,  and  which  section,  it  says, 
fully  and  exclusively  provides  for  that  subject,  and  is  complete  in 
itself,  all  that  the  commission  is  required  to  do  is,  on  the  filing  with  it 
by  a  railroad  company  of  copies  of  its  schedules  of  charges,  to  "-  find  " 
that  any  part  thereof  is  in  any  respect  unequal  or  unreasonable,  and 
then  it  is  authorized  and  directed  to  compel  the  company  to  change  the 
same  and  adopt  such  charge  as  the  commission  "  shall  declare  to  be 
equal  and  reasonable,"  and,  to  that  end,  it  is  required  to  inform  the 
company  in  writing  in  what  respect  its  charges  are  unequal  and  un- 
reasonable. No  hearing  is  provided_lQIj_no  summons  or  notice  to  the 
company  before_the  commission  has  fonnd  what  it  is  to  find  and- 
declaredjwhat  it  is  to  declareiJlQ  opportunity  provided  for  the  company 
to  introduc^ witnesses  befQi:e_the  commission,  in  fact,  nothing  which 
has  the  semblance  of  due  process  of  law  ;  and  although,  in  the  present 
ease,  it  appears  that,  prior  to  the  decision  of  the  commission,  the  com- 
pany appeared  before  it  by  its  agent,  and  tlie  commission  invest igated 
the  rates  charged  by  the  company  for  transporting  milk,  yet  it  does 


666  CHICAGO,    ETC.    RAILWAY    CO.    V.    MINNESOTA.         [CHAP.  IV. 

not  appear  what  the  character  of  the   investigation   was  or  how  the 
result  was  arrived  at. 

By  the  secondscction^  of  the_statute  in  question,  it  is  provided  that 
all  charges  made  by  a  commo«-^Carrier  for  the  transportation  of  pas- 
sengers or  property  shall  be  equal  and  reasonable.  Under  this  pro- 
vision, thg^^jarrier  has  a  right  to  make  equaWind  Reasonable  chargesjpr 
sucb_transportalion.  In  the  present  case,  the  return  alleged  that  the 
rate  of  charge  fixed  by  the  commission  was  not  equal  or  reasonable,  and 
the  Supreme  Court  held  that  the,  statute  deprived  the  company  of  the 
right  to  show  that  judicially,  rllie  question  oj^ the  reagonajjliouiss-of  a 
i^ateofjcharge  Ihr-lrauspoilationiay- a  railroad  company,  in^ij^kjiig  as  it, 
does  tiie  element  of  reasonableness  both  as  regards  the  compajiyi^aild 
as  regards  the  public,  is  eminently  a^^estion  for  judicial  investigaUon, 
requiring  due  process  of  law  for  its  determinaliou.  If  the  company  is 
deprived  of  the  power  pf  fhni:oMno_j;c.Msonnbl('  rates  for  the  use  of  its 
property,  and  such  deprivation_takes_pjace  in  the  absence  of  an  investi- 
gatioiiby_iudicial  machinery,  it  is  dq)rived  of  the  lawful  usi?  of  its 
property,  and  thus,  in  substance  and_effe,ctj  of  the  propertx_itself,--wit}> 
out  due  process  of  law  and_in_ylolation  of,  the  CoustitutioiL-OfJLhe 
UnTted  iStates  ;'and  in  so  f^ras  it  is  thus  deprived,  wlule  other  |)ersons 
axe  pennittecf  to  receive  reasonable  iSroRts  u£on_tlKm-  invested  capital, 
the  company  is  deprived  of  the  equal  protection  of  the  jaws. "\ 

It  is  provided  by  section  4  of  article  10  of  the  Constitution  of  Minne- 
sota of  1857,  that  '-lands  may  be  taken  for  public  way,  for  the  pur- 
pose of  granting  to  any  corporation  the  franchise  of  way  for  public 
use,"  and  that  "all  corporations,  being  common  carriers,  enjoying  the 
riglit  of  way  in  pursuance  to  the  provisions  of  this  section,  shall  be 
bound  to  carry  the  mineral,  agricultural  and  other  productions  and 
manufactures  on  equal  and  reasonable  terms."  It  is  thus  perceived 
that  the  provision  of  section  2  of  the  statute  in  question  is  one  enacted 
in  conformity  with  the  Constitution  of  Minnesota. 

The  issuing  of  the  peremptory  writ  of  mandamus  in  this  case  was, 
therefore,  unlawful,  because  in  violation  of  the  Constitution  of  the 
United  States  ;  and  it  is  necessary  that  the  relief  administered  in  favor 
of  the  plaintiff  in  error  should  be  a  reversal  of  the  judgment  of  the 
Supreme  Court  awarding  that  writ,  and  an  instruction  for  further 
proceedings  by  it  not  inconsistent  with  the  opinion  of  this  court. 

In  view  of  the  opinion  delivered  by  that  court,  it  may  be  impossible 
for  any  further  proceedings  to  be  taken  other  than  to  dismiss  the  pro- 
ceeding for  a  mandamus,  if  the  court  should  adhere  to  its  opinion  that, 
under  the  statute,  it  cannot  investigate  judicially  the  reasonableness  of 
the  rates  fixed  by  the  commission.  Still,  the  question  will  be  open  for 
review ;  and 

The  judgment  of  this  court  is,  that  the  judgment  of  the  Supreme 
Court  of  Minnesota,  entered  3Iay  4,  1888,  aicarding  a  peremp- 
tory 7crit  of  mandamus  in  this  case,  he  reversed,  and  the  case  be 
remanded  to  that  court,  irith  an  instruction  for  further  proceed- 
ings not  inconsistent  with  the  opinion  of  this  court. 


CHAP.  IV.]         CHICAGO,   ETC.    RAILWAY    CO.    V.    MINNESOTA.  667 

Mr.  Justice  Miller  concurring. 

I  concur  with  some  hesitation  in  the  judgment  of  the  court,  but  wish 
to  make  a  few  suggestions  of  1he  principles  which  I  think  should  govern 
this  class  of  questions  in  the  courts.  Not  desiring  to  make  a  dissent, 
nor  a  prolonged  argument  in  favor  of  any  views  I  ma}'  have,  I  will 
state  them  in  the  form  of  propositions. 

1.  In  regard  to  the  business  of  common  carriers  limited  to  points 
within  a  single  State,  that  State  has  the  legislative  power  to  establish 
the  rates  of  compensation  for  such  carriage. 

2.  The  power  which  the  legislature  has  to  do  this  can  be  exercised 
through  a  commission  which  it  may  authorize  to  act  in  the  matter,  such 
as  the  one  appointed  by  the  Legislature  of  Minnesota  by  the  Act  now 
under  consideration. 

3.  Neither^  the  legislature  nor  such  commission  acting_jinderjthe 
authorit}'  of  the  legislature,  can  establishjirbitrarily  and  without  regard 
to  justice  and  right  a  tariff  of  rates  for  sucLtraiis4iQrtation.  which  is  so 
unreasonable  as_to  practically  destroy -tlia  valae  (^^  pvnppi-fy  r>f  ppi-sn^i^ 
enffased  in  the  carrying  business  on  the  one  hand,  nor  so  exorbitant 
and  extravagant  as  to  be  in  uttei- disregard  of  the  rights  of  the  public 
for  the  use  of  such_transportatiqn^  on  the  othei*. 

4.  In  either  of  these  classes  of  cases  there  is  an  ultimate  remedy  b}' 
the  parties  aggrieved,  in  the  courts,  for  relief  against  such  oppressive 
legislation,  and  especially  in  the  courts  of  the  United  States,  where 
the  tariff  of  rates  established  either  by  the  legislature  or  by  the  com- 
mission is  such  as  to  deprive  a  party  of  his  property  without  due 
process  of  law. 

5.  But  until  the  judiciary  has  been  appealed  to,  to  declare  the  regula- 
tions made,  whether  by  the  legislature  or  by  the  commission,  voidable 
for  the  reasons  mentioned,  the  tariff  of  rates  so  fixed  is  the  law  of  the 
land,  and  must  be  submitted  to  both  b}'  the  carrier  and  the  parties  with 
whom  he  deals. 

6.  Tiiat  the  proper,  if  not  the  onl}',  mode  of  judicial  relief  against 
the  tariff  of  rates  established  by  the  legislature  or  by  its  commission, 
is  by  a  bill  in  chancer}'  asserting  its  unreasonable  character  and  its 
conflict  with  the  Constitution  of  the  United  States,  and  asking  a  decree 
of  court  forbidding  the  corporution  from  exacting  such  fare  as  excessive, 
or  establishing  its  right  to  collect  the  rates  as  being  within  the  limits  of 
a  just  compensation  for  the  service  rendered. 

7.  That  until  this  is  done  it  is  not  competent  for  £ach  individuaL 
having  dealings  with  the  carrxing  corpoi'atkuv- o^'— Goi'^  the  coi'poratjpn 
with  regard  to  each  ind'''^'^biRl  whn  demnnds  it,<?  sprvipps.  to  raise  a 
contest  in  the  courts  over  the  questions  which  ought  to  be  settled  in. 
this  general  and  conclusive  jnethod. 

8.  But  in  the  present  case,  where  an  application  is  made  to  the 
Supreme  Court  of  the  State  to  compel  the  common  carriers,  namely, 
the  railroad  companies,  to  perform  the  services  which  their  duty  re- 
quires them  to  do  for  the  general  public,  which  is  equivalent  to  estab- 


668  CHICAGO,   ETC.   RAILWAY   CO.   V.   MINNESOTA.        [CHAP.  IV. 

lisbiiig  by  judicial  proceeding  the  reasonableness  of  the  charges  fixed 
by  the  commission,  I  think  tlie  court  has  the  same  right. and  duty  to 
inquire  into  the  reasonableness  of  the  tariff  of  rates  established  by  the 
commission  before  granting  such  relief,  that  it  would  have  if  called 
upon  so  to  do  by  a  bill  in  chancery. 

9.  I  do  not  agree_that  it  was  necessary  to  the  validity  of  the  action 
of  the  commission  that  previous  notice  should  have  been  given_  to_all 
conamon  ca,rriers  interested  in  the  rates  to  be  established,  nor  to  any 
particular  one  of  them,  any  more  than  it  would  have  been  necessary, 
which  I  think  it  is  not,  for  the  legislature  to  have  given  such  notice  if 
it  had  established  such  rates  b^-  legislative  enactment. 

10.  But  when  the  question  becomes  a  judicial  one,  and  the  validity 
and  justice  of  these  rates  are  to  be  established  or  rejected  bylhe  judg- 
ment of  a  court,  it  is  necessary  that  the  railroad  corporations^ interested 
in  the  fare  to  be  considered  should  have  notice  and  have  a  right  to  be 
heard  on  the  question  relating  to  such  fare,  which  I  have  pointed  out 
as  judicial  questions.  For  the  refusal  of  the  Supreme  Court  of  Minne- 
sota to  receive  evidence  on  this  subject,  I  think  the  case  ought  to  be 

Teversed  on  the  ground  that  this  is  a  denial  of  due  process  of  law  in  a 
proceeding  which  takes  the  property  of  the  company,  and  if  this  be  a 
just  construction  of  the  statute  of  Minnesota  it  is  for  that  reason  void.  ^ 

^  Mr.  Justice  Rkadi.ey  (with  whom  concurred  Mr.  Justice  Gray  and  Mr. 
Justice  Lamar)  dissenting. 

I  cannot  agree  to  the  decision  of  the  court  in  this  case.  It  practically  overrules 
Miiri)}  V.  Illinois,  94  U.  S.  113,  and  the  several  railroad  cases  that  were  decided  at  the 
same  time.  The  governing  princii)le  of  those  cases  was  that  the  regulation  and  settig; 
Tnent  of  the  fares  of  milrnads  and  other  public  accommndatioasis  a  legislative  prerog- 
ative  and  not  a  judicial  one.  This  is  a  principle  which  I  regard  iis  of  great  importance. 
When  a  railroad  company  is  chartered,  it  is  for  the  purpose  of  performing  a  duty 
ffhich  belongs  to  the  State  itaelLl  It  is  chartered  as  an  agent  of  the  State  for  fur- 
nishing public  accommodation.  The  State  miglit  build  its  railroads  if  it  saw  fit.  It  is 
its  duty  and  its  prerogative  to  provide  means  of  intercommunication  between  one  part 
of  its  territory  and  another.  And  this  duty  is  devolved  upon  the  legislative  depart- 
ment. Uj^B  legislature  commissions  j)rivate_parties,  wliether  corporations  or  indi- 
viduals, t(7pei7(5riTrilTiF(Tutv,  it  is_its-pterogatixe.,to  fi.\  the  fares  and  freights  which 
they  may  cliarge  for  tlieir  services.  When  merely  a  road  or  a  canal  is  to  be  con- 
structed, it  is  for  the  legislature  to  fix  the  tolls  to  be  paid  by  those  who  use  it ;  when  a 
company  is  chartered  not  only  to  build  a  road,  but  to  carry  on  public  transportation 
upon  it,  it  is  for  the  legislature  to  fix  the  charges  for  such  transportation. 

But  it  is  said  that  all  charges  should  be  reasonable,  and  that  none  but  reasonable 
charges  can  be  exacted  ;  and  it  is  urged  that  what  is  a  reasonable  charge  is  a  judicial 

question.      On  tb*^    ^"Tltrf^Y.  ^^  '"    prpfminpntly    a    1ppri'gl.a.t;v<>   nnp,    I'nvolviiig   cnnsifjpr- 

ations  of  policy  as  well  as  of  remuneration  ;  and  is  usually  determined  by  the  legisla- 
turej  by  fixing  a  maximum  of  charges  in  the  charter  of  the  company,  or  afterwards, 
if  its  hands  are  not  tied  by  contract.  If  this  maximum  is  not  exceeded,  the  courts 
cannot  interfere.  When  the  rates  are  not  thus  determined,  they  are  left  to  the  dis- 
cretion of  the  company,  subject  to  the  express  or  implied  condition  that  they  shall 
be  reasonable ;  express,  when  so  declared  by  statute;  implied,  by  the  common  law, 
when  the  statute  is  silent ;  and  the  common  law  has  effect  by  virtue  of  the  legislative 
will. 

Thus,  the  legislature  either  fixes  the  charges  at  rates  which  it  deems  reasonable; 
or  merely  declares  that  they  shall  be  reasonable ;  and  it  is  only  in  the  latter  caafl^ 


CHAP.  IV.]        CHICAGO,   ETC.   RAILWAY   CO.    V.   MINNESOTA.  669 

where  what  is  reasonable  is  left  open,  that  the  courts  have  jurisiliction  of  the  subject 
I  repeat :  When  the  legislature  declares  that  the  charges  shall  be  reasonable,  or, 
■which  is  the  same  thing,  allows  the  coinmou-law  rule  to  that  effect  to  prevail,  and 
leaves  the  matter  there;  then  resort  may  be  had  to  the  courts  to  inquire  juUicialLy" 
whether"thB  Charges  are  reasoilable.  men,  and  not  till  then,  is  it  a  judicial  ciuestion. 
But  the  legislature  lias  the  right,  and  it  is  its  prerogative,  if  it  chooses  to  exercise  it, 
tojieclare  what  is"reasonable. 

This  IS  just  where  I  differ  from  the  majority  of  the  court.  They  say  in  effect,  if 
not  in  terras,  that  the  final  tribunal  of  arbitrament  is  the  judiciary;  I  say  it  is  the 
li-gislature.  I  hold  that  it  is  a  legislative  question,  not  a  judicial  one,  unless  the 
legislature  or  the  law  (which  is  the  same  thing),  has  made  it  judicial,  by  prescribing 
the  rule  that  the  charges  shall  be  reasonable,  and  leaving  it  there. 

It  is  always  a  delicate  thing  for  the  courts  to  make  an  issue  with  the  legislative 
department  of  the  government,  and  they  should  never  do  so  if  it  is  possible  to  avoid 
it.  By  the  decision  now  made  we  declare,  in  effect,  that  the  judiciary,  and  not  the 
legislature,  is  the  final  arbiter  in  the  regulation  of  fares  and  freiglits  of  railroads  and 
the  charges  of  other  public  accommodations.  It  is  an  assumption  of  authority  on  the 
part  of  the  judiciary  which,  it  seems  to  me,  with  all  due  deference  to  the  judgment 
of  my  brethren,  it  lias  no  right  to  make.  The  assertion  of  jurisdiction  by  this  court 
makes  it  the  duty  of  every  court  of  general  jurisdiction,  State  or  Federal,  to  entertain 
complaints  against  the  decisions  of  the  l)oards  of  commissioners  appointed  by  the 
States  to  regulate  their  railroads ;  for  all  courts  are  bound  by  the  Constitution  of  the 
United  States,  the  same  as  we  are.     Our  jurisdiction  is  merely  appellate. 

The  incongruity  of  this  position  will  appear  more  distinctly  by  a  reference  to  the 
nature  of  the  cases  under  consideration.  Tiie  question  presented  before  the  commis- 
sion in  each  case  was  one  relating  simply  to  the  reasonableness  of  the  rates  charged 
by  the  companies,  —  a  question  of  more  or  less.  In  the  one  case  the  company 
charged  tliree  cents  per  gallon  for  carrying  milk  between  certain  points.  The  com- 
mission deemed  this  to  be  unreasonable,  and  reduced  the  charge  to  2^  cents.  In  the 
other  case  the  company  charged  $1.25  per  car  for  handling  and  switching  empty  cars 
over  its  lines  within  tiie  city  of  Minneapolis,  and  $1.50  for  loaded  cars;  and  the  com- 
mission decided  that  $1.00  per  car  was  a  sufficient  charge  in  all  cases.^  The  companies 
complain  that  the  charges  as  fixed  by  the  commission  are  unreasonably  low,  and  that 
they  are  deprived  of  their  property  without  due  process  of  law  ;  that  they  are  entitled 
to  a  trial  by  a  court  and  jury,  and  are  not  barred  by  the  decisions  of  a  legislative 
commission.  The  State  court  held  that  the  legislature  had  the  right  to  establish 
such  a  commission,  and  that  its  determinations  are  binding  and  final,  and  that  the 
courts  cannot  review  them.  This  court  now  reverses  that  decision,  and  holds  the 
contrary.  In  my  judgment  the  State  court  was  right,  and  the  establishment  of  the 
commission,  and  its  proceedings,  were  no  violation  of  the  constitutional  prohibition 
against  depriving  persons  of  their  property  without  due  process  of  law. 

Tjhiiik  it  is  perfectly  clpnr,  anil  well  s&t.f.lpH  hy  f-l^<lar.[^jrw,c^  of_tllis^ court,  that  the 
legislature  might  have  fixed  the  rates  inguestion.  If  it  had  done  so,  it  would  have 
done  it  through  the  aid  of  committees  appointed  td  investigate  the  subject,  to  acquire 
information,  to  cite  parties,  to  get  all  the  facts  nefore  them,  and  finally  to  decide 
and  report.  No  one  could  have  said  that  this  was  I  not  due  process  of  law.  And  if 
the  legislature  itself  could  do  this,  acting  by  its  comimittees,  and  proceeding  accord- 
ing to  the  usual  forms  adopted  by  such  bodies,  I  can  see  no  good  reason  why  it 
might  not  delegate  the  duty  to  a  board  of  commissioners,  diarged,  as  tTie  board_ia 
this  case  was,  U>  regulate  and  fix  the  charges  so  as  to  be  ecjnal  ami  reasonable- 
Such  a  boar  J  would  have  at  its  command  all  the  means  of  getting  at  the  tjruth  and 
ascertaining  the  reasonahlene.ss  of -faxes  and  frei^Wij^s^  wbiih  a  legi.slative  committee 
^as.  It  might,  or  it  might  not,  swear  witnesses  and  examine  parties.  Its  duties 
being  of  an  administrative  character,  it  would  have  the  widest  scope  for  examination 
and  inquiry.     All  means  of  knowledge  and  information  would  be  at  its  command,— 

1  The  report  does  not  give  the  facts  relative  to  this  case.  —  E©. 


670  CHICAGO,    ETC.    RAILWAY   CO.    V.    MINNESOTA.        [CHAP.  IV. 

just  as  tliey  would  be  at  the  command  of  tlie  legislature  which  created  it.     Such  5 
body,  though  not  a  court,  is  a  proper  tribunal  for  the  duties  imposed  upon  it. 

In  the  case  of  Davidson  v.  Citi/  of  New  Orleans,  96  U.  S.  97,  we  decided  that  tlie 
appointment  of  a  board  of  assessors  for  assessing  damages  was  not  only  due  process 
of  law,  but  the  proper  method  for  making  assessments  to  distribute  the  burden  of  a 
public  work  amongst  those  who  are  benefited  by  it.  No  one  questions  the  constitu- 
tionality or  propriety  of  boards  for  assessing  property  for  taxation,  or  for  the  im- 
provement of  streets,  sewers  and  tlie  like,  or  of  commissions  to  establish  county  seats, 
and  for  doing  many  other  tilings  appertaining  to  the  administrative  management  of 
public  affairs.  Due  process  of  law  does  not  always  requicfi-a-jcuuxt— Jt  merely,  re- 
quires such  tribunals  and  proceedings  as  are  proper  to  the  subject  in  hand. .  In  the 
Jiailroad  Commission  Cases,  116  U.  S.  307,  we  lield  that  aboard  of  commissioners  is 
a  proper  tribunal  for  determining  the  proper  rates  of  fare  and  freight  on  the  rail- 
roads of  a  ytate.  It  seems  to  me,  therefore,  that  the  law  of  Minnesota  did  not  pre- 
scribe anything  that  was  not  in  accordance  with  due  process  of  law  in  creating  such  a 
board,  and  investing  it  with  the  powers  in  question. 

It  is  complained  that  the  decisions  of  the  board  are  final  and  without  appeal.  So 
are  the  decisions  of  the  courts  in  matters  within  their  jurisdiction.  There  must  be  a 
final  tribunal  somewhere  for  deciding  every  question  iu  the  world.  Injustice  may  take 
place  in  all  tribunals.  All  human  institutions  are  imperfect  —  courts  as  well  as  com- 
missions and  legislatures.  Whatever  tribunal  has  jurisdiction,  its  decisions  are  final 
and  conclusive  unless  an  appeal  is  given  tiierefrom.  The  important  question  always 
is,  what  is  the  lawful  tribunal  for  the  particular  case  ?  In  my  judgment,  in  the  pres- 
ent case,  the  proper  tribunal  was  the  legislature,  or  the  board  of  commissioners 
which  it  created  for  the  purpose. 

If  not  in  terms,  yet  in  effect,  the  present  cases  are  treated  as  if  the  constitutional 
prohibition  was,  that  uo  State  shall  take  private  property  for  public  use  witiiout  just 
compensation,  —  and  as  if  it  was  our  duty  to  judge  of  the  compensation.  But  there 
is  no  such  clause  in  the  Constitution  of  the  United  States.  The  Fifth  Amendment  is 
prohibitory  upon  the  P'ederal  government  only,  and  not  upon  the  State  governments. 
In  this  matter,  —  just  compensation  for  property  taken  for  public  use,  —  the  States 
make  their  own  regulations,  by  constitution,  or  otherwise.  They  are  only  required  by 
the  Federal  Constitution  to  provide  "  due  process  of  law."  It  was  alleged  in  David- 
son V.  New  Orleans,  96  U.  S.  97,  that  the  property  assessed  was  not  benefited  by  the 
improvement ;  but  we  held  that  that  was  a  matter  with  wliich  we  would  not  inter- 
fere;  the  question  was,  whether  there  was  due  process  of  law.  p.  106.  If  a  State 
court  renders  an  unjust  judgment,  we  cannot  remedy  it. 

I  do  not  mean  to  say  that  the  le£[islaturer  or  its  constituted  board^of  commission- 
ers.'or  other  legislative  agf^n*'?!  "^J^y  li"*"  ""  ^^*  ^i^  '^"  dppr;vfi_parti£a-IiJLtheir^^property 
w[thont  due  process  of  law.  The  Constitution  contemplates  the  possibility  of  such  an 
invasion  of  rights.  But,  acting  within  tiieir  jurisdiction  (as  in  these  cases  they  have 
done),  the  invasion  sliould  be  clear  and  uumisi;akable  to  bring  the  case  within  tliat 
category.  Nothing  of  the  kind  exists  in  the  cases  before  us.  The  legislature,  in 
establishing  the  commission,  did  not  exceed  its  power;  and  the  commission,  in  acting 
upon  the  cases,  did  not  exceed  its  jurisdiction,  and  was  not  chargeable  with  fraudulent 
behavior.  There  was  merely  a  difference  of  judgment  as  to  amount,  between  the 
commission  and  the  companies,  without  any  indication  of  intent  on  the  part  of  tiie 
former  to  do  injustice.  The  board  may  have  erred ;  but  if  they  did,  as  tlie  matter 
was  within  their  rightful  jurisdiction,  their  decision  was  final  and  conclusive  unless 
their  proceedings  could  be  impeached  for  fraud.  Deprivation  of  property  liy  mere 
arbitrary  power  on  the  part  of  the  legislafnrp,  r>r  fmnd  nn  the  part  of  the  commis_sion. 
are  the  only  grounds  on  which  judicial  relief  may  be  sought  against  their  action- 
There  was,  in  truth,  no  deprivation  of  property  in  these  cases  at  all.  There  was  merely 
a  regulation  as  to  the  enjoyment  of  property,  made  by  a  strictly  competent  authority, 
m  a  JTtnttgr  entirely  witnm  its  jurisdiction. 

^^     n  mav  he  that  our  legi.slatures  are  invested  with  too  much  power,  open,  as  they  are, 
to  influences  so  dangerous  to  the  interests  of  individuals,  corporations  and  society.    But 


CHAP.  IV.]  BUDD  V.    NEW  YORK.  671 

such  is  the  constitution  of  our  republican  form  of  government ;  and  we  are  bound  to 
abide  by  it  until  it  can  be  corrected  in  a  legitimate  way.  If  our  legislatures  become 
too  arbitrary  in  the  exercise  of  tlieir  powers,  the  people  always  have  a  remedy  m  their 
hands  •  they  may  at  auv  time  restrain  them  by  constitutional  lunitatious.  But  so  loug 
as  the'v  remain  invested  with  the  powers  tiiat  ordinarily  belong  to  the  legislative 
branch"  of  .government,  they  are  entitled  to  exercise  those  powers,  amongst  winch,  in 
mv  iu<l.-ment  is  that  of  the  regulation  of  railroads  and  other  public  means  of  inter- 
communication, and  the  burdens  and  charges  wliicii  those  who  own  them  are  autiionzed 
to  impose  upon  the  public.  . 

I  am  authorized  to  say  that  Mr.  Justice  Gray  and  Mr.  Justice  Lamar  agree  with 
me  in  tliis  dissenting  opinion.^ 

In  Bndd  v  .V  F.,  143  U.  S.  .517  (1892),  the  Supreme  Court  of  the  United  States, 
after  reaffirming' the  doctrine  of  Munn  v.  ///.,  94  U.  S.  113  (for  wliich  see  that  case, 
tnfra  p.  743),  Blatchford,  J.,  for  the  court  said:  "It  is  further  contended  that, 
under  the  decision  of  this  court  in  Chkaiio,  ^-c.  Railwai/  Co.  v.  Mrnmsota,  134  U.  S. 
418,  the  fixing  of  elevator  charges  is  a  judicial  question,  as  to  whether  they  are  reason- 
able or  not ;  that  the  statute  must  permit  and  provide  for  a  judicial  settlement  of  the 
charges  ;  and  tliat,  by  the  statute  uuder  consideration,  an  arbitrary  rate  is  fixed,  and 
all  inquiry  is  precluded  as  to  whether  that  rate  is  reasonable  or  not. 

"  But  this  is  a  misapprehension  of  the  decision  of  this  court  in  the  case  referred  to. 
In  that  case,  the  Legislature  of  Minnesota  had  passed  an  Act  which  estabbshed  a  r.ail- 
road  and  warehouse  commission,  and  the  Supreme  Court  of  that  State  had  interpreted 
the  Act  as  provi.ling  that  the  »-ates  of  charges  for  the  transportation  of  property  by  rail- 
roads, recommended  and  published  by  the  commission,  should  be  final  and  conclusive  as 
to  wliat  were  equal  and  reasonable  charges,  and  that  there  could  be  no  judicial  luqmry 
as  to  the  reasonableness  of  such  rates  A  railroad  company,  in  answer  to  an  applica 
tion  for  a  mandamus,  contended  that  such  rates  in  regard  to  it  were  unreasonable,  and, 
as  it  was  not  allowed  bv  the  State  Court  to  put  in  testimony  in  support  of  its  answer, 
on  the  question  of  the  reasonableness  of  such  rates,  this  court  held  that  the  statute 
was  in  conflict  with  tlie  Constitution  of  the  United  States,  as  depriving  the  company 
of  its  property  without  due  process  of  law,  and  depriving  it  of  the  equal  protection  of 
the  laws.  That  was  a  very  different  case  from  one  under  the  statute  of  New  York  in 
question  here,  for  in  this  instance  the  rate  of  charges  is  fixed  directly  by  the  legisla- 
ture. See  Spencer  v.  Merchant,  125  U.  S.  345,  356.  What  was  .said  in  the  opinion  of 
the  court  iu  134  U  S.  had  reference  only  to  the  case  then  before  the  court,  and  to 
charges  fixed  by  a  commission  appointed  under  an  Act  of  the  Legislature,  under  a  Con- 
stitution of  the  State  which  provided  tliat  all  corporations,  being  common  carriers, 
should  be  bound  to  carry  '  on  equal  and  reasonable  terms,'  and  under  a  statute  which 
provided  that  all  charges  made  by  a  common  carrier  for  the  transportation  of  passengers 
or  propert}'^  should  be  '  equal  and  reasonable.' 

"  What  was  said  injheopinion  in  1.34  U^.as  to  the  question  of  the  reasonableness 
of  the  rate  of  charge  being  one  forjiidjcial  investigation,  had  no  refereiice  to  a  case 
wTTere  the  rates  are  prescribed  directly  by  the  leg4slature.  Not  only  was  that  tlTeTase 
in  the  statute  of  Illinois  in  Munn  v.  Illinois,  but  the  doctrine  was  laid  down  by  this 
court  in  Wabash,  ^-c.  Railivai/  Co.  v.  Illinois,  118  U.  S.  557,  568,  that  it  was  the  right 
of  a  State  to  establish  limitations  upon  the  power  of  railroad  companies  to  fix  the 
price  at  which  they  would  carry  passengers  and  freight,  and  that  the  question  was  of 
the  same  character  as  that  involved  iu  fixing  the  charges  to  be  made  by  persons  en- 
gaged in  the  warehousing  business.  So,  too,  in  Dow  v.  Beidelmnn,  125  U.  S.  680,  686, 
it  was  said  tiiat  it  was  witliin  the  power  of  the  legislature  to  declare  what  should  be  a 
reasonable  compensation  for  the  services  of  persons  exercising  a  puldic  employment,  or 
to  fix  a  maximum  beyond  which  any  charge  made  would  be  unreasonable. 

"But  in  Dow  v.  Beidelman,  after  citing  Munn  v.  Illinois,  94  U.  S.  113  [and  several 


1  Compare  Wellmnn  v.  Chir.  Sfc.  Ry.  Co.,  83  Mich.  592  (1890)  ;   Clyde  et  al.  v.  Richm 
Sr  D.  R.  R.  Co.,  57  Fed.  Rep.  436  (1893,  C  C.  U.  S.  So.  Ca.). 


672  STATE  V.   VANDERSLUIS.  [CHAP.  IV. 

other  cases],  as  recognizing  thejloctrinethat  the  legislature  may  itself  fix  a  maximum 
beyond  which  any  cliarge  made  would  be  unreasonable,  in  respect  to  services  rendered 
in  a  public  eiiiployinent,  or  for  the  use  of  property  in  which  the  public  has  an  interest, 
Bubject  to  the  proviso  that  such  power  of  limitation  or  regulation  is  not  without  limit, 
and  is  4iot  a  power  to  destroy,  or  a  power  to  compel  the  doing  of  the  services -witliout 
reward,  or  to  take  private  property  for  public  use  without  just  compeusatiou-Or  wifh- 
but  diie  process  of  law,  the  court  said  that  it  had  no  means,  'if  it  would  under  any 
circumstances  have  the  jiower,'  of  determining  tiiat  the  rate  fixed  by  the  legislature  in 
that  case  was  unreasonable,  and  that  it  did  not  appear  that  there  had  been -any  suen 
confiscation  of  property  ;is  amounted  to  a  talking  of  it  without  due  process  of  law,  or  that 
there  had  been  any  deniul  of  the  equal  protection  of  the  laws. 

"  In  the  cases  before  u^,  the  rei  ords  do  not  show  that  the  charges  fixed  by  the  statute 
are  unreasonable,  or  that  property  has  been  taken  without  due  process  of  law,  or  that 
there  has  been  any  denial  of  the  equal  protection  of  the  laws;  even  if  under  any  cir- 
cumstances "we  could  determine  that  the  maximum  rate  fixed  by  tiie  legislature  was 
unreasonable." 

Compare  B.  R.  Co.  v.  Afarijluiul,  21  Wall  456,  471  (Bradley,  J);  Spencer  v. 
Merchant,  ante,  at  p.  647 ;  Bradley,  J.  (dissenting),  in  Chicago,  ifc.  liy.  Co.  v.  Min- 
nesota, ante,  at  p.  660,  note  ;  and  Paulsen  v.  Portland,  149  U.  S.  30,  38. 

Of  f.hat,  [re^sonahlptiPs.g],  gairl  the_i:£;:i:l_L^^A 'TF,,  £1.  J.),  in  Terry  V.  Ander^Ti,^  95 
U.  S.  p.  633  (1877).Jllli£Lj£gi.slatur^ 4r-i  primtiriljr  thr__jiid^j  and  we  cannot  over- 
rule the  decision  '^f  that  dcpnr^^^mpii*^^  of  the  government,  unless  a  palpable  error 
has  been  committed."  See  Pickering  Phipps  v.  Lond.  ^  N.  IF.  Bi/.  Co.,  66  L.  T. 
Rep.  721. 

Compare  the  function  of  the  court  in  revising  the  verdict  of  a  jury  :  "  Not  merely 
must  the  jury's  verdict  be  conformable  to  the  rules  of  law,  but  it  must  be  defensible 
in  point  of  sense  and  reason  ;  it  must  not  be  absurd  or  whimsical  This  is  obviously 
a  different  thing  from  imposing  upon  the  jury  the  judge's  private  standard  of  wliat  is 
reasonable  ;  as,  for  example,  when  the  question  for  the  jury  itself  is  one  of  reasonable 
conduct.  In  such  a  case,  the  judges  do  not  undertake  to  set  aside  the  verdict  because 
their  own  opinion  of  what  is  reasonable  in  the  conduct  on  trial  differs  from  the  jury's. 
The  question  ^r-the_court.  it  will  be  observed,  is  not  whetiier  the  conduct  ultiniately 
ijLQiifistion^  «^-^-that-af_a_party  injured  in  a  railroad  accident,  was  reasonable,  but 
whether  the  jury's  conduct  is  reasonable  in  holding  it  to  be  so  ;  and  the  test  is  whether 
a  reasonable  person  could,  upon  the  evHlence,  entertain  the  jury's  opinion.  Can  the 
couduct,  which  the  jury  are  judging,  reasonably  be  thought  reasonable  1  Is  that  a 
permissible  view  ?  "  —  Jmw  and  Fact  in  Juri/  Trials,  4  llarv.  Law  Kev.  167,  168.  And 
so  further  Origin  and  Scope  of  Am.  Doct.  Const.  Law,  20-24. 

In  State  v.  Vandershiis,  42  Minn.  129,  131  (1889),  the  court  (Gilfillav,  C.  J.) 
said  :  "  The  only  limit  to  the  legislative  power  in  prescribin^cpnditious-Ux  th&jight 
to  practise  m  a  profession  is  that  they  shall  be  reasonable.  Whether  they  are  reason; 
able,  —  that  is,  whether  the  legislature  has  gone  beyond  the  proper  limitsjjf  its  power,  — 
the  courts  must  judge.  By  the  term  'reasonable'  we  do  notjneau  expedient,  nor  do 
%vejnean  that  the  copiiitinns  must  be  puf^h  "«  <'b'>  <"rnirt.'wnn1d  impnsp  if  Jt  were  called 
on  to  prescribe  what  should  be  the  conditions.  Thev  are  to^be  deemed  reasonable 
where,  although  perhaps  not  the  wisest  and  best  that  might  be  adopted,  they  are  fit  and 
appropriate  to  the  end  in  view,  to  wit,  tbp  protection  of  t.bp  pnliHc,  ami  are  manifestly 
adopted  in  good  faith  for  that  purpose.  If  a  condition  should  be  clearly  ai;bitrary  and 
capricious;  if  no  reason  with  reference  to  the  end  in  view  could  be  assigned  for  Jt^; 
arid,  especially,  it  it  appeared  that  if.  must  bnve  been  Qdnp^ort  for  some  other  pnrpose.,^^ 
snch  for  instance,  as  to  favor  or  benefit  some  persons  or  class  of  persons.  — it  certainly 
would  not  bft  rfta.sonahle,  and  would  be  beyond  the  power  of  the  legislature  to  impose." 

It  may  be  doubted  that  there  is  any  difference  between  the  action  of  a  legislature 
and  that  of  a  legislative  commission,  as  regards  the  questions  involved  in  such  a  case 
as  Chic,  ^c.  Ry.  Co.  V.  Minnesota,  when  once  it  is  clear  that  the  legislature  has  really 


CHAP.  IV.l  EILENBECKER   V.   PLYMOUTH   COUNTY.  673 


p:ilenbecker  v.  Plymouth  county. 

Supreme  Court  of  the  United  States.     1890. 

[134  U.  S.  31.] 

The  case  is  stated  in  the  opinion. 

Mr.  William  A.  IfcITe'nney,  for  plaintiffs  in  error. 

Mr.  J'.  /S.  Struble,  Mr.  S.  M.  Marsh,  and  3L:  A.  J.  Baker,  Attorney- 
General  of  Iowa,  for  defendant  in  error. 

Mr.  Justice  Miller  delivered  tlie  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  the  State  of  Iowa. 

The  judgment  which  we  are  called  upon  to  review  is  one  affirming 
the  judgratMit  of  tlie  District  Court  of  Plymouth  County*  in  that  State. 
This  judgment  imposed  a  fine  of  five  hundred  dollars  and  costs  on  each 
of  the  six  plaintiffs  in  error  in  this  case,  and  imprisonment  in  the  jail 
of  Plymouth  County  for  a  period  of  three  niouLhs,  but  they  were  to  be 

undertaken  to  confer  upon  the  commission  the  power  in  question.     If  the  legislature 
can  exercise  it,  it  would  seem  that  it  may  confer  on  the  commission  a  like  authority. 

Yet,  as  regards  subordinate  bodies,  there  is  always  the  question  of  construction,  as 
to  what  authority  has,  in  fact,  been  conferred  on  them  ;  and  in  passing  on  this,  estab- 
lished common-law  principles  are  applicable, which,  ordinarily,  and  in  the  absence  of  clear 
legislative  intention  to  the  contrary,  enable  the  courts  to  control  their  action  much  more 
readily  than  that  of  the  legislature  itself.  If  a  commission  or  a  liical  board  acts  un-, 
rea.'ionahly,  t^''"  T.nrt-a  nr^y  qpf,  nside  their  action  as  not  ajitlioxized  by  thfi- legislature* 
Similar  action  by  the  legislature  itself  cnn  bp  cnndpiK^ned  only  if  it  be^nconstitutional. 

In  Leader  v.  Moxon  et  al.,  2  W.  Bl.  924,  where  paving  commissioners,  with  general 
powers  "  to  pave,  repair,  sink,  or  alter  [a  certain  street]  in  such  manner  as  the  com- 
missioners shall  think  fit,"  proceeded  to  raise  "  the  footway  contiguous  to  the  plaintiff's 
houses  to  the  height  of  six  feet,  but  in  a  regular  descent  from  one  end  of  the  street  to 
the  other,  .  .  .  whereby  the  doors  and  windows  of  the  ground-floors  of  the  said  houses 
were  totally  obstructed,"  — it  was  held,  that  "  the  commissioners  had  grossly  exceeded 
their  powers,  which  must  have  a  reasonable  construction.  Their  discretion  is  not  arbi- 
trary, but  must  be  limited  by  reason  and  law.  .  .  .  Had  Parliament  intended  to  demolish 
or  render  useless  some  houses  for  the  benefit  or  ornament  of  the  rest,  it  would  have  given 
express  powers  for  that  purpose  and  given  an  equivalent  for  the  loss  that  individuals 
might  have  sustained  thereby." 

In  Sharp  v.  WaLeJield  [1891]  Appeal  Cases,  173,  179,  Lord  Chancellor  Hals- 
bury,  in  speaking  of  the  authority  of  licensing  justices  in  regard  to  the  sale  of 
intoxicating  liquors,  said  ;  "  An  extensive  power  is  confided  to  the  justices  in  thefr 
capacity  as  justices,  to  be  exercised  judicially ;  and  '  discretion  '  means,  when  it  is  said 
that  something  is  to  be  done  within  the  discretion  of  the  authorities,  that  something 
is  to  be  done  according  to  the  rules  of  reason  and  justice,  not  according  to  private 
opinion,  Rooke's  Case,  5  Rep.  100  a;  according  to  law,  and  not  humor.  It  is  to  be  not 
arbitrary,  vague,  and  fanciful,  but  legal  and  regular.  And  it  must  be  exercised  within 
the  limit  to  which  an  honest  man  competent  to  the  discharge  of  his  ofiice  ought  to 
confine  himself.      Wilson  v.  Easta/l,  4  T.  R.  at  p.  757." 

As  to  the  general  question  of  the  legislatiye  power  over  railroads,  see  also  Ch.,  B.  Sf 
Q.  R.  R.  Co.  V.  Iowa,  94  U.  S.  155  (1876),  and  R.  R  Com.  Cases,  116  IT.  S.  307  (1885). 
—  Ed. 

VOL.  I.  —  43 


67-4  EILENBECKKK   V.    PLYMOUTH    COUNTY.  [CU. 


TV. 


released  from  confinement  if  the  fine  imposed  was  paid  within  thirt}' 
days  from  the  date  of  the  judgment. 

This  sentence  was  pronounced  b^"  the  court  as  a  punishment  for 
contempt  in  refusing  to  obey  a  writ  of  injunction  issued  by  that  court, 
enjoining  and  restraining  each  of  the  defendants  from  selling,  or 
keeping  for  sale,  any  intoxicating  liquors,  including  ale,  wine  and 
beer,  in  Pl3'mouth  County,  and  the  sentence  was  imposed  upon  a 
hearing  by  the  court,  without  a  jury,  and  upon  evidence  iu  the  form  of 
affidavits. 

It  appears  that  on  the  11th  day  of  June,  1885,  separate  petitions  in 
equitv  were  filed  in  the  District  Court  of  Plymouth  Count}'  against  each 
of  these  plaintiffs  in  error,  praying  that  they  should  be  enjoined  from 
selling,  or  keeping  for  sale,  intoxicating  liquors,  including  ale,  wine  and 
beer,  in  that  county.  On  the  6th  of  July  the  court  ordered  the  issue  of 
preliminary  injunctions  as  prayed.  On  the  7lh  of  July  the  writs  wore 
served  on  each  of  the  defendants  in  each  proceeding  b}-  the  sheiKf  of 
Pl3'mouth  Count}'.  On  the  24th  of  October  complaints  were  filed, 
alleging  that  these  plaintiffs  in  error  had  violated  this  injunction  by 
selling  intoxicating  liquors  contrary  to  the  law  and  the  terms  of  the 
injunction  served  on  them,  and  asking  tliat  they  be  required  to  show 
cause  why  the}'  should  not  be  punished  for  contempt  of  court.  A  rule 
was  granted  accordingly,  and  the  court,  having  no  personal  knowledge 
of  the  facts  charged,  ordered  that  a  hearing  be  had  at  the  next  term  of 
the  court,  upon  affidavits  ;  and  on  the  8tii  day  of  March,  188G,  it  being 
at  the  regular  terra  of  said  District  Court,  separate  trials  were  had 
upon  evidence  in  the  form  of  affidavits,  by  the  court  without  a  jury, 
upon  which  the  plaintiffs  were  found  guilty  of  a  violation  of  the  writs 
of  injunction  issued  in  said  cause,  and  a  sentence  of  fine  and  imprison- 
ment, as  already  stated,  entered  against  them. 

Each  plaintiff  obtained  from  the  Supreme  Court  of  the  State  of  Iowa, 
upon  petition,  a  writ  of  certiorari,  in  which  it  was  alleged  that  the  Dis- 
trict Court  of  Plymouth  County  had  acted  without  jurisdiction  and 
illegally  in  rendering  this  judgment,  and  by  agreement  of  counsel,  and 
with  the  consent  of  the  Supreme  Court  of  Iowa,  the  cases  of  the  six 
appellants  in  this  court  were  submitted  together  and  tried  on  one  tran- 
script of  record.  That  court  affirmed  the  judgment  of  the  District 
Court  of  Plymouth  County,  and  to  that  judgment  of  affirmance  this  writ 
of  error  is  prosecuted.  .  .  .  [Four  assignments  of  error  are  here 
stated.] 

The  first  three  of  these  assignments  of  error,  as  we  have  stated 
them,  being  the  first  and  second  and  fourth  of  the  assignments  as  num- 
bered in  the  brief  of  the  plaintiffs  in  error,  are  disposed  of  at  once  by 
the  principle  often  decided  by  this  court,  that  the  first  eight  articles  of 
the  amendments  to  the  Constitution  have  reference  to  powers  exercised 
by  the  government  of  the  United  States  and  not  to  those  of  the  States. 
Livingston  v.  Moore,  7  Pet.  469  ;  The  Justices  v.  3Iurray,  9  Wall. 
274 ;   Edwards   v.   Elliott,  21  Wall.  532 ;    United  States   v.    Cruik- 


CVifi       IV,]  EILEXBECKER  V.   PLYMOUTH   COUNTY.  675 

shank,  92  U.  S.  542  ;  Walker  v.  Sauv'uiet,  92  U.  S.  90  ;  Fox  v.  Ohio, 
o  How.  410;  Holmes  v.  Jennison,  14  Pet.  540;  Presser  v.  Illinois^ 
116  U.  S.  252.  .  .  . 

This  leaves  us  alone  the  assignment  of  error  that  the  Supreme  Court 
of  Iowa  disregarded  the  provisions  of  section  1  of  Article  XIV.  of  the 
amendments  to  the  Constitution  of  the  United  States,  because  it  upheld 
the  statute  of  Iowa/  which  it  is  supposed  by  counsel  deprives  persons 
charged  with  selling  intoxicating  liquors  of  the  equal  protection  of  the 
law,  abridges  their  rights  and  privileges,  and  denies  to  them  the  right 
of  trial  b}'  jur}-,  while  in  all  other  criminal  prosecutions  the  accused 
must  be  presented  by  indictment,  and  then  have  the  benefit  of  trial  by 
a  jury  of  his  peers. 

The  first  observation  to  be  made  on  this  subject  is,  that  the  plaintiffs 
in  error  are  seeking  to  reverse  a  judgment  of  the  District  Court  of 
Plymouth  County,  Iowa,  imposing  upon  them  a  fine  and  imprisonment 
for  violating  the  injunction  of  that  court,  which  had  been  regularly 
issued  and  served  upon  them.  Of  the  intentional  violation  of  this 
injunction  by  plaintiffs  we  are  not  permitted  to  entertain  an}-  doubt,  and, 
if  we  did,  the  record  in  the  case  makes  it  plain.  Neither  is  it  doubted 
that  they  had  a  regular  and  fair  trial,  after  due  notice,  and  opportunity 
to  defend  themselves  in  open  court  at  a  regular  term  thereof. 

The  contention  of  these  parties  is,  that  they  were  entitled  to  a  trial 
bj'  jury  on  the  question  as  to  whethei-  they  were  guilty  or  not  guilty  of 
the  contempt  charged  upon  them,  and  because  they  did  not  have  this 
trial  by  jury  they  say  that  the}'  were  deprived  of  their  liberty  without 
due  process  of  law  within  the  meaning  of  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States. 

If  it  has  ever  been  understood  that  proceedings  accoKling  td  the 
common  law  for  contempt  of  court  have  been  subject  to  the  light  of 
trial  by  jury,  we  have  been  unable  to  find  any  instance  of  it.     It  has 

1  Section  1543  of  the  Code  of  Iowa,  as  amended  by  c.  143  of  the  Acts  of  the  Twei^-, 
tieth  General  Assembly,  is  as  follows : 

Sec.  1543.  In  case  of  violation  of  the  provisions  of  either  of  the  three  preceding 
sections  or  of  section  fifteen  hundred  and  twenty-five  of  this  chapter,  the  building  or 
erection  of  whatever  kind,  or  the  ground  itself  in  or  upon  which  such  unlawful  manu- 
facture, or  sale,  or  keeping,  with  intent  to  sell,  u.se  or  give  away,  of  any  intoxicating 
liquors,  is  carried  on  or  continued  or  exists,  and  the  furniture,  fixture,  vessels  and 
contents,  is  hereby  declared  a  nuisance,  and  shall  be  abated  as  hereinafter  provided, 
and  whoever  shall  erect  or  establish,  or  continue,  or  use  any  building,  erection  or  place 
for  any  of  the  purposes  prohibited  in  said  sections,  shall  be  deemed  guilty  of  a  nuisance, 
and  may  be  prosecuted  and  punished  accordingly,  and  upon  conviction,  shall  pay  a  fine 
of  not  exceeding  one  thousand  dollars  and  costs  of  prtisecution,  and  stand  committed 
until  the  fine  and  costs  are  paid  ;  and  the  provisions  of  chapter  47,  title  25  of  this 
Code,  shall  not  be>jipplicable  to  persons  committed  under  this  .section.  Any  citizen  of 
the  county  where  such  nuisance  exists,  or  is  kept  or  maintained,  may  maintain  an 
action  in  equity,  to  abate  and  perpetually  enjoin  the  same,  and  any  person  violating 
the  terms  of  any  injunction  granted  in  such  proceeding  shall  be  punished  as  for  con- 
tempt, by  fine  of  not  less  than  five  hundred  nor  more  than  one  thousand  dollars  or  by 
imprisonment  in  the  county  jail  not  more  than  six  months,  or  by  both  such  fine  and 
imprisonment  in  the  discretion  of  the  court. 


676  EILENBECKER   V.    PLYMOUTH   COUNTY.  [CHAP.  IV, 

alwaj'S  been  one  of  the  attributes  —  one  of  the  powers  necessarily 
incident  to  a  court  of  justice  —  that  it  should  liave  this  power  of  vindi- 
cating its  dignity,  of  enforcing  its  orders,  of  protecting  itself  from 
insult,  without  the  necessit}'  of  calling  upon  a  jury  to  assist  it  in  the 
exercise  of  this  power. 

In  the  case  in  this  court  of  Ex  parte  Terry,  128  U.  S.  289,  this  doc- 
trine is  full}'  asserted  and  enforced  ;  quoting  the  language  of  the  court 
in  the  case  of  Anderson  v.  Dunn^  6  Wheat.  204,  227,  where  it  was  said 
that  ''courts  of  justice  are  universally  acknowledged  to  be  vested,  by 
their  very  creation,  with  power  to  impose  silence,  respect  and  decorum 
in,  their  presence,  and  submission  to  their  lawful  mandates ;  "  citing 
also  with  approbation  the  language  of  the  Supreme  Judicial  Court  of 
Massachusetts  in  Cartwrighf s  Case,  114  Mass.  230,  238.  that  "the 
summary  power  to  commit  and  punish  for  contempts  tending  to  obstruct 
or  degrade  the  administration  of  justice  is  inherent  in  courts  of  chan- 
cery and  other  superior  courts,  as  essential  to  the  execution  of  their 
powers  and  to  the  maintenance  of  their  authority,  and  is  part  of  the 
law  of  the  land,  within  the  meaning  of  Magna  Charta  and  of  the 
twelfth  article  of  our  Declaration  of  Rights." 

And  this  court,  in  Terr3''s  case,  held  that  a  summary'  proceeding  of 
the  Circuit  Court  of  the  United  States  without  a  jur}",  imposing  upon 
Terry  imprisonment  for  the  term  of  six  months,  was  a  valid  exercise  of 
the  powers  of  the  court,  and  that  the  action  of  the  Circuit  Court  was 
also  without  error  in  refusing  to  grant  him  a  writ  of  habeas  corpus. 
The  case  of  Terry  came  into  this  court  upon  application  for  a  writ  of 
habeas  corpus,  and  presented,  as  the  case  now  before  us  does,  the 
question  of  the  authority  of  the  Circuit  Court  to  impose  this  imprison- 
ment on  a  summary  hearing  without  those  regular  proceedings  which 
include  a  trial  by  jury  —  which  was  affirmed.  The  still  more  recent 
cases  of  Ex  parte  Savin,  131  U.  S.  267,  and  Ex  parte  Cuddy,  131 
U.  S.  280,  assert  very  strongly  the  same  principle.  In  Ex  parte 
Hobinson,  19  Wall.  505,  510,  this  court  speaks  in  the  following 
language : 

"  The  power  to  punish  for  contempts  is  inherent  in  all  courts.  Its 
existence  is  essential  to  the  preservation  of  order  in  judicial  proceed- 
ings, and  the  enforcement  of  the  judgments,  orders  and  writs  of  the 
courts,  and  consequently  to  the  due  administration  of  justice.  The 
moment  the  courts  of  the  United  States  were  called  into  existence  and 
invested  with  jurisdiction  over  an}'  subject,  they  became  possessed  of 
this  power.  But  the  power  has  been  limited  and  defined  In'  the  Act 
of  Congress  of  March  2d,  1831.     4  Stat.  487." 

The  statute,  now  embodied  in  §  725  of  the  Revised  Statutes,  reads  as 
follows:  "The  power  of  the  several  courts  of  the  United  States  to 
issue  attachments  and  inflict  summary'  punishments  for  contempts  of 
court  shall  not  be  construed  to  extend  to  an}'  cases  except  the  misbe- 
havior of  an}'  person  or  persons  in  the  presence  of  the  said  courts  or 
8o  near  thereto  as  to  obstruct  the  administration  of  justice,  the  mis- 


CHAP.  TV.]  EILENBECKER   V.    PLYMOUTH    COUNTY.  677 

behavior  of  any  of  the  officers  of  the  said  courts  in  their  official 
transactions,  and  the  disobedience  or  resistance  by  any  officer  of  the 
said  courts,  party,  juror,  witness,  or  any  other  person  or  persons  to 
any  lawful  writ,  process,  order,  rule,  decree,  or  command  of  the  said 
courts." 

It  will  thus  be  seen  that  even  in  the  Act  of  Congress,  intended  to 
limit  the  power  of  the  courts  to  punish  for  contempts  of  its  authority 
by  summary  proceedings,  there  is  expressly  left  the  power  to  punish 
in  this  summary  manner  the  disobedience  of  any  party,  to  any  lawful 
writ,  process,  order,  rule,  decree  or  command  of  said  court.  This 
statute  was  only  designed  for  the  government  of  the  courts  of  the 
United  States,  and  the  opinions  of  this  court  in  the  cases  we  have 
already  referred  to  show  conclusively  what  was  the  nature  and  extent 
of  the  power  inherent  in  the  courts  of  the  States  by  virtue  of  their 
organization,  and  that  the  punishments  which  they  were  authorized  to 
inflict  for  a  disobedience  to  their  writs  and  orders  were  ample  and  sum- 
mary, and  did  not  require  the  interposition  of  a  jury  to  find  the  facts  or 
assess  the  punishment.  This,  then,  is  due  process  of  law  in  regard  to 
contempts  of  courts  ;  was  due  process  of  law  at  the  time  the  Four- 
teenth Amendment  of  the  Federal  Constitution  was  adopted;  and 
nothing  has  ever  changed  it  except  such  statutes  as  Congress  may 
have  enacted  for  the  courts  of  the  United  States,  and  as  each  State 
may  have  enacted  for  the  government  of  its  own  courts. 

So  far  from  any  statute  on  this  subject  limiting  the  power  of  the 
courts  of  Iowa,  the  Act  of  the  Legislature  of  that  State,  authorizing 
the  injunction  which  the.se  parties  are  charged  with  violating,  expressly 
declares  that  for  violating  such  injunction  a  person  doing  so  shall  be 
punished  for  the  contempt  by  a  fine  of  not  less  than  five  hundred  or 
more  than  a  thousand  dollars,  or  by  imprisonment  in  the  county  jail 
not  more  than  six  months,  or  by  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  court.  So  that  the  proceeding  by  which  the  fine 
and  imprisonment  imposed  upon  these  parties  for  contempt  in  violating 
the  injunction  of  the  court,  regularly  issued  in  a  suit  to  which  they  were 
parties,  is  due  process  of  law,  and  always  has  been  due  process  of  law, 
and  is  the  process  or  proceeding  by  which  courts  have  from  time  im- 
memorial enforced  the  execution  of  their  orders  and  decrees,  and  cannot 
be  said  to  deprive  the  parties  of  their  liberty  or  property  without  due 
process  of  law. 

The  counsel  for  plaintiffs  in  error  seek  to  evade  the  force  of  this 
reasoning  by  the  proposition  that  the  entire  statute  under  which  this 
injunction  was  issued  is  in  the  nature  of  a  criminal  proceeding,  and 
that  the  contempt  of  court  of  which  these  parties  have  been  found 
guilty  is  a  crime  for  the  punishment  of  which  they  have  a  right  to  trial 
by  jury. 

We  cannot  accede  to  this  view  of  the  subject.  Whether  an  attach- 
ment for  a  contempt  of  court,  and  the  judgment  of  the  court  punishing 
the  party  for  such  contempt,  is  in  itself  essentially  a  criminal  proceed- 


678  EILENBECKER  V.   PLYMOUTH   COUNTY.  [CHAP.  IV. 

iug  or  not,  we  do  not  find  it  necessary  to  decide.  We  simpl}-  hold  that, 
whatever  its  nature  may  be,  it  is  an  offence  against  the  court  and 
against  the  administration  of  justice,  for  which  courts  have  always  had 
the  right  to  punish  the  party  by  summary  proceeding  and  without  trial 
by  jury  ;  and  that  in  that  sense  it  is  due  process  of  law  witliiu  the 
meaning  of  the  Fourteenth  Amendment  of  the  Constitution.  We  do 
not  suppose  that  that  provision  of  the  Constitution  was  ever  intended  to 
interfere  with  or  abolish  the  powers  of  the  courts  in  proceedings  for 
contempt,  whether  this  contempt  occurred  in  the  course  of  a  criminal 
proceeding  or  of  a  civil  suit. 

We  might  rest  the  case  here  ;  but  the  plaintiffs  in  error  fall  back 
upon  the  proposition  that  the  statute  of  the  Iowa  Legislature  concern- 
ing the  sale  of  liquors,  under  wliich  this  injunction  was  issued,  is  itself 
void,  as  depriving  the  parties  of  their  property  and  of  their  libertj' 
without  due  process  of  law.  We  are  not  prepared  to  say  that  this 
question  arises  in  the  present  case.  The  principal  suit  in  which  the 
injunction  was  issued,  for  the  contempt  of  which  these  parties  have 
been  sentenced  to  imprisonment  and  to  pay  a  fine,  has  never  been  tried 
so  far  as  this  record  shows.  We  do  not  know  whether  the  parties 
demanded  a  trial  by  jury  on  the  question  of  tlieir  guilt}'  violation  of  that 
statute.  We  do  not  know  that  they  would  have  been  refused  a  trial  b}' 
jury  if  they  had  demanded  it.  Until  the  trial  of  that  case  has  been  had 
they  are  not  injured  b}'  a  refusal  to  grant  them  a  jury  trial.  It  is  the 
well-settled  doctrine  of  this  court  that  a  part  of  a  statute  may  be  void 
and  the  remainder  may  be  valid.  That  part  of  this  statute  which 
declares  that  no  person  shall  own  or  keep,  or  be  in  any  way  con- 
cerned, engaged  or  employed  in  owning  or  keeping  any  intoxicating 
liquors  with  intent  to  sell  the  same  within  this  State,  and  all  the  pro- 
hibitory clauses  of  the  statute,  have  been  held  by  this  court  to  be 
within  the  constitutional  powers  of  the  State  Legislature,  in  the  cases 
of  Mugler  v.  Kansas,  123  U.  S.  623,  and  Fowell  v.  I'eiinsylvania, 
127  U.  S.  678. 

If  the  objection  to  the  statute  is  that  it  authorizes  a  proceeding  in 
the  nature  of  a  suit  in  equity  to  suppress  the  manufacture  and  sale  of 
intoxicating  liquors  which  are  by  law  prohibited,  and  to  abate  the 
nuisance  which  the  statute  declares  such  acts  to  be,  wherever  carried 
on,  we  respond  that,  so  far  as  at  present  advised,  it  appears  to  us  that 
all  the  powers  of  a  court,  whether  at  common  law  or  in  chancery,  may 
be  called  into  operation  by  a  legislative  body  for  the  purpose  of  sup- 
pressing this  objectionable  traffic ;  and  we  know  of  no  hindrance  in  the 
Constitution  of  the  United  States  to  the  form  of  proceedings,  or  to  the 
court  in  which  this  remedy  shall  be  had.  Certainly  it  seems  to  us  to 
be  quite  as  wise  to  use  the  processes  of  the  law  and  the  powers  of  the 
court  to  prevent  the  evil,  as  to  punish  the  offence  as  a  crime  after  it  has 
been  committed. 

We  think  it  was  within  the  power  of  the  court  of  Plymouth  County 
to  issue  the  writs  of  injunction  in  these  cases,  and  that  the  disobedience 


fi7Q 
CHAP.  IV.]  CAKLETON   i;    RUGG. 

to  them  by  the  plaintiffs  in  error  subjected  them  to  the  proceedings  for 
contempt  which  were  had  before  that  court 

The  judgment  of  the  Supreme  Court  of  Iowa  is  ^^,^,rf. 

In  Carleton  v.  Bugg.  149  Mass.  550  (1889),  on  a  petition  in  equity, 
J:^::;!:::ment  of^nu^.ce,  and  a..  i..^>ncUon  re.ra..ung  Uu^e.^ 

-T r^i^^-C  :  ^^^^^^^  Clurt  anc.  ...nor 
Com-t  shin  have  jurisdiction  in  equity  upon  information  ^]^l^^  '^ 
Slict  auorney  f^r  the  district,  or  upon  the  Peti^^^^^^^^  nc.  1  ^  - 
ten  legal  voters  of  any  town  or  ci  y ,  -";  ^^.^^^^^ 'm  pltitution' 
building,  place,  or  tenement  t^^^^^r/^J^'^fill  '^keeping  or  sale 
lewdness,  or  illegal  gaming,  or  is  used  foi  '^^f^^^Xl  sln^^  as  a 

^  In  be  avreste.,.  i™pHso.«,,  .espoU^    or  ^^  of  ,,,s 
property,  immunities,  or  privileges,   .  .  •  but  b>   tne  jua„ 
^T^V:'dr„ru:L"'the  ;e;,>o„dents  to  contend  tUat  the  p,«v. 
.0  J:,  tUe  PUK  -  ;^-   wU-,a  ;e.-e  ;ue  ..e  ^^^^^^^^^^ 
liquors,  or  those  of  the  Tub.  bts.,  c.  lui,  s     ,  keenin^T  or 

in;;:r;:::tt^::^.:^=^:n!:^i^?r^::;  :s  ■ 

:'t  stattrthey  a,.  Uab.:  to  be  depnved  of  "-rp™^ort3  -ca- 
nities, and  privileges  otherwise  than  by  the  judgment  of  then  pee.s 

'' -r:etnrcy"of'tl>o  argument  lies  in  part  in  disregarding  the  distinc- 
tion be  .!!  n  a  proceeding  to  abate  a  nuisance,  which  looks  only  to  the 
nrouertv  thatin  the  use  m.ade  of  it  constitutes  the  nu.sanee,  and  a  pio- 
S::;::  \1'  pumsh  an  o.endcr  f.;  t,;e  crime  of  mai„ta,n.ng  a  „u.a„^^^ 

:r  r  ;:;:rnTof"Lt;;;:L"'r;  a^d^i  on,  wi.  the 
s^rni;s.:r.:r^e:™^:n:ttu';n^^^^ 


680  CARLETON   V.   KUGG.  [CHAP.  IV. 

equity  of  the  power  to  abate  the  nuisance.  Attorney -General  v. 
Hunter,  1  Dev.  Eq.  12.  People  v.  St.  Louis,  5  Gihuan,  351.  Ewell 
V.  Greenwood,  26  Iowa,  377.     Minke  v.  Hopeman,  87  111.  450.  .  .  . 

"  It  should  be  borne  in  mind,  that  this  is  not  a  statute  which  professes 
to  look  to  the  conduct  of  persons  to  prevent  the  commission  of  crime. 
If  it  were,  it  would  have  no  legitimate  place  in  our  jurisprudence. 
There  is  no  doubt  that  in  hearings  upon  applications  for  preliminary 
injunctions  and  orders  pe/^c^ew^e  lite  in  suits  in  equity,  and  in  proceed- 
ings for  the  punishment  of  contempt  of  court,  the  parties  have  no 
constitutional  right  to  a  trial  by  jury.  It  would  be  an  anomalous  pro- 
ceeding for  a  court  to  enjoin  a  defendant  from  committing  the  crime 
of  larceny,  or  of  selling  intoxicating  liquors,  with  a  view  to  punish  as 
disobedience  of  the  injunction  and  contempt  of  court  the  same  act 
which  was  before  punishable  as  a  crime.  If  that  could  be  done,  an 
accused  person  through  a  mere  change  of  form  in  the  proceedings 
might  be  punished  for  a  crime  without  a  trial  by  jury,  and  in  violation 
of  both  the  Federal  and  State  constitutions.  There  would  be  strong 
ground  for  contending  that  a  statute  which  should  attempt  to  authorize 
such  a  method  of  preventing  or  punishing  ordinary  crimes  would  be 
unconstitutional.  Indeed,  even  where  a  plaintiff  seeks  the  aid  of  a 
court  of  equity  to  protect  him  from  irreparable  injur}-  through  the 
threatened  publication  of  a  libel,  or  the  commission  of  some  other  like 
crime,  the  courts  decline  to  interfere.  JBrandreth  v.  Lance,  8  Paige, 
24;  Fleming  v.  Neioton,  1  H.  L.  Cas.  363,  376  ;  Boston  Diatite  Co. 
V.  Florence  Manuf.  Co.,  114  Mass.  69."  .  .  . 

Injunction  to  issue.^ 

1  And  so  State  v.  Saunders,  25  Atl.  Kep.  588  (N.  H.  December,  1889). 

In  Caileton  v.  Rugg,  Field,  J.,  gave  a  dissenting  opinion  in  the  course  of  wliich  he 
said;  "  The  phrase  '  due  process  of  law,'  contained  in  the  Fourteenth  Amendment  of 
the  Constitution  of  the  United  States,  has  not  been  construed  to  mean  tliat  parties  shall 
be  entitled  to  a  jury  trial  in  civil  suits  at  common  law,  or  that  a  person  shall  lie  tried 
for  a  felony  or  a  capital  crime  only  on  presentment  of  a  grand  jury,  and  it  is  doubtful, 
even,  if  it  would  be  held  tliat  the  amendment  secures  a  trial  by  jury  in  criminal  cases. 
The  clause  of  tliat  amendment  we  are  considering  is  a  restraint  on  all  the  States  of 
the  United  States,  and  the  Supreme  Court  of  the  United  States  has  taken  notice  that 
there  are  considerable  diversities  in  the  jurisprudence  of  the  different  States.  .  .  . 
Apparently  any  mode  of  procedure  duly  estalilished  by  a  State,  which  provides  for  an 
impartial  trial,  and  does  not  violate  the  fundamental  principles  of  general  juris- 
prudence, would  be  due  process  of  law  within  the  meaning  of  that  amendment.  A 
different  construction  has  been  given  by  this  court  to  the  phrase  'the  law  of  the 
land,'  contained  in  Article  XII.  of  our  Declaration  of  Rights,  and  Kansas  v.  Ziehold 
is  not  an  authority  upon  the  meaning  of  our  Constitution.  See  Hurtado  v.  People, 
110  U.  S.  516;  .Joves  v.  liohhlns,  and  other  Massachusetts  cases  cited  uhi  supra.  It 
will  hardly  be  contended  that  intoxicating  liquors  can  be  destroyed  in  this  Common- 
wealth because  they  are  kept  for  sale  in  violation  of  law,  unless  this  fact  has  been 
found  by  a  jury.  Fisher  v.  McGirr,  1  Gray,  1  ;  Brown  v.  Perkins,  12  Gray,  89.  See 
FJ>I  V.  Supervisors,  36  N.  Y.  297  ;  Graij  v.  Ayres,  7  Dana,  375 ;  Welch  v.  Stowell,  2 
Doug.  (Mich.)  332 ;  Rex  v.  Pappineau,  Strange,  686.  .  .  . 

"The  Massachusetts  Statute  of  1887,  c.  380,  was  not  passed  for  the  abatement  of  a 
nuisance  by  destroying  or  changing  the  character  or  condition  of  tangible  property, 
or  by  removing  obstructions  to  the  e.xercise  of  a  public  right.     Its  purpose  was.  I 


CHAP.  IV.]  IN   RE   CONVERSE.  681 

In  In  re  Converse,  137  U.  S.  624  (1890),  in  affirming  a  jndgment  of 
a  circuit  court  which  denied  a  petition  for  the  writ  of  habeas  corpus 
on  the  part  of  a  lawyer  who  had  been  sentenced  in  a  State  court  for 
embezzlement  on  his  own  confession.  Chief  Justice  Fuller,  after 
stating  the  case,  delivered  the  opinion  of  the  court  as  follows:  "The 
Supreme  Court  of  Michigan  held  that  the  information  charged  the  re- 
spondent   with  the    crime  of  embezzlement ;  that  the  defendant  was 

think,  to  prevent  tlie  illegal  sale  of  intoxicating  liquors  by  punishing  by  fine  or  im- 
prisonment, or  by  both,  without  limit,  iu  the  discretion  of  the  court,  any  person  who 
sells  or  keeps  such  liquors  for  sale  after  he  has  been  enjoined  by  the  court.  The  pre- 
vention of  crime  by  the  punishment  of  persons  found  guilty  of  an  offence  against  a 
general  law  is  the  end  aimed  at.  The  keeping  or  selling  of  intoxicating  li(iuors  with- 
out a  license  was  a  well-known  offence  when  our  Constitution  was  adopted,  and  the 
procedure  for  punishing  it,  or  for  forfeiting  the  liquors,  was  also  well  known.  Articles 
XII.  and  XV.  were  inserted  iu  the  Declaration  of  Eights  as  a  protection  to  every 
individual  iu  his  life,  liberty,  and  property.  If  a  statute  had  given  jurisdiction  iu 
eipiity  to  hear  without  a  jury  an  iuformatiou  like  this,  and  had  authorized  the  court, 
on  finding  the  respondent  guilty,  to  punish  him  in  its  discretion,  without  limit,  by  fine, 
or  imprisonment,  or  both,  in  what  substantial  respect  would  such  a  statute  differ  from 
this  ?  The  legislature  cannot  do  indirectly  what  it  cannot  do  directly ;  it  cannot 
change  the  uatiire  of  things  by  affixing  to  them  new  names.  If  the  legislature,  by 
statute,  can  authorize  a  court  iu  a  public  prosecution  to  enjoin  any  person  from 
illegally  keeping  or  selling  intoxicating  liquors  iu  any  specified  place  within  the 
Commonwealth,  why  cannot  it  authorize  a  court  to  enjoin  any  person  from  illegally 
keeping  or  selling  intoxicating  liquors  anywhere  within  the  Commonwealth  1  and,  if 
this  can  be  done,  why  can  it  not  authorize  a  court  at  the  suit  of  the  Commonwealth 
to  enjoin  any  person  from  doing  any  illegal  or  criminal  act  anywhere  within  the 
Commonwealth,  and  to  try  without  a  jury  any  person  so  enjoined,  on  a  charge  of 
having  violated  the  injunction,  and  to  punish  him  by  fine  and  imprisonment,  without 
limit,  if  the  court  find  him  guilty  ? 

"  Except  for  constitutional  limitations,  the  legislature  could  deal  with  all  crimes  by 
way  of  injunctions  in  equity.  Indeed,  if  this  jurisdiction  were  confined  to  crimes 
having  some  direct  relation  to  a  particular  building,  place,  or  tenement,  the  number 
of  such  crimes  is  large,  and  all  crimes  have  some  relation  to  place,  as  they  must  be 
committed  somewhere.  The  harboring  or  concealing  of  criminals;  the  receiving  or 
concealing  of  stolen  or  embezzled  property;  the  making  or  keeping  of  instruments 
intended  for  criminal  use ;  the  violation  of  the  provisions  of  criminal  statutes  regu- 
lating trade ;  burglary,  arson,  and  other  similar  offences,  —  have  a  direct  relation  to 
a  particular  building,  place,  or  tenement,  and  the  building,  place,  or  tenement  in 
which  these  offences  are  committed  may  be  said  to  be  used  for  the  purpose.  In  the 
prosecution  of  crimes  by  way  of  injunctions  in  equity,  the  existing  Statute  of  Tjimita- 
tions  would  not  be  a  defence,  and  the  whole  course  of  criminal  procedure  would  be 
changed.  It  was  not  the  intention  of  the  Constitution  that  persons  should  be  pun- 
ished for  violating  general  laws  by  proceedings  in  equity,  or  by  a  court  acting  without 
a  jury,  and  subject  to  no  limitations  upon  its  power  to  fine  and  imprison  except  its 
own  discretion.  The  safeguards  of  the  common  law  were  carefully  secured  by  the 
Declaration  of  Rights,  both  in  public  prosecutions  and  in  private  suits,  '  except  in 
cases  in  which  it  has  heretofore  been  otherways  used  and  practised.'  This  is  not 
such  a  case,  and  the  only  thing  novel  about  it  is  the  procedure.  Statutes  against  ille- 
gally selling  or  keeping  for  sale  intoxicating  liquors,  from  the  earliest  times,  have 
been  enforced  by  criminal  complaints  or  indictments,  or  by  penal  actiotis.  Such 
statutes  were  never  enforced  in  equity  anywhere  when  the  Constitution  was  adopted. 
I  think  that  the  statute  under  which  the  present  proceedings  were  brought  is  incon- 
sistent with  Article  XII.  of  the  Declaration  of  Rights. 
"Mr.  Justice  Devens  and  Mr.  Justice  William  Allen  concur  in  this  dissent." 


682  IN   RE   CONVERSE.  [CHAP.  IV. 

called  upou  to  plead  to  this  charge  when  arraigned  ;  that  he  pleaded 
guilty  of  einbezzleinent,  and  undoubtedly  understood  when  he  made  his 
plea  that  he  was  pleading  guiltj*  to  the  felony  charged  ;  that  this  con- 
clusion was  fortified  by  the  private  examination  required  b}-  statute  to 
be  made  b}-  tlie  judge  before  sentencing  upon  a  plea  of  guilt}-,  which 
was  shown  to  have  been  had  in  this  case ;  that  the  fact  that  the  respon- 
dent collected  the  money  as  an  attorney  was  immaterial ;  that  if  the  act 
contained  all  the  elements  of  embezzlement,  he  was  guilty  of  the  crime 
and  was  properly  convicted  ;  that  an  attorne}'  when  he  collects  money 
for  his  client  acts  as  the  agent  of  his  client  as  well  as  his  attorney,  and 
if,  after  making  the  collection,  he  appropriates  the  money  to  his  own 
use  with  the  intention  of  depriving  the  owner  of  the  same,  he  is  guilty 
of  the  crime  of  embezzlement ;  that  the  conviction  was  warranted  by 
the  plea  ;  and  that  the  judgment  should  therefore  be  affirmed.  As  re- 
marked b}'  Judge  Brown,  it  is  no  defence  to  an  indictment  under  one  . 
statute  that  a  defendant  miglit  also  be  punislied  under  another.  And  as 
the  highest  judicial  tribunal  of  the  State  of  Michigan  ruled  that  the  word 
'agent'  in  section  9151  of  the  statutes  of  that  State  applied  to  attor- 
neys-at-law,  and  as  the  information  charged  the  defendant  with  embez- 
zlement under  that  section,  and  he  pleaded  guihy  to  embezzlement  as 
an  attorney-at-law,  the  affirmance  of  the  conviction  necessarily  followed. 
In  the  view^  of  the  statute  taken  by  the  court,  the  plea  admitted  the  truth 
of  the  charge. 

"  It  is  not  our  province  to  inquire  whether  the  conclusion  reached  and^ 
announced  by  the  Supreme  Court  was  or  was  jiot  correct,  for  we  are  not_ 
passing  upon  its  judgment  as  a  court  of  error,  nor  can  we  consider  the 
contention  that  the  decision  was  not  in  harmony  with  the  State  ConstU 
tution  and  laws. 

"  The  single  question  is  w^hethe''  npppllnnt  is_bp1d  in  r-npt,r>rl^m_l'^'"lg.- 
tion  of  the  Fourteenth  Amendment  to  theJConstitution  of^the  United 
States,  in  that  the  State  thejiehy  deprives  him  of  libert}-  without  due 
process  of  law  ;  for  there  is  no  pretence  of  an  abridgment  of  his  privi- 
leges and  immunities  as  a  citizen  of  the  United  States,  nor  of  a  denial 
of  the  equal  protection  of  the  laws.  But  the  State  cannot  be  deemed 
guilty  of  a  violation  of  its  obligations  under  the  Constitution  of  the 
United  States  because  of  a  decision,  even  if  erroneous,  of  its  highest 
court,  while  acting  within  its  jurisdiction.  And,  conceding  that  an 
unconstitutional  conviction  and  punishment  under  a  valid  law  would  be 
as  violative  of  a  person's  constitutional  rights  as  a  conviction  and  pun- 
ishment under  an  unconstitutional  law,  we  fail  to  perceive  that  this  con- 
viction and  judgment  are  repugnant  to  the  constitutional  provision. 
Appellant  has  been  subjected,  as  all  persons  within  the  State  of  Michi- 
gan are,  to  the  law  in  its  regular  course  of  administration  through  courts 
of  justice,  and  it  is  impossible  to  hold  that  a  judgment  so  arrived  at  is 
such  an  unrestrained  and  arbitrary*  exercise  of  power  as  to  be  utterlj* 
void. 

"  We  repeat,  as  has  been  so  often  said  before,  that  the  Fourteenth 


CHAP.  IV.]      MOKLEY  V.   LAKE  SHORE,  ETC.  RY.  CO.  6S3 

Amendment  undoubtedly  forbids  any  arbitrary  deprivation  of  life,  lib- 
ert}',  or  property,  and  in  the  administration  of  criminal  justice  requires 
that  no  different  or  higher  punishment  shall  be  imposed  on  one  than  is 
imposed  on  all  for  like  offences,  but  it  was  not  designed  to  interfere 
with  the  power  of  the  State  to  protect  the  lives,  liberty,  and  property 
of  its  citizens  ;  nor  with  the  exercise  of  that  power  in  the  adjudications 
of  the  courts  of  a  State  in  administering  the  process  provided  by  the 
law  of  the  State.  The  Supreme  Court  of  Michigan  did  not  exceed  its 
jurisdiction  or  deliver  a  judgment  abridging  appellant's  privileges  or 
immunities  or  depriving  him  of  the  law  of  the  land  of  his  domicil. 
Arroiosmith  v.  Ilarmoniag^  118  U.  S.  194  ;  Baldwhi  v.  Kansas,  129 
U.  S.  52  ;  In  re  ICemmler,  136  U.  S.  436."  Judgment  affirmed. 

In  Caldivell  v.  Texas,  137  U.  S.  692  (1890),  in  dismissing  a  case 
brought  upon  error  to  the  Court  of  Appeals  of  Texas,  Chief  Justice 
Fuller,  for  the  court,  said,  "By  the  Fourteenth  Amendment  the 
powers  of  the  States  in  dealing  with  crime  within  their  borders  are  not 
limited,  but  no  State  can  deprive  particular  persons  or  classes  of  per- 
sons of  equal  and  impartial  justice  under  the  law.  Law,  in  its  regular 
course  of  administration  through  courts  of  justice,  is  due  process,  and 
when  secured  by  the  law  of  the  State,  the  constitutional  requisition  is 
satisfied.  2  Kent  Comm.  13.  And  due  process  is  so  secured  by  laws 
operating  on  all  alike,  and  not  subjecting  the  individual  to  the  arbitraiy 
exercise  of  the  powers  of  government,  unrestrained  by  the  established 
principles  of  private  right  and  distributive  justice.  Bank  of  Columbia 
V.  Okely,  4  Wheat.  235,  244.  The  power  of  the  State  must  be  exerted 
within  the  limits  of  those  principles,  and  its  exertion  cannot  be  sustained 
when  special,  partial,  and  arbitrary.  Ilurtado  v.  California,  110  U.  S. 
516,  535.  No  question  of  repugnancy  to  the  Federal  Constitution  can 
be  fairly  said  to  arise  when  the  inquiiy  of  the  State  courts  is  directed 
to  the  sufficiency  of  an  indictment  in  the  ordinaiy  administration  of 
criminal  law,  and  the  statutes  authorizing  the  form  of  indictment  pur- 
sued are  not  obviously  violative  of  the  fundamental  principles  above 
adverted  to." 

In  Morley  v.  Lake  Shore  &c.  Ey.  Co.,  146  U.  S.  162  (1892),  on 
error  to  the  Court  of  Appeals  of  New  York,  where  the  validity  of  a 
State  enactment  reducing  the  rate  of  interest  on  judgments  was  in 
question,  as  applied  to  a  judgment  obtained  before  its  passage,  Mr. 
Justice  Shiras,  for  the  court,  said:  "The  further  contention  of  the 
plaintiff  in  error,  that  he  has  been  deprived  of  his  property  without  due 
process  of  law,  can  be  more  readily  disposed  of.  If,  as  we  have  seen, 
the  plaintiff  has  actually  received  on  account  of  his  judgment  all  that 
he  is  entitled  to  receive,  he  cannot  be  said  to  have  been  deprived  of  his 
propert}' ;  and  whether  or  not  a  statutory  change  in  the  rate  of  interest 
thereafter  to  accrue  on  the  judgment  can  be  regarded  as  a  deprivation 
of  property,  the  adjudication  of  the  plaintiff's  claims  by  the  courts  of 


684  CHARLOTTE,    ETC.    RAILROAD   CO.   V.    GIBBES.  [cHAP.  IV. 

his  own  State  must  be  admitted  to  be  due  process  of  law.  Nor  are  we 
authorized  b}-  the  Judiciary  Act  to  review  this  judgment  of  the  State 
court,  because  this  judgment  refuses  to  give  effect  to  a  valid  contract 
or  because  such  judgment  in  its  effect  impairs  the  obligation  of  a  con- 
tract. If  we  did,  every  case  decided  in  the  State  courts  could  be  brought 
here,  when  the  party  setting  up  a  contract  alleged  that  the  court  took  a 
different  view  of  its  obligation  from  that  which  he  held.  Knox  v.  Ex. 
change  Bank,  12  Wall.  379,  383."  ^ 

In  Charlotte,  dc.  Eailroad  Co.  v.  Gibbes,  142  U.  S.  386  (1892), 
Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion  of  the 
court. 

Notwithstanding  the  several  objections  taken  in  the  complaint  to  the 
assessment  and  tax  upon  the  railroad  companies  to  meet  the  expenses 
and  salaries  of  the  railroad  commissioners,  the  argument  of  counsel  on 
the  hearing  was  confined  to  the  supposed  conflict  of  the  laws  authoriz- 
ing the  tax  with  the  inhibition  of  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States.  All  other  objections  were  deemed  to 
be  disposed  of  by  the  decision  of  the  Supreme  Court  of  the  State,  that 
the  laws  complained  of  are  not  in  conflict  with  its  Constitution. 

The  propert}'  of  railroad  companies  in  South  Carolina  is  subjected  by 
the  general  law  to  the  same  tax  as  similar  property  of  individuals,  in 
proportion  to  its  value,  and  like  conditions  of  uniformity  and  equality 
in  its  assessment  are  imposed.  The  further  tax  laid  upon  them  to 
meet  the  expenses  and  salaries  of  the  railroad  commissioners  is  not  in 
proportion  to  the  value  of  their  property,  but  according  to  their  gross 
income,  proportioned  to  the  number  of  miles  of  their  roads  in  the  State. 
This  tax  is  stated  to  be  beyond  any  which  is  levied  upon  other  corpora- 
tions to  meet  an  expenditure  for  State  officers,  and,  therefore,  it  is 
contended,  constitutes  an  unlawful  discrimination  against  railroad  cor- 
porations, imposing  an  unequal  burden  upon  them,  in  conflict  with  the 
constitutional  amendment  which  ordains  that  no  State  shall  deny  to  any 
person  the  equal  protection  of  the  laws.  Private  corporations  are  per- 
sons within  the  meaning  of  the  amendment ;  it  has  been  so  held  in  sev- 
eral cases  by  this  court.  Santa  Clara  County  v.  Southern  Pacific 
Railroad  Co.,  118  U.  S.  394  ;  Pembina  Mining  Co.  v.  Pennsylvania, 
125  U.  S.  181,  189  ;  Minneapolis  &  St  Louis  Railroad  Co.  v.  Beck- 
with,  129  U.  S.  26. 

If  the  tax  were  levied  to  pay  for  services  in  no  waj-  connected  with 
the  railroads,  as,  for  instance,  to  pay  the  salary  of  the  executive  or  judi- 
cial officers  of  the  State,  whilst  railroad  corporations  were  at  the  same 
time  subjected  to  taxation  upon  their  property  equally  with  other  cor- 
porations for  such  expenses,  and  other  corporations  were  not  taxed  for 
the  salaries  mentioned,  there  would  be  just  ground  of  complaint  of  un- 

1  See  also  In  re  Kemmhr,  136  U.  S.  436,  448 ;  York  v.  Texas,  137  U.  S.  15 ;  In  rt 
Marming,  139  U.  S.  504.  — Ed. 


) 

CHAP.  IV.]        CHARLOTTE,   ETC.    RAILROAD    CO.    V.    GIBBES.  685 

lawful  discrimination  against  tlie  railroad  corporations,  and  of  their  not 
receiving  the  equal  protection  of  the  laws.  But  there  is  nothing  of  this 
nature  in  the  tax  in  question.  The  railroad  commissioners  are  ciiarged 
with  a  variety  of  duties  in  connection  with  railroads,  the  performance 
of  which  is  of  great  importance  in  the  regulation  of  those  instruments  of 
transportation.  .  .  . 

It  is  evident,  from  these  and  many  other  provisions  that  might  be 
stated,  that  the  duties  of  the  railroad  commissioners,  when  properly 
discharged,  must  be  in  the  highest  degree  beneficial  to  the  public,  secur- 
ing faithful  service  on  the  part  of  the  railroad  companies,  and  safety, 
convenience,  and  comfort  in  the  operation  of  their  roads.  That  the 
State  has  the  power  to  prescribe  the  regulations  mentioned  there  can 
be  no  question.  Tliough  railroad  corporations  are  private  corporations 
as  distinguished  from  those  created  for  municipal  and  governmental 
purposes,  their  uses  are  public.  They  are  formed  for  the  convenience 
of  the  public  in  the  transportation  of  persons  and  merchandise,  and  are 
invested  for  that  purpose  with  special  privileges.  The}-  are  allowed  to 
exercise  the  State's  right  of  eminent  domain  that  the}'  may  appropriate 
for  their  uses  the  necessary  propert}-  of  others  upon  paying  just  com- 
pensation therefor,  a  right  which  can.  only  be  exercised  for  public  pur- 
poses. And  the}'  assume,  by  the  acceptance  of  their  charters,  the 
obligations  to  transport  all  persons  and  merchandise  upon  like  condi- 
tions and  at  reasonable  rates ;  and  they  are  authorized  to  chaige  rea- 
sonable compensation  for  the  services  they  thus  perform.  Being  the 
recipients  of  special  privileges  from  the  State,  to  be  exercised  in  the 
interest  of  the  public,  and  assuming  the  obligations  thus  mentioned,  their 
business  is  deemed  affected  with  a  public  use,  and  to  the  extent  of  that 
use  is  subject  to  legislative  regulation.  Georgia  Railroad  cfe  Banking 
Co.  v.  /Smith,  128  U.  S.  174,  179.  That  regulation  may  extend  to  all 
measures  deemed  essential  not  merely  to  secure  the  safety  of  passengers 
and  freight,  but  to  promote  the  convenience  of  the  public  in  the  trans- 
action of  business  with  them,  and  to  prevent  abuses  by  extortionate 
charges  and  unjust  discrimination.  It  may  embrace  a  general  super- 
vision of  the  operation  of  their  roads,  which  may  be  exercised  by  direct 
legislation  commanding  or  forbidding,  under  severe  penalties,  tlie  doing 
or  omission  of  particular  acts,  or  it  may  be  exercised  through  commis- 
sioners specially  appointed  for  that  purpose.  The  mode  or  manner  of 
regulation  is  a  matter  of  legislative  discretion.  When  exercised  through 
commissioners,  their  services  are  for  the  benefit  of  the  railroad  corpora- 
tions as  well  as  of  the  public.  Both  are  served  by  the  required  super- 
vision over  the  roads  and  means  of  transportation,  and  there  would 
seem  to  be  no  sound  reason  why  the  compensation  of  the  commissioners 
in  such  case  should  not  be  met  by  the  corporations,  the  operation  of 
whose  roads  and  the  exercise  of  whose  franchises  are  supervised.  In 
exacting  this  there  is  no  encroachment  upon  the  Fourteenth  Amend- 
ment. Requiring  that  the  burden  of  a  service  deemed  essential  to  the 
public,  in  consequence  of  the  existence  of  the  corporations  and  the  ex- 


686  CHARLOTTE,    ETC.    RAILROAD    CO.    V.    GIBBES.        [CHAP.  IV. 

ercise  of  privileges  obtained  at  their  request,  should  be  borne  b}-  the 
corporations  in  relation  to  whom  the  service  is  rendered,  and  to  whom 
it  is  useful,  is  neither  denying  to  the  corporations  the  equal  protection 
of  the  laws  or  making  any  unjust  discrimination  against  them.  All 
railroad  corporations  in  the  State  are  treated  alike  in  this  respect.  The 
necessit}'  of  supervision  extends  to  them  all,  and  for  that  supervision 
the  like  proportional  charge  is  made  against  all.  There  is  no  occasion 
for  similar  regulations  for  the  government  of  other  than  railroad  corpo- 
rations, and  therefore  no  charge  is  made  against  them  for  the  expenses 
and  salaries  of  the  commissioners.  The  rule  of  equality  is  not  invaded 
where  all  corporations  of  the  same  kind  are  subjected  to  like  charges 
for  similar  services,  though  no  charge  at  all  is  made  against  other  cor- 
porations. There  is  no  charge  where  there  is  no  service  rendered.  The 
legislative  and  constitutional  provision  of  the  State,  that  taxation  of 
property  shall  be  equal  and  uniform  and  in  proportion  to  its  value,  is 
not  violated  by  exacting  a  contribution  according  to  their  gross  income 
in  proportion  to  tbe  number  of  miles  of  railroad  operated  in  the  State 
to  meet  the  special  service  required.  Barbier  v.  Co?inoUy,  113  U.  S. 
27  ;  So-071  Hing  v.  Crowley^  113  U.  S.  703 ;  MissoiiH  Pacific  Bailway, 
V.  Humes,  115  U.  S.  512. 

There  are  many  in&tances  where  parties  are  compelled  to  perform 
certain  acts  and  to  bear  certain  expenses  when  the  public  is  interested 
in  the  acts  which  are  performed  as  much  as  the  parties  themselves. 
Thus  in  opening,  widening,  or  improving  streets  the  owners  of  adjoin- 
ing propert}'  are  often  compelled  to  bear  the  expenses,  ov  at  least  a  por- 
tion of  tliem,  notwithstanding  the  work  done  is  chiefly  for  the  benefit  of 
the  public.  So,  also,  in  the  draining  of  marsh  lands,  the  public  is  di- 
rectl}'  interested  in  removing  the  causes  of  malaria,  and  yet  the  expense 
of  such  labor  is  usually  thrown  upon  the  owners  o-f  the  propert}-.  Quar- 
antine regulations  are  adopted  for  the  protection  of  the  public  against 
the  spread  of  disease,  yet  the  requirement  that  the  vessel  examined 
shall  pay  for  the  examination  is  a  part  of  all  quarantine  systems.  Mor- 
gan V.  Louisiana,  118  U.  S.  455,  466.  So,  the  expense  of  a  compul- 
sory examination  of  a  railroad  engineer,  to  ascertain  whether  he  is  free 
from  color  blindness,  has  been  held  to  be  properly  chargeable  against 
the  railroad  compan}-.  Nashville,  Chattanooga  &  St.  Louis  Railway 
V.  Alabama,  128  U.  S.  96,  101.  So,  where  work  is  done  in  a  particu- 
lar county  for  the  benefit  of  the  public,  the  cost  is  oftentimes  cast  upon 
the  county  itself  instead  of  upon  the  whole  State.  Thus,  in  County  of 
Mobile  v.  Kimball,  102  U.  S.  691,  it  was  held  that  a  provision  for  the 
issuing  of  bonds  by  a  count}'  in  Alabama  could  not  be  declared  invalid, 
although  it  imposed  upon  one  county  the  expense  of  an  improvement 
in  which  the  whole  State  was  interested.  In  such  instances,  where  the 
interests  of  the  public  and  of  individuals  are  blended  in  any  work  or 
service  imposed  by  law,  whether  the  cost  shall  be  thrown  entirely  upon 
the  individuals,  or  upon  the  State,  or  be  apportioned  between  them,  is 
matter  of  legislative  direction. 


V 

CHAP.  IV.]      NEW  YORK,  ETC.  RAILROAD  CO.  V.  BRISTOL  ET  AL.  687 

We  see  no  error  in  the  ruling  of  the  court  below  upon  the  Federal 
question  presented,  and  the  conclusion  we  have  reached  renders  it  un- 
necessary to  consider  how  far  the  obligation  of  the  corporation  was 
affected  by  the  alleged  amendment  made  to  its  charter. 

Judgment  affirmed. 

Justices  Bradley  and  Gray  did  not  sit  in  this  case  nor  take  part  in 
its  decision. 


NEW  YORK,  ETC.,  RAILROAD  COMPANY  v.  BRISTOL  et  al. 
Supreme  Court  of  the  United  States.     1894. 

[151  U.  S.  556.]! 

In  error  to  the  Supreme  Court  of  Errors  of  the  State  of  Connecticut. 
In  pursuance  of  an  Act  of  the  Legislature  of  Connecticut  approved 
June  19,  1889,  relating  to  the  grade  crossings  of  railroads,  the  railroad 
commissioners  of  that  State,  on  September  2,  1890,  made  an  order 
reciting  that  whereas  the  directors  of  the  New  York  &  New  P^ngland 
railroad  company  had  failed  to  remove,  or  apply  for  the  removal,  dur- 
ing the  year  ending  August  1,  1890,  of  any  grade  crossing  of  a  highway 
which  crossed  or  was  crossed  by  their  railroad,  and  whereas,  in  their 
opinion,  said  directors  should  have  applied  for  the  removal  of  the  grade 
crossing  of  their  road  and  the  highway  known  as  "  Main  Street,"  in  the 
town  of  Bristol,  and  directing  a  hearing  upon  the  matter,  with  notice  to 
the  railroad  company,  the  town,  and  the  owners  of  land  adjoining  that 
portion  of  the  highway.  The  hearing  was  had  on  several  days,  from 
September  24,  1890,  to  February  11,  1891  ;  and  the  commissioners, 
being  of  opinion  that  the  financial  condition  of  the  company  warranted 
the  order,  and  that  public  safety  required  it,  ordered  the  crossing  re- 
moved, and  determined  and  directed  the  alterations,  changes,  and 
removals  to  be  made  and  done,  and  that  they  be  executed  by  the  rail- 
road company  at  its  sole  expense,  including  damages  occasioned  there- 
by. The  company  appealed  from  this  order  to  the  Superior  Court  of 
the  Count}^  of  Hartford,  the  petition  for  appeal  setting  forth  various 
grounds  therefor.  That  court,  upon  hearing  the  parties  and  their  evi- 
dence, found  as  facts  that  the  railroad  company  was  financially  able  to 
execute  the  commissioners'  order,  and  that  the  safetv  of  the  public  re- 
quired the  removal  of  the  grade  crossing  ;  and  affirmed  the  order.  The 
company  appealed  to  the  Supreme  Court  of  Errors  of  Connecticut, 
which  decided  that  there  was  no  error  in  the  judgment  appealed  from 
(62  Conn.  527,  26  Atl.  122)  ;  and  thereupon  a  writ  of  error  was  allowed 
to  this  court,  and  errors  assigned,  as  follows  :  — 

"  (1)    The  said  court  erred  in  holding  that  the  statute  under  which 

1  The  statement  of  facts  is  shortened.  —  Ed. 


688  NEW  YORK;  ETC.    RAILROAD  CO.  V.  BKISTOL  ET  AL.       [cHAP.  IV. 

were  had  the  proceedings  as  set  forth  in  the  order  of  the  railroad  com- 
missioners exemplified  in  the  record  of  the  case  justified  said  order,  and 
in  affirming  the  judgment  of  the  Superior  Court  in  and  for  Hartford 
Count}',  affirming  said  order,  and  in  overruling  plaintiff's  claim  that  said 
statute  was  void  as  violating  the  Constitution  of  the  United  States,  in 
that  it  impaii'ed  the  obligation  of  the  contracts  made  b}'  said  companv 
with  the  holders  of  its  bonds  and  preferred  stock,  by  making  it  impos- 
sible for  said  company'  to  pa\'  the  interest  on  its  bonds  and  dividends 
on  its  preferred  stock,  as  agreed  between  them  and  said  company,  and 
yet  maintain  and  operate  its  railroad  efficiently  ;  and,  further,  in  that  it 
took  the  propert}'  of  the  company  without  due  process  of  law,  and 
denied  to  it  the  equal  protection  of  the  law. 

"  (2)  The  said  court  erred  in  overruling  the  claim  of  the  plaintiff  in 
error  in  the  twelfth  paragraph  of  its  petition  of  appeal  from  the  railroad 
commissioners  to  the  Supreme  Court,  as  set  forth  in  the  record,  that 
said  statute  was  void,  and  was  no  justification  of  said  order,  under  the 
Constitution  of  the  United  States  and  the  Fourteenth  Amendment 
thereof." 

Chas.  E.  Perkins,  for  plaintiff ;  tTohji  J.  Jennings  and  II.  C.  Robin- 
son, for  defendants. 

Mr.  Chief  Justice  Fuller,  after  stating  the  facts  in  the  foregoing 
language,  delivered  the  opinion  of  the  court.  .  .  . 

It  must  be  admitted  that  the  Act  of  June  19,  1889,  is  directed  to  the 
extinction  of  grade  crossings,  as  a  menace  to  public  safety,  and  that  it 
is  therefore  within  the  exercise  of  the  police  power  of  the  State,  And, 
as  before  stated,  the  constitutionalit}-  of  similar  prior  statutes,  as  well 
as  of  that  in  question,  tested  by  the  provisions  of  the  State  and  Federal 
Constitutions,  has  been  repeatedly  sustained  by  the  courts  of  Connecti- 
cut. Woodruff  V.  CatUn,  54  Conn.  277,  6  Atl.  849  ;  Westhrook''s 
Appeal,  57  Conn,  95,  17  Atl.  368  ;  Mw  York  &  N.  E  R.  Co.'s  Ap- 
peal, 58  Conn.  532,  20  Atl.  670;  JVoodrtiffy.  Railroad  Co.,  59  Conn. 
63,  20  Atl.  17  ;  State's  Attorney  v.  Selectmen  of  Branford,  59  Conn. 
402,  22  Atl.  336  ;  Kew  York  &  N.  E.  R.  Co.  v.  City  of  Waterhury, 
60  Conn.  1,  22  Atl.  439  :  City  of  Middletown  v.  Mw  York,  etc.,  R. 
Co.,  62  Conn.  492,  27  Atl.  119. 

In  Woodruff  \ .  Catlin,  the  court,  speaking  through  Pardee,  J.,  said, 
in  reference  to  a  similar  statute  :  "  The  Act,  in  scope  and  purpose,  con- 
cerns protection  of  life.  Neither  in  intent  nor  fact  does  it  increase  or 
diminish  the  assets  either  of  the  city  or  of  the  railroad  corporations.  It 
is  the  exercise  of  the  governmental  power  and  duty  to  secure  a  safe  high- 
waj'.  The  legislature,  having  determined  that  the  intersection  of  two 
railways  with  a  highway  in  the  city  of  Hartford  at  grade  is  a  nuisance 
dangerous  to  life,  in  the  absence  of  action  on  the  part  either  of  the  city  or 
of  the  railroads,  may  compel  them,  severall}',  to  become  the  owners  of 
the  right  to  lay  out  new  highways  and  new  railways  OA'er  such  land,  and 
in  such  manner  as  will  separate  the  grade  of  the  railways  from  that  of 
the  highway  at  intersection  ;  may  compel  them  to  use  the  right  for  the  ac- 


CHAP.  IV.]      NEW  YORK,  ETC.  RAILROAD  CO.  V.  BRISTOL  ET  AL.  689 

complishment  of  the  desired  end  ;  may  determine  that  the  expense  shall 
be  paid  by  either  corporation  alone,  or  in  part  by  both  ;  and  may  en- 
force obedience  to  its  judgment.  That  the  legislature  of  this  State  has 
the  power  to  do  all  this,  for  the  specified  purpose,  and  to  do  it  through 
the  instrumentality  of  a  commission,  it  is  now  only  necessary  to  state, 
not  to  argue." 

And  as  to  this  Act  the  court,  in  58  Conn.  532,  20  Atl.  670,  on  this 
Company's  appeal,  held  that  grade  crossings  were  in  the  nature  of  nui- 
sances, which  it  was  competent  for  tiie  legislature  to  cause  to  be  abated, 
and  that  it  could,  in  its  discretion,  require  an}'  party  responsible  for  the 
creation  of  the  evil,  in  the  discharge  of  what  were  in  a  sense  govern- 
ernmental  duties,  to  pay  any  pai't,  or  all,  of  the  expense  of  such 
abatement. 

It  is  likewise  thoroughly  established  in  this  court  that  the  inhibitions 
of  the  Constitution  of  the  United  States  upon  the  impairment  of  the 
obligation  of  contracts,  or  the  deprivation  of  property  without  due  pro- 
cess, or  of  the  equal  protection  of  the  laws,  bj-  the  States,  are  not 
violated  by  the  legitimate  exercise  of  legislative  power  in  securing  the 
public  safety,  health,  and  morals.  The  governmental  power  of  self- 
protection  cannot  be  contracted  away,  nor  can  the  exercise  of  rights 
granted,  nor  the  use  of  property,  be  withdrawn  from  the  implied  lial)ility 
to  governmental  regulation  in  particulars  essential  to  the  preservation 
of  the  community  from  injury.  Beer  Co.  v.  Massachusetts^  97  U.  S. 
25  ;  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659  ;  Barhier  v.  Connolhj., 
113  U.  S.  27,  5  Sup.  Ct.  357;  N^iw  Orleans  Gas  Co.  v.  Louisiana 
Light  Co.,  115  U.  S.  650,  6  Sup.  Ct.  252;  Mugler  v.  Kansas,  123 
U.  S.  623,  8  Sup.  Ct.  273  ;  Biuld  v.  JSTeio  York,  143  U.  S.517,  12  Sup. 
Ct.  468.  And  also  that  "  a  power  reserved  to  the  legislature  to  alter, 
amend,  or  repeal  a  charter  authorizes  it  to  make  an^'  alteration  or 
amendment  of  a  charter  granted  subject  to  it,  which  will  not  defeat  or 
substantially  impair  the  object  of  the  grant,  or  any  rights  vested  under 
it,  and  which  the  legislature  may  deem  necessary  to  secure  either  that 
object  or  any  public  right."  Close  v.  Glenwood  Cemetery,  107  U.  S. 
466,  476,  2  Sup.  Ct.  267;  Waterworks  v.  Schottler,  110  U.  S.  347,  4 
Sup.  Ct.  48;  Pennsyjlvania  College  Cases,  13  Wall.  190;  Tomlinson 
V.  Jessxip,  15  Wall.  454. 

The  charter  of  this  company  was  subject  to  the  legislative  power  over 
it  of  amendment,  alteration,  or  repeal,  specifically  and  under  general 
law.  5  Priv.  Laws  Conn.  pp.  543,  547  ;  7  Sp.  Laws  Conn.  p.  466  ;  8 
Sp.  Laws  Conn.  p.  353  ;  Sp.  Laws  Conn.  1881,  p.  64  ;  Gen.  St.  1875, 
p.  278;  Gen.  St.  1888,  §  1909;  New  York,  etc.,  R.  Co.  v.  City  of 
Waterhvry,  60  Conn.  1,  22  Atl.  439. 

The  contention  seems  to  be,  however,  that  the  legislature,  in  discharg- 
ing the  duty  of  the  Stnte  to  protect  its  citizens,  has  authorized  b}-  the 
enactment  in  question  that  to  be  done  which  is,  in  certain  particulars,  so 
unreasonable,  and  so  obviouslv  unjustified  b}*  the  necessit}'  invoked,  as 
to  bring  the  Act  within  constitutional  prohibitions. 

VOL.  I.  —  44 


690  NEW  YORK,  ETC.  RAILROAD  CO.  V.  BRISTOL  ET  AL.       [CHAP.  IV. 

The  argument  is  that  the  existing  grades  of  raih'oad  crossings  were 
legally  established,  in  accordance  with  the  then  wishes  of  the  people, 
but,  with  the  increase  in  population,  crossings  formerly  safe  had  become 
no  longer  so ;  that  the  highways  were  chiefly  for  the  benefit  of  the  local 
public,  and  it  was  the  duty  of  the  local  municipal  coi-poration  to  keep 
tliem  safe  ;  that  this  law  applied  to  railroad  corporations  treatment  never 
accorded  to  other  citizens  in  allowing  the  imposition  of  the  entire  ex- 
pense of  change  of  grade,  both  costs  and  damages,  irrespective  of  bene- 
fits, on  those  companies,  and  in  that  respect,  and  in  the  exemption  of 
the  town  from  its  just  share  of  the  burden,  denied  to  them  the  equal 
protection  of  the  laws. 

And  further  that  the  order,  and  therefore  the  law  which  was  held  to 
authorize  it,  amounted  to  a  taking  of  property  without  due  process,  in 
that  it  required  the  removal  of  tracks  many  feet  from  their  present  loca- 
tion, involving  the  destruction  of  much  private  property,  the  ex(;avation 
of  the  principal  highway,  and  those  communicating,  and  the  building  of 
an  expensive  iron  bridge,  all  at  the  sole  expense,  including  damages,  of 
the  company,  without  a  healing  as  to  the  extent  of  the  several  respon- 
sibilities of  the  company  and  the  town,  or  as  to  the  expense  of  the 
removal  of  this  dangerous  crossing,  as  compared  with  other  dangerous 
crossings,  or  of  the  degree  of  the  responsibility  of  the  company  for  the 
dangers  existing  at  tliis  particular  crossing.     The  objection  is  not  thati 
hearing  was  not  required  and  accorded,  which  it  could  not  well  be,  inJ 
view  of  the  protracted  proceedings  before  the  commissioners  and  thel 
Superior  Court  and  the  review  in  the  Supreme  Court,  but  that  the  scope' 
of  inquiry  was  not  as  broad  as  the  statute  should  have  allowed,  and  that  I 
the  particular  crossing  to  be  removed  was  authorized  to  be  prejudged. 

It  is  further  objected  that  the  Supreme  Court  had  so  construed  the 
statute  that,  upon  the  issue  whether  the  financial  condition  of  the  com- 
pany warranted  the  order,  no  question  of  law  could  be  raised  as  to  the 
extent  of  the  burdens  which  a  certain  amount  of  financial  ability  would 
warrant,  and  thus,  in  that  aspect,  by  reason  of  the  large  amount  of  ex- 
penditure which  might  be,  and  as  matter  of  fact  was,  in  this  instance, 
required,  the  obligation  of  the  contracts  made  by  the  company  with  the 
holders  of  its  securities  was  impaired.  Complaint  is  made  in  this  con- 
nection of  the  striking  out  by  the  Superior  Court  of  certain  paragraphs 
of  the  petition  on  appeal,  held  by  that  court  and  the  Supreme  Court  to 
plead  mere  matters  of  evidence,  and  the  decision  by  the  Supreme  Court 
that  all  the  material  issues  were  met  by  the  findings.  Those  issues 
were  stated  by  the  court  to  be  whether  or  not  the  company's  directoi's 
had  removed,  or  applied  for  the  removal  of,  a  grade  crossing,  as  required 
by  the  statute  ;  whether  or  not  the  grade  crossing  ordered  to  be  removed 
by  the  commissioners  was  in  fact  a  dangerous  one,  which  the  directors 
ought  to  have  removed,  or  for  the  removal  of  which  the  directors  ought 
to  have  applied  ;  and  whether  or  not  the  company's  financial  condition 
was  such  as  to  warrant  the  order. 

And  upon  these  premises  it  is  urged,  in  addition,  that  the  right  to 


CHAP.  IV.]       NEW  YORK,  ETC.  KAILUOAD  CO.  V.  BRISTOL  ET  AL.  691 

amend  the  charter  of  the  corporation  was  not  controlling,  because  that 
did  not  include  the  right  to  arbitrarily  deprive  tlie  stockholders  of  their 
property,  which,  though  held  by  them,  for  purposes  of  management  and 
control,  under  a  corporate  organization  created  b^'  special  law,  was 
nevertheless  private  property,  not  by  virtue  of  the  charter,  but  "  b\'  force 
of  the  most  fundamental  and  general  laws  of  modern  society,  which, 
from  their  nature,  necessarily  protect  alike  and  full3'  all  legitimate 
acquisitions  of  the  members  of  the  communit}",  no  matter  whether  held 
by  them  as  individuals  or  partnerships  or  associations  or  corporations." 

The  Supreme  Court  of  Connecticut  held  that  the  statute  operated  as 
an  amendment  to  the  charters  of  the  railroad  corporations  affected  by 
it ;  that,  as  grade  crossings  are  in  the  nature  of  nuisances,  the  legisla- 
ture had  a  right  to  cause  them  to  be  abated,  and  to  require  either  party 
to  pay  the  whole  or  any  portion  of  the  expense ;  that  the  statute  was 
not  unconstitutional,  in  authorizing  the  commissioners  to  determine 
their  own  jurisdiction,  and  that,  besides,  the  right  of  appeal  saved  the 
railroad  companies  from  any  harm  from  their  findings  ;  that  it  was  the 
settled  policy  of  the  State  to  abolish  grade  crossings  as  rapidly  as  could 
be  reasonably  done  ;  and  that  all  general  laws  and  poHce  regulations 
affecting  corporations  were  binding  upon  them  without  their  assent. 

We  are  asked,  upon  the  grounds  above  indicated,  to  adjudge  that  the 
highest  tribunal  of  the  State  in  which  these  proceedings  were  had,  com- 
mitted, in  reaching  these  conclusions,  errors  so  gross  as  to  amount  in 
law  to  a  denial  by  the  State  of  rights  secured  to  the  company  by  the 
Constitution  of  the  United  States,  or  that  the  statute  itself  is  void  by 
reason  of  infraction  of  the  provisions  of  that  instrument. 

But  this  court  cannot  proceed  upon  general  ideas  of  the  requirements 
of  natural  justice,  apart  from  the  provisions  of  the  Constitution  sup- 
posed to  be  involved,  and  in  respect  of  them  we  are  of  opinion  that  our 
interposition  cannot  be  successfull}'  invoked. 

As  observed  by  Mr.  Justice  Miller  in  Davidson  v.  Nkio  Orleans,  96 
U.  S.  97,  104,  the  Fourteenth  Amendment  cannot  be  availed  of  "  as  a 
means  of  bringing  to  the  test  of  the  decision  of  this  court  the  abstract 
opinions  of  ever}'  unsuccessful  litigant  in  the  State  court  of  the  justice 
of  the  decision  against  him,  and  of  the  merits  of  the  legislation  on 
which  such  a  decision  may  be  founded."  To  use  the  language  of  Mr. 
Justice  Field  in  Railway  Co.  v.  Hnmes^  115  U.  S.  512,  520,  6  Sup. 
Ct.  110,  "  it  is  hardi}'  necessary  to  say  that  the  hardship,  impolic}',  or 
injustice  of  State  laws  is  not  necessarily  an  objection  to  their  constitu- 
tional validit}',  and  that  the  remedy  for  evils  of  that  character  is  to  be 
sought  from  State  legislatures." 

The  conclusions  of  this  court  have  been  repeatedly  announced,  to  tlie 
effect  that  though  railroad  corporations  are  private  corporations,  as  dis- 
tinguished from  those  created  for  municipal  and  governmental  purposes, 
their  uses  are  public,  and  they  are  invested  with  the  right  of  eminent 
domain,  only  to  be  exercised  for  public  purposes ;  that  therefore  they 
are  sulyect  to  legislative  control  in  all  respects  necessarj'  to  protect  the 


692  NEW  YORK,  ETC.  RAILROAD  CO.  V.  BRISTOL  ET  AL.      [CHAP.  IV. 

public  against  danger,  injustice,  and  oppression ;  that  the  State  has 
power  to  exercise  this  control  through  boards  of  commissioners ;  that 
there  is  no  unjust  discrimination,  and  no  denial  of  the  equal  protection 
of  the  laws,  in  regulations  applicable  to  all  railroad  corporations  alike ; 
nor  is  there  necessarih-  such  denial,  nor  an  infringement  of  the  obliga- 
tion of  contracts,  in  the  imposition  upon  them,  in  particular  instances, 
of  the  entire  expense  of  the  performance  of  acts  required  in  the  public 
interest,  in  the  exercise  of  legislative  discretion  ;  nor  are  they  thereby 
deprived  of  property  without  due  process  of  law,  b}-  statutes  under 
which  the  result  is  ascertained  in  a  mode  suited  to  the  nature  of  the 
ease,  and  not  merely*  arbitrary  and  capricious  ;  and  that  the  adjudication 
of  the  highest  court  of  a  State  that,  in  such  particulars,  a  law  enacted 
in  the  exercise  of  the  police  power  of  the  State  is  valid,  will  not  be  re- 
versed b}'  this  court  on  the  ground  of  an  infraction  of  the  Constitution 
of  the  United  States.  Railioay  Co.  v.  Alabama,  128  U.  S.  96,  9  Sup. 
Ct.  28  ;  lianking  Co.  v.  Smith,  128  U.  S.  174,  9  Sup.  Ct.  47  ;  Raihcay 
Co.  V.  JSeckicith,  129  U.  S.  26,  9  Sup.  Ct.  207  ;  Dentx.  West  Virginia, 
129  U.  S.  114,  9  Sup.  Ct.  231  ;  Railroad  Co.  v.  Gibbes,  142  U.  S.  386, 
12  Sup.  Ct.  255  ;  Railroad  Co.  v.  EmmonSj  149  U.  S.  364,  13  Sup. 
Ct.  870.  Judgment  affirmed. 

NOTE. 

The  subjects  treated  in  this  chapter  are  intimately  connected  with 
those  of  the  next,  and  are  further  illustrated  there.  —  Ed. 


CHAP,  v.]  COMMONWEALTH   V.   ALGER.  693 


CHAPTER  V. 


UNCLASSIFIED  LEGISLATIVE   POWER.    THE   SO-CALLED 
POLICE  POWER.i 


COMMONWEALTH   v.   ALGER. 
Supreme  Judicial  Court  of  Massachusetts.     1853. 

[7  Cash.  53.] 

This  was  an  indictment  against  the  defendant  for  an  alleged  breach  of 
the  statutes  of  this  Commonwealth  establishing  the  commissioners'  lines, 
so-called,  in  the  harbor  of  Boston,  by  erecting,  building,  and  maintaining 
a  wharf  over  and  bej'ond  those  lines  into  said  harbor. 

The  indictment  was  found  and  returned  into  the  Municipal  Court  of 
the  city  of  Boston  at  June  Term,  1849.  It  set  forth  the  following 
statutes  for  fixing  and  limiting  the  lines  of  the  harbor  of  Boston  :  "  An 
Act  to  preserve  the  Harbor  of  Boston,  and  to  prevent  Encroachments 
therein,"  passed  April  19,  1837.  St.  1837,  c.  229,  7  Special  Laws, 
808.  .  .   . 

The  first  and  second  sections  of  the  Act  of  1837,  c.  229,  established 
a  line  by  local  objects  designated  from  the  lower  South  Boston  Free 
Bridge,  around  the  easterly  and  northerly  sides  of  the  city,  to  the  abut- 
ment on  the  Boston  side  of  Warren  Bridge,  above  Charles  River  Bridge. 
The  third,  fourth,  fifth,  and  sixth  sections  of  this  Act  were  as  follows. 
[These  are  given  in  a  note  below.^    The  case  also  recites  the  substance 

1  Discus.sions  of  what  is  called  the  "  police  power "  are  often  nninstructive,  from 
a  lack  of  discrimination.  It  is  common  to  recognize  that  the  subject  is  hardly  sus- 
ceptible of  definition,  but  very  often,  indeed,  it  is  not  perceived  that  the  real  question 
in  hand  is  that  grave,  difficult,  and  fundamental  matter,  —  what  are  the  limits  of 
legislative  power  in  general?  In  talking  of  the  "  police  power,"  sometimes  the  question 
relates  to  the  limits  of  a  power  admitted  and  fairly  well-known,  as  that  of  taxation  or  emi- 
nent domain ;  sometimes  to  the  line  between  the  local  legislative  power  of  the  States  and 
the  Federal  legislative  power;  sometimes  to  legislation  as  settling  the  details  of  munici- 
pal affairs,  and  local  arrangements  for  the  promotion  of  good  order,  health,  comfort, 
and  convenience ;  sometimes  to  that  special  form  of  legislative  action  which  applies 
the  maxim  of  Sic  utere  tno  id  olienum  non  Icedas,  adjusts  and  accommodates  interests 
that  may  conflict,  and  fixes  specific  limits  for  each.  But  often,  the  discussion  turns 
upon  the  true  limits  and  scope  of  legislative  power  in  general,  —  in  whatever  way  it 
may  seek  to  promote  the  general  M-elfare.  —  Ed. 

2  "  Section  3.  No  wharf,  pier,  or  building,  or  encumbrance  of  any  kind,  shall  ever 
hereafter  be  extended  beyond  the  said  line  into  or  over  the  tide-water  in  said  harbor. 

"  Section  4.   No  person  shall  enlarge  or  extend  any  wharf  or  pier,  which  is  now 


694  COMMONWEALTH   V.    ALGER.  [cHAP.  V 

of  Acts  of  1840,  1841,  and  1847,  altering  the  former  lines  or  establish- 
ing others.]  .  .   . 

The  indictment  then  averred  that  all  the  parts  of  the  harbor  of  Bos- 
ton, outside  of  and  beyond  the  commissioners'  lines,  and  between  those 
lines  and  the  high  sea,  were,  and  from  the  time  whereof  the  memory 
of  man  was  not  to  the  contrary,  an  ancient,  navigable  harbor,  and 
an  ancient  and  common  highway  for  all  citizens  of  the  Common- 
wealth. .  .  .  [Here  follow  the  formal  charges  of  unlawful  building 
beyond  the  lines.] 

At  the  trial  in  the  Municipal  Court  before  Wells,  C.  J.,  at  Septem- 
ber Term,  1849,  the  attorney  for  the  Commonwealth  put  in  evidence  a 
statement  agreed  to  and  signed  by  himself  and  the  defendant,  exhibit- 
ing the  following  facts :  The  defendant  is,  and  for  more  than  thirt}' 
years  past  has  been,  seised  of  an  estate  on  Fourth  Street  in  South 
Boston,  consisting  of  upland  and  of  flats  belonging  thereto,  just  above 
the  old  South  Boston  Bridge,  and  bounding  on  that  arm  of  the  sea, 
lying  between  Boston  proper  and  South  Boston,  in  and  through  which 
the  sea  ebbs  and  flows  to  and  from  a  bay  above,  called  South  Bay.  In 
1843,  he  began  to  build  a  w^harf  on  his  said  flats,  and  constructed  the 
northerly  wall  thereof  from  his  upland  nearly  to  the  channel,  and  then 
filled  in  and  constructed  said  wharf,  but  did  not  complete  it  until  the  com- 
missioners' line  of  1847  had  been  established,  after  which  he  built  the 
triangular  piece  set  forth  in  the  indictment,  which  forms  a  part  of  the 
wharf  as  originally  commenced  by  him.  This  triangular  piece  is  beyond 
said  line,  but  is  built  on  the  defendant's  own  flats ;  it  is  not  one  hun- 
dred rods  from  the  upland,  is  not  below  low  water-mark,  is  no  injurv  to 
navigation,  and  is  not  so  far  beyond  the  commissioners'  line  or  so  near 
the  channel  as  the  northerly  w'all  of  the  wharf  was  built  in  1843. 

No  other  evidence  was  off'ered. 

The  defendant  contended  and  requested  the  judge  to  rule  and  instruct 
the  jury  that  the  evidence  offered  did  not  sustain  the  indictment,  and 
that  the  defendant,  upon  these  facts,  was  entitled  to  a  verdict.  But 
the  judge  refused  so  to  rule,  and  instructed  the  jury  that  on  the  evi- 
dence introduced,  if  believed,  the  government  were  entitled  to  a 
verdict.      Whereupon  the  jury  returned  a  verdict  of  guilty ;  and  the 

erected  on  the  inner  side  of  said  line,  further  towards  the  said  line  than  such  wharf  ob 
pier  now  stands,  or  than  the  same  might  have  been  lawfully  enlarged  or  extended  before 
the  passing  of  this  Act,  without  leave  first  obtained  from  the  legislature. 

"  Section'  5.  No  person  shall  in  any  other  part  of  the  said  harbor  of  Boston,  belong- 
ing to  the  Commonwealth,  erect  or  cause  to  be  erected  any  wharf  or  pier,  or  begin  to 
erect  any  wharf  or  pier  therein,  or  place  any  stones,  wood,  or  other  materials  in  said 
harbor,  or  dig  down  or  remove  any  of  the  land  covered  with  w<ater  at  low  tide,  in  said 
harbor,  with  intent  to  erect  any  wharf  or  pier  therein,  or  to  enlarge  or  extend  any 
wharf  or  pier  now  erected  :  provided,  hoirever,  that  nothing  herein  contained  shall  be 
construed  to  restrain  or  control  the  lawful  rights  of  the  owners  of  am'  lands  or  flats  in 
said  harbor." 

[Section  6  imposes  penalties,  and  declares  the  forbidden  obstructions  to  be  nui- 
sances] 


CHAP,  v.]  COMMONWEALTH    V.    ALGER.  695 

pi'esitling  judge,  being  of  opinion  that  the  questions  of  law  arising  in 
the  case  were  so  doubtful  and  important  as  to  require  the  decision  of 
tliis  court,  with  the  consent  of  the  defendant,  reported  the  case  for  tiie 
purpose  of  presenting  those  questions. 

The  case  was  argued  at  March  Term,  1850. 

S.  D.  Parker,  County  Attorney,  for  the  Commonwealth. 

-C.  R.  Cia'tis  and  C  A.  Welch,  for  the  defendant. 

The  opinion  was  delivered  at  March  Term,  1853. 

Shaw,  C.  J.  In  proceeding  to  give  judgment  in  the  present  case,  the 
court  are  deeply  impressed  with  the  importance  of  the  principles  which 
it  involves,  and  the  magnitude  and  extent  of  the  great  public  interests, 
and  the  importance  and  value  of  the  private  rights,  directl}'  or  indirectly 
to  be  affected  by  it.  It  affects  the  relative  rights  of  the  public  and  of 
individual  proprietors,  in  the  soil  l^'ing  on  tide-waters,  between  high 
and  low  water-mark,  over  which  the  sea  ebbs  and  flows,  in  the  ordinary 
action  of  the  tides.  .  .  . 

The  uncontested  facts  in  the  present  case  are,  that  the  defendant  was 
owner  of  land,  bounded  on  a  cove  or  arm  of  the  sea,  in  which  the  tide 
ebbed  and  flowed,  tliat  he  built  the  wharf  complained  of,  on  tlie  flats 
before  his  said  land,  between  high  and  low  water-mark,  and  within  one 
liundred  rods  of  his  upland,  but  below  the  commissioners'  line  as  fixed 
by  one  of  these  statutes  ;  although  it  was  so  built  as  not  to  obstruct  or 
impede  navigation.  This  certainh*  presents  the  case  most  favorablj'  for 
the  defendant. 

We  ma}',  perhaps,  better  embrace  the  several  subjects  involved  in  the 
inquir}',  b}-  considering. 

First,  What  are  the  rights  of  owners  of  land,  bonndin^on  salt  water, 
whom  it  is  convenient  to  designate  as  riparian  proprietors,  to  the  flats 
over  which  the  tide  ebbs  and  flows,  as  sucli  rights  are  settled  and  estab- 
lished by  the  laws  of  Massachusetts  ;  and, 

Second,  What  are  the  just  powers  of  the  legislature  to  limit,  control, 
or  regulate  the  exercise  and  enjoyment  of  these  rights. 

I.  B}'  the  common  law  of  England,  as  it  stood  long  before  the  emi- 
gration of  our  ancestors  to  this  country  and  tlie  settlement  of  the  colony 
of  Massachusetts,  the  title  to  the  land  or  property"  in  the  soil,  under  the 
sea,  and  over  which  the  tide-waters  ebbed  and  flowed,  including  flats,  or 
the  sea-shore,  lying  between  high  and  low  water-mark,  was  in  the  king, 
as  the  representative  of  the  sovereign  power  of  the  country.  But  it  was 
held  b}-  a  rule  eqnall^^  well  settled,  that  this  right  of  property  was  lield 
by  the  king  in  trust,  for  public  uses,  established  b}'  ancient  custom  or 
regulated  b}'  law,  the  principal  of  which  were  for  fishing  and  navigation. 
These  uses  were  held  to  be  public,  not  only  for  all  the  king's  subjects, 
but  for  foreigners,  being  subjects  of  States  at  peace  with  England,  and 
coming  to  the  ports  and  havens  of  England,  with  their  ships  and  vessels, 
for  the  purposes  of  trade  and  commerce.  .  .  . 

Assuming  that  b}-  the  common  law  of  England,  as  above  stated,  the 
dght  of  riparian  proprietors,  bounding  upon  tide-waters,  extended  to 


696  ■  COMMONWEALTH    V.    ALGER.  [CIIAP.  V. 

hi*'h  water-mark  only,  and  assuming  that  the  first  settlers  of  Massa- 
chusetts regarded  the  law  of  England  as  their  law,  and  governed  them- 
selves by  it,  it  follows  that  the  earliest  grants  of  land  bounding  on  tide- 
waters would  be  to  the  high  water-line  and  not  below  it,  and  would  have 
so  remained   but  for  the  colony  ordinance,  now  to  be  considered. 

This  is  commonly  denominated  the  ordinance  of  1641  ;  but  this  date 
is  probably  a  mistake.  It  is  found  in  the  Ancient  Charters,  148,  in 
connection  with  another  on  free  fishing  and  fowling,  and  marked  1641, 
47.  That  on  free  fishing,  etc.,  is  taken  in  terms  from  the  "  Body  of 
Liberties,"  adopted  and  passed  in  1641,  leaving  the  date  1647  to  apply 
to  the  other  subject  respecting  ownership  in  coves,  etc.,  about  salt 
water.  See  an  interesting  work,  "  Remarks  on  the  Early  Laws  of 
Massachusetts  Bay,"  by  Francis  C.  Gray.  8  Mass.  Hist.  Soc.  Coll. 
(3d  series),  191,  215.  This  work  contains,  probably  for  the  first  time 
in  print,  a  full  copy  of  the  "  Bod}'  of  Liberties,"  which,  there  is  evi- 
dence to  believe,  were  adopted  and  sanctioned  by  the  colonial  gov- 
ernment in  1641,  but  were  never  printed  entire  with  the  colony  laws, 
although  many  of  them  were  embodied  in  terms  in  particular  ordinances. 
But  the  date  is  quite  immaterial,  and  the  only  purpose  of  making  this 
explanation  is  to  show  why  these  two  subjects,  separate  in  their  origin, 
were  so  connected  together  in  the  publication  of  the  colony  laws,  that  it 
seems  necessary  now  to  consider  them  together  as  one  act. 

The  whole  article,  as  it  stands  in  the  Ancient  Charters  and  in  the 
edition  of  the  colony  laws  of  1660,  is  as  follows :  — 

"  Sect.  2.  Every  inhabitant  who  is  an  householder  shall  have  free 
fishing  and  fowling  in  any  great  ponds,  bays,  coves,  and  rivers,  so  far 
as  the  sea  ebl^g  and  flows  within  the  precincts  of  the  town  where  they 
dwell,  unless  the  freemen  of  the  same  town,  or  the  General  Court,  have 
otherwise  appropriated  them  :  provided,  that  no  town  shall  appropriate 
to  any  particular  person  or  persons,  any  great  pond,  containing  more 
than  ten  acres  of  land,  and  that  no  man  shall  come  upon  another's 
propriety  without  their  leave,  otherwise  than  as  hereafter  expressed. 

"  The  which  clearly  to  determine  ;  Sect.  3.  It  is  declared,  that  in  all 
creeks,  coves,  and  other  places  about  and  upon  salt  water,  where  the 
sea  ebbs  and  flows,  the  proprietor,  or  the  land  adjoining  shall  have 
propriety  to  the  low  water-mark,  where  the  sea  doth  not  ebb  above  a 
hundred  rods,  and  not  more  wheresoever  it  ebbs  further  :  provided,  that 
such  proprietor  shall  not  by  this  liberty  have  power  to  stop  or  hinder 
the  passage  of  boats  or  other  vessels,  in  or  through  any  sea,  creeks, 
or  coves,  to  other  men's  houses  or  lands. 

''  Sect.  4.  And  for  great  ponds  lying  in  common,  though  within  the 
bounds  of  some  town,  it  shall  be  free  for  any  man  to  fish  and  fowl 
there,  and  may  pass  and  repass  on  foot  through  any  man's  propriety 
for  that  end,  so  they  trespass  not  upon  any  man's  corn  or  meadow. 
[1641,  47.]"  ... 

We  have  thought  it  proper  to  examine,  with  some  care,  the  founda- 
tion, on  which  the  right  of  property  in  land,  situated  between  high  and 


CHAP,  v.]  COMMONWEALTH   V.    ALGER.  697 

low  water-mark  in  Massachusetts,  rests,  though  it  has  not  been  much 
contested  in  reference  to  these  harbor  lines,  except  indirectl)',  and  in 
vague  and  general  terms.  And  we  think  it  is  entirely  clear  that,  since 
the  adoption  of  the  colony  ordinance,  every  grant  of  land,  bounding 
upon  the  sea,  or  any  creek,  cove,  or  arm  of  the  sea,  and  either  in 
terms  including  flats  to  low  water-mark,  or  bounding  the  land  granted 
on  the  sea  or  salt  water,  with  no  terms  limiting  or  restraining  the  oper- 
ation of  the  grant,  and  where  the  land  and  flats  have  not  been  severed 
by  any  intervening  conveyance,  has  had  the  legal  effect  to  pass  an 
estate  in  fee  to  the  grantee,  subject  to  a  limited  right  of  way  for  boats 
and  vessels.  We  have  seen  that  the  entire  right  of  property  in  the  soil 
was  granted  by  the  charter  to  the  colonists,  with  a  full  power  of  dis- 
posal, and  that  the  colonial  government  was  clothed  with  so  much  of 
the  royal  prerogative  and  power,  as  was  necessary  to  maintain  and 
regulate  all  public  rights  and  immunities  in  the  same.  If  land  so 
situated  had,  previously  to  the  ordinance,  been  conveyed  by  the  govern- 
ment, to  companies  of  proprietors  or  individuals,  the  Act  was  in  the 
nature  of  a  grant  of  the  flats  to  such  prior  grantees.  It  is  said  that  it 
was  not  of  itself  a  grant,  but  a  general  law  affecting  the  character  of 
property.  Be  it  so.  It  was  an  authoritative  declaration  of  owners, 
having  a  full  right  of  property  and  power  of  disposal,  annexing  addi- 
tional land  to  that  previousl}-  granted,  to  hold  in  fee,  subject  to  a 
reserved  easement;  and,  if  not  strictly  a  grant,  it  partook  of  most  of 
the  characteristics  of  a  grant,  and  could  not  be  revoked  b}-  the  power 
that  gave  it.  In  regard  to  all  grants  made  by  the  government  after  the 
ordinance,  the  terms  of  the  grant,  bounding  the  lands  granted  upon  the 
sea,  or  arm  of  the  sea,  or  places  where  the  tide  ebbed  and  flowed,  would, 
ex  ci  termini,  carr}'  a  fee  to  low  water-mark,  or  one  hundred  rods ;  so 
that  in  one  or  the  other  alternative,  this  ordinance  must  govern  and 
control  the  shore  rights  of  riparian  proprietors  in  every  part  of  the 
Commonwealth. 

II.  Assuming,  then,  that  the  defendant  was  owner  in  fee  of  the  soil 
and  flats  ui)on  which  the  wharf  in  question  was  built,  it  becomes  neces- 
sary to  inquire  whether  it  was  competent  for  the  legislature  to  pass  the 
Acts  establishing  the  harbor  lines,  and  what  is  the  legal  validity  and 
effect  of  those  Acts.   .  .   . 

Tlie  manifest  object  of  these  statutes  is  to  prevent  injurious  obstruc- 
tions in  the  harbor  of  Boston,  and  to  secure  the  free,  common,  and 
unobstructed  use  thereof,  for  the  citizens  of  the  Commonwealth,  and 
all  other  persons,  for  navigation  with  ships,  boats,  and  vessels  of  all 
kinds,  as  a  common  and  public  right.  If  this  can  be  done,  without  an 
unwarrantable  encroachment  on  the  rights  of  private  propert}-,  it  is  an 
object  of  great  importance,  and  one  in  which  the  holders  of  riparian 
rights,  as  well  as  all  other  holders  of  real  estate,  and  the  whole  com- 
munity, have  a  deep  and  abiding  interest. 

We  think  it  is  a  settled  principle,  growing  out  of  the  nature  of  well- 
ordered  civil  society,  that  every  holder  of  property,  however  absolute 


698  COMMONWEALTH   V.    ALGER.  [CIIAP.  V. 

and  unqualified  ma}'  be  bis  title,  bolds  it  under  tbe  implied  liabilit}' 
tbat  bis  use  of  it  may  be  so  regulated,  tbat  it  sball  not  be  injurious  to 
tbe  equal  enjoyment  of  otbers,  having  an  equal  rigbt  to  tbe  enjoyment 
of  their  property,  nor  injurious  to  the  rights  of  tbe  community.  All 
property  in  this  Commonwealth,  as  well  that  in  tbe  interior  as  that 
bordering  on  tide-waters,  is  derived  directly  or  indirectly  from  tbe  gov- 
ernment, and  held  subject  to  those  general  regulations  which  are  neces- 
sar}'  to  the  common  good  and  general  welfare.  Rights  of  property,  like 
all  other  social  and  conventional  rights,  are  subject  to  such  reasonable 
limitations  in  their  enjoN'ment,  as  shall  prevent  them  from  being  inju- 
rious, and  to  such  reasonable  restraints  and  regulations  established  b}' 
law,  as  tbe  legislature,  under  the  governing  and  controlling  power  vested 
in  them  b}-  the  Constitution,  may  think  necessary-  and  expedient. 

This  is  ver}'  different  from  the  right  of  eminent  domain,  the  right  of 
a  government  to  take  and  appropriate  private  pi'opeity  to  public  use, 
whenever  the  public  exigencj'  requires  it ;  which  can  be  done  onl}- 
on  condition  of  providing  a  reasonable  compensation  therefor.  The 
power  we  allude  to  is  rather  the  police  power,  the  power  vested  in  tbe 
legislature  by  the  Constitution,  to  make,  ordain,  and  establish  all  man- 
ner of  wholesome  and  reasonable  laws,  statutes,  and  ordinances,  either 
with  penalties  or  without,  not  repugnant  to  tlie  Constitution,  as  they 
shall  judge  to  be  for  the  good  and  welfare  of  the  Commonwealth  and  of 
the  subjects  of  the  same. 

It  is  much  easier  to  perceive  and  realize  tbe  existence  and  sources  of 
this  power,  than  to  maik  its  boundaries,  or  prescribe  limits  to  its  exer- 
cise. There  are  many  cases  in  which  such  a  power  is  exercised  by  all 
well-ordered  governments,  and  where  its  fitness  is  so  obvious,  that  all 
well-regulated  minds  will  regard  it  as  reasonable.  Such  are  tbe  laws  to 
prohibit  the  use  of  warehouses  for  tbe  storage  of  gunpowder  near  habi- 
tations or  highways  ;  to  restrain  the  height  to  which  wooden  buildings 
ma}'  be  erected  in  populous  neighborhoods,  and  require  them  to  be 
covered  with  slate  or  other  incombustible  material ;  to  prohibit  build- 
ings from  being  used  for  hospitals  for  contagious  diseases,  or  for  the 
carrying  on  of  noxious  or  offensive  trades ;  to  prohibit  the  raising  of  a 
dam,  and  causing  stagnant  water  to  spread  over  meadows,  near  in- 
habited villages,  thereby  raising  noxious  exhalations,  injurious  to  health 
and  dangerous  to  life. 

Nor  does  the  prohibition  of  such  noxious  use  of  propert}',  a  prohibi- 
tion imposed  because  such  use  would  be  injurious  to  the  public,  althougb 
it  may  diminish  the  profits  of  the  owner,  make  it  an  appropriation  to  a 
public  use,  so  as  to  entitle  the  owner  to  compensation.  If  the  owner  of 
a  vacant  lot  in  the  midst  of  a  city  could  erect  thereon  a  great  wooden 
building,  and  cover  it  with  shingles,  he  might  obtain  a  larger  profit  of 
his  land,  than  if  obliged  to  build  of  stone  or  brick,  with  a  slated  roof. 
If  tbe  owner  of  a  warehouse  in  a  cluster  of  other  buildings  could  store 
quantities  of  gunpowder  in  it  for  himself  and  others,  he  might  be  saved 
the  great  expense  of  transportation.    If  a  landlord  could  let  his  building 


( 


/ 

CHAP,  v.]  COMMONWEALTH   V.   ALGER.  699 

for  a  sraall-pox  hospital,  or  a  slaughter-house,  he  might  obtain  an  in- 
creased rent.  But  he  is  resti'ained  ;  not  because  tlie  i)ublic  have  occa- 
sion to  make  the  like  use,  or  to  make  an}'  use  of  tlie  property,  or  to 
take  any  benefit  or  profit  to  themselves  from  it ;  but  because  it  would 
be  a  noxious  use,  contrary  to  the  maxim,  ^ic  utere  tuo,  ut  alieuum  non 
Icedas.  It  is  not  an  appropriation  of  the  property  to  a  public  use,  but 
the  restraint  of  an  injurious  private  use  b}-  the  owner,  and  is  therefore 
not  within  the  principle  of  property  taken  under  the  right  of  eminent 
domain.  The  distinction,  we  think,  is  manifest  in  princi[)le,  although 
the  facts  and  circumstances  of  different  cases  are  so  various,  that  it  is 
often  difficult  to  decide  whether  a  particular  exercise  of  legislation  is 
properly  attributable  to  the  one  or  the  other  of  these  two  acknowledged 
powers. 

These  principles  were  somewhat  discussed,  and  similar  views  were 
substantially  adopted,  in  the  case  of  CommoinceaUh  v.  Tewksburi/,^  11 
Met.  55.  Perhaps  the  facts  in  that  case  were  imperfectly  stated,  or 
some  of  the  positions  and  illustrations  were  expressed  in  too  broad  and 
unqualified  a  manner;  but  we  are  of  opinion  that  the  principle  on  which 
that  judgment  proceeded  was  correct.  It  assumes  that  all  real  estate, 
inland  or  on  the  sea-shore,  derived  immediately  or  remotely  from  the 
government  of  the  State,  is  taken  and  held  under  the  tacit  understand- 
ing tliat  the  owner  shall  so  deal  with  it  as  not  to  cause  injury  to  others ; 
that  when  land  is  so  situated,  or  such  is  its  conformation,  that  it  forms 
a  natural  barrier  to  rivers  or  tidal  watercourses,  the  owner  cannot  justi- 
fiably remove  it,  to  such  an  extent  as  to  permit  the  waters  to  desert 
their  natural  channels,  and  overflow,  and  perhaps  inundate  fields  and  vil- 
lages, render  rivers,  ports,  and  harbors  shallow,  and  consequently  deso- 
late, and  thereby  destroy  the  valuable  rights  of  other  proprietors,  both  in 
the  navigation  of  the  stream,  and  in  the  contiguous  lands.  It  expresses 
nearl}'  the  same  legal  trutli,  which  is  expressed  in  the  familiar  maxim, 
that  no  owner,  through  whose  land  a  natural  watercourse  runs,  can 
lawfully  divert  it  to  the  damage  of  others.  But  what  is  the  diversion  of 
a  watercourse?  Ordinarily,  and  when  no  such  circumstances  exist,  the 
owner  of  land  has  a  perfect  riglit  to  use  and  remove  the  earth,  gravel, 
and  clay  of  v.hich  the  soil  is  composed,  as  his  own  interest  or  conve- 
nience may  require.  But  can  he  do  this  when  the  same  materials  form 
the  natural  embankment  of  a  watercourse?  He  may  say,  perhaps,  that 
he  merely  intends  to  make  use  of  materials  which  are  his  own,  and  to 
which  he  has  a  right,  and  for  which  he  has  other  u.ses.  But  we  think 
the  law  will  admit  of  no  such  excuse  ;  he  knows  that,  when  these  mate- 
rials are  removed,  the  water,  b}'  the  law  of  gravitation,  will  rush  out, 

1  In  this  case  it  was  held,  in  1846,  that  a  statute  of  Massachusetts  of  184.5,  imposing 
a  penalty  for  removing  stones,  gravel,  or  sand  from  any  beach  in  the  town  of  Chelsea, 
was  passed  for  the  purpose  of  protecting  the  liarbor  of  Boston,  that  it  applied  to  the 
owner  of  the  beach  as  well  as  others,  and  that  it  was  not  a  taking  of  property  for  pub- 
lic use,  within  the  meaning  of  the  Constitution,  but  a  legitimate  exercise  of  legislative 
power.  —  Ed. 


700  COMMONWEALTH  V.   ALGER.  [CHAP.  V. 

and  all  the  mischievous  consequences  of  diverting  the  watercourse  will 
follow.  He  must  be  presumed  to  have  intended  all  the  necessar}-  and 
natural  consequences  of  his  own  acts ;  of  course,  that  he  intended,  by 
those  acts,  to  divert  the  watercourse  ;  and  the  law  holds  him  responsible 
for  them  accordingly.  Principles  are  tested  by  taking  extreme  cases. 
Take  the  case  of  the  river  Mississippi,  where  large  tracts  of  countrj', 
with  cities  and  villages,  depend  for  their  protection  upon  the  natural 
river-bank,  which  is  private  property.  Perhaps,  under  such  circum- 
stances, it  might  not  be  too  much  to  say,  not  only  that  the  owner  can- 
not do  any  positive  act  towards  removing  the  embankment,  but  that  he 
may  properly  be  held  responsible  for  the  permissive  waste  of  it,  b}' 
negligence  and  inattention.  And  the  other  cases  hereinbefore  stated, 
though  very  different  in  their  facts,  are  similar  in  principle,  all  being 
cases  in  which  the  specific  use  prohibited,  is  so  prohibited  because  it 
would  be  noxious,  and  cause  or  threaten  damage  to  the  lives,  health, 
comfort,  or  property  of  other  members  of  the  community,  equall}'  en- 
titled to  protection.  We  think,  therefore,  that  that  case  was  rightly 
decided. 

Supposing  the  principle  itself  to  be  well  established,  the  great  question 
then  IS,  whether  the  Act  in  question,  fixing  certain  harbor  lines,  was 
within  it ;  and  we  are  of  opinion  that  it  is,  although  it  ma}'  in  some 
cases  seem  to  trench  somewhat  largely  on  the  profitable  use  of  indi- 
vidual property.     This  opinion  is  founded  on  several  considerations. 

We  have  already  alluded  to  the  point,  that  a  particular  use  of  land,  as 
well  inland  as  on  the  sea-shore,  which,  in  one  situation,  would  be  greatl}' 
injurious  to  common  and  public  rights,  in  another  position  would  be 
wholly  harmless.  A  man  having  a  hill  of  gravel  on  his  farm,  not  con- 
stituting the  embankment  of  a  stream,  may  remove  the  earth  at  his 
pleasure,  because  such  use  can  injure  no  one ;  when  under  other  cir- 
cumstances, it  would  be  greath'  injurious.  Whether  any  restraint  upon 
the  use  of  land  is  necessar}'  to  the  preservation  of  common  rights  and 
the  public  security,  must  depend  upon  circumstances,  to  be  judged  of 
by  those  to  whom  all  legislative  power  is  intrusted  by  the  sovereign 
authority  of  the  State,  so  to  declare  and  regulate  as  to  secure  and 
preserve  all  public  rights. 

We  think  it  is  a  consideration  entitled  to  some  weight,  that  the  colony 
ordinance  itself,  which  changed  the  tenure  and  extended  the  title  of 
riparian  proprietors  to  low  water-mark,  so  as  to  include  the  shore,  was 
not  absolute  and  unqualified.  It  contained  a  reservation,  to  the  effect 
that  riparian  proprietors  should  not,  by  this  extension  of  their  territorial 
limits,  have  power  to  stop  or  hinder  the  passage  of  boats  and  vessels,  in 
or  through  any  sea,  creeks,  or  coves,  to  other  men's  houses  or  lands. 
From  these  very  general  words,  it  is  certainly  difficult  to  prescribe 
exact  limits  to  this  reservation.  That  it  was  designed  to  impose  some 
restriction  in  favor  of  the  right  of  navigation  is  quite  clear.  To  sa}",  as 
it  lias  sometimes  been  contended,  that  the  reservation  was  intended 
to  prohibit  any  restraint  upon  the  pre-existing  right  of  navigation,  and 


CHAP,  v.]  COMMONWEALTH   V.   ALGER.  701 

that  all  persons  should  have  the  same  right  of  passing  over  it,  with 
boats  and  vessels,  as  the}'  had  before,  would  seem  to  restrain  any  build- 
ing thereon,  and  to  render  the  Act  nugatory  and  of  no  practical  effect. 
Besides,  if  tlie  purpose  was,  as  it  has  often  been  declared  to  be,  to 
enable  proprietors  bounding  on  the  shore  to  erect  and  build  quays, 
wharves,  and  warehouses  thereon,  for  purposes  incident  to  the  great 
interests  of  commerce  and  navigation,  such  a  construction  of  the  Act 
would  defeat  the  purposes  for  which  it  was  designed. 

Again,  the  construction  which  has  been  put  upon  this  Act,  in  all  the 
jiulicial  decisions  which  have  been  made  upon  it,  many  of  which  are 
cited  in  the  former  part  of  this  opinion,  has  been,  that,  notwithstanding 
the  Act  vests  a  fee  in  the  soil  in  the  riparian  proprietor,  analogous  to 
the  jus  privatum,  or  right  of  property,  which  at  the  common  law  the 
Crown  could  grant  to  a  subject,  yet  that  the  land  between  high  water 
and  low  water,  until  it  was  enclosed,  built  upon,  or  so  occupied  by  the 
riparian  proprietor,  so  far  partook  of  its  original  character,  that  whilst 
covered  b}-  the  tide-water  the  public  and  all  persons  might  lawfully  use 
it,  might  sail  over  it,  anchor  upon  it,  fish  upon  it,  and  by  so  doing  no  pei- 
son  should  be  held  to  commit  a  trespass,  or  disseise  the  owner,  or  take 
adverse  possession.  The  public  used  only  a  common  right,  by  so  using 
these  lands  when  covered  with  tide-water.  * 

In  putting  a  construction  upon  any  statute,  everj'  part  shall  be  re- 
garded, and  it  shall  be  so  expounded,  if  practicable,  as  to  give  some 
effect  to  every  part  of  it.  Looking  at  the  terms  of  this  law,  and  the 
purposes  for  which  it  was  intended,  the  object  seems  to  have  been,  to 
secure  to  riparian  proprietors  in  general,  without  special  grant,  a  prop- 
erty' in  the  land,  with  full  power  to  erect  such  wharves,  embankments, 
and  warehouses  thereon,  as  would  be  usually  required  for  purposes  of 
commerce,  subordinate  only  to  a  reasonable  use  of  the  same,  b}'  other 
individual  riparian  proprietors  and  the  public,  for  the  purposes  of 
navigation,  through  an}'  sea,  creeks,  or  coves,  with  their  boats  and 
vessels.   .  .   . 

But  the  use  which  we  think  may  be  justly  made  of  these  principles, 
and  of  these  views  of  the  law  of  England,  as  it  had  existed  long  anterior 
to  the  emigration  of  our  ancestors  to  America,  is  this:  They  had  been 
accustomed  to  regard  the  use  of  the  seashores,  for  navigation  and  fish- 
ing, as  puhlici  juris,  to  be  held  and  regulated  for  the  common  and 
general  benefit ;  and  this,  although  in  many  cases  the  right  of  soil  was 
vested  by  private  grant  in  an  individual.  They  had  long  been  familiar 
with  the  practice  of  the  Crown  to  make  grants  of  the  jus  privatum,  or 
right  of  property  in  the  soil,  in  the  sea-shore  over  which  the  tide  ebbed 
and  flowed,  which  would  warrant  the  grantee  of  the  Crown  in  erecting 
thereon  wharves,  quays,  and  warehouses,  for  facilitating  navigation  and 
commerce,  provided  such  erections  did  not  hinder  or  obstruct  naviga- 
tion, or  become  a  nuisance.  If  such  a  wharf  or  other  erection  were 
such  as  to  interfere  essentially  with  the  common  right  of  navigation,  it 
would  be  held  by  the  common  law  to  be  a  common  nuisance,  and  could 


702  COMMONWEALTH  V.   ALGER.  [CHAP.  V. 

not  be  justified,  even  b}'  the  king's  grant,  unless  sanctioned  b}-  an  Act 
of  Parliament.  These  rules  and  practices  were  familiar  to  the  minds  of 
our  English  ancestors  at  their  emigration,  and  we  may  presume  that  the 
colonial  government  had  them  in  view  when,  by  a  general  Act,  it  an- 
nexed the  sea-shore  to  the  upland,  and  made  it  the  private  property 
of  the  riparian  proprietor.  It  must  have  well  understood  that  all 
estate  granted  by  the  government  to  individuals  is  subject,  by  reason- 
able implication,  to  such  restraints  in  its  use,  as  shall  make  the  enjoy- 
ment of  it  by  the  grantee  consistent  with  the  equal  enjoyment  by  others, 
of  their  several  and  common  rights.  When  therefore  the  govei-nraent 
did,  by  such  general  Act,  grant  a  right  of  separate  pi'opert}'  in  the  soil 
of  the  sea-shore,  to  enable  the  riparian  proprietor  to  erect  quays  and 
wharves  for  a  better  access  to  the  sea,  and  by  the  same  Act  reserved 
some  right  to  individuals  and  the  public  of  passing  and  repassing  with 
vessels,  but  without  defining  it,  it  seems  just  and  reasonable  to  construe 
such  reservation  much  more  liberally  in  favor  of  the  right  reserved, 
than  it  otherwise  would  be  under  other  circumstances. 

And  so  in  the  exercise  of  the  more  general  power  of  government,  so 
to  restrain  the  injurious  use  of  property,  it  seems  to  apply  more  sig- 
nificantly and  more  directly  to  real  estate  thus  situated  on  the  sea-shore, 
separating  the  upland  from  the  sea,  to  which  the  public  have  a  common 
and  acknowledged  right,  so  that  such  estate  should  be  held  subject  to 
somewhat  more  restrictive  i-egulations  in  its  use,  than  interior  and  up- 
land estate  remote  from  places  in  which  the  public  have  a  common 
right.  The  circumstances  are  different.  In  respect  to  land  lying  in 
the  interior,  and  used  for  agricultural  purposes,  there  is  little  occasion 
to  impose  any  restraint  upon  the  absolute  dominion  of  the  owner,  be- 
cause such  restraint  is  not  necessary  to  prevent  it  from  being  injurious. 
But  the  circumstances  are  entirely  different  in  regard  to  the  sea-shore, 
which  lies  between  the  sea,  admitted  to  be  common  to  all,  and  the  use 
of  which  is  of  vast  Importance  to  the  public,  and  ports  and  places, 
without  access  to  which,  the  use  of  the  sea  for  navigation  would  be 
of  little  value. 

Considering,  therefore,  that  all  real  estate  derived  from  the  govern- 
ment is  subject  to  some  restraint  for  the  general  good,  whether  such 
restraint  be  regarded  as  a  police  regulation  or  of  any  other  character ; 
considering  that  sea-shore  estate,  though  held  in  fee  by  the  riparian 
proprietor,  both  on  account  of  the  qualified  reservation  under  which 
the  grant  was  made,  and  the  peculiar  nature  and  character,  position, 
and  relations  of  the  estate,  and  the  great  public  interests  associated 
with  it,  is  more  especially  subject  to  some  reasonable  restraints,  in 
order  that  the  exercise  of  full  dominion  over  it,  by  the  proprietor,  may 
not  be  noxious  to  others,  and  injurious  to  the  public,  the  court  are  of 
oi)inion  that  the  legislature  has  power,  by  a  general  law  affecting  all 
riparian  proprietors  on  the  same  line  of  shore  equally  and  alike,  to 
make  reasonable  regulations,  declaring  the  public  right,  and  provid- 
ing for  its  preservation  by  reasonable  restraints,  and  to  enforce  these 
restraints  b}-  suitable  penalties. 


CHAP,  v.]  COMMONWEALTH   V.    ALGER.  703 

Wherever  there  is  a  general  right  on  the  part  of  the  public,  and  a 
general  duty  on  the  part  of  a  land-owner,  or  any  other  person,  to  respect 
such  right,  we  think  it  is  competent  for  the  legislature,  by  a  specific 
enactment,  to  prescribe  a  precise,  practical  rule  for  declaring,  establish- 
ing, and  securing  such  right,  and  enforcing  respect  for  it.  It  may  be 
said  in  general  terms,  independently  of  any  positive  enactment,  that  it 
is  the  right  of  society,  in  the  midst  of  a  populous  settlement,  to  be 
exempt  from  the  proximity  of  dangerous  and  noxious  trades  ;  and  that 
it  is  the  dut}'  of  the  owner  of  real  estate,  in  the  midst  of  many  habita- 
tions, to  abstain  from  erecting  buildings  thereon,  or  otherwise  using  it, 
for  carrying  on  a  trade  dangerous  to  the  lives,  health,  or  comfort  of 
the  inhabitants  of  such  dwellings  ;  although  a  trade  in  itself  useful  and 
beneficial  to  the  public.  But  such  general  duty  and  obligation  not 
being  fixed  b^-  a  rule  precise  enough  for  practical  purposes,  we  think  it 
is  competent  for  the  legislature  to  interpose,  and  by  a  specific  enactment 
to  declare  what  shall  be  deemed  a  dangerous  or  noxious  trade,  under 
what  circumstances  and  within  what  distance  of  habitations  it  may  or 
shall  not  be  set  up,  how  the  use  of  it  shall  be  regulated,  and  to  prohibit 
anv  other  than  such  regulated  use,  by  specific  penalties. 

This  principle  of  legislation  is  of  great  importance  and  extensive  use, 
and  lies  at  the  foundation  of  most  enactments  of  positive  law,  which  de- 
fine and  punish  mala  proldhita.  Things  done  may  or  may  not  be  wrong 
in  themselves,  or  necessarily  injurious  and  punishable  as  such  at  com- 
mon law  ;  but  laws  are  passed  declaring  them  offences,  and  making 
them  punishable,  because  the}'  tend  to  injurious  consequences  ;  but 
more  especially  for  the  sake  of  having  a  definite,  known,  and  authori- 
tative rule  which  all  can  understand  and  obey.  In  the  case  already 
put,  of  erecting  a  powder  magazine  or  slaughter-house,  it  would  be 
indictable  at  common  law,  and  punishable  as  a  nuisance,  if  in  fact 
erected  so  near  an  inhabited  village  as  to  be  actuall}'  dangerous  or 
noxious  to  life  or  health.  Without  a  positive  law,  everybody  miglit 
agree  that  two  hundred  feet  would  be  too  near,  and  that  two  thousand 
feet  would  not  be  too  near;  but  within  this  wide  margin,  who  shall 
say,  who  can  know,  what  distance  shall  be  too  near  or  otherwise?  An 
authoritative  rule,  carrying  with  it  the  character  of  certaint}-  and  preci- 
sion, is  needed.  The  tradesman  needs  to  know,  before  incurring  ex- 
pense, how  near  he  ma}-  build  his  works  without  violating  the  law  or 
committing  a  nuisance  ;  builders  of  houses  need  to  know,  to  what  dis- 
tance the}'  must  keep  from  the  obnoxious  works  already  erected,  in 
order  to  be  sure  of  the  protection  of  the  law  for  their  habitations. 
This  requisite  certainty  and  precision  can  only  be  obtained  by  a  positive 
enactment,  fixing  the  distance,  within  which  the  use  shall  be  prohibited 
as  noxious,  and  beyond  which  it  will  be  allowed,  and  enforcing  the  rule 
thus  fixed,  by  penalties. 

Many  cases  will  suggest  themselves,  where  the  legislature  interposes 
by  statute  to  declare,  protect,  and  regulate  public  rights,  although  those 
rights  are  public  easements  only,  over  lands  of  which  the  fee  of  the  soil 


704  COMMONWEALTH   V.    ALGER.  [CHAP.  V. 

is  in  private  proprietors.  Such  are  laws  regulating  the  construction  and 
repairs  of  roads,  highways,  and  bridges  ;  declaring  how  thej-  shall  be 
graded,  what  barriers  shall  be  erected  to  guard  travellers  against  dan- 
gerous places,  and  what  obstructions  shall  be  removed.  .  .  . 

But  in  reference  to  the  present  case,  and  to  the  Act  of  the  Legislature, 
establishing  lines  in  the  harbor,  beyond  which  private  proprietors  are 
prohibited  from  building  wharves,  it  is  urged  that  such  a  restraint  upon 
the  estate  of  an  individual,  debarring  him  to  some  extent  from  the  most 
beneficial  use  of  it,  is  in  effect  taking  his  estate.  If  such  restraint  were 
in  fact  imposed  upon  the  estate  of  one  proprietor  only,  out  of  several 
estates  on  the  same  line  of  shore,  the  objection  would  be  much  more 
formidable.  But  we  are  to  consider  the  subject-matter,  to  which  such 
restraint  ai)plies.  The  value  of  this  species  of  estate,  that  of  shore  and 
flats,  consists  mainl}-  in  the  means  it  affords  of  building  wharves  from 
the  upland  towards  deep  water,  to  place  merchandise  and  build  wharves 
upon,  and  principally  to  afford  access,  to  vessels  requiring  considerable 
depth  of  water,  from  the  sea  to  suitable  landings.  Now,  if  along  a 
shore  where  there  are  flats  of  considerable  extent,  one  were  restrained 
to  a  certain  lejigth,  whilst  others  were  allowed  to  extend  further,  the 
damage  might  be  great.  So  if  one  were  allowed  to  extend,  and  the 
coterminous  proprietors  adjacent  were  restrained,  it  would  be  obviously 
more  injurious.  The  one  extended  would  stop  or  check  the  current 
along  the  others,  cause  mud  to  accumulate  near  them,  and  thus  render 
the  water  shoal  at  those  wharves.  But  where  all  are  permitted  to  ex- 
tend alike,  and  all  are  restrained  alike,  by  a  line  judiciously  adapted  to 
the  course  of  the  current,  so  that  all  have  the  benefit  of  access  to  their 
wharves,  with  the  same  depth  of  water,  and  the  same  strength  of  current 
at  their  heads,  the  damage  must  be  comparatively  less. 

But  of  this  the  legislature  must  judge.  Having  once  come  to  the 
conclusion  that  a  case  exists,  in  which  it  is  competent  for  the  legisla- 
ture to  make  a  law  on  the  subject,  it  is  for  them,  under  a  high  sense  of 
duty  to  the  public  and  to  individuals,  with  a  sacred  regard  to  the  rights 
of  propert}-  and  all  other  private  rights,  to  make  such  reasonable  reg- 
ulations as  they  may  judge  necessary  to  protect  public  and  private 
rights,  and  to  impose  no  larger  restraints  upon  the  use  and  enjoyment 
of  private  property,  than  are  in  their  judgment  strictly  necessary  to 
preserve  and  protect  the  rights  of  others. 

In  regard  to  the  case  of  Mr.  Alger,  the  report  states  that  a  certain 
piece  of  wharf,  called  a  triangular  piece,  was  erected  and  placed  in  its 
position  beyond  the  line,  after  the  law  fixing  the  line  had  been  passed  ; 
but  that  some  other  portions,  though  actually  beyond  the  line,  were 
erected,  and  the  obstructions  complained  of  actually  placed  in  their 
position,  before  the  law  was  passed  ;  and  also  that  the  wharf  complained 
of  does  not  obstruct  the  navigation  of  boats  and  vessels. 

In  regarrl  to  the  first  suggestion,  it  may  be  necessary  to  examine  the 
fatts  more  miinitely  before  any  final  juflgmont  is  entered.  If  any  por- 
tion of  this  erection,  described  in  the  indictment,  had  been  actually  made 


CHAP,  v.]  COMMONWEALTH    V.    ALGER.  705 

and  placed  in  its  position  before  the  Act  was  passed,  the  court  are  all  of 
opinion  that  the  owner  is  not  liable  to  its  penalties.  These  laws  were 
future  and  prospective  in  their  terras  and  in  their  operation.  The}-  pro- 
ceed on  the  assumption,  that  before  they  were  passed,  every  man  had  a 
right  to  build  on  his  own  flats,  if  the  erection  did  not  in  fact  operate  to 
impede  navigation,  and  render  him  indictable  as  at  common  law  ;  and 
that  the  common  law,  in  thus  lending  its  aid  in  the  prosecution  of  actual 
injuries  to  navigation,  to  be  proved  in  each  case  as  nuisances,  would  be 
surticient  to  secure  the  public  against  encroachments  without  legislation. 
But,  for  the  reasons  hereinbefore  given,  it  seems  to  us  highly  important 
to  have  a  more  precise  and  definite  law  made  and  promulgated,  by  which 
all  persons  may  more  certainly  know  their  own  and  the  public  rights,  and 
govern  themselves  accordingly. 

If,  indeed,  before  the  passing  of  these  laws,  any  one  had  so  built  into 
navigable  water  as  to  cause  a  public  nuisance,  he  may  be  liable  to  in- 
dictment and  punishment,  but  not  by  these  laws,  fixing  harbor  lines. 
It  follows,  therefore,  that  all  persons  who  built  on  tlieir  own  soil  before 
these  laws,  in  a  manner  not  amounting  to  a  public  nuisance,  indepen- 
dently of  them,  had  exercised  only  their  just  and  lawful  right ;  and  any 
laws,  made  to  punish  acts  lawful  at  the  time  they  were  done,  would  be 
ex  post  facto^  contrary  to  the  Constitution  and  to  the  plainest  principles 
of  justice,  and  of  course  inoperative  and  void. 

In  regard  to  the  other  suggestion,  that  it  is  found  by  the  case  that  the 
particular  wharf  of  Mr.  Alger  did  not  obstruct  or  impede  navigation,  it 
is  proper  to  say,  that  if  we  are  right  in  principle,  we  are  bound  to  hold 
tiiat  this  circumstance  can  afford  no  defence.  A  consideration  of  this 
fact  illustrates  the  principles  we  have  been  discussing.  The  reason 
why  it  is  necessary  to  have  a  certain  and  authoritative  law,  is  shown  by 
the  difficulty,  not  to  say  impracticability,  of  inquiring  and  deciding  as  a 
fact,  in  each  particular  case,  whether  a  certain  erection  in  tide-water  is 
a  nuisance  at  common  law  or  not ;  and  when  ascertained  and  adjudged, 
it  affords  no  rule  for  any  other  case,  and  can  have  little  effect  in  main- 
taining and  protecting  the  acknowledged  public  right.  It  is  this  con- 
sideration (the  expediency  and  necessity  of  defining  and  securing  the 
rights  of  the  public),  which  creates  the  exigency,  and  furnishes  the 
legislature  with  the  authority  to  make  a  general  and  precise  law ; 
but  when  made,  because  it  was  just  and  expedient,  and  because  it  is 
law,  it  becomes  the  duty  of  every  person  to  obey  it  and  comply  with 
it.  The  question  under  the  statute  therefore  is,  not  whether  any 
wharf,  built  after  the  statute  was  made  and  promulgated,  was  an  actual 
obstruction  to  navigation,  but  whether  it  was  (vithin  the  prohibited 
limit. 

On  the  whole,  the  court  are  of  opinion  that  the  Act  fixing  a  line 
within  the  harbor  of  Boston,  beyond  which  no  riparian  proprietor 
should  erect  a  wharf  or  other  permanent  structure,  although  to  some 
extent  it  prohibited  him  from  building  such  structure  on  flats  of  which 
be  owned  the  fee,  was  a  constitutional  law,  and  one  which  it  was  com- 
voL.  I  — 45 


706  THORPE  V.    RUTLAND,  ETC.  RAILROAD  CO.      [cHAP.  V. 

petent  for  the  legislature  to  make ;  that  it  was  binding  on  the  defend- 
ant, and  rendered  him  obnoxious  to  its  penalties,  if  he  violated  its 
provisions.* 


THORPE  V.   RUTLAND  AND  BURLINGTON  RAILROAD 

COMPANY. 

Supreme  Court  of  Vermont.     1855. 

[27  Vt.  140.] 

D.  A.  Smalley,  for  the  defendants. 

J.  Maeck,  for  the  plaintiff. 

[For  the  statement  of  facts  and  the  beginning  of  the  opinion,  see  ante, 
p.  157.  The  statute  in  question  is  given  in  the  note.'  The  opinion  con- 
tinues as  follows :] 

Redfield,  Cii.  J.  .  .  .  IL  It  being  assumed  then,  that  the  legisla- 
ture may  control  the  action,  prescribe  the  functions  and  duties  of  cor- 
porations, and  impose  restraints  upon  them  to  the  same  extent  as 
upon  natural  persons,  that  is,  in  all  matters  coming  within  the  general 
range  of  legislative  authority,  subject  to  the  limitation  of  not  impair- 
ing the  obligation  of  contracts,  provided  the  essential  franchise  is  not 
taken  without  compensation,  it  becomes  of  primary  importance  to  deter- 
mine the  extent  to  which  the  charter  of  a  corporation  may  fairly  be 
regarded  as  a  contract  within  the  meaning  of  the  United  States  Con- 
stitution. .  .  .  [Here  the  reasoning  in  the  case  of  Dartmouth  College 
V.  Woodward^  4  Wheat.  518,  is  stated.] 

But  it  has  sometimes  been  supposed  that  corporations  possess  a  kind 
of  immunity  and  exemption  from  legislative  control,  extending  to 
everything  materially  affecting  their  interest,  and  where  there  is  no  ex- 
press reservation  in  their  charters.  It  was  upon  this  ground  that  a  per- 
petual exemption  from  taxation  was  claimed  in  Providence  Bank  v. 
Billings,  4  Peters,  514,  their  charter  being  general,  and  no  power  of 
taxation  reserved  to  the  State.  The  argument  was,  that  the  right  to 
tax  either  their  property  or  their  stock  was  not  only  an  abridgment  of 
the  beneficial  use  of  the  franchise,  but  if  it  existed,  was  capable  of  being 
so  exercised  as  virtually  to  destroy  it.  This  was  certainly  plausible, 
and  the  court  do  not  deny  the  liability  to  so  exercise  the  power  of  tax- 
ation as  to  absorb  the  entire  profits  of  the  institution.  But  still  they 
deny  the  exemption  claimed.     Chief  Justice  Marshall  there  says: 

1  Compare  Grand  Bapids  v.  Powers,  89  Mich.  94  ;  Summermlle  v.  Presslei/,  33  So. 
Ca.  .56  (1890)  ;  St.  Louis  v.  Hill,  22  S.  W.  Rep.  861  (1893).  —Ed. 

■^  The  statute  is  as  follows :  "  Each  railroarl  corporation  shall  erect  and  maintain 
fences  on  the  lines  of  their  road,  .  .  .  and  also  construct  and  maintain  cattle-guards 
at  all  farm  and  road  crossings,  suitable  and  sufficient  to  prevent  cattle  and  animals 
from  getting  on  to  the  railroad.  Until  such  fences  and  cattle-guards  shall  be  duly 
made,  the  corporation  and  its  agents  shall  be  liable  for  all  damages  which  shall  be  done 
by  their  agents  or  engines  to  cattle,  horses,  or  other  animals  thereon,  if  occasioned  by 
want  of  such  fences  and  cattle-guards."  —  Comp.  Stat.  200,  §  41. 


CHAP,  v.]  THORPE   V.    RUTLAND,   ETC.    RAILROAD    CO.  707 

"  The  great  object  of  an  incorporation  is,  to  bestow  the  character  and 
properties  of  individuality  on  a  collected  and  changing  body  of  men. 
Any  privileges  which  may  exempt  it  from  the  burdens  common  to  indi- 
viduals, do  not  flow  necessarily  from  the  charter,  but  must  be  expressed 
in  it,  or  they  do  not  exist." 

This  is  sufficiently  explicit,  and  upon  examination  will  be  found,  I 
think,  to  have  placed  the  matter  upon  its  true  basis.  In  reason,  it 
would  seem  that  no  fault  could  be  found  with  the  rule  here  laid  down  by 
the  great  expounder  of  American  constitutional  law.  As  to  the  general 
liability  to  legislative  control,  it  places  natural  persons  and  corporations 
precisely  upon  the  same  ground.  And  it  is  the  true  ground,  and  the 
only  one  upon  which  equal  rights  and  just  liabilities  and  duties  can  be 
fairly  based. 

To  apply  this  rule  to  the  present  case,  it  must  be  conceded  that  all 
which  goes  to  the  constitution  of  the  corporation  and  its  beneficial  op- 
eration is  granted  by  the  legislature,  and  cannot  be  revoked,  either 
directly  or  indirectly,  without  a  violation  of  the  grant,  which  is  regarded 
as  impairing  the  contract,  and  so  prohibited  by  the  United  States  Con- 
stitution. And  if  we  suppose  the  legislature  to  have  made  the  same 
grant  to  a  natural  person  which  they  did  to  defendants,  which  they  may 
undoubtedly  do  (Moor  v.  Veazie,  32  Maine,  343 ;  s.  c.  in  error  in  the 
Sup.  Ct.  U.  S.,  4  Peters,  565),  it  would  scarcely  be  supposed  that  they 
thereby  parted  with  any  general  legislative  control  over  such  person, 
or  the  business  secured  to  him.  Such  a  supposition,  when  applied  to  a 
single  natural  person,  sounds  almost  absurd.  But  it  must,  in  fact,  be 
the  same  thing  when  applied  to  a  corporation,  however  extensive.  In 
either  case,  the  privilege  of  running  the  road,  and  taking  tolls,  or  fare 
and  freight,  is  the  essential  franchise  conferred.  Any  act  essentially 
paralyzing  this  franchise,  or  destroying  the  profits  therefrom  arising, 
would  no  doubt  be  void.  But  beyond  that,  the  entire  power  of  the 
legislative  control  resides  in  the  legislature,  unless  such  power  is  ex- 
pressly limited  in  the  grant  to  the  corporation,  as  by  exempting  their 
property  from  taxation,  in  consideration  of  a  share  of  the  profits,  or  a 
bonus,  or  the  public  duties  assumed.  And  it  has  been  questioned  how 
far  one  legislature  could,  in  this  manner,  abridge  the  general  power  of 
every  sovereignty  to  impose  taxes  to  defray  the  expense  of  public  func- 
tions. Breiost&r  v.  Hough.  10  New  Hamp.  138;  Mechanics'  and 
Traders'  Bank  v.  Deholt,  \  Ohio  St.  591  ;  Toledo  Bank  v.  Bond.^  Ibid., 
622.  It  seems  to  me  there  is  some  ground  to  question  the  right  of  the 
legislature  to  extinguish,  by  one  act,  this  essential  right  of  sovereignty. 
I  would  not  be  surprised  to  find  it  brought  into  general  doubt.  But  at 
present  it  seems  to  be  pretty  generally  acquiesced  in.  State  of  New 
Jersey  v.  Wdson,  7  Cranch,  164  ;  reaffirmed  in  Gordon  v.  Appeal  Tax 
Court,  3  Howard,  133.  But  all  the  decisions  in  the  United  States  Su- 
preme Court,  allowing  the  legislature  to  grant  irrevocably  any  essential 
prerogative  of  sovereignty,  require  it  to  be  upon  consideration,  and  in 
the  case  of  corporations,  contemporaneous  with  the  creation  of  the  fran- 


708  THORPE    V.    RUTLAND,    ETC.    RAILROAD    CO.  [CHAP.  V. 

chise.  Richmond  R.  Co.  v.  The  Louisa  R.  Co.,  13  Howard,  71. 
Similar  decisions  in  regard  to  the  right  of  the  legislature  to  grant  per- 
petual exemption  from  taxation  to  corporations  and  proper!}',  the  title 
to  which  is  derived  from  the  State,  have  been  made  bj  this  court  {Her- 
rick  V.  Randolph^  13  Vt.  525) ;  and  in  some  of  the  other  States  (Landon 
V.  LitcJiJield,  11  Conn.  251,  and  cases  cited,  O'Donnell  v.  Bailey,  24 
Miss.  386).  But  these  cases  do  not  affect  to  justify  even  this  express 
exemption  from  taxation  being  held  inviolable,  except  upon  the  ground 
that  it  formed  a  part  of  the  value  of  the  grant,  for  which  the  State  re- 
ceived or  stipulated  for  a  consideration. 

But  in  the  present  case  the  question  arises  upon  the  statute  of  1850, 
requiring  all  railways  in  the  State  to  make  and  maintain  cattle-guards 
at  farm-crossings,  and  until  thev  do  so,  making  them  liable  for  damage 
done  to  cattle  by  their  engines,  by  reason  of  defect  of  fences  or  cattle- 
guards.  The  defendant's  charter  required  them  to  fence  their  road,  but 
no  express  provision  is  made  in  regard  to  cattle-guards.  There  is  no 
pretence  of  an}-  express  exemption  in  the  charter  upon  this  subject,  or 
that  such  an  implied  exemption  can  fairly  be  said  to  form  a  condition  of 
the  Act  of  Incorporation,  unless  everything  is  implied  by  grant,  which 
is  not  expressly  inhibited,  whereas  the  true  rule  of  construction  in  re- 
gard to  the  powers  of  corporations  is,  that  they  are  to  take  nothing  b}- 
intendment,  but  what  is  necessarj-  to  the  enjoyment  of  that  which  is 
expressl}'  granted.  .   .  . 

But  upon  the  principle  contended  for  in  Providence  Bank  v.  Bil- 
li?igs,  siq^ra,  and  sometimes  attempted  to  be  maintained  in  favor  of 
other  corporations,  most  of  the  railways  in  this  State  would  be  quite 
be\ond  the  control  of  the  legislature,  as  well  as  to  their  own  police,  as 
that  of  the  State  generalh'.  For  in  very  few  of  their  charters  are  these 
matters  defined,  or  the  control  of  them  reserved  to  the  legislature. 
Man}'  of  the  charters  do  not  require  the  roads  to  be  fenced.  But  in 
Quimhy  v.  IVie  Vermont  Cent.  R.  Co.,  23  Vt.  387,  it  was  considered  that 
the  corporation  were  bound,  as  part  of  the  compensation  to  land-owners, 
either  to  build  fences  or  pay  for  them.  The  same  was  also  held  in 
Morss  X.Boston  and  Maine  R.,  2  Cush.  536.  Any  other  construction 
will  enable  railroad  corporations  to  take  land  without  adequate  compen- 
sation, which  is  in  violation  of  the  State  Constitution,  and  would  make 
the  charter  void  to  that  extent.  So,  too,  in  regard  to  farm-crossings, 
the  charters  of  many  roads  are  silent.  And  it  has  been  held  that  ihe 
provision  for  restoring  private  ways  does  not  apply  to  farm-crossings. 
But  the  railways,  without  exception,  built  farm-crossings,  regard- 
ing them  as  an  economical  mode  of  reducing  land  damages,  and  they 
are  now  bound  to  maintain  them,  however  the  case  might  have  been  if 
none  had  been  stipulated  for,  and  the  damages  assessed  accordingl}'. 
Manning  v.  Eastern  Counties  Railway  Co.,  12  M.  &  W.  237.  So, 
too,  many  of  the  charters  are  silent  as  to  cattle-guards  at  road-cross- 
ings, but  the  roads  generally  acquiesced  in  their  necessity,  both  for  tho 
security  of  property  and  persons  upon  the  railroad  and  of  cattle  in  the 


CHAP,  v.]  THORPK   V.    RUTLAND,    ETC.    RAILROAD    CO.  705? 

highwa}'.  For  it  has  been  held  that  this  provision  is  for  the  protection 
of  all  cattle  in  the  highwa}-.  Fmvcett  v.  The  York  and  North  Mid' 
liad  B.  Co.,  2  Law  &  Eq.  289  ;  7Vow  v.  Vermont  Cent.  R.  Co.,  24 
Vt.  487.  Thus  making  a  distinction  in  regard  to  the  extent  of  the  lia- 
bility of  railways  for  damages  arising  through  defect  of  fences,  and 
farm-crossings,  and  cattle-guards,  at  those  points,  and  those  which  arise 
from  defect  of  fences,  and  cattle-guards  at  road-crossings,  the  former 
being  only  for  the  protection  of  cattle,  rightfully  in  the  adjoining  fields, 
as  was  held  in  Jackson  v.  liatland  &  B.  R.  Co.,  25  Vt.  150,  and  the 
other  for  the  protection  of  all  cattle  in  the  highway,  unless,  perhaps,  in 
some  excepted  cases,  amounting  to  gross  negligence  in  the  owners. 
And  there  can  be  no  doubt  of  the  perfect  right  of  the  legislature  to 
make  the  same  distinction  in  regard  to  the  extent  of  the  liability  of  rail- 
ways in  the  Act  of  1850,  if  such  was  their  purpose,  which  thus  becomes 
a  matter  of  construction. 

But  the  present  case  resolves  itself  into  the  narrow  question  of  the 
right  of  the  legislature,  by  general  statute  to  require  all  railway's, 
whether  now  in  operation,  or  hereafter  to  be  chartered,  or  built,  to 
fence  their  roads  upon  both  sides,  and  provide  sufficient  cattle-guards 
at  all  farm  and  road  crossings,  under  penalt}'  of  paying  all  damage 
caused  by  their  neglect  to  comply  with  such  requirements.  It  might  be 
contended  that  cattle-guards  are  a  necessary  part  of  the  fence  at  all 
crossings,  but  that  has  been  questioned,  and  we  think  the  matter  should 
be  decided  upon  the  general  ground.  It  was  supposed  that  the  question 
was  settled  by  this  court,  in  Nelson  v.  F.  &  C.  B.  Co.,  26  Vt.  717.  The 
general  views  of  the  court  are  there  stated  as  clearly  as  it  could  now  be 
done,  but  as  the  general  question  is  of  vast  importance,  both  to  the  roads 
and  the  public,  and  has  again  been  urged  upon  our  consideration,  we 
have  examined  it  very  much  in  detail. 

We  think  the  power  of  the  legislature  to  control  existing  railwa3's  in 
this  resi)ect,  ma}'  be  found  in  the  general  control  over  the  police  of  the 
countr}',  which  resides  in  the  law-making  power  in  all  free  States,  and 
which  is,  by  the  fifth  article  of  the  bill  of  rights  of  this  State,  expressly 
declared  to  reside  perpetualU-  and  inalienably  in  the  legislature,  which 
is,  perhaps,  no  more  than  the  enunciation  of  a  general  principle  appli- 
cable to  all  free  States,  and  which  cannot,  therefore,  be  violated  so  as 
to  deprive  the  legislature  of  the  power,  even  by  express  grant  to  any 
mere  public  or  private  corpoi-ation.  And  when  the  regulation  of  the 
police  of  a  city  or  town,  by  general  ordinances,  is  given  to  such  towns 
and  cities,  and  the  regulation  of  their  own  internal  police  is  given  to 
railroads  to  be  carried  into  effect  by  their  by-laws  and  other  regulations, 
it  is,  of  course  always,  in  all  such  cases,  subject  to  the  superior  control 
of  the  legislature.  That  is  a  responsibility  which  legislatures  cannot 
divest  themselves  of,  if  they  would. 

This  police  power  of  the  State  extends  to  the  protection  of  the  lives, 
limbs,  health,  comfort,  and  quiet  of  all  persons,  and  the  protection  of 
all  property  within  the  State.     According  to  the  maxim,  Sic  utere  tuo  ut 


710  THORPE   V.    RUTLAND,   ETC.   RAILROAD   CO.  [CHAP.  V. 

alienum  non  Iwdas,  which  being  of  universal  application,  it  must,  of 
course,  be  within  the  range  of  legislative  action  to  define  the  mode  and 
manner  in  which  every  one  may  so  use  his  own  as  not  to  injure  others. 
So  far  as  railroads  are  concerned,  this  ix>lice  power  which  resides  pri- 
marily and  ultimatel}-  in  the  legislature  is  twofold  :  1.  The  police  of 
the  roads,  which,  in  the  absence  of  legislative  control,  the  corporations 
themselves  exercise  over  their  operatives,  and  to  some  extent  over  all 
who  do  business  with  them,  or  come  upon  their  grounds,  through  their 
general  statutes,  and  b}'  their  officers.  We  apprehend  there  can  be  no 
manner  of  doubt  that  the  legislature  may,  if  they  deem  the  public  good 
requires  it,  of  which  they  are  to  judge,  and  in  all  doubtful  cases  their 
judgment  is  final,  require  the  several  railroads  in  the  State  to  establish 
and  maintain  the  same  kind  of  police  which  is  now  observed  upon  some 
of  the  more  important  roads  in  the  country  for  their  own  security,  or 
even  such  a  police  as  is  found  upon  the  English  railways,  and  those 
upon  the  continent  of  Europe.  No  one  ever  questioned  tlie  right  of  the 
Connecticut  Legislature  to  require  trains  upon  all  their  railroads  to  come 
to  a  stand  before  passing  draws  in  bridges ;  or  of  the  Massachusett.s 
Legislature  to  require  the  same  thing  before  passing  another  railroad. 
And  b\'  parity  of  reason  may  all  railways  be  required  so  to  conduct  them- 
selves, as  to  other  persons,  natural  or  corporate,  as  not  unreasonably 
to  injure  them  or  their  property.  And  if  the  business  of  railways  is 
specially  dangerous,  they  may  be  required  to  bear  the  expense  of  erect- 
ing such  safeguards  as  will  render  it  ordinarily  safe  to  others,  as  is  often 
required  of  natural  persons  under  such  circumstances. 

There  would  be  no  end  of  illustrations  upon  this  subject,  which,  in 
the  detail,  are  more  familiar  to  others  than  to  us.  It  may  be  extended 
to  the  supervision  of  the  track,  tending  switches,  running  upon  the  time 
of  other  trains,  running  a  road  with  a  single  track,  using  improper  rails, 
not  using  proper  precaution  by  wa}'  of  safet}'  beams  in  case  of  the 
breaking  of  axle-trees,  the  number  of  brakemen  upon  a  train  with  refer- 
ence to  the  number  of  cars,  employing  intemperate  or  incompetent  engi- 
neers and  servants,  running  beyond  a  given  rate  of  speed,  and  a 
thousand  similar  things,  most  of  which  have  been  made  the  subject  of 
legislation  or  judicial  determination,  and  all  of  which  may  be.  Bege- 
tnan  v.   Western  R.  Corp.,  16  Barbour,  35.3. 

2.  There  is  also  the  general  police  power  of  the  State,  by  which  per- 
sons and  property'  are  subjected  to  all  kinds  of  restraints  and  burdens, 
in  order  to  secure  the  general  comfort,  health,  and  pro'^perity  of  the 
State,  of  the  perfect  right  in  the  legislature  to  do  which  no  question 
ever  was,  or,  upon  acknowledged  general  principles,  ever  can  be  made, 
so  far  as  natural  persons  are  concerned.  And  it  is  certainly  calculated 
to  excite  surprise  and  alarm,  that  the  right  to  do  the  same  in  regard  to 
railways  should  be  made  a  serious  question.  This  objection  is  made 
generally  upon  two  grounds  :  1.  That  it  subjects  corporations  to  vir- 
tual destruction  by  the  legislature ;  and  2.  That  it  is  an  attempt  to  con- 
trol the  obligation  of  one  person  to  another,  in  matters  of  merely  pri- 
vate concern. 


CHAP,  v.]  THORPE   V.   RUTLAND,   ETC.    RAILROAD   CO.  711 

The  first  point  has  ah-eady  been  somewhat  labored.  It  is  admitted 
that  the  essential  franchise  of  a  private  coi-i)oration  is  recognized  by  the 
best  authority  as  private  property,  and  cannot  be  taken  without  com- 
pensation, even  for  public  use.  Armington  v.  Barjiet,  15  Vt.  745  ; 
West  River  Bridge  Co.  v.  Dix,  16  Vt.  446,  s.  c.  in  error  in  the  United 
States  Sup.  Ct.  ;  6  Howard,  507;   1  Shelford  (Bennett's  ed.),441,  and 

cases  cited. 

All  the  cases  agree  that  the  indispensable  franchises  of  a  corporation 
cannot  be  destroyed  or  essentially  modified.     This  is  the  very  point 
upon  which  the  leading  case  of  Dartmouth  College  v.   Woodward  was 
decided,  and  which  every  well-considered  case  in  this  country  maintanis. 
But  when  it  is  attempted  upon  this  basis  to  deny  the  power  of  regulat- 
ing the  internal  police  of  the  railroads,  and  their  mode  of  transacting 
their  general  business,  so  far  as  it  tends  unreasonably  to  infringe  the 
ricrhts  or  interests  of  others,  it  is  putting  the  whole  subject  of  railway 
control  quite  above  the  legislation  of  the  country.     Many  analogous 
subjects  may  be  adduced  to  show  the  right  of  legislative  control  over 
matters  chiefly  of  private  concern.     It  was  held,  that  a  statute  maknig 
the  stockholders  of  existing  banks  liable  for  the  debts  of  the  bank  was 
a  valid  law  as  to  debts  thereafter  contracted,  and  binding  to  that  extent 
upon  all  stockholders,  subsequent  to  the  passage  of  the  law.     Stanley 
V.   Stanleij,  26  Maine,   191.     But  where  a  bank  was  chartered  with 
power  to  receive  money  on  deposit,  and  pay  away  the  same,  and  to  dis- 
count bills  of  exchange,  and  make  locfns,  and  a  statute  of  the  State  sub- 
sequently made  it  unlawful  for  any  bank  in  the  State  to  transfer  by 
indorsement  or  otherwise,  any  bill  or  note,  etc.,  it  was  held  that  the 
Act  was  void,  as  a  violation  of  the  contract  of  the  State  with  the  bank 
in  crrantin<T  its  charter.     Planters'  Bank  v.    Sharp,  and  Baldwin  v. 
Payne,  6°Howard,  801,  326,327,  332;    Jamison   v.    Planters'  and 
Merchants'  Bank,  23  Alabama,  168.      It  is  true  that  any  statute  de- 
stroying the  business  or  profits  of  a  bank,  and  equally  of  a  railroad,  is 
void.     Hence  a  statute  prohibiting  banks  from  taking  interest,  or  dis- 
counting bills  or  notes,  would  be  void,  as  striking  at  the  very  founda- 
tion of  the  general  objects  and  beneficial  purposes  of  the  charter.      But 
a  general  statute  reducing  the  rate  of  interest,  or  punishing  usury,  or 
prohibiting  speculations  in  exchange  or  in  depreciated  paper,  or  the 
issuing  of'bills  of  a  given  denomination,  or  creating  other  banks  in  the 
same  "vicinity,  have  always  been  regarded  as  valid.     And  while  it  is 
conceded  the  legislature  could  not  prohibit  existing  railways  from  carry- 
ing freight   or  passengers,  it  is  believed  that  beyond  all  question,  it 
may  so  regulate  these  matters  as  to  impose  new  obligations  and  restric- 
tions upon  these  roads  materially  affecting  their  profits,  as  b}-  not  allow- 
in^  them  to  run  in  an  unsafe  condition,  as  was  held  as  to  turnpikes. 
St'ate  V.   Bosworth,  13  Vt.  402.     But  a  law  allowing  certain  classes  of 
persons  to  go  toll  free  is  void.     Pingrey  v.   Washburn,  1  Aiken,  268. 
So,  too,  chartering  a  railroad  along  the  same  route  of  a  turnpike  is  no 
violation  of  its  rights  (White  River  Turnpike  Co.  v.  Vermont  Cent.  R. 


712  THORPE   V.    RUTLAND,    ETC,    RAILROAD    CO.  [CHAP.  V. 

Co.,  21  Vt.  590;  Turnpike  Co.  v.  Railicay  Co.,  10  Gill  &  Johnson, 
392)  ;  or  chartering  another  railvva}'  along  the- same  route  of  a  former 
one,  to  whom  no  exclusive  rights  are  granted  in  terms.  Matter  oj 
Hamilton  Avenue.,  14  Barbour,  40o  ;  or  the  establishment  of  a  free 
way  by  the  side  of  a  toll  bridge  {Charles  Hioer  Bridge  v.  Warren 
Bridge,  11  Peters,  420). 

The  legislature,  may  no  doubt,  prohibit  railroads  from  carrying  freight 
which  is  regarded  as  detrimental  to  the  public  health  or  morals,  or  the 
public  safety  generally,  or  they  might  probably  be  made  liable  as  insur- 
ers of  the  lives  and  limbs  of  passengers  as  they  virtually  are  of  freight. 
The  late  statute  giving  relatives  the  right  to  recover  damages  where  a 
person  is  killed,  has  wrought  a  very  important  change  in  the  liability  of 
railways,  ten  times  as  much,  probably,  as  the  one  now  under  considera- 
tion ever  could  do.  And  1  never  knew  the  right  of  the  legislature  to 
impose  the  liability  to  be  brought  in  question. 

But  the  argument  that  these  cattle-guards  at  farm-ci-ossings  are  of  so 
private  a  character  as  not  to  come  within  the  general  range  of  legisla- 
tive .cognizance,  seems  to  me  to  rest  altogether  upon  a  misapprehension. 
It  makes  no  difference  how  few  or  how  many  i)ersons  a  statute  will  be 
likely  to  aflect.  If  it  professes  to  regulate  a  matter  of  public  concei-n, 
and  is  in  its  terms  general,  applying  equally  to  all  persons  or  property 
coming  within  its  provisions,  it  makes  no  ditference  in  regard  to  its 
character  or  validity-,  whether  it  will  be  likely  to  reach  one  case  or  ten 
thousand.  A  statute  requiring  p(^der-mills  to  be  built  remote  from  the 
villages  or  highways,  or  to  be  separated  from  the  adjoining  lands  by 
any  such  muniment  as  may  be  requisite  to  afford  security  to  others' 
property  or  business,  would  probably  be  a  valid  law  if  there  were  but 
one  jjowder-mill  in  the  State,  or  none  at  all,  and  notwithstanding  the 
whole  expense  of  the  protection  should  be  imposed  upon  the  proprietor 
of  the  dangerous  business.  And  even  where  the  State  legislature  have 
created  a  corporation  for  manufacturing  powder  at  a  given  point,  at  the 
time,  remote  from  inhabitants,  if  in  process  of  time  dwellings  approach 
the  locality,  so  as  to  render  the  further  pursuit  of  the  business  at  that 
point  destructive  to  the  interests  of  others,  it  may  be  required  to  be  sus- 
pended or  removed,  or  secured  from  doing  harm,  at  the  sole  expense  of 
such  corporation.  This  very  point  is,  in  effect,  decided  in  regard  to 
Trinity  churchyard,  which  is  a  royal  grant  for  interment,  securing  fees 
to  the  proprietors,  in  the  case  of  Coates  v.  The  City  of  Nexo  York.,  7 
Cowen,  585  ;  and  in  regard  to  The  Presbyterian  Church,  in  their  case 
v.  The  City  of  New  York,  5  Cowen,  538. 

So,  too,  a  statute  requiring  division  fences  between  adjoining  land 
proprietors,  to  be  built  of  a  given  height  or  quality,  although  differing 
from  the  former  law,  would  bind  natural  persons  and  equally  corpora- 
tions. But  a  statute  requiring  land-owners  to  build  all  their  fences  of 
a  given  quality  or  height,  would  no  doubt  be  invalid,  as  an  unwarrant- 
able interference  with  matters  of  exclusively  private  concern.  But  the 
farm-crossings  upon  a  railway  are  by  no  means  of  this  character.    They 


CHAl'.  v.]  THORPE   V.    RUTLAND,    ETC.    RAILUOAD    CO.  713 

are  division  fences  between  adjoining  occupants,  to  all  intents.  In 
addition  to  this,  they  are  the  safeguards  which  one  person,  in  the  exer- 
cise of  a  dangerous  business,  is  required  to  maintain  in  order  to  pre- 
vent the  liability  to  injure  his  neighbor.  This  is  a  control  by  legislative 
action  coming  within  the  obligation  of  the  maxim,  Sic  ntere  tuo,  and 
which  has  always  been  exercised  in  this  manner  in  all  free  States,  in 
regard  to  those  whose  business  is  dangerous  and  destructive  to  other 
persons'  property  or  business.  Slaughter-houses,  powder-mills,  or 
houses  for  keei)ing  powder,  unhealthy  manufactories,  the  keeijing  of 
wild  animals,  and  even  domestic  animals,  dangerous  to  persons  or  p°op- 
ert3-,  have  always  been  regarded  as  under  the  control  of  the  legislature. 
It  seems  inciedible  how  any  doubt  should  have  arisen  upon  the  point  now 
before  the  court.  And  it  would  seem  it  could  not,  except  from  some 
undefined  apprehension,  which  seems  to  have  prevailed  to  a  considerable 
extent,  that  a  corporation  did  possess  some  more  exclusive  powers  and 
privileges  ui)on  the  subject  of  its  business,  than  a  natural  person  in  the 
same  business,  with  equal  power  to  pursue  and  to  accomplish  it,  which, 
I  trust,  has  been  sufficiently  denied. 

I  do  not  now  perceive  any  just  ground  to  question  the  right  of  the 
legislature  to  make  railways  liable  for  all  cattle  killed  by  their  trains. 
It  might  be  unjust  or  unreasonable,  but  none  the  less  competent.  Girt- 
man  v.  Cei<tnd  Jiailroad,  1  Kelly  (Geoi-gia),  173,  is  sometimes  quoted 
as  having  held  a  different  doctrine,  but  no  such  point  is  to  be  found  in 
the  case.  The  British  Parliament  for  centuries,  and  most  of  the  Ameri- 
can legislatures,  have  made  the  protection  of  the  lives  of  domestic  ani- 
mals, the  subject  of  penal  enactment.  It  would  be  wonderful  if  they 
could  not  do  the  same  as  to  railways  or  if  they  could  not  punish  the 
killing,  by  requiring  them  to  compensate  the  owner,  or,  as  in  the  pres- 
ent case,  to  do  it  until  they  used  certain  precautions  in  running  their 
trains,  to  wit,  maintained  cattle-guards  at  roads  and  farm-crossings. 

There  are  some  few  cases  in  the  American  courts  bearing  more  di- 
rectly upon  the  very  point  before  us.  In  Suydam  v.  Moore,  8  Harbour, 
358,  the  ve;-y  same  point  is  decided  against  the  railwav  ;  Willard,  J.[ 
compares  the  requirement  to  the  law  of  the  road,  the  passing  of  canal- 
boats,  and  keeping  lights  at  a  given  elevation  in  steamboat^,  and  says 
It  comes  clearly  within  the  maxim  Sic  ntere  tuo ;  and  in  Waldronv 
The  lieusselaer  &  Saratoga  R.  Co.,  Ibid.  390,  the  same  point  is  de- 
cided, and  the  same  judge  says  the  requirements  of  the  new  Act,  which 
IS  identical  with  our  statute  of  1850,  as  applied  to  existing  railways, 
"  are  not  inconsistent  with  their  charter,  and  are.  in  our  jud-nnent,  such 
as  the  legislature  had  the  right  to  make."  They  were  desigue.l  for  the 
IJubhc  safety,  as  well  as  the  protection  of  property.  In  Milliman  v. 
The  Oswego  &  Syracuse  i?.,  10  Barbour,  87,  the  ground  is  assumed 
that  the  new  law  was  not  intended  to  applv  to  existing  roads.  And  no 
doubt  is  here  intimated  of  the  right  of  the  legislature  to  impose  similar 
regulations  upon  existing  railways.  The  N.  Y.  Revised  Statutes  sub- 
ject all  corporate  charters  to  the  control  of  the  legislature,  but  it  has 


714  THORPE   V.   RUTLAND,   ETC.    RAILROAD    CO.  [CHAP.  V. 

been  there  considered,  that  this  reservation  does  not  extend  to  matters  of 
this  kind,  but  that  the  riglit  depends  upon  general  legislative  authority-, 
Tlie  case  of  The  Galena  and  Chicago  Union  R.  Co.  v.  Loomis,  13  Illi- 
nois, 548,  decides  the  point  that  the  legislature  may  pass  a  law,  requiring 
all  railways  to  ring  the  bell  or  blow  the  whistle  of  their  engines  imme- 
diatel}'  before  passing  highways  at  grade.  The  court  sa}-,  "  The  legis- 
lature has  the  power,  by  general  laws,  from  time  to  time  as  the  public 
exigencies  may  require,  to  regulate  corporations  in  their  franchises,  so 
as  to  provide  for  the  public  safety.  The  provision  in  question  is  a  mere 
police  regulation,  enacted  for  the  protection  and  safety  of  the  public, 
and  in  no  manner  interferes  with,  or  impairs  the  powers  conferred  on 
the  defendants  in  their  Act  of  Incorporation." 

All  farm-crossings  in  England  are  required  to  be  above  or  below 
grade,  so  as  not  to  endanger  passengers  upon  the  road,  and  so  of  all 
road-crossings  there,  unless  protected  by  gates.  I  could  entertain  no 
doubt  of  the  right  of  the  legislature  to  require  the  same  here  as  to  all 
railways,  or  even  to  subject  their  operations  to  the  control  of  a  board  of 
commissioners,  as  has  been  done  in  some  States.  In  Benson  v.  New 
York  City.,  10  Barbour,  223,  it  was  held,  that  a  ferr}',  the  grant  to 
which  was  held,  not  under  the  authority  of  the  State,  but  from  the  city 
of  New  York,  and  which  was  a  private  corporation,  as  to  the  stock, 
might  be  required  by  the  legislature  to  conform  to  such  regulations,  re- 
strictions, and  precautions  as  were  deemed  necessary  for  the  public 
benefit  and  securit}'.  The  opinion  of  Woodbury,  Justice,  in  East  Hart- 
ford V.  Hartford  Bridge  Co..,  10  Howard,  511,  assumes  similar 
grounds,  although  that  case  was  somewhat  different.  The  case  of  Sioan 
V.  Williams^  2  Michigan,  427,  denies  that  railways  are  private  corpora- 
tions. But  that  proposition  is  scarcely  maintainable  so  far  as  the  pe- 
cuniary interest  is  concerned.  If  the  stock  is  owned  b}-  private  persons, 
the  corporation  is  private  so  far  as  the  right  of  legislative  control  is 
concerned,  however  public  the  functions  devolved  upon  it  may  be.  The 
language  of  Marshall,  Chief  Justice,  in  DartmoxLtli  College  v.  Wood- 
wai'd,  4  Wheaton,  518,  629,  seems  pertinent  to  the  general  question 
of  what  laws  are  prohibited  on  the  ground  of  impairing  the  obligation  of 
contracts:  "That  the  framers  of  the  Constitution  did  not  intend  to  re- 
strain the  States  in  the  regulation  of  their  civil  institutions,  adopted  for 
internal  government,  and  that  the  instrument  they  have  given  us  is  not 
to  be  so  construed,  may  be  admitted."  And  equally  pertinent  is  the 
commentary  of  Parsons  on  Contracts,  2  vol.  511,  upon  the  provision  of 
the  United  States  Constitution  in  relation  to  the  obligation  of  contracts. 
"  We  may  say  that  it  is  not  intended  to  apply  to  public  property,  to  the 
discharge  of  public  duties,  to  the  possession  or  exercise  of  public  rights, 
nor  to  any  changes  or  qualifications  in  any  of  these,  which  the  legisla- 
ture of  a  State  may  at  an}'  time  deem  expedient." 

We  conclude  then,  that  the  authority  of  the  legislature  to  make  the 
requirement  of  existing  railways  ma}'  be  vindicated,  because  it  comes 
fairly  within  the  police  of  the  State ;    2.  Because  it  regards  the  division 


CHAP,  v.]  WYNEHAMER    V.   THE   PEOPLE.  715 

fence  between  adjoining  proprietors  ;  3.  Because  it  properly  concerns  the 
safe  mode  of  exercising  a  dangerous  occupation  or  business  ;  and  4.  Be- 
cause it  is  but  a  reasonable  provision  for  the  protection  of  domestic 
animals,  all  of  which  interests  fall  legitimateh'  within  the  range  of  legis- 
lative control,  both  in  regard  to  natural  and  artificial  persons. 

Judgment  affirmed.^ 
Bennett,  J.,  dissenting. 


WYNEHAMER    v.   THE    PEOPLE. 

THE  PEOPLE  V.   TOYNBEE. 
New  York  Court  of  Appeals.     1856. 

[13  N.  Y.  378.] 

Wynehamer,  the  defendant  in  the  court  below  in  the  case  first  above 
entitled,  was,  in  July,  1855,  indicted  at  a  court  of  general  sessions, 
held  in  and  for  the  county  of  Erie,  for  selling  intoxicating  liquors, 
contrary  to  tlie  provisions  of  the  statute  entitled  ''  An  Act  for  the  Pre- 
vention of  Intemperance,  Pauperism,  and  Crime."  ^     The  indictment 

^  There  are  some  analogous  subjects  where  legislative  control  has  been  sustained  by 
the  courts  which  may  properly  be  here  alluded  to.  The  expense  of  sidewalks  aud 
curbstones  in  cities  aud  towus  has  been  imposed  upon  adjacent  lots,  chiefly  for  general 
comfort  aud  convenience.  Paxsun  v.  Sweet,  I  Green,  196;  City  of  Lowell  v.  Hadley, 
8  Metcalf,  180.  Unlicensed  persons  not  allowed  to  remove  house-dirt  and  offal  from 
the  streets.  Vandlne's  Case,  6  Pick.  187.  Prohibiting  persons  selling  produce  not 
raised  upon  their  own  farms,  from  occupying  certain  stands  in  the  market.  Nifjhtin- 
gale's  Case,  11  Pick.  168.  See  also  Buffalo  v.  Wehster,  10  Wendell,  99;  BiisTi  v.  Sea- 
bur  ij,  8  Johns.  327.  Prohibiting  the  driving  or  riding  horses  faster  than  a  walk  in 
certain  streets.  Commonweallh  v.  Worcester,  5  Pick.  462.  Prohibiting  bowling-alleys. 
Tanner  v.  The  Trustees  of  the  C  it  ij  of  Albion,  5  Hill,  121,  or  the  exhibition  of  stud  horses 
or  stallions  in  public  places.  Nolan  v.  Mayor  of  Franklin,  4  Yerger,  163.  The  same 
may  be  said  of  all  statutes  regulating  the  mode  of  driving  upon  the  highway  or  upon 
bridges,  the  validity  of  which  have  long  been  acquiesced  in. 

The  destruction  of  private  property  in  cities  aud  towns,  to  prevent  the  spread  of  con- 
flagrations, is  an  extreme  application  of  the  rule,  compelling  the  subserviency  of  pri- 
vate rights  to  public  security,  in  cases  of  imperious  necessity.  But  even  this  has  been 
fully  sustained  after  the  severest  scrutiny.  Hale  \.  Lawrence,  and  other  cases  upon  the 
same  subject;  1  Zabriskie,  714,  3  Zabriskie,  .590,  and  cases  there  referred  to  from  the 
New  York  Reports.  There  is,  in  short,  no  end  to  these  illustrations,  when  we  look 
critically  iuto  the  police  of  the  large  cities.  One  in  any  degree  familiar  with  this  sub- 
ject would  never  question  the  right  depending  upon  invincible  necessity,  in  order  to 
the  mainteuance  of  any  show  of  administrative  authority  among  the  class  of  persons 
with  which  the  city  police  have  to  do.  To  such  men  any  doul)t  of  the  right  to  suhject 
persons  and  property  to  such  regulations  as  the  public  security  and  health  may  require, 
regardless  of  merely  private  convenience,  looks  like  mere  badinage.  They  can  scarcely 
regard  the  objector  as  altogether  serious.  And  generally,  these  doubts  in  regard  to 
the  extent  of  governmental  authority  come  from  those  who  have  had  small  experience. 
[This  appears  to  be  the  Chief  Justice's  note.  See  also  Minneapolis,  ^-c.  Ry.  Co.  v.  Em- 
mons, 149  U.  S.  364  (1893).  — Ed.] 

2  The  reporter  does  not  give  the  terms  of  the  statute.  The  following  summary  of 
it  is  taken  from  the  opinion  of  A.  S.  Johnson,  J.,  at  pp.  406-409  :  "  The  sectious  which 


716  WYNEHAMER   V.   THE   PEOPLE.  [CHAP.  V. 

contained  several  counts,  each  of  which  charged  in  si"fbstance  that  the 
defendant,  on  a  day  subsequent  to  the  4tli  of  July,  1855,  at  the  city  of 

particularly  relate  to  it  are  substantially  these,  omitting  such  parts  as  do  not  bear 
upon  this  case ;  '  It  shall  be  the  duty  of  every  sheriff,  under  sheriff,  deputy  sheriff,  con- 
stable, marshal,  or  policeman,  to  arrest  auy  person  whom  he  shall  see  actually  engaged 
in  the  commission  of  auy  offeuce  in  violation  of  tlie  1st  section  of  tliis  Act,  and  to 
seize  all  liquor  kept  in  violation  of  said  section,  at  the  time  and  place  of  the  commis- 
sion of  such  offence,  together  with  the  vessels  in  which  the  same  is  contained,  and 
forthwitli  to  convey  such  person  before  any  magistrate  of  the  same  city  or  town,  to  be 
dealt  with  according  to  law,  and  to  store  the  liquor  and  vessels  so  seized  in  some  con- 
venient place,  to  be  disposed  of  as  hereinafter  provided.  It  shall  be  the  duty  of  every 
officer  by  wliom  any  arrest  and  seizure  shall  be  made,  under  this  section,  to  make  com- 
plaint on  oath  against  the  person  arrested,  and  to  prosecute  such  complaint  to  judg- 
ment and  execution.'  —  Laws  of  1855,  p.  340,  §  12.  'All  liquors  and  vessels  in  which 
they  are  contained,  which  shall  have  been  found  and  seized  in  tiie  possession  of  any 
person  wiio  shall  have  been  arrested  for  violating  any  provision  of  the  1st  section  and 
not  claimed  by  any  other  person,  shall,  upon  conviction  of  such  person  of  such  offence, 
be  adjudged  forfeited.'  §  13.  When  any  liquor  seized  under  any  provision  of  the 
Act  shall  be  adjudged  forfeited,  as  provided  in  any  section  of  the  Act,  it  shall 
be  the  duty  of  the  magistrate  (after  the  determination  is  become  final)  forthwith 
to  issue  a  warrant  commanding  that  the  liquor  be  destroyed.  The  officer  to  whom 
the  warrant  shall  be  delivered  is  to  destroy  it  and  make  a  return  of  the  destruc- 
tion, and  then  an  execution  is  to  be  issued  to  sell  the  vessels  which  contained  the 
liquor  §  10.  Every  justice  of  the  peace,  police  justice,  county  judge,  city  judge 
(certain  other  officers  in  New  York),  and  in  all  cities  where  there  is  a  recorder's  court, 
the  recorder,  has  power  to  issue  process,  to  hear  and  determine  charges,  and  punish  for 
all  offences  under  the  Act,  and  to  hold  courts  of  special  sessions  for  the  trial  of  such 
offences.  The  section  proceeds  :  '  Such  court  of  special  sessions  shall  not  be  required 
to  take  the  examination  of  any  person  brought  before  it  upon  charge  of  an  offence 
under  the  Act,  but  shall  proceed  to  trial  as  soon  thereafter  as  the  complainant 
can  be  notified  '  Power  to  adjourn,  for  good  cause,  is  given  for  not  exceeding  twenty 
days.  *  At  the  time  of  joining  issue,  and  not  after,  either  party  may  demand  trial  by 
jury,  in  which  case  the  magistrate  is  to  cause  a  jury  to  be  summoned  and  empanelled, 
as  in  other  criminal  cases  in  courts  of  special  sessions.  §  5.  No  person  who  sh.all 
have  been  convicted  of  any  offence  against  any  provision  of  the  Act,  or  who  shall  be 
engaged  in  the  sale  or  keeping  of  intoxicating  liquors,  contrary  to  the  Act,  shall  be 
competent  to  act  as  a  juror  upon  any  trial  under  any  provision  of  the  Act.  §  16.  Upon 
the  trial  of  any  complaint  under  the  Act,  proof  of  the  sale  of  liquor  sliall  be  sufficient 
to  sustain  an  averment  of  an  unlawful  sale,  and  proof  of  delivery  shall  be  prnnn  facie 
evidence  of  sale.  §  17.  A  violation  of  any  provision  of  the  1st  section  is  made  a  mis- 
demeanor. The  gnilty  party  is  to  forfeit  all  liquors  kept  by  him  in  violation  of  the 
section,  and  is  to  be  further  punished  by  a  fine  of  $50  for  the  first  offence  ;  for  the  sec- 
ond, by  a  fine  of  $100  and  thirty  days'  imprisonment;  for  the  third  and  every  subse- 
quent offence,  by  a  fine  not  less  than  $100,  nor  more  than  $250,  and  by  imprisonment 
for  not  less  than  three,  nor  more  than  si.x  months.  The  defendant  is  likewise  to  pay 
all  costs  and  fees  provided  in  the  Act;  and  in  default  of  payment  of  any  such  fine, 
costs,  and  fees,  or  any  part  thereof,  the  defendant  is  to  be  committed  until  the  same  are 
paid  '  not  less  than  one  day  per  dollar  of  the  amount  unpaid.'  §  4.  .  .  . 

"  The  prohibitory  clause  itself,  upon  which  these  proceedings  are  founded,  consti- 
tutes the  1st  section.  Omitting  certain  exceptions  from  the  prohibition,  which  will  be 
afterwards  noticed,  it  provides  that  intoxicating  liquor  shall  not  be  sold,  or  kept  for 
sale,  or  kept  with  intent  to  be  sold,  by  any  person,  in  any  place  whatsoever;  that  it 
shall  not  be  given  away,  nor  be  kept  with  intent  to  be  given  away,  in  any  place  what- 
soever, except  in  a  dwelling-house,  in  no  part  of  which  an}'  tavern,  store,  grocery,  shop, 
boarding-house  or  victualling-house,  or  room  for  gambling,  dancing,  or  other  public 
amusement  or  recreation  of  aa>'  kind  is  kept ;  that  it  shall  not  be  kept  or  deposited  in 


C:iAP.  v.]  WYNEHAMER   V.   THE   PEOPLE.  717 

Buffalo,  wilfully  and  unlawfullj-  and  contrary  to  the  form  of  the  stat- 
ute, sold  to  persons  unautliorized  by  law  to  sell  intoxicating  liquor  to 
the  jury  unknown,  intoxicating  liquor,  to  wit,  a  gill  each  of  rum,  brandy, 
gin,  wine,  whiskey,  and  strong  beer,  without  having  filed  in  the  office 
of  the  clerk  of  the  county  of  Erie  any  undertaking  approved  by  the 
county  judge  of  that  county,  according  to  the  provisions  of  the  2d 
section  of  the  Act.  It  was  further  alleged  in  each  count  of  the  indict- 
ment that  the  liquor  so  sold  was  not  alcohol  manufactured  by  the 
defendant,  or  pure  wine  manufactured  b}'  him  from  grapes  grown  by 
himself;  and  that  the  sale  of  the  liquor  was  not  authorized,  nor  was 
any  right  to  sell  the  same  given  by  any  law  or  treaty  of  the  United 
States.  The  defendant  pleaded  not  guilty  ;  and  the  issues  were  tried 
in  the  court  of  general  sessions  by  a  common-law  jury  duly  empan- 
elled. On  the  trial  the  counsel  for  the  people  gave  evidence  tending 
to  prove  that  after  the  4th  day  of  Jidy,  1855,  and  I)efore  the  finding  of 
the  bill  of  indictment,  the  defendant  on  several  occasions  had  sold  and 
delivered  to  ditTerent  persons  at  his  bar,  in  Buffalo,  brandy,  in  quan- 
tities less  than  a  pint,  which  was  drank  on  his  premises.  When  the 
people  rested,  the  counsel  for  the  defendant  requested  the  court  to  dis- 
charge the  defendant,  or  to  direct  the  jury  to  render  a  verdict  of  not 

any  place  whatsoever,  except  in  such  a  dwelling-house  as  is  above  described,  or  for 
s  icraniental  purposes  in  a  church  or  place  of  worship ;  or  in  a  place  where  eitlier  some 
chemical,  or  mechanical,  or  medicinal  art,  requiring  the  use  of  liquor,  is  carried  on  as 
a  regular  branch  of  business,  or  while  in  actual  transportation  from  one  place  to  an- 
other, or  stored  in  a  warehouse  prior  to  its  reaching  the  place  of  its  destination.  By 
an  exception  in  this  same  section,  liquor  may  be  given  away  as  a  medicine  by  physicians 
pursuing  tlie  practice  of  medicine  as  a  business,  or  for  sacramental  purposes.  The  sec- 
tion concludes  with  a  provision  that  it  shall  not  apply  to  liquor,  the  right  to  sell  which  in 
this  State  is  given  by  any  law  or  treaty  of  the  United  States. 

"  By  §§  2  and  3,  persons  answering  the  description,  doing  the  acts,  and  taking  the 
oaths  jjrescribed  therein,  may  be  licensed  to  keep  for  sale,  and  sell  intoxicating  liquor 
and  alcohol  for  mechanical,  chemical,  or  medicinal  purposes,  and  wine  for  sacramental 
use.  By  §  22,  the  Act  is  not  to  be  construed  to  prevent  the  sale  of  cider  in  quantities 
not  less  than  ten  gallons ;  nor  to  prevent  the  manufacturer  of  alcohol,  or  of  i)ure  wine 
from  grapes  grown  by  him,  from  keeping  or  from  sel'iiig  such  alcohol  or  wine,  nortlie 
importer  of  foreign  liquor  from  keeping  or  selling  the  same  in  the  original  packages 
to  any  person  authorized  by  the  Act  to  sell  such  liquors  ;  nor  to  prohiljit  the  manu- 
facture or  keeping  for  sale,  nor  the  selling  burning  fluids  of  any  kind,  perfumery, 
essences,  drugs,  varnishes,  nor  any  other  article  which  may  be  composed  in  part  of 
alcohol  or  other  spirituous  liquors,  if  not  adapted  to  use  as  a  beverage,  or  in  evasion 
of  this  Act. 

"  The  foregoing  clauses  contain,  in  substance,  the  prohibition  of  the  Act,  with  the 
exceptions  which  qualify  its  effect. 

"  Two  other  provisions  are  necessary  to  be  quoted,  as  they  bear  upon  the  rights 
which  the  owner  of  liquor  has  in  it,  and  the  modes  in  which  he  may  assort  those 
rights.  The  first  is  at  the  close  of  §  16,  and  declares  '  that  no  person  shall  maintain  an 
action  to  recover  the  value  or  possession  of  any  intoxicating  liquor  sold  or  kept  by  him, 
which  shall  be  purchased,  taken,  detained,  or  injured  I)y  any  other  per.son,  unle.-s  he 
shnll  prove  that  such  liquor  was  sold  according  to  the  provisions  of  tlie  Act,  or  was  law- 
fully kept  and  owned  by  him.'  The  other  clause  is  at  the  end  of  §  2.5,  and  provides  that 
'  all  li(]uor  kept  in  violation  of  any  provision  of  the  Act  shall  be  deemed  and  is  hereby 
declared  to  be  a  public  nuisance.'  " —  Ed. 


718  WYNEHAMER   V.   THE   PEOPLE.  [CHAP.  V. 

guilt}',  on  the  following  grounds,  viz.:  1.  That  it  was  not  shown  that 
any  offence  had  been  committed  b}-  the  defendant ;  2.  That  it  did  not 
appear  but  that  the  liquor  alleged  to  have  been  sold  was  liquor,  the 
right  to  sell  which  was  given  by  laws  or  treaties  of  the  United  States, 
nor  but  that  it  was  imported  by  defendant  from  foreign  countries  in 
pursuance  of  the  United  States  laws  ;  3.  That  the  1st  and  4th  sections 
of  the  aforesaid  Act  were  respectivel}'  in  violation  of  the  constitutions 
of  the  United  States  and  of  this  State,  and  void  ;  4,  That  the  said  Act 
was  unauthorized  b}-  and  in  conflict  with  the  laws  and  treaties  of  the 
United  States  and  the  Constitution  of  this  State,  and  therefore  void ; 
5.  That  it  was  not  shown  but  that  the  liquor  alleged  to  have  been  sold 
by  the  defendant  was  authorized  to  be  sold  by  the  Act  of  the  Legislature 
above  referred  to.  The  court  overruled  each  of  the  objections,  and 
decided  that  the  case  must  be  submitted  to  the  jury,  and  the  counsel 
for  the  defendant  excepted.  Thereupon  the  counsel  for  the  defendant 
offered  to  prove  that  the  liquor  alleged  to  have  been  sold  was  imported 
into  this  State  from  a  foreign  country,  under  and  in  pursuance  of  the 
revenue  laws  of  the  United  States,  and  that  the  legal  duties  thereon 
were  paid  ;  that  the  defendant  purchased  such  liquor  from  the  import- 
ers in  the  package  in  which  it  was  imported  ;  and  that  it  was  drawn 
from  such  package  and  sold  to  the  persons  and  at  the  times  proved  b}- 
the  witnesses  for  the  prosecution.  The  counsel  for  the  people  admitted 
the  truth  of  the  facts  so  offered'  to  be  proved,  but  objected  to  their 
admissibilit}'  as  evidence,  on  the  ground  that  they  were  irrelevant  and 
immaterial.  The  court  so  held  and  excluded  the  evidence,  and  the 
defendant's  counsel  excepted.  The  counsel  for  the  defendant  also 
offered  to  prove  that  the  liquor  sold  by  the  defendant  was  owned  and 
possessed  by  him  previous  to  and  on  the  3d  of  July,  1855  ;  the  counsel 
for  the  people  admitted  the  fact  to  be  so,  but  objected  to  it  as  evi- 
dence on  the  ground  that  it  was  immaterial.  The  objection  was  sus- 
tained, and  the  evidence  excluded,  and  the  defendant's  counsel  excepted. 
At  the  close  of  the  evidence  the  counsel  for  the  defendant  requested 
the  court  to  direct  the  jury  to  acquit  the  defendant,  on  the  grounds 
stated  at  the  close  of  the  evidence  for  the  prosecution.  The  court 
declined  and  the  defendant's  counsel  excepted.  The  counsel  for  the 
defendant  also  requested  the  court  to  charge  the  jury  that  the  people 
must  prove  that  the  liquor  sold  by  the  defendant  was  intoxicating ;  the 
court  as  to  this  request  charged,  that  if  it  was  proved  that  the  defend- 
ant sold  brandy,  this  was  intoxicating  liquor  within  the  meaning  of  the 
Act ;  and  the  defendant's  counsel  again  excepted.  The  jury  found  the 
defendant  guilty ;  and  the  court  sentenced  him  to  pa}'  a  fine  of  fift}' 
dollars,  and  to  be  committed  until  the  same  was  paid.  The  judgment 
was  affirmed  by  the  Supreme  Court  sitting  in  the  eighth  district.  See 
20  Barbour,  567.     The  defendant  sued  out  a  writ  of  error. 

Toynbee,  the  defendant  in  the  case  secondl}'  above  entitled,  was,  on 
the  17th  of  July,  1855,  arrested  by  Mathews,  a  police  officer  of  the 
city  of  Brooklyn,  and  brought  before  a  police  justice  of  that  city,  with- 


CHAP,  v.]  WYNEHAMER   V.    THE   PEOPLE.  719 

out  an}-  precept  for  his  arrest  having  been  issued.  When  he  brought 
him  before  the  justice,  Mathews  made  a  comphiint  in  writing,  verified 
b}'  his  oath,  which  stated  that  on  the  day  of  the  arrest  the  complainant 
saw  the  defendant  at  a  place  which  was  specified,  in  Brooklyn,  sell  and 
keep  for  sale,  and  have  in  his  possession,  vvitli  intent  to  sell,  intoxicat- 
ing liquors,  to  wit,  brandy  and  champagne  ;  that  the  complainant  saw 
the  defendant  engaged  in  selling  liquor,  to  wit,  brandy,  in  violation  of  the 
Act  for  the  prevention  of  intemperance,  pauperism,  and  crime  ;  that 
the  offence  consisted  in  selling  one  glass  of  brand}'  and  one  bottle  of 
champagne ;  that  the  complainant  had  arrested  the  defendant  and 
brought  him  before  the  justice  to  answer  the  charge,  and  to  be  dealt 
with  according  to  law  ;  and  that  at  the  time  and  place  of  the  offence, 
he,  the  complainant,  seized  the  said  brandy  and  champagne,  with  the 
bottles  in  which  they  were  contained,  and  had  stored  them  in  a  con- 
venient place,  to  be  disposed  of  as  provided  by  the  aforesaid  Act. 
The  defendant  asked  to  be  discharged,  on  the  ground  that  the  Act  was 
unconstitutional,  and  on  the  further  ground  that  the  complaint  did  not 
set  forth  facts  sufficient  to  constitute  an  offence  by  the  defendant.  His 
application  was  denied.  He  then  objected  to  being  tried  by  a  court  of 
special  sessions,  and  offered  to  give  bail  for  his  appearance  at  the  next 
court  having  criminal  jurisdiction.  The  justice  overruled  the  objection, 
refused  to  take  bail,  and  required  the  defendant  to  plead  to  the  charge. 
The  defendant  pleaded  not  guiltv,  and  thereupon  the  complainant  was 
sworn  and  testified  that  the  defendant  kept  a  hotel  in  Brooklyn,  in  the 
basement  of  which  he  kept  a  bar-room;  that  on  the  17th  of  July,  he, 
the  witness,  saw  the  defendant  sell  a  glass  of  brand}'  and  a  bottle  of 
champagne,  which  were  intoxicating  liquors,  and  that  the  defendant 
kept  for  sale  in  his  bar-room  such  liquors.  He  further  testified  that 
the  champagne  was  imported  liquor ;  and  that  he,  the  witness,  on  the 
occasion  aforesaid,  seized  and  took  into  his  possession  the  bottle  of 
brandy  from  which  the  defendant  sold,  and  the  bottle  of  champagne 
which  he  had  sold  and  was  in  the  act  of  delivering.  The  foregoing  is 
the  substance  of  all  the  evidence.  The  court  found  the  defendant 
guilty  of  selling  and  having  in  his  possession  with  intent  to  sell,  in- 
toxicating liquors,  as  charged  in  the  complaint,  adjudged  him  guilty  of 
a  misdemeanor,  and  sentenced  him  to  pay  a  fine  of  $50,  and  $5.87  costs 
of  the  proceedings,  and  that  he  be  imprisoned  until  the  .same  were  paid, 
not  exceeding  fifty-six  days.  The  court  further  adjudged  that  the 
liquor  seized  be  forfeited,  and  that  a  warrant  for  its  destruction  be 
issued.  On  appeal  by  the  defendant,  the  judgment  was  reversed  by  the 
Supreme  Court  at  a  general  term  in  the  second  district.  See  20  Barb. 
168.     The  people  appealed  to  this  court.  .  .  . 

A.  J.  Parker,  for  the  plaintiff  in  erjor,  in  the  case  first  entitled. 

A.  Saioin,  for  the  people. 

J.  M.  Von  Cott,  for  the  people,  in  the  case  secondly  entitled. 

John  A.  Lott,  for  the  defendant.  .  .   . 

Hubbard,  J.     The  first  ground  assumed  by  the  appellant's  [Toyn- 


720  WYNEHAMER   V.    THE    PEOPLE.  [CHAP.  V. 

bee's]  counsel  on  the  argument  was,  that  the  sale  of  imported  liquor 
in  a  less  quantity-  than  the  package  of  importation  was  contrary  to  tlie 
provisions  of  the  Act  under  which  the  defendant  was  convicted.  This 
is  clearly  a  tenable  position.  In  tlie  view  which  I  take  of  the  law  in 
this  case,  it  is  not  very  essential  that  this  proposition  be  considered  at 
much  length.  ... 

The  Act  in  question,  by  the  exception  alluded  to,  expressly  refrains 
from  all  interference  with  the  operation  of  the  laws  of  Congress  or  with 
the  right  of  sale  of  the  importer  as  above  stated,  and  hence  is  not 
obnoxious  to  the  objection  I  am  considering.^ 

The  next  question  to  be  considered  relates  to  the  prohibitory  char- 
acter of  the  lav/,  and  its  vindicatory  provisions  as  it  respects  existing 
rights  of  property  in  liquor  at  the  time  the  Act  took  effect.  This  is 
purely  a  question  of  legislative  power,  under  the  fundamental  law.  It 
is  needless  to  say  that  the  courts  have  no  concern  with  the  wisdom  or 
expediency  of  the  enactment  to  accomplish  the  beneficent  ends  indi- 
cated by  the  title.  The  policy  of  this  government,  from  its  foundation, 
certainl}'  vindicates  the  political  necessity  and  economj'  of  stringent 
laws  circumscribing  the  sale  of  spirituous  liquors.  I  entertain  no  doubt 
of  the  constitutional  competency  of  the  legislature  to  prohibit  entirely 
the  commerce,  within  the  State,  in  liquor  as  a  beverage,  by  laws  pro- 
spective in  their  operation.  If,  in  the  judgment  of  the  legislature,  the 
public  welfare  required  it,  the  future  production,  manufacture,  or  acqui- 
sition of  liquor  might  be  prohibited.  The  sovereign  power  of  the  vState 
in  all  matters  pertaining  to  the  public  good,  the  health,  good  order,  and 
morals  of  the  people,  is  omnipotent.  Laws  intended  to  promote  the 
welfare  of  society  are  within  legislative  discretion,  and  cannot  be  the 
just  subject  of  judicial  animadversion,  except  when  it  is  seen  that 
the  constitutional  guarantees  of  private  property  have  been  invaded. 
The  police  power  is,  of  necessity,  despotic  in  its  character,  commen- 
surate with  the  sovereignty  of  the  State ;  and  individual  rights  of 
property,  beyond  the  express  constitutional  limits,  must  yield  to  its 
exercise.  And  in  emergencies,  it  may  be  exercised  to  the  destruction 
of  property,  without  compensation  to  the  owner,  and  even  without  the 
formality  of  a  legal  investigation.  It  is  upon  this  principle  that  health 
and  quarantine  laws  are  established  ;  that  a  building  is  blown  up  to 
arrest  a  conflagration  in  a  populous  town  ;  that  the  public  market  is 
purged  of  infectious  articles  ;  that  merchandise  on  ship-board,  infested 
with  pestilence,  is  cast  into  the  deep,  and  public  nuisances  are  abated. 
It  is  the  public  exigency  which  demands  the  summary  destruction, 
upon  the  maxim  that  the  safety  of  society  is  the  paramount  law.  It  is 
the  application  of  the  personal  right  or  principle  of  self-preservation  to 
the  body  politic.  I  know  of  no  limits  to  the  exercise  of  the  police 
power  vested  in  the  legislature,  except  the  restrictions  contained  in  the 
Tyritten  constitution.      Under  our  system  of  government,  with  co-or- 

1  See  Broivn  v.  Md.,  12  Wheat.  419.  —  Ed. 


CHAP,  v.]  WYiNEIIAME.;    V.    TIIF,    TKOPLE.  721 

dinate  branches,  each  independent  within  its  sphere,  and  all  deiiviiig 
their  powers  from  a  common  source,  the  fundamental  law,  one  cannot 
exercise  a  supremacy  over  the  other,  except  as  it  finds  its  warrant  for 
it  in  that  law.  The  judiciary  possesses  no  legitimate  authority  over  Acts 
of  the  Legislature,  aside  from  the  constitutional  grant ;  and  even  this 
authority  is  exercised  in  an  indirect  manner,  when  its  powers  are 
appealed  to,  to  carry  a  statutory  law  into  effect ;  and  then  only  as  it 
respects  the  individual  rights  of  property  or  person. 

It  is  said  that  this  idea  of  the  omnipotency  of  the  legislature,  aside 
from  the  express  constitutional  restrictions,  is  a  fallacy.  It  is  con- 
ceded that  all  power  emanates  from  the  people,  and  that  the  written 
Constitution  clothes  the  legislature  with  all  the  power  it  possesses. 
But  the  grant  of  power  in  that  instrument  is  general,  of  all  the  legis- 
lative power  of  the  State ;  what  this  is  precisely,  is  not  and  cannot 
well  be  defined.  Aside  from  the  express  limitations,  it  is  believed  to 
embrace  all  the  common-law  power  whicli  the  legislature  would  have 
possessed  had  the  fundamental  law  remained,  as  in  England,  a  part  of 
the  unwritten  law  of  the  State.  This  is  by  no  means  an  alarming  propo- 
sition. The  Declaration  of  Rights,  forming  the  guarantee  of  personal 
liberty  and  property  in  the  first  article  of  the  Constitution,  when  con- 
strued according  to  its  full  spirit  and  intent,  is  quite  ample  to  protect 
the  citizen  against  the  unauthorized  encroachments  of  the  legislature  ; 
to  protect  against  all  sumptuary  laws  and  laws  of  kindred  character, 
which  have  not  the  pubhc  good  for  their  object.  I  am  opposed  to  tiie 
judiciary  attempting  to  set  bounds  to  legislative  authority,  or  declaring 
a  statute  invalid  upon  any  fanciful  theory  of  higher  law  or  first  prin- 
ciples of  natural  right  outside  the  Constitution.  If  the  courts  may 
imply  limitation,  there  is  no  bound  to  implication  except  judicial  dis- 
cretion, which  must  place  the  courts  above  the  legislature  and  also  the 
Constitution  itself  This  Is  hostile  to  the  theory  of  the  government. 
The  Constitution  is  the  only  standard  for  the  courts  to  determine  the 
question  of  statutory  validity. 

There  is  no  constitutional  restriction  upon  the  power  of  the  legisla- 
ture in  the  regulation  of  the  sale  or  traflSc  in  intoxicating  drinks, 
whether  aflfectlng  existing  rights  of  property  in  liquor  or  not.  As  a 
sclieme  of  regulation,  the  degree  of  the  limitation  of  the  sale  or  traffic 
is  a  matter  of  legislative  discretion.  The  fault  of  the  present  law  is, 
that  it  does  not  profess  to  be  a  scheme  of  regulation.  There  is  no 
attempted  discrimination  between  liquor  owned  at  the  time  the  law  took 
eflfoct  and  that  acquired  afterwards.  I  have  reflected  with  much  atten- 
tion to  see  whether  the  courts  could  not  make  the  discrimination,  for 
instance,  as  a  question  of  fact,  to  be  ascertained  in  a  given  case,  but  I 
have  encountered  the  insurmountable  difficulty,  that  the  legislature 
plainly  intended  that  there  should  be  no  such  distinction.  No  defence 
on  a  trial  could  be  admitted  on  such  ground,  for  the  reason  that  it 
would  be  against  the  manifest  policy  of  the  Act.  It  is  tlie  intent  of  the 
statute  alone  which  the  courts  are  authorized  to  execute. 
VOL.  I.  —  46 


722  WYNEHAMER    V.    THE   PEOPLE.  [CHAP.  V. 

The  prohibitory  feature  of  the  law  must,  therefore,  be  regarded  as 
extending  to  all  liquor  in  the  State  at  the  time  the  Act  took  eflfect.  In 
this  aspect  I  will,  in  a  few  words,  give  my  views  of  its  unconstitution- 
alit}-  as  it  respects  vested  rights  of  [)roperty  in  liquor,  under  the  organic 
law,  which  forbids  the  citizen  being  deprived  of  his  property  without 
due  process  of  law.  That  liquor  is  recognized  b}-  the  law  as  propertv, 
that  the  Constitution  knows  no  distinction  in  its  guarantees  of  the 
rights  of  property  of  all  kinds,  that  tlie  constitutionality  of  the  law  is 
to  be  tested  the  same  as  though  it  related  to  some  other  and  perhaps 
better  species  of  propert}',  is  not  questioned.  The  Constitution  sur- 
rounds liquor,  as  property,  with  the  same  inviolability  as  an}'  other 
species  of  property.  There  can  be  no  room,  I  think,  for  difference  of 
opinion  as  to  the  meaning  of  the  phrase,  "due  process  of  law,"  as  used 
in  the  Constitution.  It  means  an  ordinar}-  judicial  proceeding.  In  a 
criminal  case,  an  arraignment,  formal  complaint,  confronting  of  wit- 
nesses, a  trial,  and  regular  conviction  and  judgment.  When  a  for- 
feiture of  property  is  made  a  part  of  the  punishment,  as  in  this  case, 
the  judgment  embracing  it  would,  in  its  eflfect,  deprive  the  offender  of 
his  property  in  the  constitutional  method.  I  think  it  competent  for  the 
legislature  to  declare  a  forfeiture  of  liquor,  which  an  offender  may  have 
in  possession,  as  a  mode  of  punishment ;  and  if  the  law  in  question  was 
in  other  respects  constitutional,  I  should  uphold  the  judgment  of  for- 
feiture in  this  case  as  entirely  proper.  But  the  portion  of  the  law 
which  authorizes  the  seizure  and  destruction  of  liquor,  where  the  pro- 
secution or  conviction  of  the  owner  is  not  contemplated,  I  should  not 
hesitate  to  pronounce  void,  as  propert}'  is  thus  destroyed  or  the  citizen 
deprived  of  it  without  process  of  law.  It  is  not  pretended,  nor  can  it 
be,  that  property  which  is  not  per  se  a  nuisance  can  be  annihilated  b}- 
force  of  a  statute  alone,  or  bj'  proceeding  m  rem  for  the  punishment  of 
a  personal  offence.  Liquor  is  not  a  nuisance  2>e?'  se,  nor  can  it  be  made 
so  by  a  simple  legislative  declaration.  It  does  not  stand  in  the  cate- 
gory of  common  nuisances  which  of  ttiemselves  endanger  the  welfare  or 
safety  of  societ}-.  It  is  its  use  and  abuse  as  a  beverage  which  gives  it 
its  offensive  character.  Otherwise  it  is  entirely'  inoffensive.  In  my 
judgment,  therefore,  it  cannot  be  confiscated  to  prevent  its  misuse,  except 
through  a  prosecution  against  the  owner  in  personam. 

But  it  is  said  that  this  law  does  not  assume  to  deprive  an}'  one  of 
his  propert}-  in  liquor  ;  that  the  owner  is  allowed  to  retain  the  unmolested 
custody  and  personal  use  of  it,  according  to  his  pleasure.  It  is  true 
that  the  owner  may  not  be  molested  in  this  enjoyment,  provided  he 
keeps  it  in  his  dwelling-house,  if  fortunate  enough  to  possess  a  doniicil. 
I  apprehend  that  b}'  a  fair  construction  of  the  law  he  is  forbidden, 
under  a  severe  penalt}',  from  keeping  it  elsewhere,  except  for  mechan- 
ical and  other  specified  uses,  although  innocent  of  any  intent  to  sell. 
I  have  examined  the  1st  section  of  the  law  with  care,  to  see  if  it 
could  not  be  construed  in  such  manner  as  to  make  the  keeping  in 
any  place  except  a  dwelling-house,  criminal  only  when  accompanied 


CHAP,  v.]  WYNEHAMER   V.   THE   PEOPLE.  723 

witli  an  intent  to  sell.  But  tlie  section  cannot  be  so  construed. 
The  language  is  too  clear  to  admit  of  a  doubt  as  to  the  intention 
of  the  legislature.  The  keeping  or  deposit  in  an}'  place,  except  in 
a  dwelling-house,  or  place  where  .some  trade  or  business  is  carried  on 
requiring  its  use,  is  prohibited,  and  b}-  the  4th  section  of  the  Act  such 
keeping  or  deposit  is  a  crime.  This,  certainl}',  is  a  most  extraordinar}' 
provision,  which  must  have  the  effect  to  render  a  person  a  criminal  who 
was  so  unfortunate  as  to  have  a  quantity'  of  liquor  on  hand  in  a  for- 
bidden place  at  the  time  the  law  took  effect,  although  he  had  no  intent 
to  violate  the  law  by  selling.  A  person  thus  circumstanced  would  have 
but  one  of  two  alternative^  to  avoid  criminalit}',  either  just  before  the 
law  took  effect  to  remove  the  liquor  to  a  dwelling-house,  or  to  a  shop 
for  mechanical  and  other  prescribed  uses,  or  destroy'  it  with  his  own 
hand.  I  can  scarcely  credit  that  the  legislature  designed  the  law  to 
have  this  effect ;  but  no  other  construction  can  be  put  upon  the  lan- 
guage of  the  1st  section  of  the  law,  and  we  are  bound  to  suppose,  judi- 
cially, that  the  legislature  intended  what  their  words  import. 

The  law  does  not  even  countenance  the  exportation  of  the  liquor 
after  it  took  effect.  The  plain  design  of  the  law  seems  to  have  been  to 
cut  off  the  liquor  itself,  to  insure  its  destruction,  by  circumscribing  the 
keeping  of  it,  and  authorizing  its  seizure,  if  kept  in  a  forbidden  place, 
or  with  a  criminal  intent  to  sell.  The  entire  right  of  sale,  within  the 
State  at  least,  is  prohibited,  and  in  this,  in  my  judgment,  consists  the 
error  of  the  law  as  it  respects  liquor  owned  when  the  law  went  into 
operation.  If  there  had  been  any  right  of  sale  within  the  State  pre- 
served, for  instance,  to  a  licensed  vendor,  although  of  minor  importance, 
it  would  have  been  sufficient,  perhaps,  to  have  impressed  the  law  with  a 
character  of  regulation,  and  saved  its  validity. 

But  the  abolition  of  all  right  of  sale  in  the  State  is  equivalent  to  and 
is  a  substantial  deprivation  of  the  owner  of  his  property.  The  right  of 
sale  is  of  the  very  essence  of  propert}'  in  an}'  article  of  merchandise  ; 
it  is  its  chief  characteristic ;  take  away  its  vendible  quality  and  the 
article  is  practically  destroyed.  As  applied  to  merchandise  of  an}- 
description,  this  effect  can  be  judicially  seen.  Even  if  the  law  al- 
lowed exportation,  that  would  be  of  such  minor  importance  as  not  to 
save  the  law  from  the  charge  of  effectually  depriving  the  owner  of  his 
property  in  the  liquor.  It  is  but  of  trifling  value  after  the  entire  domes- 
tic market  is  closed  against  it. 

I  am  unable,  therefore,  to  avoid  the  conclusion  that  the  prohibition  in 
the  1st  section  of  the  law  is  invalid,  inasmuch  as  it  makes  no  discrimina- 
tion, nor  allows  the  courts  to  make  any,  but  extends  to  all  liquor, 
irrespective  of  the  time  of  its  acquisition  ;  and  that,  b}'  closing  the 
domestic  or  State  market,  it  in  effect  substantiall}'  deprives  the  owner 
of  liquor,  acquired  before  the  law  took  effect,  of  his  vested  right  of  prop- 
erty therein,  without  due  process  of  law. 

At  the  trial  before  the  police  justice,  the  defendant  offered  bail  for 
his  appearance  before  a  higher  court  having  criminal  jurisdiction.  It 
was  an  error  for  the  court  to  refuse  to  receive  it.     I  am  well  satisfied 


724  WYNEHAMER   V.    THE    PEOPLE.  [CHAP.  V. 

that  the  defendant  had  a  constitutional  right  to  be  tried  b}'  a  common- 
law  jiny  of  twelve  men,  and  that  to  tliis  end  he  should  have  been 
allowed  to  give  bail  to  appear  before  a  tribunal  where  such  a  jury  could 
be  obtained.  ... 

I  am  of  the  oi)inion,  therefore,  that  the  judgment  of  the  Supreme  Court 
ought  to  be  affirmed.  .   .  . 

[Other  opinions  are  reported,  b}'  Comstock,  A.  S.  Johnson,  Selden, 
Mitchell,  and  T.  A.  Johnson,  JJ.,  and  a  brief  summary  of  an  opinion 
by  Denio,  C.  J.     The  reporter  then  adds  the  following  statement :] 

On  deciding  these  cases,  the  court  passed  upon  and  affirmed  the  fol- 
lowing propositions  : 

1.  That  the  prohibitor}'  Act,  in  its  operation  upon  property  in  in- 
toxicating liquors  existing  in  the  hands  of  any  person  within  this  State 
when  the  Act  took  etfect,  is  a  violation  of  the  provision  in  the  Consti- 
tution of  this  State  which  declares  that  no  person  shall  be  "deprived 
of  life,  liberty,  or  property,  without  due  process  of  law."  That  the 
various  provisions,  prohibitions,  and  penalties  contained  in  the  Act  do 
substantially  destroy  the  property-  in  such  liquors  in  violation  of  the 
terms  and  spirit  of  the  constitutional  provision. 

2.  That  inasmuch  as  the  Act  does  not  discriminate  between  such 
liquors  existing  when  it  took  effect  as  a  law,  and  such  as  might  there- 
after be  acquired  by  importation  or  manufacture,  and  does  not  counte- 
nance or  warrant  any  defence  based  upon  the  distinction  referred  to, 
it  cannot  be  sustained  in  respect  to  an\'  such  liquor,  whether  existing 
at  the  lime  the  Act  took  effect  or  acquired  subsequently  ;  although  all 
the  judges  were  of  opinion  that  it  would  be  competent  for  the  legisla- 
ture to  pass  such  an  Act  as  the  one  under  consideration  (except  as  to 
some  of  the  forms  of  proceeding  to  enforce  it),  provided  such  Act  should 
be  plainly  and  distinctly  prospective  as  to  the  property  on  which  it  should 
operate. 

3.  That  the  criminal  proceeding  in  a  court  of  special  sessions 
authorized  b\^  the  said  Act  is  unconstitutional  and  void  because  the 
accused  is  thereby  deprived  of  the  right  of  trial  by  jury,  guaranteed 
by  the  Constitution. 

Denio,  C.  J.,  A.  S.  Johnson,  Comstock,  Selden,  and  Hubbard,  Js., 
concurred  in  the  foregoing  propositions. 

Mitchell,  J.,  dissented  from  the  first  and  second,  and  concurred  in 
the  third. 

T.  A.  Johnson  and  Wright,  Js.,  dissented  from  all  of  them. 

All  the  judges,  except  T.  A.  Johnson,  Wright,  and  Mitchell,  were 
in  favor  of  reversing  the  judgment  of  the  Supreme  Court,  and  of  the 
court  of  general  sessions  in  the  case  of  Wynehamer. 

All  the  judges,  except  T.  A.  Johnson  and  Wright,  were  in  favor  of 
affirming  the  judgment  of  the  Supreme  Court,  which  reversed  that  of  the 
court  of  special  sessions  in  the  case  of  Toynbee. 

J'xdr/ments  accordi?igly.^ 

1  Compare  State  v.  Oilman,  33  W.  Va.  146  (1889).  —  Ed. 


CHAP,  v.]  BERTHOLF   V.   O'REILLY.  725 


BERTHOLF  v.  O'REILLY. 
New  York  Court  of  Appeals.     1878. 

[74  N.  Y.  509.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  second  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict.     (Reported  below,  8  Hun,  16.) 

The  nature  of  the  action  and  the  facts  are  set  forth  sufficiently  in  the 
opinion. 

Leiois  E.  Carr^  for  appellant. 

W.  J.  Groo,  for  respondent. 

Andrews,  J.  .  .  .  This  action  is  brought  by  the  plaintiff  against  the 
defendant,  as  the  landlord  of  hotel  premises,  let  with  knowledge  that 
intoxicating  liquors  were  to  be  sold  therein  by  the  lessee,  to  recover  the 
value  of  a  horse  owned  by  the  plaintiff,  which  died  in  consequence  of 
having  been  overdriven  by  the  plaintiff's  son  while  in  a  state  of  intoxi- 
cation", produced  in  part  by  liquor  sold  him  by  the  lessee  at  his  bar  on 
the  leased  premises.  ... 

All  the  elements  of  the  landlord's  liability  under  the  Act  [the  Civil 
Damage  Act  of  April  29,  1873]  exist  in  this  case,  viz.:  the  leasing 
of  premises  with  knowledge  that  intoxicating  liquors  were  to  be  sold 
thereon  ;  the  sale  by  the  tenant,  producing  intoxication  ;  and  the  act  of 
the  intoxicated  person,  causing  injury  to  the  property  of  the  plaintiff. 

The  question  we  are  now  to  determine  is  whether  the  legislature  has 
the  power  to  create  a  cause  of  action  for  damages,  in  favor  of  a  person 
injured  in  person  or  property  by  the  act  of  an  intoxicated  person,  against 
the  owner  of  real  property,  whose  only  connection  with  the  injury  is 
that  he  leased  the  premises  where  the  liquor  causing  the  intoxication 
was  sold  or  given  away,  with  knowledge  that  intoxicating  liquors  were 
to  be  sold  thereon. 

To  realize  the  full  force  of  this  inquiry  it  is  to  be  observed  that  the 
leasing  of  premises  to  be  used  as  a  place  for  the  sale  of  liquors  is  a  law- 
ful act,  not  prohibited  by  this  or  any  other  statute.  The  liability  of  the 
landlord  is  not  made  to  depend  upon  the  nature  of  the  act  of  the  tenant, 
but  exists  irrespective  of  the  fact  whether  the  sale  or  giving  away  of  the 
liquor  was  lawful  or  unlawful,  that  is,  whether  it  was  authorized  by  the 
license  law  of  the  State,  or  was  made  in  violation  of  that  law.  Nor 
does  the  liability  depend  upon  any  question  of  negligence  of  the  landlord 
in  the  selection  of  the  tenant,  or  of  the  tenant  in  selling  the  liquor. 
Although  the  person  to  whom  liquor  is  sold  is  at  the  time  apparently 
a  man  of  sober  habits  and,  so  far  as  the  vendor  knows,  one  whose  appe- 
tite for  strong  drink  is  habitually  controlled  by  his  reason  and  judgment, 
yet  if  it  turns  out  that  the  liquor  sold  causes  or  contributes  to  the  intoxi- 
cation of  the  person  to  whom  the  sale  or  gift  is  made,  under  the  influence 
of  which  he  commits  an  injury  to  person  or  property,  the  seller  and  his 


726  BERTHOLF   V.    o'REILLY.  [cHAP.  V. 

landlord  are  b}'  the  Act  made  jointly  and  sevcrall}'  responsible.  The 
element  of  care  or  diligence  on  the  part  of  the  seller  or  landlord  does 
not  enter  into  the  question  of  liability.  The  statute  imposes  upon  the 
dealer  and  the  landlord  the  risk  of  any  injury  which  may  be  caused  by 
the  traffic.  It  cannot  be  denied  that  the  liability  sought  to  be  imposed 
by  the  Act  is  of  a  ver^"  sweeping  character  and  ma3-,  in  many  cases, 
entail  severe  pecuniary  liability,  and  its  language  may  include  cases  not 
within  the  real  purpose  of  the  enactment.  The  owner  of  a  building  who 
lets  it  to  be  occupied  for  the  sale  of  general  merchandise,  including 
wines  and  liquors,  ma}",  under  the  Act,  be  made  liable  for  the  acts  of 
an  intoxicated  person,  where  his  onl}'  fault  is  that  he  leased  the  premises 
for  a  general  business,  including  the  sale  of  intoxicating  liquors,  in  the 
same  wa}'  as  other  merchandise.  The  liability  is  not  restricted  to  the 
results  of  intoxication  from  liquors  sold  or  given  away  to  be  drank  on 
the  premises  of  the  seller.  There  is  no  way  by  which  the  owner  of  real 
property  can  escape  possible  liabilit}"  for  the  results  of  intoxication 
where  he  leases  or  permits  the  occupation  of  his  premises,  with  the 
knowledge  that  the  business  of  the  sale  of  liquors  is  to  be  carried  on  on 
the  premises,  whether  alone  or  in  connection  with  other  merchandise, 
or  whether  they  are  to  be  sold  to  be  drank  on  the  premises  or  to  be  car- 
ried awaj'  and  used  elsewhere.  His  onl}-  absolute  protection  against 
the  liability  imposed  by  the  Act  is  to  be  found  in  not  using  or  permitting 
the  premises  to  be  used  for  the  sale  of  intoxicating  liquors. 

The  question  whether  the  Act  under  consideration  is  a  valid  exercise 
of  legislative  power  is  to  be  determined  solelj-  b}-  refei'ence  to  constitu- 
tional restraints  and  prohibitions.  The  legislative  power  has  no  other 
limitation.  .  .  . 

There  are  two  general  grounds  upon  which  the  Act  in  question  is 
[  claimed  to  be  unconstitutional ;  ^first,  that  it  operates  to  restrain  the 
'  lawful  use  of  real  propert}'  by  the  owner,  inasmuch  as  it  attaches  to  the 
particular  use  a  liability,  which  substantially  amounts  to  a  prohibition 
of  such  use,  and,  as  to  the  seller,  imposes  a  pecuniary  responsibility, 
which  interferes  with  the  traffic  in  intoxicating  liquors,  although  the 
business  is  authorized  by  law  ;  and  second,  that  it  creates  a  right  of 
action  unknown  to  the  common  law,  and  subjects  the  property  of  one 
person  to  be  taken  in  satisfaction  of  injuries  sustained  by  another 
remotely  resulting  from  an  act  of  the  person  charged,  which  act  may  be 
neither  negligent  or  wrongful,  but  mav  be,  in  all  respects,  in  conformity 
with  law.  The  Act,  it  is  said,  in  effect  authorizes  tiie  taking  of  private 
property  without  "due  process  of  law,"  contrary  to  article  1,  section  6, 
of  the  Constitution,  and  is  also  a  violation  of  the  first  section  of  the 
same  article,  which  declares  that  "no  member  of  this  State  shall  be 
disfranchised,  or  deprived  of  any  of  the  rights  or  privileges  secured  to 
any  of  the  citizens  thereof,  unless  by  the  law  of  the  land  or  the  judgment 
of  his  peers."  If  the  Act  is  "due  process  of  law,"  within  the  sixth 
section  of  the  first  article,  it  is  manifest  that  it  is  valid  within  the  other 
section  to  which  reference  is  made. 


CHAP,  v.]  BERTHOLF   V.    O'UEILLY.  727 

The  right  of  the  State  to  regulate  the  traffic  in  intoxicating  liquors, 
within  its  limits,  has  been  exercised  from  the  foundation  of  the  govern- 
ment, and  is  not  open  to  question.  The  State  may  prescribe  the  persons 
by  whom  and  the  conditions  under  wliich  the  traffic  may  be  carried  on. 
It  may  impose  upon  those  who  act  under  its  license  such  liabilities  and 
penalties  as  in  its  judgment  are  proper  to  secure  society  against  the 
dangers  of  the  traffic  and  individuals  against  injuries  committed  by 
intoxicated  persons  under  the  influence  of  or  resulting  from  tlieir 
intoxication. 

Tlie  licensee,  by  accepting  a  license  and  acquiring  thereby  a  privilege 
from  the  State  to' engage  in  the  traffic,, a  privilege  confined  to  those  who 
are  licensees  and  withheld  from  all  other  citizens,  takes  it  subject  to 
such  conditions  as  the  legislature  may  attach  to  its  exercise.  He  con- 
sents to  be  bound  by  the  conditions  when  he  accepts  the  license,  and 
the  State  is  the  sole  judge  of  the  reasonableness  of  the  conditions  im- 
posed. And  the  power  of  the  legislature,  as  a  part  of  the  excise  system, 
to  impose  the  liabilities,  imposed  by  the  Act  in  question,  upon  licensed 
dealers,  as  a  condition  of  granting  the  license,  cannot,  we  think,  be 
questioned.  .  .  . 

The  Act  of  1873  cannot,  however,  be  sustained  in  all  its  aspects  upon 
the  theory  that  the  liability  imposed  by  the  Act  is  a  condition  of  a 
privilege  granted  by  the  State.  This  cannot  be  affirmed  in  respect  of 
the  liability  of  the  landlord,  whose  right  to  lease  liis  property  belongs  to 
him,  as  an  incident  to  ownership.  The  responsibility  imposed  is  not 
confined  to  cases  of  unlawful  sales  of  liquors  or  to  sales  made  by  licensed 
vendors.  Any  person  selling  or  giving  away  liquor,  which  causes  intoxi- 
cation and  consequent  injury,  is  made  liable  under  the  Act. 

The  broad  question  is  presented,  whether  the  Act  transcends  the 
limits  of  legislative  power,  in  subjecting  a  landlord  to  liability,  under 
the  circumstances  mentioned  in  the  Act.  Does  the  Act,  in  effect,  deprive 
him  of  his  property  without  "due  process  of  law,"  in  the  sense  of  the 
Constitution.  If  the  Act  can  be  sustained  as  to  the  landlord,  it  is  clearly 
valid  as  to  all  other  persons ;  and  its  validity  as  to  the  landlord  is  the 
question  directly  presented  in  this  case. 

We  need  not  enter  into  any  elaborate  discussion  of  the  meaning  of 
the  words  "due  process  of  law."  This  has  been  done  in  numerous 
judicial  decisions.  They  are  held,  under  the  liberal  interpretation  given 
to  them,  to  protect  the  life,  liberty  and  property  of  the  citizens  against 
acts  of  mere  arbitrary  persons,  in  any  department  of  the  government. 
Denio,  J.,  in  Westervelt  v.  Gregg,  12  N.  Y.  212.  These  are  the  funda- 
mental civil  rights,  for  the  security  of  which  society  is  organized,  and 
all  acts  of  legislation  which  contravene  them  are  within  the  prohibition 
of  the  constitutional  guarantee.  In  judicial  proceedings,  due  process  of 
law  requires  notice,  hearing  and  judgment ;  in  legislative  proceedings, 
conformity  to  the  settled  maxims  of  free  governments,  observance  of 
constitutional  restraints  and  requirements,  and  an  omission  to  exercise 
powers  appertaining  to  the  judicial  or  executive  departments.     It  is  as 


728  BERTHOLF   V.    o'liEILLY.  [CIIAP.  V. 

difficult;  as  it  would  be  unwise  to  attempt  an  exact  definition  of  their 
scope.  Their  application,  in  a  particular  case,  must  be  determined 
when  the  question  arises,  and,  in  the  absence  of  exact  precedents,  courts 
must  determine  the  question,  upon  a  consideration  of  the  general  scope 
of  legislative  power,  the  practice  of  governments,  and  in  view  of  the 
conceded  principle  that  individual  rights  ma}'  be  curtailed  and  limited 
to  secure  the  public  welfare  and  the  equal  rights  of  all.   .   .   . 

If  the  legislature  was  impotent  to  deal  with  the  traffic  in  intoxica- 
ting liquors  or  powerless  to  restrain  or  regulate  it  in  the  interest  of 
the  community  at  large,  because  legislation  on  the  subject  might,  to 
some  extent,  interfere  with  the  use  of  property  or  the  prosecution  of 
private  business,  the  legislature  would  be  shorn  of  one  of  its  most  usual 
and  important  functions.  But,  as  we  have  said,  the  right  of  the  legis- 
lature to  regulate  the  traffic  is  shown  b}'  the  uniform  practice  of  the 
government.  It  may  not  only  regulate,  but  it  may  prohibit  it.  This 
was  declared  after  solemn  argument  and  mature  deliberation,  in  one  of 
the  propositions  adopted  by  this  court  in  Wynehamer  v.  The  People^ 
subject  only  to  the  qualification  that  the  prohibition  shall  not  interfere 
with  vested  rights  of  property.  The  same  principle  was  declared  in  the 
case  of  Metropolitan  Board  of  Excise  v.  Barrie^  34  N.  Y.  657  ;  and 
that  the  legislative  power  extends  to  the  entire  prohibition  of  the  traffic 
has  been  recently  recognized  bj-  the  Supreme  Court  of  the  United 
States. 

It  is  quite  evident  that  the  Act  of  1873  ma}-  seriously  interfere  with 
the  profitable  use  of  real  property  by  the  owner.  This  is  especially  true 
with  respect  to  a  building  erected  to  be  occupied  as  an  inn  or  hotel,  and 
specially  adapted  to  that  use,  where  the  rental  value  may  largely  depend 
upon  the  right  of  the  tenant  to  sell  intoxicating  liquors.  The  owner  of 
such  a  building  may  well  hesitate  to  lease  his  property,  when,  by  so 
doing,  he  subjects  himself  to  the  onerous  liability  imposed  by  the  Act. 
The  Act,  in  this  way,  indirectly  operates  to  restrain  the  absolute  freedom 
of  the  owner  in  the  use  of  his  property,  and  may  justly  be  said  to  impair 
its  value.  But  this  is  not  a  taking  of  his  property,  within  the  meaning 
of  the  Constitution.  He  is  not  deprived  either  of  the  title  or  the  pos- 
session. The  use  of  his  property  for  any  other  lawful  purpose  is  unre- 
stricted, and  he  may  let  or  use  it  as  a  place  for  the  sale  of  liquors,  subject 
to  the  liability  which  the  Act  imposes.  The  objection  we  are  now  con- 
sidering would  apply  with  greater  force  to  a  statute  prohibiting,  under 
any  circumstances,  the  traffic  in  intoxicating  liquoi'S,  and  as  such  a 
statute  must  be  conceded  to  be  within  the  legislative  power,  and  would 
not  interfere  with  any  vested  rights  of  the  owner  of  real  property, 
although  absolutely  preventing  the  particular  use,  a  fortiori  the  Act  in 
question  does  not  operate  as  an  unlawful  restraint  upon  the  use  of 
property. 

That  a  statute  impairs  the  value  of  property  does  not  make  it  uncon- 
stitutional. All  property  is  held  subject  to  the  power  of  the  State  to 
regulate  or  control  its  use,  to  secure  the  general  safety  and  the  public 


CHAP,  v.]  BEKTHOLF  V.    o'REILLY.  729 

welfare.  .  .  .  [Here  follow  quotations  from  Com.  v.  Alger ^  7  Cush.  84, 
and  Thorpe  v.  £.  &  Ji.  E.  R.  Co.,  27  Vt.  140,  and  statements  of  The 
Slaughter-Ilouse  Cases,  IG  Wall.  36,  and  Jliutn  v.  III.,  94  U.  S.  113.] 

The  right  of  the  legislature  to  control  the  use  and  traffic  in  intoxi- 
cating liquors  being  established,  its  aulhorit}'  to  impose  liabilities  upon 
those  who  exercise  the  traffic,  or  who  sell  or  give  away  intoxicating 
drinks,  for  consequential  injuries  to  third  persons,  follows  as  a  necessary 
incident.  And  the  Act  of  1873  is  not  invalid  because  it  creates  a  right 
of  action  and  imposes  a  liability  not  known  to  the  common  law.  There 
is  no  such  limit  to  legislative  power.  The  legislature  may  alter  or 
repeal  the  common  law.  It  may  create  new  offences,  enlarge  the  scope 
of  civil  remedies,  and  fasten  responsibility  for  injuries  upon  persons 
against  whom  the  common  law  gives  no  remedy.  We  do  not  mean  that 
the  legislature  may  impose  upon  one  man  liability  for  an  injury  suffered 
by  another,  with  which  he  had  no  connection.  But  it  may  change  the 
rule  of  the  common  law,  which  looks  only  to  the  proximate  cause  of  the 
mischief,  in  attaching  legal  responsibility,  and  allow  a  recovery  to  be 
had  against  those  whose  acts  contributed,  although  remotely,  to  produce 
it.  This  is  what  the  legislature  has  done  in  the  Act  of  1873.  That 
there  is  or  may  be  a  relation,  in  the  nature  of  cause  and  effect,  between 
the  act  of  selling  or  giving  away  intoxicating  liquors,  and  the  injuries 
for  which  a  remedy  is  given,  is  apparent,  and  uix>n  this  relation  the 
legislature  has  proceeded  in  enacting  the  law  in  question.  It  is  an 
extension,  by  the  legislature,  of  the  principle  expressed  in  the  maxim, 
Sic  ntere  tuo  ut  alienvm  non  leedas,  to  cases  to  which  it  had  not  before 
been  applied,  and  the  propriety  of  such  an  application  is  a  legislative 
and  not  a  judicial  question. 

It  is  said  that  the  statute  imposes  a  liability  for  the  consequences  of 
a  lawful  act.  But  the  legislature,  having  control  of  the  subject  of  the 
traffic  in  and  use  of  intoxicating  liquors,  ma}'  make  such  regulations  to 
prevent  the  public  evils  and  private  injuries  resulting  from  intoxication 
as  in  its  judgment  are  calculated  to  accomplish  this  end.  It  may  pro- 
hibit the  selling  or  giving  away  of  liquors,  or  it  may,  while  not  inter- 
fering with  the  libert}'  of  sale  or  use,  guard  against  the  dangers  of  an 
indiscriminate  traffic,  and  induce  caution,  on  the  part  of  those  who 
engage  in  the  business,  by  subjecting  them  to  liabilities  for  consequential 
injuries. 

The  Act  of  1873  does  not  deprive  the  seller,  who  is  made  liable  under 
the  Act,  of  his  property,  without  due  process  of  law.  It  authorizes  it 
to  be  appropriated,  in  the  due  course  of  judicial  proceedings,  for  the 
satisfaction  of  injuries  resulting  from  intoxication  caused  by  his  act. 
The  legislature  has  said  that  the  seller  may  be  treated  as  the  author  of 
the  injuries,  and  we  think  this  was  within  the  legislative  power. 

The  liability  imposed  upon  the  landlord  for  the  acts  of  the  tenant  is 
not  a  new  principle  in  legislation.  His  liability  only  arises  when  he  has 
consented  that  the  premises  ma}'  be  used  as  a  place  for  the  sale  of 
liquors.     He  selects  the  tenant,  and  he  may^  without  violating  any  con- 


730  GIBBONS   V.   OGDEN.  [CHAP.  V. 

stitutional  provision,  be  made  responsible  for  the  tenant's  acts  connected 
with  the  use  of  the  leased  property-.  In  Dobbins  v.  llie  United  States, 
recently  decided  bj'  the  United  States  Supreme  Court,  a  distillery,  with 
the  real  and  personal  property  used  in  connection  therewith,  had  been 
seized  and  conden)ned  to  be  forfeited,  for  the  violation,  by  a  lessee,  of 
certain  provisions  of  the  Act  of  Congress,  regulating  the  business  of 
distilling.  No  fraud  was  imputed  to  the  owner  of  the  premises,  and  he 
was  not  charged  with  any  complicit}'  with  the  tenant  in  violating  the 
law.  The  owner  objected  that  his  property  could  not  be  forfeited  for 
the  acts  of  the  tenant,  committed  without  his  knowledge  or  consent. 
But  the  court  affirmed  the  decree  of  condemnation  ;  and,  in  bis  opinion, 
Clifford,  J.,  says:  "The  legal  conclusion  must  be  that  the  unlawful 
acts  of  the  distiller  bind  the  owner  of  the  property,  in  respect  to  the 
management  of  the  same,  as  much  as  if  they  were  committed  by  the 
owner  himself  Power  to  that  effect  the  law  vests  in  him  by  virtue  of 
his  lease  ;  and,  if  he  abuses  his  trust,  it  is  a  matter  to  be  settled  ])etween 
him  and  his  lessor  ;  but  the  acts  of  violation  as  to  the  penal  consequences 
to  the  property  are  to  be  considered  just  the  same  as  if  they  were  the 
acts  of  the  owner." 

Our  conclusion  is  that  the  Act  of  1873  is  a  constitutional  enactment. 
It  is  doubtless  an  extreme  exercise  of  legislative  power,  but  we  cannot 
sa}'  that  it  violates  an}-  express  or  implied  prohibition  of  the  Constitution. 

There  are  some  subordinate  questions  presented,  as  grounds  for  the 
reversal  of  the  judgment.  They  were  considered  by  the  General  Term, 
and  we  concur  in  its  conclusions  in  respect  to  them. 

The  judgment  must  be  affirmed,  with  costs. 

All  concur.  Judgmerit  affirmed} 

In  Gibbons  v.  Ogden,  9  Wheat.  1,  209  (1824),  Marshall,  C  J.,  for 
the  court,  said  :  "  Since,  however,  in  exercising  the  power  of  regulating 
their  own  purel}'  internal  affairs,  whether  of  trading  or  police,  the 
States  may  sometimes  enact  laws,  the  validity  of  which  depends  on 
their  interfering  with,  and  being  contrary  to,  an  Act  of  Congress  passed 
in  pursuance  of  the  Constitution,  the  court  will  enter  upon  the  inquiry, 
whether  the  laws  of  New  York,  as  expounded  by  the  highest  tribunal 
of  that  State,  have,  in  their  application  to  this  case,  come  into  collision 
with  an  Act  of  Congress,  and  deprived  a  citizen  of  a  right  to  which  that 
Act  entitles  him.  Should  this  collision  exist,  it  will  be  immaterial 
whether  those  laws  were  passed  in  virtue  of  a  concurrent  power  '  to 
regulate  commerce  with  foreign  nations  and  among  the  several  States,' 
or,  in  virtue  of  a  power  to  regulate  their  domestic  trade  and  police.  In 
one  case  and  the  other,  the  acts  of  New  York  must  yield  to  the  law  of 
Congress  ;  and  the  decision  sustaining  the  privilege  they  confer,  against 
a  right  given  by  a  law  of  the  Union,  must  be  erroneous. 

"  This  opinion  has  been  frequently  expressed  in  this  court,  and  is 

1  Compare  Howes  v.  Maxwell,  1 57  Mass  333  —  Ed. 


CHAP,  v.]  UNITED    STATES   V.    H-^LLID.VY.  731 

founded  as  well  on  the  nature  of  the  government  as  on  the  words  of  the 
Constitution.  In  argument,  however,  it  has  been  contended  tliat,  if  a 
law  passed  by  a  State,  in  the  exercise  of  its  acknowledged  sovereignty, 
comes  into  conflict  with  a  law  passed  by  Congress  in  pursuance  of  the 
Constitution,  they  affect  the  subject,  and  each  other,  like  equal  oppos- 
ing powers. 

"  But  the  framers  of  our  Constitution  foresaw  this  state  of  tilings, 
and  provided  for  it  by  declaring  the  supremacy  not  only  of  itself,  but 
of  tlie  laws  made  in  pursuance  of  it.  The  nullity  of  any  Act.  inconsist- 
ent with  the  Constitution,  is  produced  by  the  declaration  tliat  tlie  Con- 
stitution is  the  supreme  law.  The  appropriate  application  of  that  part 
of  the  clause  which  confers  the  same  supremacy  on  laws  and  treaties, 
is  to  such  acts  of  the  State  legislatures  as  do  not  transcend  their  pow- 
ers, but,  though  enacted  in  the  execution  of  acknowledged  State  powers, 
interfere  with,  or  are  contrary  to  the  laws  of  Congress,  made  in  pursu- 
ance of  the  Constitution,  or  some  treaty  made  under  the  authority  of 
the  United  Stktes.  In  every  such  case  the  Act  of  Congress,  or  tlie 
treaty,  is  supreme  ;  and  the  law  of  the  State,  though  enacted  in  the 
exercise  of  powers  not  controverted,  must  yield  to  it." 

In  I/.  S.  v.  IMliday,  3  Wall.  407,  416  (1865),  it  was  a  question  whether 
an  Act  of  Congress  of  1862,  forbidding  the  sale  of  intoxicating  liquor 
to  an  Indian  under  the  charge  of  an  agent,  anywhere  in  the  United  States, 
was  valid.  Miller,  J.,  for  the  court,  in  sustaining  the  enactment,  said  : 
"  We  are  not  furnished  with  an}'  argument  by  either  of  the  defendants 
on  this  branch  of  the  subject,  and  may  not  therefore  be  able  to  state 
with  entire  accuracy  the  position  assumed.  But  we  understand  it  to  be 
substantial!}'  this  :  that  so  far  as  the  Act  is  intended  to  operate  as  a 
police  regulation  to  enforce  good  morals  within  the  limits  of  a  State  of 
the  Union,  that  power  belongs  exclusively  to  the  vState,  and  there  is  no 
warrant  in  the  Constitution  for  its  exercise  by  Congress.  If  it  is  an 
attempt  to  regulate  commerce,  then  the  commerce  here  regulated  is  a 
commerce  wholly  within  the  State,  among  its  own  inhabitants  or  citi- 
zens, and  is  not  within  the  powers  conferred  on  Congress  by  the  com- 
mercial clause. 

"The  Act  in  question,  although  it  may  partake  of  some  of  the 
qualities  of  those  acts  passed  b}'  State  legislatures,  which  have  been 
referred  to  the  police  powers  of  the  States,  is,  we  think,  still  more 
clearly  entitled  to  be  called  a  regulation  of  commerce.  'Commerce,' 
says  Chief  Justice  Marshall,  in  the  opinion  in  Gibbons  v.  Ogdeit^  to 
which  we  so  often  turn  with  profit  when  this  clause  of  the  Constitution 
is  under  consideration,  'commerce  undoubtedly  is  traffic,  but  it  is  some- 
thing more  :  it  is  intercourse.'  The  law  before  us  professes  to  regulnte 
traffic  and  intercourse  with  the  Indian  tribes.  It  manifestly  does  both. 
It  relates  to  buying  and  selling  and  exchanging  commodities,  which  is 
the  essence  of  all  commerce,  and  it  regulates  the  intercourse  between 
the  citizens  of  the  United  States  and  thoso  tribes,  ^Yhich  is  another 
branch  of  commerce;  and  a  very  important  one. 


732  IN    RE    RAPIER.      IN    RE    DUPR^.  [CHAP.  V. 

"If  the  Act  under  consideration  is  a  regulation  of  commerce,  as  it 
undoubtedly  is,  does  it  regulate  that  kind  of  commerce  which  is  placed 
within  the  control  of  Congress  by  the  Constitution  ?  The  words  of  that 
instrument  are  :  '  Congress  shall  have  power  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  States,  and  with  the  Indian 
tribes.'  Commerce  with  foreign  nations,  without  doubt,  means  com- 
merce between  citizens  of  the  United  States  and  citizens  or  subjects  of 
foreign  governments,  as  individuals.  And  so  commerce  with  the  Indian 
tribes,  means  commerce  with  the  individuals  composing  those  tribes. 
The  Act  before  us  describes  this  precise  liind  of  traffic  or  commerce, 
and,  therefore,  comes  within  the  terms  of  the  constitutional  provision. 

"  Is  there  anything  in  the  fact  that  this  power  is  to  be  exercised 
within  the  limits  of  a  State,  which  renders  the  Act  regulating  it 
unconstitutional? 

"  In  the  same  opinion  to  which  we  have  just  before  referred.  Judge 
Marshall,  in  speaking  of  the  power  to  regulate  commerce  with  foreign 
States,  says,  '  The  power  does  not  stop  at  the  jurisdictional  limits  of 
the  several  States.  It  would  be  a  very  useless  power  if  it  could  not 
pass  those  lines.'  '  If  Congress  has  power  to  regulate  it,  that  power 
must  be  exercised  wherever  the  subject  exists.'  It  follows  from  these 
propositions,  which  seem  to  be  incontrovertible,  that  if  commerce,  or 
traffic,  or  intercourse,  is  carried  on  with  an  Indian  tribe,  or  with  a 
member  of  such  tribe,  it  is  subject  to  be  regulated  by  Congress, 
although  within  the  limits  of  a  State.  The  locality  of  the  traffic  can 
have  nothing  to  do  with  the  power.  The  right  to  exercise  it  in  refer- 
ence to  any  Indian  tribe,  or  an}'  person  who  is  a  member  of  such  tribe, 
is  absolute,  without  reference  to  the  locality  of  tlie  traffic,  or  the  locality 
of  the  tribe,  or  of  the  member  of  the  tribe  with  whom  it  is  carried  on. 
It  is  not,  however,  intended  by  these  remarks  to  imply  that  this  clause 
of  the  Constitution  authorizes  Congress  to  regulate  any  other  commerce, 
originated  and  ended  within  the  limits  of  a  single  State,  than  commerce 
with  the  Indian  tribes." 


In  re  rapier,  Petitioner.     In  re  DUPRE,  Petitioner. 
Supreme  Court  of  the  United  States.  1892. 
[143  U.  S.  no.] 

These  were  three  applications  to  this  court  for  leave  to  file  peti- 
tions for  writs  of  habeas  corpus.  Leave  was  granted,  March  9,  1891, 
and  the  petitions  were  made  returnable  on  the  third  Monday  of  the 
next  April.  They  were  duly  returned,  and  were,  on  the  27th  of  April, 
assigned  for  argument  at  the  present  term.  The  prayer  in  each  case 
was  for  a  discharge  from  arrest  for  an  alleged  violation  of  the  pro- 
visions of  section  3894  of  the  Revised  Statutes,  as  amended  by  the 
Act  of  September  19,  1890,  26  Stat.  465,  c.  908,  generally  known  as 


CHAP,    v.]  IN    RE    RAPIER.      IN    RE   DUPRlS.  733 

the  Anti-lottery  Act,  which  is  printed  in  the  margin.  [It  is  omitted 
liere.] 

Rapier  was  arrested  under  an  information  in  the  District  Court  fur 
the  Southern  District  of  Alabama. 

Dupre  was  arrested  under  two  indictments  in  the  Circuit  Court  for 
the  Eastern  District  of  Louisiana. 

The  charge  against  Rapier,  and  against  Dupre  in  one  indictment, 
was  the  mailing  of  a  newspaper  containing  an  advertisement  of  the 
Louisiana  Lottery  ;  and  in  the  other  indictment  against  Dupre  was 
for  the   mailing  of  a  letter  concerning  it. 

As  a  cause  for  the  issue  of  the  writ  Rapier  said,  in  his  application  : 
''Your  petitioner  avers  that  he  is  now  in  the  custody  of  said  marshal 
under  or  by  color  of  the  authority  of  the  United  States  and  in  viola- 
tion of  the  Constitution  of  the  United  States.  Your  petitioner  is 
advised  that  the  pretended  statute  under  which  he  is  being  prose- 
cuted and  held  is  in  violation  of  the  Constitution  of  the  United 
States,  and  that  the  said  District  Court  is  without  jurisdiction  in  the 
premises." 

Dupre  in  No.  8  averred  that  he  was  "deprived  of  his  liberty  under 
and  by  color  of  the  authority  of  the  United  States  and  of  said  court 
and  in  violation  of  the  Constitution  of  the  United  States  and  of  his 
rights  as  a  citizen  thereof,  because  he  says  that  he  is  advised  and 
therefore  avers  that  the  statute  of  the  United  States  under  which  he 
is  held  and  being  prosecuted  upon  said  indictment  is  unconstitutional, 
null  and  void,  and  particularly  obnoxious  to  and  in  violation  of  the 
First  Amendment  to  said  Constitution,  which  forbids  Congress  passing 
any  law  abridging  the  freedom  of  the  press,  and  that  therefore  said 
Circuit  Court  is  and  was  without  jurisdiction  in  the  premises,  and  he 
is  deprived  of  his  liberty  without  authority  of  law." 

His  petition  in  No.  9  contained  substantially  the  same  averment. 

Mr.  Hannis  Taylor.,  for  Rapier.  Mr.  James  (J.  Carter  and  Mr. 
Thomas  Semmes,  for  Dupre.  Mr.  Attorney- General  axxd  Mr.  Assist- 
ant Attorney- General  Maury,  for  the  United  States. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

We  are  constrained  by  the  circumstances  in  which  we  find  our- 
selves placed  b}-  the  illness  and  death  of  Mr.  Justice  Brad  lev,  to  whom 
the  preparation  of  the  opinion  in  these  cases  was  committed,  to  waive 
any  elaboration  of  our  views,  and  confine  ourselves  to  the  expression 
of  the  general  grounds  on  which  our  decision  proceeds. 

These  are  applications  for  discharge  by  writ  of  habeas  corpus  from 
arrest  for  alleged  violations  of  an  Act  of  Congress,  approved  Sep- 
tember 19,  1890,  entitled  "  An  Act  to  amend  Certain  Sections  of  the 
Revised  Statutes  relating  to  Lotteries,  and  for  other  Purposes."  26 
Stat.  465,  c.  908. 

The  question  for  determination  relates  to  the  constitutionality  of 
section  3894  of  the  Revised  Statutes  as  amended  by  that  Act.  In 
JSx  parte  Jackson,  96  U.  S.  727,  it  was  held  that  the  power  vested 


734  IN   RE   RAPIElt.      IN    RE   DUPRI  [cHAP.  V. 

in  Congress  to  establish  post-offices  and  post-roads  embraced  the  regu- 
lation of  the  entire  postal  system  of  the  country,  and  that  under  it 
Congress  may  designate  what  may  be  carried  in  the  mail  and  what 
excluded  ;  that  in  excluding  various  articles  from  the  mails  the  object 
of  Congress  is  not  to  interfere  with  the  freedom  of  the  press  or  with 
any  other  rights  of  the  people,  but  to  refuse  the  facilities  for  the  dis- 
tribution of  matter  deemed  injurious  by  Congress  to  the  public  morals  ; 
and  that  the  transportation  in  any  other  way  of  matters  excluded  from 
the  mails  would  not  be  forbidden.  Unless  we  are  prepared  to  overrule 
that  decision,  it  is  decisive  of  the  question  before  us. 

It  is  argued  that  in  Jackson's  case  it  was  not  urged  that  Congress 
had  no  power  to  exclude  lotter3'  matter  from  the  mails ;  but  it  is  con- 
ceded that  the  point  of  want  of  power  was  passed  upon  in  the  opinion. 
This  was  necessarily  so,  for  the  real  question  was  tlie  existence  of  the 
power  and  not  the  defective  exercise  of  it.  And  it  is  a  mistake  to 
suppose  that  the  conclusion  there  expressed  was  not  arrived  at  without 
deliberate  consideration.  It  is  insisted  that  the  express  powers  of 
Congress  are  limited  in  their  exercise  to  the  objects  for  which  the}' 
were  intrusted,  and  that  in  order  to  justify  Congress  in  exercising  an}- 
incidental  or  implied  powers  to  carr}'  into  effect  its  express  author- 
ity, it  must  appear  that  there  is  some  relation  between  the  means 
employed  and  the  legitimate  end.  This  is  true,  but  while  the  legiti- 
mate end  of  the  exercise  of  the  power  in  question  is  to  furnish  mail 
facilities  for  the  people  of  the  United  States,  it  is  also  true  that  mail 
facilities  are  not  required  to  be  furnished  for  every  purpose. 

The  States  before  the  Union  was  formed  could  establish  post-offices 
and  post-roads,  and  in  doing  so  could  bring  into  play  the  police  power 
in  the  protection  of  their  citizens  from  the  use  of  the  means  so  pro- 
vided for  purposes  supposed  to  exert  a  demoralizing  influence  upon 
the  people.  When  the  power  to  establish  post-offices  and  post-roads 
was  surrendered  to  the  Congress  it  was  as  a  complete  power,  and  the 
grant  carried  with  it  the  right  to  exercise  all  the  powers  which  made 
that  power  effective.  It  is  not  necessary  that  Congress  should  have 
the  power  to  deal  with  crime  or  immorality  within  the  States  in  order 
to  maintain  that  it  possesses  the  power  to  forbid  the  use  of  the  mails 
in  aid  of  the  perpetration  of  crime  or  immorality. 

The  argument  that  there  is  a  distinction  between  mala  prohibita 
and  mala  in  se,  and  that  Congress  might  forbid  the  use  of  the  mails  in 
promotion  of  such  acts  as  are  universallj'  regarded  as  mala  in  se,  in- 
cluding all  such  crimes  as  murder,  arson,  burglary,  etc.,  and  the 
offence  of  circulating  obscene  books  and  papers,  but  cannot  do  so  in 
respect  of  other  matters  which  it  might  regard  as  criminal  or  immoral, 
but  which  it  has  no  power  itself  to  prohibit,  involves  a  concession 
which  is  fatal  to  the  contention  of  petitioners,  since  it  would  be  for 
Congress  to  determine  what  are  within  and  what  without  the  rule ; 
but  we  think  there  is  no  room  for  such  a  distinction  here,  and  tliat  it 
must  be  left  to  Congress  in   the  exercise  of  a  sound  discretion  to 


CHAP,  v.]      '  UNIl'KD    STATKS   V.    DliWITT.  735 

determine  in  what  manner  it  will  exercise  the  power  it  undoubtedly 
possesses. 

We  cannot  regard  the  right  to  operate  a  lottery  as  a  fundamental 
rjo-ht  infringed  by  the  legislation  in  question  ;  nor  are  we  able  to  see 
that  Congress  can  be  held,  in  its  enactment,  to  have  abridged  the 
freedom  of  the  press.  The  circulation  of  newspapers  is  not  prohibited, 
but  the  government  declines  itself  to  become  an  agent  in  the  circula- 
tion of  printed  matter  which  it  regards  as  injurious  to  the  people. 
The  freedom  of  communication  is  not  abridged  within  the  intent  and 
meaning  of  the  constitutional  provision  unless  Congress  is  absolutely 
destitute  of  any  discretion  as  to  what  shall  or  shall  not  be  carried  in 
the  mails,  and  compelled  arbitrarily  to  assist  in  the  dissemination  of 
jnatters  condemned  by  its  judgment,  through  the  governmental  agen- 
cies which  it  controls.  That  power  may  be  abused  furnishes  no 
ground  for  a  denial  of  its  existence,  if  government  is  to  be  main- 
tained at  all. 

In  short,  we  do  not  find  sufficient  grounds  in  the  arguments  of 
counsel,  able  and  exhaustive  as  they  have  been,  to  induce  us  to  change 
the  views  already  expressed  in  the  case  to  which  we  have  referred. 
We  adhere  to  the   conclusion  therein  announced. 

The  writs  of  habeas  corpus  pj-ayed  for  will  therefore  be  denied, 
and  the  rides  hereinbefore  entered  discharged. 


UNITED   STATES   v.   DEWITT. 
Supreme  Court  of  the  United  States.     1869. 

[9  Wall.  41.] 

On  certificate  of  division  in  opinion  between  the  judges  of  the  Cir- 
cuit Court  for  the  Eastern  District  of  Michigan  ;  the  case  being  this  :- 

Section  29  of  the  Act  of  March  2d,  1867  (14  Stat,  at  Large,  484), 
declares, 

"  That  no  person  shall  mix  for  sale  naphtha  and  illuminating  oils,  or 
shall  knowingly  sell  or  keep  for  sale,  or  offer  for  sale  such  mixture,  or 
shall  sell  or  offer  for  sale  oil  made  from  petroleum  for  illuminating  pur- 
poses, inflammable  at  less  temperature  or  fire-test  than  110  degrees 
Fahrenheit ;  and  any  person  so  doing,  shall  be  held  to  be  guilty  of  a 
misdemeanor,  and  on  conviction  thereof  by  indictment  or  presentment 
in  any  court  of  the  United  States  having  competent  jurisdiction,  shall 
be  punished  by  fine,  &c.,  and  imprisonment,"  &c. 

Under  this  section  one  Dewitt  was  indicted,  the  offence  charged 
being  the  offering  for  sale,  at  Detroit,  in  Michigan,  oil  made  of  petro- 
leum of  the  description  specified.  There  was  no  allegation  that  the 
sale  was  in  violation  or  evasion  of  any  tax  imposed  on  the  property 
sold.     It  was  alleged  only  that  the  sale  was  made  contrary  to  law. 


.736  UNllED    STATES   V.    DEWITT.  [CHAP.  V. 

To  this  indictment  there  was  a  demurrer ;  and  thereupon  arose  two 
questions,  on  which  the  judges  were  opposed  in  opinion. 

(1)  Whether  the  facts  charged  in  the  indictment  constituted  an}' 
offence  under  any  valid  and  constitutional  law  of  the  United  States? 

(2)  Whether  the  aforesaid  section  29  of  the  Act  of  March  2d,  1867, 
was  a  valid  and  constitutional  law  of  the  United  States? 

Mr.  Fields  Assistant  Attorney-General,  for  the  United  States. 

3L'.  Wills,  contra. 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

The  questions  certified  resolve  themselves  into  this  :  Has  Congress 
power,  under  the  Constitution,  to  prohibit  trade  within  the  limits  of  a 
State  ? 

That  Congress  has  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  and  with  the  Indian  tribes,  the  Consti- 
tution expressly  declares.  But  this  express  grant  of  power  to  regulate 
commerce  among  the  States  has  always  been  understood  as  limited  by 
its  terms ;  and  as  a  virtual  denial  of  an}"  power  to  interfere  with  the 
internal  trade  and  business  of  the  separate  States;  except,  indeed,  as 
a  necessary  and  proper  means  for  carrying  into  execution  some  other 
power  expressl}'  granted  or  vested. 

It  has  been  urged  in  argument  that  the  provision  under  which  this 
indictment  was  framed  is  within  this  exception ;  that  the  prohibition 
of  the  sale  of  the  illuminating  oil  described  in  the  indictment  was  in 
aid  and  support  of  the  internal  revenue  tax  imposed  on  other  illumi- 
nating oils.  And  we  have  been  referred  to  provisions,  supposed  to  be 
analogous,  regulating  the  business  of  distilling  liquors,  and  the  mode 
of  packing  various  manufactured  articles  ;  but  the  analogy  appears  to 
fail  at  the  essential  point,  for  the  regulations  referred  to  are  restricted 
to  the  veiT  articles  which  are  the  subject  of  taxation,  and  are  plainly 
adapted  to  secure  the  collection  of  the  tax  imposed ;  while,  in  the  case 
before  us,  no  tax  is  imposed  on  the  oils  the  sale  of  which  is  prohibited. 
If  the  prohibition,  therefore,  has  any  relation  to  taxation  at  all,  it  is 
merely  that  of  increasing  the  production  and  sale  of  other  oils,  and, 
consequentlv,  the  revenue  derived  from  them,  by  excluding  from  the 
market  the  particular  kind  described. 

This  consequence  is  too  remote  and  too  uncertain  to  warrant  us  in 
saying  that  the  prohibition  is  an  appropriate  and  plainh*  adapted 
means  for  carr3'ing  into  execution  the  power  of  laying  and  collecting 
taxes. 

There  is,  indeed,  no  reason  for  saying  that  it  was  regarded  by  Con- 
gress as  such  a  means,  except  that  it  is  found  in  an  act  imposing  in- 
ternal duties.  Standing  by  itself,  it  is  plainly  a  regulation  of  police  ; 
and  that  it  was  so  considered,  if  not  by  the  Congress  which  enacted  it, 
certainly  by  the  succeeding  Congress,  may  be  inferred  from  the  cir- 
cumstance, that  while  all  special  taxes  on  illuminating  oils  were  re- 
ppaled  by  the  Act  of  July  20th,  1868,  which  subjected  distillers  and 
refiners  to  the  tax  on  sales  as  manufacturers,  this  prohibition  was  left 
unrepealed. 


CHAP,  v.]  UNITED    STATES   V.    DEWITT.  737 

As  a  police  regulation,  relating  exclusivel}'  to  the  internal  trade  of 
the  States,  it  can  only  have  effect  where  the  legislative  authority  of 
Congress  excludes,  territorially,  all  State  legislation,  as  for  example, 
in  the  District  of  Columbia.  Witliin  State  limits,  it  can  have  no  con- 
stitutional operation.  This  has  been  so  frequently  declared  by  this 
court,  results  so  obviously  from  the  terras  of  the  Constitution,  and  has 
been  so  fully  explained  and  supported  on  former  occasions,  that  we 
thinli  it  unnecessary  to  enter  again  upon  the  discussion. 

The  first  question  certified  must,  therefore,  be  answered  in  the 
negative. 

The  second  question  must  also  be  answered  in  the  negative,  except 
so  far  as  the  section  named  operates  within  the  United  States,  but 
without  the  limits  of  any  State.^ 

1  In  the  License  Tax  Cases,  5  Wall.  462,  470  (1866),  Chase,  C.  J.,  for  the  court,  said: 
"This  series  of  propositions,  and  the  conclusion  in  which  it  terminates,  depends  on 
the  postulate  that  a  license  necessarily  confers  an  authority  to  carry  on  the  licensed 
business.  But  do  the  licenses  required  by  the  Acts  of  Congress  for  selling  liquor  and 
lottery  tickets  confer  any  authority  whatever  ? 

"  It  is  not  doubted  tliat  where  Congress  possesses  constitutional  power  to  regulate 
trade  or  intercourse,  it  may  regulate  by  means  of  licenses  as  well  as  in  other  modes; 
and,  in  case  of  such  regulation,  a  license  will  give  to  the  licensee  authority  to  do  what- 
ever is  authorized  by  its  terms.  .  .  .  But  very  different  considerations  apply  to  the 
internal  commerce,  or  domestic  trade  of  the  States.  Over  this  commerce  and  trade 
Congress  has  no  power  of  regulation  nor  any  direct  control.  This  power  belongs 
exclusively  to  the  States.  No  interference  by  Congress  with  the  business  of  citizens 
transacted"  within  a  State  is  warranted  by  the  Constitution,  except  such  as  is  strictly 
incidental  to  the  exercise  of  powers  clearly  granted  to  the  legislature.  The  power  to 
authorize  a  business  within  a  State  is  plainly  repugnant  to  the  exclusive  power  of  the 
State  over  the  same  subject.  ...  If,  therefore,  the  licenses  under  consideration  must 
be  regarded  as  giving  authority  to  carry  on  the  branches  of  business  whicli  they 
license,  it  might  be  difficult,  if  not  impossible,  to  reconcile  the  granting  of  them  with 
the  Constitution.  .  .   . 

"  But  it  is  not  necessary  to  regard  these  laws  as  giving  such  authority.  So  far  as 
they  relate  to  trade  within  State  limits,  they  give  none,  and  can  give  none.  They 
simplv  express  the  purpose  of  the  government  not  to  interfere  by  penal  proceedings 
with  the  trade  nominally  licensed,  if  the  required  taxes  are  paid.  The  power  to  tax 
is  not  questioned,  nor  the  power  to  impose  penalties  for  non-payment  of  taxes.  The 
granting  of  a  license,  therefore,  must  be  regarded  as  nothing  more  than  a  mere  form 
of  imposing  a  tax,  and  of  implying  nothing  except  that  the  licensee  shall  be  subject  to 
no  penalties  under  national  law,  if  he  pays  it." 

In  Patterson  v.  Ky.,  97  U.  S.  501  (1878),  Harlan,  J.,  for  the  court  said  :  "  Whether 
the  final  judgment  of  the  Court  of  Appeals  of  Kentucky  denies  to  plaintiff  in  error 
any  right  secured  to  her  by  the  Constitution  and  laws  of  the  United  States,  is  the  sole 
question  presented  in  this  case  for  our  determination. 

"  That  court  affirmed  the  judgment  of  an  inferior  State  court  in  which,  upon  indict- 
ment and  trial,  a  fine  of  $250  was  imposed  upon  plaintiff  in  error  for  a  violation  of 
certain  provisions  of  a  Kentucky  statute,  approved  Feb.  21,  1874,  regulating  the  in- 
spection and  gauging  of  oils  and  fluids,  the  product  of  coal,  petroleum,  or  other  bitu- 
minous substances.  .  .  . 

"The  specific  offence. charged  in  the  indictment  was  that  the  plaintiff  in  error  had 
sold,'wTtKrn~fhe  State,  to  one  Davis,  an  oil  known  as  the  Aurora  oil,  the  casks  con- 
taining which  had  been  previously  branded  by  an  authorized  inspector  with  the  words 
'unsafe  for  illuminating  purposes.'  That  particular  oil  is  the  same  for  which,  in 
VOL.  I 47 


738  HENDERSON    ET    AL.    V.    MAYOR    OF    N.    Y.    ET   AL.       [clIAP.  V. 

In  Henderson  et  al.  v.  Mayor  of  New  York  et  al.,  92  U.  S.  259 
(1875),  where  on  a  suit  by  certain  ship-owners  to  test  the  validity  of  a 
statute  of  New  York  relating  to  foreign  immigrants,  this  statute  was 
declared  void,  Miller,  J.,  for  the  court,  said:  "In  the  case  of  The 
City  of  New  York  v.  MUn,  reported  in  11  Pet.  103,  the  question  of  the 
constitutionality  of  a  statute  of  the  State  concerning  passengers  in  ves- 
sels coming  to  the  port  of  New  York  was  considered  by  this  court.     It 

1867,  letters-patent  were  granted  to  Henry  C.  Dewitt,  of  whom  the  plaintiff  in  error 
is  the  assignee,  by  assignment  duly  recorded  as  required  by  the  laws  of  the  United 
States.  Upon  the  trial  of  the  case  it  was  agreed  that  the  Aurora  oil  could  not,  by 
any  chemical  combination  described  in  the  patent,  be  made  to  conform  to  the  stand- 
ard or  test  required  by  the  Kentucky  statute  as  a  prerequisite  to  the  right,  within  that 
State,  to  sell,  or  to  offer  for  sale,  illuminating  oils  of  the  kind  designated. 

"  The  plaintiff  in  error,  as  assignee  of  the  patentee,  in  asserting  the  right  to  sell  the 
Aurora  oil  in  any  part  of  the  United  States,  claims  that  no  State  could,  consistently 
with  the  Federal  Constitution  and  the  laws  of  Congress,  prevent  or  obstruct  the  exer- 
cise of  that  right,  either  by  express  words  of  prohibition,  or  by  regulations  which  pre- 
scribed tests  to  which  the  patented  article  could  not  be  made  to  conform. 

"  The  Court  of  Appeals  of  Kentucky  held  this  construction  of  the  Constitution  and 
the  laws  of  the  United  States  to  be  inadmissible,  and  in  that  opinion  we  concur. 

"  Congress  is  given  power  to  promote  the  progress  of  science  and  the  useful  arts. 
To  that  end  it  may,  by  all  necessary  and  proper  laws,  secure  to  inventors,  for  limited 
times,  the  exclusive  right  to  their  inventions.  That  power  has  been  exerted  in  the 
various  statutes  prescribing  the  terms  and  conditions  upon  which  letters-patent  may 
be  obtained.  It  is  true  that  letters-patent,  pursuing  the  words  of  the  statute,  do,  in 
terms,  grant  to  the  inventor,  his  heirs  and  assigns,  the  exclusive  right  to  make,  use, 
and  vend  to  others  his  invention  or  discovery,  throughout  the  United  States  and  the 
Territories  thereof.  But,  obviously,  this  right  is  not  granted  or  secured,  without 
reference  to  the  general  powers  which  the  several  States  of  the  Union  unquestionably 
possess  over  their  purely  domestic  affairs,  whether  of  internal  commerce  or  of 
police.  .  .  .  The  Kentucky  statute  uuder  examination  manifestly  belongs  to  that  class 
of  legislation.  It  is,  in  the  best  sense,  a  mere  police  regulation,  deemed  essential  for 
the  protection  of  the  lives  and  property  of  citizens.  It  expresses  in  the  most  solemn 
form  the  deliberate  judgment  of  the  State  that  burning  fluids  which  ignite  or  perma- 
nently burn  at  less  than  a  prescribed  temperature,  are  unsafe  for  illuminating  pur- 
poses'. Whether  the  policy  thus  pursued  by  the  State  is  wise  or  unwise,  it  is  not  the 
province  of  the  national  authorities  to  determine.  That  belongs  to  each  State,  under 
its  own  sense  of  duty,  and  in  view  of  the  provisions  of  its  own  Constitution.  Its 
action,  in  those  respects,  is  beyond  the  corrective  power  of  this  court.  That  the 
statute  of  1874  is  a  police  regulation  within  the  meaning  of  the  authorities  is  clear 
from  our  decision  in  United  States  v.  Dewitt,  9  Wall.  41.  . 

"The  Kentucky  statute  being,  then,  an  ordinary  police  regulation  for  the  govern- 
ment of  those  engaged  in  the  internal  commerce  of  that  State,  the  only  remaining 
question  is,  whether,  under  the  operation  of  the  Federal  Constitution  and  the  laws  of 
Cono-ress,  it  is  without  effect  in  cases  where  the  oil,  although  condemned  by  the  State 
as  un.«afe  for  illuminating  purposes,  has  been  made  and  prepared  for  sale  in  accord- 
ance with  a  discovery  for  which  letters-patent  had  been  granted.  'We_are  of  opinion 
that  the  right  conferred  upon  the  patentee  and  his  jtssigns  to  use  and  vend  the  cqr- 
pbreal  th'ng  or  articIeTb rough t  into  existencFhy  the  a£plicat]on_of  the  patented  dis- 
coverv  must  be  exercised  in  ^abordTnatibn  to  the  pojice  regulations ^which  the  State_ 
e^taVdithed  by  the  statute^  JSlL.  It  is  not  to  be  supposed  that  Congress  intended 
to  authorize  or  regulate  the  sale,  within  a  State,  of  tangible  personal  property  which 
that  State  declares  to  be  unfit  and  unsafe  for  use,  and  by  statute  has  prohibited  from 
being  sold  or  offered  for  sale  within  her  limits." 
Compare  Trade  Mark  Cases,  100  U.  S.  82.  — Ed. 


CHAP,  v.]   HENDERSON  ET  AL.  V.   MAYOR  OF  N.  Y.  ET  AL.       739 

was  an  Act  passed  February  H,  1824,  consisting  of  several  sections. 
The  first  section,  the  only  one  passed  upon  by  the  court,  required  the 
master  of  every  ship  or  vessel  arriving  in  the  port  of  New  York  from 
any  country  out  of  the  United  States,  or  from  any  other  State  of  the 
United  States,  to  make  report  in  writing,  and  on  oath,  within  twenty- 
four  hours  after  his  arrival,  to  the  mayor  of  the  city,  of  the  name,  place 
of  birth,  last  legal  settlement,  age,  and  occupation  of  every  person 
brought  as  a  passenger  from  any  country  out  of  the  United  States,  or 
from°any  of  the  United  States  into  the  port  of  New  York,  or  into  any 
of  the  United  States,  and  of  all  persons  landed  from  the  ship,  or  put  on 
board,  or  suffered  to  go  on  board,  any  other  vessel  during  the  voyage, 
with  intent  of  proceeding  to  the  city  of  New  York.  A  penalty  was  pre- 
scribed of  seventy-five  dollars  for  each  passenger  not  so  reported,  and 
for  every  person  whose  name,  place  of  birth,  last  legal  settlement,  age, 
and  occupation  should  be  falsely  reported. 

"  The  other  sections  required  him  to  give  bond,  on  the  demand  of  the 
mayor,  to  save  harmless  the  city  from  all  expense  of  support  and  main- 
tenance of  such  passenger,  or  to  return  any  passenger,  deemed  liable 
to  become  a  charge,  to  his  last  place  of  settlement ;  and  required  each 
passenger,  not  a  citizen  of  the  United  States,  to  make  report  of  himself 
to  the  "mayor,  stating  his  age,  occupation,  the  name  of  the  vessel  in 
which  he  arrived,  the  place  where  he  landed,  and  name  of  the  com- 
mander of  the  vessel.  We  gather  from  the  report  of  the  case  that  the 
defendant,  Miln,  was  sued  for  the  penalties  claimed  for  refusing  to 
make  the  report  required  in  the  first  section.  A  division  of  opinion 
was  certified  by  the  judges  of  the  Circuit  Court  on  the  question,  whether 
the  Act  assumes  to  regulate  commerce  between  the  port  of  New  York 
and  foreign  ports,  and  is  unconstitutional  and  void. 

"  This  court,  expressly  limiting  its  decision  to  the  first  section  of  the 
Act,  held  that  it  fell  within  the  police  powers  of  the  States,  and  was 
not  in  conflict  with  the  Federal  Constitution. 

"  From  this  decision  Mr.  Justice  Story  dissented,  and  in  his  opinion 
stated  that  Chief  Justice  Marshall,  who  had  died  between  the  first  and 
the  second  argument  of  the  case,  fully  concurred  with  him  in  the  view 
that  the  statute  of  New  York  was  void,  because  it  was  a  regulation  of 
commerce  forbidden  to  the  States. 

"In  the  Passenger  Cases,  reported  in  7  How.  283,  the  branch  of  the 
statute  not  passed  upon  in  the  preceding  case  came  under  consideration 
in  this  court.  It  was  not  the  same  statute,  but  was  a  law  relating  to 
the  marine  hospital  on  Staten  Island.  It  authorized  the  health  com- 
missioner to  demand,  and,  if  not  paid,  to  sue  for  and  recover,  from  the 
master  of  every  vessel  arriving  in  the  port  of  New  York  from  a  foreign 
port,  one  dollar  and  fifty  cents  for  each  cabin  passenger,  and  one  dollar 
for  each  steerage  passenger,  mate,  sailor,  or  mariner,  and  from  the  mas- 
ter of  each  coasting  vessel  twenty-five  cents  for  each  person  on  board. 
These  moneys  were  to  be  appropriated  to  the  use  of  the  hospital. 

"  The  defendant.  Smith,  who  was  sued  for  the  sum  of  $295  for  re- 


740  HENDERSON    ET   AL.   V.    MAYOR   OF   N,   Y.    ET   AL.       [ciIAP.  V. 

fusing  to  paN'  for  295  steerage  passengers  on  board  the  British  sliip 
'  Henry  Bliss,'  of  which  he  was  master,  demurred  to  the  deehiration  on 
the  ground  that  the  Act  was  contrar}'  to  the  Constitution  of  the  United 
►States,  and  void.  From  a  judgment  against  him,  affirmed  in  the  Court 
of  Errors  of  the  State  of  New  York,  he  sued  out  a  writ  of  error,  on 
whicli  the  question  was  brought  to  this  court. 

"It  was  liere  held,  at  the  January  Term,  1849,  that  the  statute  was 
*  repugnant  to  the  Constitution  and  laws  of  the  United  States,  and 
therefore  void.'     7  How.  o72. 

"  Immediately  after  this  decision,  the  State  of  New  York  modified 
her  statute  on  that  subject,  with  a  view,  no  doubt,  to  avoid  the  consti- 
tutional objection  ;  and  amendments  and  alterations  have  continued  to 
be  made  up  to  the  present  time. 

"  As  the  law  now  stands,  the  master  or  owner  of  every  vessel  land- 
ing passengers  from  a  foreign  port  is  bound  to  make  a  report  similar  to 
the  one  recited  in  the  statute  held  to  be  valid  in  the  case  of  New  York 
V.  3Iiln  ;  and  on  this  report  the  mayor  is  to  indorse  a  demand  upon 
the  master  or  owner  that  he  give  a  bond  for  every  passenger  landed  in 
the  city,  in  the  penal  sum  of  $300,  conditioned  to  indemnify  the  com- 
missioners of  emigration,  and  every  county,  city,  and  town  in  the  Stale, 
against  any  expense  for  the  relief  or  support  of  the  person  named  in 
the  bond  for  four  years  thereafter ;  but  the  owner  or  consignee  may 
commute  for  such  bond,  and  be  released  from  giving  it,  by  paying, 
within  twenty-four  hours  after  the  landing  of  the  passengers,  the  sum 
of  one  dollar  and  fifty  cents  for  each  one  of  them.  If  neither  the  bond 
be  given  nor  the  sum  paid  within  the  twenty-four  hours,  a  penalty  of 
$500  for  each  pauper  is  incurred,  which  is  made  a  lien  on  the  vessel, 
collectible  by  attachment  at  the  suit  of  the  Commissioner  of  Emigration. 

"  Conceding  the  authority  of  the  Passenger  Cases,  whicli  will  be 
more  fully  considered  hereafter,  it  is  argued  that  the  change  in  the  stat- 
ute now  relied  upon  requiring  primarily  a  bond  for  each  passenger 
landed,  as  an  indemnity  against  his  becoming  a  future  charge  to  the 
State  or  county,  leaving  it  optional  with  the  ship-ow^ner  to  avoid  this 
by  paying  a  fixed  sum  for  eacli  passenger,  takes  it  out  of  the  principle 
of  the  case  of  Sinith  v.  Tamer,  —the  Passenger  Case  from  New  York. 
It  is  said  that  the  statute  in  that  case  was  a  direct  tax  on  the  passen- 
ger, since  the  Act  authorized  the  shipmaster  to  collect  it  of  him,  and 
that  on  that  ground  alone  was  it  held  void ;  while  in  the  present  case 
the  requirement  of  the  bond  is  but  a  suitable  regulation  under  the 
power  of  the  State  to  protect  its  cities  and  towns  from  the  expense  of 
supporting  persons  who  are  paupers  or  diseased,  or  helpless  women 
and  children,  coming  from  foreign  countries. 

"  In  whatever  language  a  statute  may  be  framed,  its  purpose  must 
be  determined  by  its  natural  and  reasonable  effect ;  and  if  it  is  appar- 
ent that  the  object  of  this  statute,  as  judged  by  that  criterion,  is  to 
compel  the  owners  of  vessels  to  pay  a  sum  of  money  for  every  passen- 
ger brought  by  them  from  a  foreign  shore,  and  landed  at  the  port  of 


CHAP,  v.]   HENDERSON  ET  AL.  V.    MAYOR  OF  N.  Y,  ET  AL.       741 

'  New  York,  it  is  as  much  a  tax  on  passengers  if  collected  from  them, 
or  a  tax  on  tlie  vessel  or  owners  for  the  exercise  of  the  right  of  landing 
their  passengers  in  that  city,  as  was  the  statute  held  void  in  the  Pas- 
senger  Cases. 

"  To  require  a  heav}'  and  almost  impossible  condition  to  the  exercise 
of  this  right,  wtth  the  alternative  of  payment  of  a  small  sum  of  mone}', 
is.  in  effect,  to  demand  payment  of  that  sum.  To  suppose  that  a  vessel, 
which  once  a  month  lands  from  three  hundred  to  one  thousand  passen- 
gers, or  from  three  thousand  to  twelve  thousand  per  annum,  will  give 
that  man}-  bonds  of  $300  with  good  sureties,  with  a  covenant  for  four 
years,  against  accident,  disease,  or  poverty  of  the  passenger  named  in 
such  bond,  is  absurd,  when  this  can  be  avoided  by  the  payment  of 
one  dollar  and  fifty  cents  collected  of  the  passenger  before  he  embarks 
on  the  vessel. 

"  Such  bonds  would  amount  in  many  instances,  for  every  voyage,  to 
more  than  the  value  of  the  vessel.  The  liability  on  the  bond  would  be, 
through  a  long  lapse  of  time,  contingent  on  circumstances  which  the 
bondsman  could  neither  foresee  nor  control.  The  cost  of  preparing  the 
bond  and  approving  sureties,  with  the  trouble  incident  to  it  in  each 
case,  is  greater  than  the  sum  required  to  be  paid  as  commutation.  It  is 
inevitable,  under  such  a  law,  that  the  money  would  be  paid  for  each 
passenger,  or  the  statute  resiste'd  or  evaded.  It  is  a  law  in  its  purpose 
and  effect  imposing  a  tax  on  the  owner  of  the  vessel  for  the  privilege  of 
landing  in  New  York  passengers  transported  from  foreign  countries. 

"  It  is  said  that  the  purpose  of  the  Act  is  to  protect  the  State  against 
the  consequences  of  tJio  flood  of  pauperism  immigrating  from  Europe, 
and  first  landing  in  that  cit}'. 

"  But  it  is  a  strange  mode  of  doing  this  to  tax  every  passenger  alike 
who  comes  fron  abroad. 

"  The  man  who  brings  with  him  important  additions  to  the  wealth  of 
the  countrj-,  and  the  man  who  is  perfectl}'  free  from  disease,  and  brings 
to  aid  the  industry  of  the  country  a  stout  heart  and  a  strong  arm,  are 
as  much  the  subject  of  the  tax  as  the  diseased  pauper  who  may  become 
the  object  of  the  charity  of  the  cit}'  the  day  after  he  lands  from  the 
vessel. 

"  No  just  rule  can  make  the  citizen  of  France  landing  from  an  Eng- 
lish vessel  on  our  shore  liable  for  the  support  of  an  English  or  Irish 
pauper  who  lands  at  the  same  time  from  the  same  vessel.  .  .   . 

"  The  accuracy  oj"  these  definitions  is  scarcely  denied  by  the  advo- 
cates of  the  State  statutes.  But  assuming  that,  in  the  formation  of  our 
government,  certain  powers  necessary  to  the  administration  of  their 
internal  affairs  are  reserved  to  the  States,  and  that  among  these  powers 
are  those  for  the  preservation  of  good  order,  of  the  health  and  comfort 
of  the  citizens,  and  their  protection  against  pauperism  and  against  con- 
tagious and  infectious  diseases,  and  other  matters  of  legislation  of  like 
character,  they  insist  that  the  power  here  exercised  falls  within  this 
class,  and  belongs  rightfully  to  the  States. 


742  HENDERSON    ET   AL.    V.    MAYOR   OF   N.    Y.    ET  AL.      [cHAP.  V. 

*'  This  power,  frequently  referred  to  in  the  decisions  of  this  court,  has 
been,  in  general  terms,  somewhat  loosely  called  the  police  power.  It  is 
not  necessary  for  the  course  of  this  discussion  to  attempt  to  define  it 
more  accurately  than  it  has  been  defined  already.  It  is  not  necessary, 
because  whatever  may  be  the  nature  and  extent  of  that  power,  where 
not  otherwise  restricted,  no  definition  of  it,  and  no  urgency  for  its  use, 
can  authorize  a  State  to  exercise  it  in  regard  to  a  subject-matter  which 
has  been  confided  exclusively  to  the  discretion  of  Congress  by  the 
Constitution. 

"  Nothing  is  gained  in  the  argument  b}'  calling  it  the  police  power. 
Very  many  statutes,  when  the  authority  on  which  their  enactments  rest 
is  examined,  may  be  referred  to  different  sources  of  power,  and  sup- 
ported equally  well  under  any  of  them.  A  statute  may  at  the  same 
time  be  an  exercise  of  the  taxing  power  and  of  the  power  of  eminent 
domain.  A  statute  punishing  counterfeiting  may  be  for  the  protection 
of  the  private  citizen  against  fraud,  and  a  measure  for  the  protection 
of  the  currency  and  for  the  safety  of  the  government  which  issues  it. 
It  must  occur  very  often  that  the  shading  whicli  marks  the  line  between 
one  class  of  legislation  and  another  is  very  nice,  and  not  easily 
distinguishable. 

"But,  however  difficult  this  maybe,  it  is  clear,  from  the  nature  of  our 
complex  form  of  government,  that,  whenever  the  statute  of  a  State 
invades  the  domain  of  legislation  which  belongs  exclusively  to  the  Con- 
gress of  the  United  States,  it  is  void,  no  matter  under  what  class  of 
powers  it  may  fall,  or  how  closely  allied  to  powers  conceded  to  belong 
to  the  States."  ^ 

1  Compare  Chi/  Lung  v.  Freeman  et  al.,  92  U.  S.  275. 

The  vague  and  ill-considered  notions  that  are  widely  entertained  as  to  wliat  is 
meant  by  the  "  police  power,"  may  be  observed  in  certain  misleading  observations  that 
have  a  considerable  currency  ;  e.g.,  that  the  Federal  government  has  no  police  power 
in  the  States ;  that  the  Fourteenth  Amendment  has  no  relation  to  the  police  power  of 
the  States  ;  that  the  States  have  never  parted  with  the  police  power.  But  in  truth,  tlie 
partition  of  the  total  powers  of  government  which  took  place  when  our  Federal  Consti- 
tution was  adopted,  did  not,  either  in  name  or  in  fact,  proceed  upon  such  lines  as  are 
here  indicated.  How  thoroughly  the  powers  of  tlie  Federal  government  are  interlaced 
with  those  of  the  States  as  regards  matters  of  local  police,  may  be  seen,  for  example, 
in  the  discussions  relating  to  the  regulation  of  foreign  and  interstate  commerce,  and 
commerce  with  the  Indian  tribes.  As  regards  the  Fourteenth  Amendment,  it  had  for 
its  main  purpose  that  of  cutting  down  the  local  legislative  power  of  the  States,  their 
"police  power,"  and  conferring  on  the  general  government  the  right  to  restrain  them 
in  exercising  it.  Under  this  amendment,  indeeil,  its  action  -is  but  negative.  As  re- 
gards the  affirmative  power  of  the  general  government,  when  it  is  remembered  that 
certain  entire  topics  are  committed  to  it,  for  example,  those  of  foreign  relations,  the 
taxing  of  imports,  the  post-office,  the  currency,  bankruptcy,  the  regulation  of  external 
and  interstate  commerce,  it  is  easy  to  see  that  much  of  what  is  understood  by  the 
"  police  power,"  is  wrapped  up  in  these  things  ;  in  determining,  for  example,  on  the 
admission  or  exclusion  of  foreigners,  in  settling  what  may  pass  through  the  mails,  oi 
what  goods  shall  come  in  free  and  what  shall  pay  duty.  — Ed. 


CHAP,  v.]  MUNN   V.   ILLINOIS.  743 


MUNN  V.  ILLINOIS. 
Supreme  Court  of  the  United  States.     1876. 

[94  U.S.  113.] 

Error  to  the  Supreme  Court  of  the  State  of  Illinois.  .  .  .  [The 
Constitution  of  Illinois  of  1870,  art.  xiii.  s.  1,  4eelaved  all  elevators, 
where  grain  or  other  property  is  stored  for  a  compensation,  to  be 
public  warehouses  ;  s.  2,  required  in  places  of  not  less  than  one  hun- 
dred thousand  inhabitants,  the  making  under  oath  and  public  posting 
and  filing  of  certain  statements  as  to  the  amount  and  kind  of  grain 
or  otlier  property  stored,  and  warehouse  receipts  issued  and  outstand- 
ing, and  the  daily  noting  of  changes  in  the  quantity  and  grade  of 
grain ;  and  forbade  the  mixing  of  different  grades  without  the  owners' 
consent;  s.  3,  secured  the  owner  of  stored  property  liberty  to  ex- 
amine it,  and  the  warehouse  books  and  records  relating  to  it;  s.  4,  bound 
common  carriers  to  weigh  or  measure  grain  where  shipped,  and  to  re- 
ceipt for  it :  and  made  them  responsible  for  delivering  it  all ;  s.  5, 
required  railroad  companies  to  deliver  grain  directly  to  the  consignee, 
if  he  could  be  reached  by  any  track  which  they  could  use,  and  required 
them  to  allow  connections  with  their  tracks,  for  such  purposes  ;  ss.  G  and 
7  made  it  the  duty  of  the  legislature  to  pass  all  necessary  laws  to 
prevent  the  issue  of  fraudulent  warehouse  receipts,  and  to  give  effect  to 
this  article  of  the  Constitution,  and  for  the  inspection  of  grain  and  the 
protection  of  the  producers,  shippers,  and  receivers  of  grain  and  produce. 
A  statute  of  Illinois,  approved  April  2o,  1871,  divided  warehouses  into 
classes  A,  B,  and  C  ;  and  required  the  keepers  of  warehouses  of  class  A, 
to  qualify  by  taking  out  a  license,  which  should  be  revocable  by  the  court 
granting  it  upon  a  summary  proceeding,  on  complaint  and  satisfactory 
proof.  The  licensee  was  required  to  file  a  bond  for  the  performance  of 
his  duty,  with  a  surety  in  the  sum  of  810,000.  A  penalty  of  $100  a 
day  was  imposed  for  carrying  on  the  business  without  a  license.  Ware- 
housemen of  class  A  were  required  yearly,  during  the  first  week  in 
January,  to  publish  the  rates  for  the  storage  of  grain  for  the  coming 
year,  and  these  were  not  to  be  increased  during  the  year,  — with  certain 
exceptions.  A  maximum  charge  was  fixed  for  storing  and  handling  grain 
of  2  cents  a  busliel,  for  the  first  thirty  days ;  and  for  each  fifteen  days 
or  less  afterwards,  one  half  of  one  per  cent  a  bushel ;  with  certain 
variations.] 

On  the  twenty-ninth  day  of  June,  1872,  an  information  was  filed  in 
the  Criminal  Court  of  Cook  County,  111.,  against  Munn  &  Scott,  alleging 
that  they  were,  on  the  twenty-eighth  day  of  June,  1872,  in  the  city  of 
Chicago,  in  said  county,  the  managers  and  lessees  of  a  public  warehouse, 
known  as  the  "North-western  Elevator."  in  which  they  then  and  there 
stored  c-rain  in  bulk,  and  mixed  the  grain  of  different  owners  together 


? 


744  MUNN   V.    ILLINOIS.  [CHAP.  V. 

ill  said  warehouse ;  that  the  warehouse  was  located  in  the  city  of 
Chicago,  whicli  contained  more  than  one  hundred  thousand  inhabi- 
tants ;  that  they  unlawfully  transacted  the  business  of  public  ware- 
housemen, as  aforesaid,  without  procuring  a  license  from  the  Circuit 
Court  of  said  county,  permitting  them  to  transact  business  us  public 
warehousemen,  under  the  laws  of  the  State. 

To  this  information  a  plea  of  not  guilty  was  interposed. 

From  an  agreed  statement  of  facts,  made  a  part  of  the  record,  it 
appears  that  Munn  & 'Scott  leased  of  the  owner,  in  18G2,  the  ground 
occupied  b}'  the  "North-western  Elevator,"  and  erected  thereon 
the  grain  warehouse  or  elevator  in  that  year,  with  their  own  capital 
and  means ;  that  they  ever  since  carried  on,  in  said  elevator,  the  busi- 
ness of  storing  and  handling  grain  for  hire,  for  which  the}-  charged  and 
received,  as  a  compensation,  the  rates  of  storage  which  had  been,  from 
year  to  year,  agreed  upon  and  established  by  the  different  elevators  and 
warehouses  in  the  city  of  Chicago,  and  published  in  one  or  more  news- 
papers printed  in  said  cit}',  in  the  month  of  Januar}-  in  each  year,  as 
the  established  rates  for  the  year  then  next  ensuing  such  pu))lication. 
On  the  twenty-eighth  day  of  June,  1872,  Munn  &  Scott  were  the  man- 
agers and  proprietors  of  the  grain  warehouse  known  as  "  The  North- 
western Elevator,"  in  Chicago,  111.,  wherein  grain  of  different  owners 
was  stored  in  bulk  and  mixed  together  ;  and  they  then  and  there  carried 
on  the  business  of  receiving,  storing,  and  delivering  grain  for  hire, 
without  having  talien  a  license  from  the  Circuit  Court  of  Cook  County, 
permitting  them,  as  managers,  to  transact  business  as  public  ware- 
housemen, and  without  having  filed  with  the  clerk  of  the  Circuit  Court 
a  bond  to  the  people  of  the  State  of  Illinois,  as  required  by  sects.  3 
and  4  of  the  Act  of  April  25,  1871.  The  citv  of  Chicago,  then,  and  for 
more  than  two  years  before,  had  more  than  one  hundred  thousand  in- 
habitants. Munn  &  Scott  had  stored  and  mixed  grain  of  different 
owners  together,  only  bj'  and  with  the  expi-ess  consent  and  permission 
of  such  owners,  or  of  the  consignee  of  such  grain,  they  having  agreed 
that  the  compensation  should  be  the  published  rates  of  storage. 

Munn  &  Scott  had  complied  in  all  respects  with  said  Act,  except  in 
two  particulars :  first,  the}'  had  not  taken  out  a  license,  nor  given  a 
bond,  as  required  by  sects.  3  and  4  ;  and,  second,  they  had  charged  for 
storage  and  handling  grain  the  rates  established  and  published  in 
January,  1872, which  were  higher  than  those  fixed  by  sect.  15. 

The  defendants  were  found  guilty,  and  fined  $100. 

The  judgment  of  the  Criminal  Court  of  Cook  County  having  been 
affirmed  by  the  Supreme  Court  of  the  State,  Munn  &  Scott  sued  out 
this  writ,  and  assign  for  error :  — 

1.  Sects.  3,  4,  5,  and  15  of  the  statute  are  unconstitutional  and 
void. 

2.  Said  sections  are  repugnant  to  the  third  clause  of  sect.  8  of  art.  1, 
and  the  sixth  clause  of  sect.  9,  art.  1,  of  the  Constitution  of  the  United 
States,  and  to  tlie  Fifth  and  Fourteenth  Amendments. 


CHAP,  v.]  MUNN   V.    ILLINOIS.  745 

Mr.  W.  C.  Goudy,  with  whom  was  3fr.  John  JV.  Jewett,  for  the 
plaintiffs  in  error. 

Mr.  James  K.  Edsall,  Attorney-General  of  Illinois,  contra. 

Mr.  Chief  Justick  Waite  delivered  the  opinion  of  the  court. 

The  question  to  be  determined  in  this  case  is  whether  the  General 
Assembly  of  Illinois  can,  under  the  limitations  upon  the  legislative 
power  of  the  States  imposed  by  the  Constitution  of  the  United  States, 
fix  by  law  the  maximum  of  charges  for  the  storage  of  grain  in  ware- 
houses at  Chicago  and  other  places  in  the  State  having  not  less  than 
one  hundred  thousand  inhabitants,  "in  which  grain  is  stored  in  bulk, 
and  in  which  the  grain  of  ditferent  owners  is  mixed  together,  or  in 
which  grain  is  stored  in  such  a  manner  that  the  identity  of  different 
lots  or  parcels  cannot   be  accuratel}'  preserved." 

It  is  claimed  that  such  a  law  is  repugnant  — 

1.  To  that  part  of  sect.  8,  art.  1,  of  the  Constitution  of  the  United 
States  which  confers  upon  Congress  the  power  ''  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States  ;  " 

2.  To  that  part  of  sect.  1)  of  the  same  article  which  provides  that  "  no 
preference  shall  be  given  bj-  an^-  regulation  of  commerce  or  revenue  to 
the  ports  of  one  State  over  those  of  another ;  "  and 

3.  To  that  part  of  amendment  14  wliich  ordains  that  no  State  shall 
"deprive  any  person  of  life,  libert}-,  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws." 

We  will  consider  the  last  of  these  objections  first. 
Every  statute  ia  presumed  to  be  constitutional.     The  courts  ought^ 
not  to  declare  one  to  be  unconstitutional,  unlessJt  is  clearh"  so.     If  there 

is  doubt,   thft  pvpmggpfl  will  of  t.lip  Ipgislntnrp  shnnlrl  ViP^iigf^jrwvl 

The  Constitution  contains  no  definition  of  the  word  "  deprive,"  as 
used  in  the  Fourteenth  Amendment.  To  determine  its  signification, 
therefore,  it  is  necessary  to  ascertain  the  effect  whjph  ngg<rf^  [ipc  myop 
it.  when  employed  in  the  same  or  a  like  ponnpotinn. 

While  this  provision  of  the  amendment  is  new  in  the  Constitution  of 
the  United  States,  as  a  limitation  upon  the  powers  of  the  States,  it  is 
old  as  a  principle  of  civilized  government.  It  is  found  in  Magna  Charta, 
and,  in  substance  if  not  in  form,  in  nearl}'  or  quite  all  the  constitutions 
that  have  been  from  time  to  time  adopted  by  the  several  States  of  the 
Union.  By  the  Fifth  Amendment,  it  was  introduced  into  the  Consti- 
tution of  the  United  States  as  a  limitation  upon  the  powers  of  the 
national  government,  and  b}-  the  Fourteenth,  as  a  guarantee  against 
any  encroachment  upon  an  acknowledged  right  of  citizenship  by  the  leg- 
islatures of  the  States. 

When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their  govern- 
ment. They  retained  for  the  purposes  of  government  all  the  powers  of 
the  British  Parliament,  and  through  their  State  constitutions,  or  other 
forms  of  social  compact,  undertook  to  give  practical  effect  to  such  as 


746  MUNN   V.   ILLINOIS.  [CHAP.  V. 

the}"  deemed  necessaiy  for  the  common  good  and  the  security  of  hfe 
and  propert}'.  All  the  powers  which  thej'  retained  they  committed  to 
their  respective  States,  unless  in  express  terms  or  bj-  implication  re- 
served to  themselves.  Subsequenth',  when  it  was  found  necessar}*  to 
establish  a  national  government  for  national  purposes,  a  part  of  the 
powers  of  the  States  and  of  the  people  of  the  States  was  granted  to  the 
United  States  and  the  people  of  the  United  States.  This  grant  operated 
as  a  further  limitation  upon  the  powers  of  the  States,  so  that  now  the 
governments  of  the  States  possess  all  the  powers  of  the  Pa rl i a m eiiL-of- 
Eng-land.  except  such  as  have  been  delegated  to  the  United  States  or 
reserved  bv  the  peoaje.  The  reservations  bj'  the  people  are  shown  in 
the  prohibitions  of  the  constitutions. 

When  one  becomes  a  member  of  society,  he  necessariU'  parts  with 
some  riglits  or  privileges  which,  as  an  individual  not  affected  by  his 
relations  to  otliers,  he  might  retain.  '' AJ2od^_politic/' as  aptly  de- 
fined in  the  preamble  of  the  Constitution  of  Massachusett^><^  is  a  social 
compact  by  w'hich  the  whole  people  covenants  with  each  citizen,  and 
each  citizen  with  the  whole  people,  that  all  shall  be  governed  by  cer^ 
tain  laws  for  the  common  good."  This  does  not  confer  power  upon  the 
whole^poo|)le  to  control  rigiits  which  are  purely  and  exclusively  private 
(  Thorpe  y.  B.  &  V.  Railroad  Co.,  27  Vt.  143)  ;  biit  it  does  auUmrizc 
the  establishment  of  laws  requiring  each  citizen  to  so  conduct  himself, 
and  so  use  bis  own  property,  as  not  unnecessarily  to  injure  another. 
This  is  the  very  essence  of  government,  and  has  found  expression  in 
the  maxim  Sic  utere  tuo  ut  alieniim  nou  Icedas.  From  this  source 
come  the  police  powers,  which,  as  was  said  b}-  Mr.  Chief  Justice  Taney 
in  tlie  fJcenseCases,  5  How.  583,  "are  nothing  more  or  less  than  the 
powers  of  government  inherent  in  every  sovereignt}',  .  .  .  that  is  to  say, 
.  .  .  the  power  to  govern  men  and  things."  Under  these  powers  the 
government  regulates  the  conduct  of  its  citizens  one  towards  another, 
and  the  manner  in  which  each  shall  use  his  own  property',  when  such 
regulation  becomes  necessary  for  the  public  good.  In  their  exercise  it 
has  been  customarj-  in  England  from  time  immemorial,  and  in  this 
countrj*  from  its  first  colonization,  to  regulate  ferries,  common  carriers, 
hackmen,  bakers,  millers,  wharfingers,  innkeepers,  &c.,  and  in  so  doing 
to  fix  a  maximum  of  charge  to  be  made  for  services  rendered,  accom- 
modations furnished,  and  articles  sold.  To  this  da}-,  statutes  are  to  bo 
found  in  man}'  of  the  States  upon  some  or  all  these  subjects ;  and  we 
think  it  has  never  yet  been  successfully  contended  that  such  legislation 
came  within  any  of  the  constitutional  prohibitions  against  interference 
■with  private  property.  With  the  Fifth  Amendment  in  force,  Congress, 
hi  1820,  conferred  power  upon  the  city  of  Washington  "to  regulate 
.  .  .  the  rates  of  wharfage  at  private  wharves,  .  .  .  the  sweeping  of 
chimneys,  and  to  fix  the  rates  of  fees  therefor,  .  .  .  and  the  weight  and 
quality  of  bread,"  3  Stat.  587,  sect.  7;  and,  in  1848,  "to  make  all 
necessary  regulations  respecting  hackney  carriages  and  the  rates  of  fare 
of  the  same,  and  the  rates  of  hauling  by  cartmen,  wagoners,  carmen, 


CHAP,  v.]  MUNN   V.   ILLINOIS.  747 

and  draymen,  and  the  rates  of  commission  of  auctioneers,"  9  Id.  224, 
sect.  2. 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adoption  of  the 
Fourteenth  Amendment,  it  was  not<eupposed  that  statutes  regulating 
the  use,  or  even  the  price  of  the  use,  of  private  property  necessarily 
depi'ived  an  owner  of  his  property  without  due  urocess  of  law.  Under 
some  circumstances  they  may,  but  not  under  all.  The  amendment 
does  not  change  the  law  in  this  particular:  it  simply  prevents  the 
States  from  doing  that  which  will  operate  as  such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this  power 
of  regulation  rests,  in  order  that  we  may  determine  what  is  within  and 
what  without  its  operative  effect.  Looking,  then,  to  the  common  L'lw, 
from  whence  came  the  right  which  the  Constitution- protects,_we_finjj^ 
that  when  private  property  is  ^'  affected  with  a  public  interest,  it  ceases 
to  be  juris  privati  only."  This  was  said  by  Lord  Chief  Justice  Hale 
more  than  two  hundred  years^-^o,  in  his  treatise  Be  Portibus  Maris, 
I  Harg.  Law  Tracts,  78,  and  has  Been-accepted  without  objection  as  an 
essential  element  in  the  law  of  property  evei'^sfnce.^  Property  does  be- 
come clothed  with  a  public  interest  when  used  in  a  nmnnei-  to  make  it 
of  public  consequence,  and  affect  the  community  at  large.--.  When, 
fJipvRfnre,  onp  dpvntfts  his  proDcrtv  to  a  use  in  which  the  public  has  an 
interest,  he,  in  effect,  grants  to  the  public  an  interest  in  that  use,  and 
must  submit  to  be  controlled  by  the  public  for  the  common  good,  to  the 
extent  of  the  interest  he  has  thus  rrpntpd.  He  ma}-  withdraw  his  grant 
by  discontinuing  the  use ;  but,  so  long  as  he  maintains  the  use,  he  must 
submit  to  the  control.  .  .  .  [Here  follow  passages  from  Sir  Matthew 
Hale's  writings,  as  to  ferries  and  wharves.] 

This  statement  of  the  law  by  Lord  Hale  was  cited  with  approbation 
and  acted  upon  by  Lord  Kenyon  at  the  beginning  of  the  present  cen- 
tury, in  Bolt  V.  Ste7inett,  8  T.  R.  606. 

And  the  same  has  been  held  as  to  warehouses  and  warehousemen. 
In  AJdnutt  v.  Inglis,  12  East,  527,  decided  in  1810,  it  appeared  that  the 
London  Dock  Company  had  built  warehouses  in  which  wines  were  taken 
in  store  at  such  rates  of  charge  as  the  company  and  the  owners  might 
agree  upon.  Afterwards  the  company  obtained  authority,  under  the 
general  warehousing  Act,  to  receive  wines  from  importers  before  the 
duties  upon  the  importation  were  paid  ;  and  the  question  was,  whether 
they  could  charge  arbitrar}'  rates  for  such  storage,  or  must  be  content 
with  a  reasonable  compensation.  .  .  .  [Here  follow  long  quotations 
from  the  opinions  in  this  case,  in  which  it  is  held  that  the  charges  must 
be  reasonable.] 

In  later  times,  the  same  principle  came  under  consideration  in  the 
Supreme  Court  of  Alabama.  That  court  was  called  upon,  in  1841 ,  to  de- 
cide -whether  the  power  granted  to  the  city  of  Mobile  to  regulate  the 
weight  and  price  of  bread  was  unconstitutional,  and  it  was  contended  that 
"  it  would  interfere  with  the  right  of  the  citizen  to  pursue  his  lawful 
trade  or  calling  in  the  mode  his  judgment  might  dictate  ;  "  but  the  court 


748  MUXN   V.    ILLINOIS.  [CHAP.  V, 

said,  "  there  is  no  motive  .  .  .  for  tliis  interference  on  the  part  of  the 
leo^isUvture  with  the  hiwfiil  actions  of  individuals,  or  the  mode  in  which 
private  property  shall  be  enjoyed,  unless  such  calling  affects  the  public 
interest,  or  private  property  is  employed  in  a  manner  which  directly 
affects  the  body  of  the  people.  Upon  this  principle,  in  this  State, 
tavern-keepers  are  licensed  ;  .  .  .  and  the  County  Court  is  required,  at 
least  once  a  year,  to  settle  the  rates  of  innkeepers.  Upon  the  same 
principle  is  founded  the  control  which  the  legislature  has  always  exer- 
cised in  the  establishment  and  regulation  of  mills,  ferries,  bridges,  tiu'n- 
pike  roads,  and  other  kindred  subjects."  Mobile  v.  Yiiille,  3  Ala. 
N.  s.  140. 

From  the  same  source  comes  the  power  to  regulate  the  charges  of 
common  carriers,  which  was  done  in  E^ngland  as  long  ago  as  the  third 
year  of  the  reign  of  William  and  Mar}-,  and  continued  until  within  a 
comparatively  recent  period.  And  in  the  first  statute  we  find  the  fol- 
lowing suggestive  preamble,  to  wit :  — 

"  And  whereas  divers  wagoners  and  other  carriers,  by  combination 
amongst  themselves,  have  raised  the  prices  of  carriage  of  goods  in  many 
places  to  excessive  rates,  to  the  great  injur\'  of  the  trade :  Be  it,  there- 
fore, enacted,"  &c.  3  W.  &  M.  c.  12,  §  24;  3  Stat,  at  Large  (Great 
Britain),  481. 

Common  carriers  exercise  a  sort  of  public  office,  and  have  duties  to 
perform  in  which  the  public  is  interested.  New  Jersey  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  382.  Their  business  is,  therefore,  "  affected 
with  a  public  interest,"  within  the  meaning  of  the  doctrine  which  Lord 
Hale  has  so  forcibly  stated. 

But  we  need  not  go  further.  Enough  has  already  been  said  to  show 
that,  when  private  property  '"  flpyntpj^  |,q  fi  pujjlic  use,  it  is  subject  to 
public  regulation.  It  remains  onh-  to  ascertain  whether  the  warehouses 
of  these  plaintiffs  in  error,  and  the  business  which  is  cai'ried  on  there, 
come  within  the  operation  of  this  principle. 

For  this  purpose  we  accept  as  true  the  statements  of  fact  contained 
in  the  elaborate  brief  of  one  of  the  counsel  of  the  plaintiffs  in  error. 
From  these  it  appears  that  "the  great  producing  region  of  the  West 
and  North-west  sends  its  grain  by  water  and  rail  to  Chicago,  where  the 
greater  part  of  it  is  shipped  by  vessel  for  transportation  to  the  seaboard 
by  the  Great  Lakes,  and  some  of  it  is  forwarded  b}-  railway  to  the 
Eastern  ports.  .  .  .  Vessels,  to  some  extent,  are  loaded  in  the  Chicago 
harbor,  and  sailed  through  the  St.  Lawrence  directly  to  Europe.  .  .  . 
The  quantity  [of  grain]  received  in  Chicago  has  made  it  the  greatest 
grain  market  in  the  world.  This  business  has  created  a  demand  for 
means  by  which  the  immense  quantit}'  of  grain  can  be  handled  or  stored, 
and  these  have  been  found  in  grain  warehouses,  which  are  commonly 
called  elevators,  because  the  gram  is  elevated  from  the  boat  or  car,  by 
machinery  operated  b}'  steam,  into  the  bins  prepared  for  its  reception, 
and  elevated  from  the  bins,  by  a  like  process,  into  the  vessel  or  car 
which  is  to  carry  it  on.  ...  In  this  way  the  largest  traffic  between  the 


CHAP,  v.]  MUNN    V.    ILLINOIS.  749 

citizens  of  the  country  novtli  and  west  of  Chicago  and  the  citizens  of 
the  country  lying  on  the  Atlantic  coast  north  of  Washington  is  in  grain 
\vhicli  passes  through  the  elevators  of  Chicago.  In  this  way  the  trade 
ill  grain  is  carried  on  by  the  inhabitants  of  seven  or  eight  of  the  great 
States  of  the  West  with  four  or  five  of  the  States  lying  on  tlie  sea-shore, 
and  forms  the  largest  part  of  interstate  commerce  in  these  States. 
The  grain  warehouses  or  elevators  in  Chicago  are  immense  structures, 
holding  from  300,000  to  1,000,000  bushels  at  one  time,  according  to 
size.  They  are  divided  into  bins  of  large  capacity  and  great  strength. 
.  .  .  They  are  located  with  the  river  harbor  on  one  side  and  the  rail- 
way tracks  on  the  other ;  and  the  grain  is  run  through  them  from  car  to 
vessel,  or  boat  to  car,  as  may  be  demanded  in  the  course  of  business.  It 
has  been  found  impossible  to  preserve  each  owner's  grain  separate,  and 
this  has  given  rise  to  a  system  of  inspection  and  grading,  by  which  the 
grain  of  different  owners  is  mixed,  and  receipts  issued  for  the  number  of 
bushels  which  are  negotiable,and  redeemable  in  like  kind,  upon  demand. 
This  mode  of  conducting  the  business  was  inaugurated  more  than 
twenty  years  ago,  and  has  grown  to  immense  proportions.  Tlie  rail- 
ways have  found  it  impracticable  to  own  such  elevators,  and  public 
policy  forbids  the  transaction  of  such  business  by  the  carrier  ;  the  owner- 
ship lias,  tlierefore,  been  by  private  individuals,  who  have  embarked 
tlieir  capital  and  devoted  their  industry  to  such  business  as  a  private 
pursuit." 

In  this  connection  it  must  also  be  borne  in  mind  that,  although  in 
1874  there  were  in  Chicago  fourteen  warehouses  adapted  to  this  par- 
ticular business,  and  owned  by  about  thirty  persons,  nine  business 
firms  controlled  them,  and  that  the  prices  charged  and  received  for 
storage  were  such  "  as  have  been  from  year  to  year  agreed  upon  and 
establislied  by  the  ditTerent  elevators  or  warehouses  in  the  city  of 
Chicago,  and  which  rates  have  been  annually  published  in  one  or  more 
newspapers  printed  in  said  cit}',  in  the  month  of  January  in  each  3'ear, 
as  the  established  rates  for  Uie  year  then  next  ensuing  sucli  publication." 
Thus  it  is  apparent  that  all  the  elevating  facilities  through  which  these 
vast  productions  "of  seven  or  eight  great  States  of  the  West"  must 
pass  on  the  way  "  to  four  or  five  of  the  States  on  the  sea-shore"  may 
be  a  "virtual"  monopoly. 

Under  such  circumstances  it  is  diflficult  to  see  why,  if  the  common 
carrier,  or  the  miller,  or  the  ferryman,  or  the  innkeeper,  or  the  wharfin- 
ger, or  the  baker,  or  tlie  cartman,  or  the  hackney-coachman,  pursues  a 
public  employment  and  exercises  "  a  sort  of  public  office,"  these  plain- 
tifl^s  in  error  do  not.  They  stand,  to  use  again  the  language  of  their 
counsel,  in  the  ver}'  "  gateway  of  commerce,"  and  take  toll  from  all 
wlio  pass.  Their  business  most  certainly  "  tends  to  a  common  charge, 
^d  if=i  bppr)]7^p  a  thing  of  public  interest  and  use."  Everv  bushel  of 
grain  for  its  passage  "  pays  a  toll,  which  is  a  common  charge,"  and, 
therefore,  according  to  Lord  Hale,  every  such  warehouseman  "ought 
to  be  under  public  regulation,  viz.,  that  he  .  .  .  take  but  reasonable 


750  MUXX   V.   ILLINOIS.  [CHAP.  V. 

toll."  Certainl}',  if  an}'  business  can  be  clothed  "  with  a  public  interest 
and  cease  to  he  juris  privati  only,"  tliis  has  been.  It  ma\'  not  be  made 
so  b}'  the  operation  of  the  Constitution  of  Illinois  or  this  statute,  but  it 
is  b}'  the  facts. 

We  also  are  not  permitted  to  overlook  the  fact  that,  for  some  reason, 
the  people  of  Illinois,  when  they  revised  their  Constitution  in  1870,  saw 
fit  to  make  it  the  dut}'  of  the  General  Assembl}-  to  pass  laws  "  for  the 
protection  of  producers,  shippers,  and  receivers  of  grain  and  produce," 
art.  13,  sect.  7 ;  and  by  sect.  5  of  the  same  article,  to  require  all  rail- 
road companies  receiving  and  transporting  grain  in  bulk  or  otherwise  to 
deliver  the  same  at  an}-  elevator  to  which  it  might  be  consigned,  that 
could  be  reached  b}'  anj-  track  that  was  or  could  be  used  by  such  com- 
pan}',  and  that  all  railroad  companies  should  permit  connections  to  be 
made  with  their  tracks,  so  that  an}'  public  warehouse,  &c.,  might  be 
reached  by  the  cars  on  their  railroads.  This  indicates  verv  clearly  th.it 
during  the  twenty  years  in  which  this  pecidiar  business  had  beenjissum:: 
ing  its  present  ''  immense  proportions, "  something  had  occurred  which 
led  the  whole  body  of  the  people  to  suppose  that  remedies  such  as  are 
usually  employed  to  prevent  abuses  by  virtual  monotx>lies  might  not  be^ 
inappropriate  here.  For  our  purposes  we  must  assume  that,  if  a  state 
of  facts  could  exist  that  would  justify  such  legislation,  it  actually  did 
exist  when  the  statute  now  under  consideration  was  passed.  For  us 
the  Question  is  one  of  power,  not  of  expediency.  If  no  state  of  circum- 
stances could  exist  to  justif}'  such  a  statute,  then  jr_e_  may  declaTe~tiii& 
r^T]^  vr,\A  ^  hpr>nn<;^e  jn  exccss  of  thc  legislative  power  of  the  St^tft.  "Rut 
if  it  could,  we  must  presume  it  didi.  Of  the  propriety  of  legislative  inter- 
ference within  the  scope  of  legislative  power,  the  legislature  is  the  ex- 
clusiviLJxidge^ 

Neither  is  it  a  matter  of  any  moment  that  no  precedent  can  be  found 
for  a  statute  precisely  like  this.  It  is  conceded  that  the  business  is  one 
of  recent  origin,  that  its  growth  has  been  rapid,  and  that  it  is  already 
of  great  importance.  And  it  must  also  be  conceded  that  it  is  a  busi- 
ness in  which  the  whole  public  has  a  direct  and  positive  interest.  It 
presents,  therefore,  a  case  for  the  application  of  a  long-known  and  well- 
established  principle  in  social  science,  and  this  statute  simply  extends 
the  law  so  as  to  meet  this  new  development  of  commercial  progress. 
There  is  no  attempt  to  compel  these  owners  to  grant  the  public  an 
interest  in  their  property,  but  to  declare  their  obligations,  if  they  use  it 
in  this  particular  manner. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had  built  their 
warehouses  and  established  their  business  before  the  regulations  com- 
plained of  were  adopted.  What  theiLdid  was  from  the  beginning  sub- 
jjppt  t^  the  p/^««^^f  tt»n  hnrly  pr^litin  ir.  rognii-f^  them  to  corTform  to  such 
re(yii]ntions  as  mip-ht,  be  established  by  the  proper  authorities  for  th^ 
rnmnnon  nrnnrl  Thpy  pntprpd  npon  ttfeir  business  and  provided  them- 
ip1y"'ii  TJth  th"  TTir^ns  to  carry  it  on  subject  to  this  nonditinn.  If  they 
did  not  wish  to  submit  themselves  to  such  interference,  they  should  not 


CHAP,  v.]  MUNN   V.   ILLINOIS.  751 

have  clothed  the  public  with  an  interest  in  their  concerns.  The  same 
principle  applies  to  them  that  does  to  the  proprietor  of  a  hackney-car- 
riaoe,  and  as  to  him  it  has  never  been  supposed  that  he  was  exempt 
from  regulating  statutes  or  ordinances  because  he  had  purchased  his 
horses  and  carriage  and  established  his  business  before  the  statute  or 
the  ordinance  was  adopted. 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled  to  a 
reasonable  compensation  for  its  use,  even  though  it  be  clothed  with  a 
public  interest,  and  that  what  is  reasonable  is  a  judicial  and  not  a  legis- 
lative question. 

As  has  alread}-  been  shown,  the  practice  has  been  otherwise.  T:i 
coiuitries  where  the  common  law  prevails,  it  has  been  customar}'  from 
time  immemorial  for  the  legislature  to  declare  what  shall  be  a  reason- 
able compensation  under  such  circumstances,  or,  perhaps  more  properly 
speaking,  to  fix  a  maximum  beyond  which  any  charge  made  would  be 
unreasonable.  Undoubtedly,  in  mere  private  contracts,  relating  to 
matters  in  which  the  public  has  no  interest,  what  is  reasonable  must  be 
ascertained  judicially.  But  this  is  because  the  legislature  has  no  con- 
trol over  such  a  contract.  So,  too,  in  matters  which  do  affect  the  public 
interest,  and  as  to  which  legislative  control  may  be  exercised,  if  there 
are  no  statutory  regulations  upon  the  subject,  the  courts  must  determine 
what  is  reasonable.  The  controUino;  fact  is  tHe  pnwpv  tn_rpffnlflf,e  at  nil. 
If  that  exists,  the  right  to  establish  the  maximum  of  charge,  as  one  of 
the  means  of  regulation,  is  implied.  In  fact,  the  common-law  rule, 
which  requires  the  charge  to  be  reasonable,  is  itself  a  regulation  as  to 
price.  Without  it  the  owner  could  make  his  rates  at  will,  and  compel 
the  public  to  3ield  to  his  terms,  or  forego  the  use. 

Riit^^^'mpvR  common-law  regulation  of  trade  or  business  may_hfi 
changed  by  statute.  ^  person  has  no  property.  Ino"  vested  interest,  in 
any  rule  of  the  common  law-.  That  is  only  one  of  the  forms  of  munici- 
pal  law,  and  is  no  more  sacred  than  any  other.  Rights  of  property 
which  have  been  created  py  the  common  law  cannot  be  taken  away 
without  due  process ;  but  jl;he  law  itself,  as  a  rule_of_cojTdvLft,  may  be 
changed  at  the  will,  or  even  at  the  wliim,  of  tbelegislature,  unless  pre- 
venitedbv  constitutional  limitations.  Indeed,  the^reat  office  of  statutes. 
is  to  remedv  defects  in  the  common  law  as  they  are  developed,  and  tQ. 
adai)t  it  to  the  changes  of  time  and  circumstances.  To  limit  the  rate  of 
charge  for  services  rendered  in  a  public  employment,  or  for  the  use  of 
property  in  which  the  public  has  an  interest,  is  only  changing  a  regula- 
tion which  existed  before.  It  establishes  no  new  principle  in  the  law, 
but  only  gives  a  new  effect  to  an  old  one. 

Weknow  that  this  is  a  power  which  may  be  abused  ;  but  that  is  no 
TT^imirnt  a^iirt  it '  p  ■■i^t''n'"'      T?.aFpvr.tpn|ir.T|  jiuuinsl  abuseij  b'\  tegis^ 
latures  the  people  must  resort  to  the  polls,  not_to_the  courts._ 

After  what  has  already  been  said,  it  is  unnecessary  to  refer  at  length 
to  the  effect  of  the  other  provision  of  the  Fourteenth  Amendment  which 
is  relied  upon,  viz.,  that  no  State  shall  "  deny  to  any  person  within  its 


752  MUNN   V.   ILLINOIS.  [CHAP.  Y. 

jurisdiction  the  equal  protection  of  the  laws."  Certainl}-,  it  cannot  be 
chiimed  that  this  prevents  the  State  from  regulating  the  fares  of  hack- 
men  or  the  charges  of  draymen  in  Chicago,  unless  it  does  the  same  tiling 
in  every  other  place  within  its  jurisdiction.  But,  as  has  been  seen,  the 
power  to  regulate  the  business  of  warehouses  depends  upon  the  same 
principle  as  the  power  to  regulate  hackmen  and  draymen,  and  what  can- 
not be  done  in  the  one  case  in  this  particular  cannot  be  done  in  the 
other. 

We  come  now  to  consider  the  effect  upon  this  statute  of  the  power  of 
Congress  to  regulate  connnerce. 

It  was  very  properly  said  in  the  case  of  the  State  Tax  on  Raihvaij 
Gross  Receipts,  15  Wall.  293,  that  ^Mt  is  not  everything  that  affects, 
commerce  that  amounts  to  a  regulation  ont,jvvithin  the  meaning  of  tlia 
institution."  'i'iie_warehouseiof  these  plaintiffs  in  error  are  situated 
and  their  business  carried  on  exttlusively  within  the  limits  of  the  St;ite 
of  Illinois.  They  are  used  as  instruments  by  those  engaged  in  .State  as 
well  as  those  engaged  in  interstate  commerce,  but  they  are  no  more 
necessarily  a  part  of  commerce  ilself  than  the  dray  or  the  cart  by  which, 
but  for  them,  grain  would  be  tiansferred  from  one  railroad  station  to 
another.  Incidentally  they  ma}]  become  connected  with  interstate  com- 
merce, but  not  necessarily  so.  ffheir  regulatioujs  a  thing  of  domestic 
concern,  and,  certainly,  until  Congress  acts  in  reference  to  their  inter- 
state relations,  the  S_tate_jBay  exercise  all  the  powers  of  government 
over  them,  even  though  in  so  doing  it  inajJndirectlj\oiierateiiponjiom- 
merce  outside  its  immediate  jurisdiction^  We  do  not  say  that  a  case 
may  not  arise  in  which  it  will  be  found  that  a  State,  under  the  form  of 
regulating  its  own  affairs,  has  encroached  upon  the  exclusive  domain  of 
Congress,  in  respect  to  interstate  commerce,  but  we  do  sa}'  that,  upon 
the  facts  as  they  are  represented  to  us  in  this  record,  that  has  not  been 
done. 

The  remaining  objection,  to  wit,  that  the  statute  in  its  present  form 
is  repugnant  to  sect.  9,  art.  1,  of  the  Constitution  of  the  United  States, 
because  it  gives  preference  to  the  ports  of  one  State  over  those  of 
another,  may  be  disposed  of  by  the  single  remark  that  this  provision 
operates  only  as  a  limitation  of  the  powers  of  Congress,  and  in  no  re- 
spect affects  the  States  in  the  regulation  of  their  domestic  affairs. 

We  conclude,  therefore,  that  the  statute  in  question  is  not  repugnant 
to  the  Constitution  of  tlie  United  States,  and  that  there  is  no  error  in 
the  judgment.  In  passing  upon  this  case  we  have  not  been  unmindful 
of  the  vast  importance  of  the  questions  involved.  This  and  cases  of  a 
kindred  character  were  argued  before  us  more  than  a  year  ago  b}'  most 
eminent  counsel,  and  in  a  manner  worthy  of  their  well-earned  reputa- 
tions. We  have  kept  the  cases  long  under  advisement,  in  order  that 
their  decision  might  be  the  result  of  our  mature  deliberations. 

Judgment  affirmed- 

[Field,  J.,  gave  a  dissenting  opinion,  in  which  Strong,  J.,  concurred.] 


CHAP,  v.]  RAILROAD   CO.    V.    HUSEN.  753 


RAILROAD   COMPANY    v.   HUSEN. 
Supreme  Court  of  the  United  States.     1877. 

[95  U.  S.  465.]  1 
Error  to  the  Supreme  Court  of  the  State  of  Missouri.     Mr.  James 
Carr,  for  the  plaintiti'  in  error.     Mr.  M.  A.  Low,  contra. 
Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 
Five  assignments  of  error  appear  in  this  record  ;  but  they  raise  only 
a  single  question.     It  is,  whether  the  statute  of  Missouri,  upon  winch 
the  action  in  the  State  court  was  founded,  is  in  conflict  with  the  clause 
of  the  Constitution  of  the  United  States  that  ordains  -  Congress  shall 
have  power  to  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes."    The  statute,  approved  Jan. 
23    1872,  by  its  first  section,  enacted  as  follows  :  "  No  Texas,  Mexican, 
or'indian  cattle  shall  be  driven  or  otherwise  conveyed  into,  or  remain 
in  any  county  in  this  State,  between  the  first  day  of  March  and  the  first 
day  of  November  in  each  year,  by  any  person  or  persons  whatsoever. 
A  later  section  is  in  these  words  :  "  If  any  person  or  persons  shall  bring 
into  this  State  any  Texas,  Mexican,  or  Indian  cattle,  in  violation  of  the 
first  section  of  this  Act,  he  or  they  shall  be  liable,  in  all  cases,  for  all 
damages  sustained  on  account  of  disease  communicated  by  said  cattle. 
Othei  sections  make  such  bringing  of  cattle  into  the  State  a  criminal 
offence,  and  provide  penalties  for  it.     It  was,  however,  upon  the  provi- 
sions we  have  quoted  that  this  action  was  brought  against  the  rail.-oad 
company  tliat  had  conveyed  the  cattle  into  the  county.    It  is  noticeable 
that  the  statute  interposes  a  direct  prohibition  against  the  introduction 
into  the  State  of  all  Texas,  Mexican,  or  Indian  cattle  during  eight 
months  of  each  year,  without  any  distinction  between  such  as  may  be 
diseased  and  such  as  are  not.     It  is  true  a  proviso  to  the  first  section 
enacts  that  "  when  such  cattle  shall  come  across  the  line  of  the  State, 
loaded  upon  a  railroad  car  or  steamboat,  and  shall  pass  through  the 
State  without  being  unloaded,  such  shall  not  be  construed  as  prohibited 
by  the  Act ;  but  the  railroad  company  or  owners  of  a  steamboat  perform- 
ing such  transportation   shall  be  responsible   for  damages  which  may 
result  from  the  disease  called  the  Spanish  or  Texas  fever,  should  the 
same  occur  along  the  line  of  transportation ;  and  the  existence  of  such 
disease  along  the  line  of  such  route  shall  ha  prima  facie  evidence  that 
such  disease"  has  been  communicated  by  such  transportation."     This 
proviso  imposes  burdens  and  liabilities  for  transportation  through  the 
State,  though  the  cattle  be  not  unloaded,  while  the  body  of  the  section 
absolutely  prohibits  the  introduction  of  any  such  cattle  into  the  State, 
with  the  single  exception  mentioned. 

It  seems  hardly  necessarxiO^fiTffliP  ^^'  length,  t,hat,JUiIess  the^tatute 

1  The  statement  of  facts  is  omitted.  —  Ed. 
VOL.  I. — 48 


754  RAILROAD   CO.    V.    HUSEN.  [cilAP.  V 

can  J)e  justified  as  a  legitimate  exercise  of  the  police  power  of  the  State, 
it  is  a  usurpation  o£  tke^jower  vested  exclusively'  in  Congress.  It  is  a 
plain  regulation  of  interstate  commerce,  a  regulation  extendi ing  to  pm. 
hibition.  Whatever  may  be  the  power  of  a  State  over  commerce  that  is 
completely  internal,  it  can  no  more  prohibit  or  regulate  that  which  is 
interstate  than  it  can  that  which  is  with  foreign  nations.  Power  over 
one  is  given  by  the  Constitution  of  the  United  States  to  Congress  in 
the  same  words  in  which  it  is  given  over  the  other,  and  in  both  cases  it 
is  necessarily  exclusive.  That  the  transportation  of  property'  from  one 
State  to  another  is  a  branch  of  interstate  commerce  is  undeniable,  and 
no  attempt  has  been  made  in  this  case  to  den}'  it. 

The  Missouri  statute  is  a  plain  interference  with  such  transportation, 
an  attempted  exercise  over  it  of  the  highest  possible  power,  —  that  of 
destruction.  It  meets  at  the  borders  of  the  State  a  large  and  common 
subject  of  commerce,  and  prohibits  its  crossing  the  State  line  during 
two  thirds  of  each  year,  with  a  proviso,  however,  that  such  cattle  ma}' 
come  across  the  line  loaded  upon  a  railroad  car  or  steamboat,  and  pass 
through  the  State  without  being  unloaded.  But  even  the  right  of  steam- 
boat ow'ners  and  lailroad  companies  to  transport  such  property  through 
the  State  is  loaded  by  the  law  with  onerous  liabilities,  because  of  their 
agency  in  the  transportation.  The  object  and  effect  of  the  statute  are, 
tliei'efore,  to  obstruct  interstate  commerce,  and  to  discriminate  between 
thejjrouertv  of  citizens  oLone  State  and  that  of  citizens  of  other  States. 
This  court  has  heretofore  said  that  interstate  transportation  of^passen- 
gers  is  beyond  the  reach  of  a  State  legislature.  And  if,  as  we  have  held. 
State  taxation  of  persons  passing^om  one  State  to  another',  or  a  State 
tax  upon  interstate  trnnspoit.atinn  of  pngsfMigiM-Sj  is  prohibited  by  the 
Constitution  because  a  l)urden  upon  it,  ajortlqri,  if  possible,  is  a  State 
tax  upon  the  carriage  of  merchandise  from  State- to-State,  ^Transpoi'^ 
tation  is  essential  to  commerce,  or  rather  it  is  commerce  itself;  ami 
every  obstacle  to  %  qy  iMirf^*^"  ^^''^  npnn  it  by  legislative  authority,j8 
regiilatioi^  Case  of  tlie  State  Freight  Tax,  15  Wall.  232;  Warclw 
Maryland,  12  Id.  418;  Welton  v.  The  State  of  Jlissowi,  91  U.  S. 
275  ;  Henderson  et  al.  v.  Mayor  of  the  City  of  Nexo  York  et  al.,  92  Id. 
259  ;  Chy  Lung  v.  Freeman  et  al.,  Id.  275.  The  two  latter  of  these 
cases  refer  to  obstructions  against  the  admission  of  persons  into  a  State, 
but  the  principles  asserted  are  equally  applicable  to  all  subjects  of 
commerce. 

We  are  thus  brought  to  the  question  whether  the  Missouri  statute  is 
a  lawful  exercise  of  the  police  power  of  the  State.  We  admit  that  the 
deposit  in  Congress  of  the  power  to  regulate  fojieign  commerce  and^ 
commerce  among  the  States  was  not  a  surrender  of  that  which  may 
properly  be  denominated  poliee  powpj-.  What  that  power  is,  it  is  diffi- 
cult to  define  with  sharp  precision.  It  is  generally  said  to  extend  to 
making  regulations  promotive  of  domestic  order,  morals,  health,  and 
safety.  As  was  said  in  Thorpe  y.  The  Rutland  &  Burlington  Railroad 
Co.,  27  Vt.  149,  "  it  extends  to  the  protection  of  the   lives,  limbs, 


CHAP,  v.]  RAILROAD  CO.  V.    HUSEN.  755 

health,  comfort,  and  quiet  of  all  persons,  and  the  protection  of  all  prop- 
ert}"  within  the  State.  According  to  the  maxim,  >Sic  utere  tuo  ut  alienum 
non  Icp.das,  wliich  being  of  universal  application,  it  must,  of  course,  be 
within  the  range  of  legislative  action  to  define  the  mode  and  manner  in 
wliich  every  one  may  so  use  his  own  as  not  to  injure  others."  ...  It 
ma3'  also  be  admitted  that  the  police  power  of  a  State  justifies  the 
adoption  of  precautionary  measures  against  social  evils.  Under  it  a 
State  ma}'  legislate  to  prevent  the  spread  of  crime,  or  pauperism,  or 
disturbance  of  the  peace.  It  ma}'  exclude  from  its  limits  convicts, 
paupers,  idiots,  and  lunatics,  and  persons  likely  to  become  a  public 
charge,  as  well  as  persons  afflicted  by  contagious  or  infectious  diseases  ; 
a  right  founded,  as  intimated  in  the  Passenger  Cases,  7  How.  283,  by 
Mr.  Justice  Greer,  in  the  sacred  law  of  self-defence.  Vide  3  Sawyer, 
283.  The  same  principle,  it  may  also  be  conceded,  would  justify  the 
exclusion  of  property  dangerous  to  the  property  of  citizens  of  the  State  ; 
for  example,  animals  having  contagious  or  infectious  diseases.  All  tjjese 
exertions  of  power  are  in  immediate  comiection  with  the  j^rotection  of 
pei'sons  :\nd  propertxJ:giViust  noyion.s  act.s  of  other  persons,  or  such  a 
use  of  property  as  is  injurious  to  the  property  of  others.  They  are  self- 
detensiTe^__ 

But  whatever  ma}'  be  the  nature  and  reach  of  the  police  power  of  a 
State,  it  cannot  be  exercised  over  a  subject  confided  exclusively  to 
Congress  by  the  Federal  Constitution.  It  cannot  invade  the  domain  of 
the  national  government.  It  was  said  in  Henderson  et  al,  v.  Mayor  of 
the  City  of  Ne%o  York  et  al.,  supra,  to  "be  clear,  from  the  nature  of 
our  complex  form  of  government,  that  whenever  the  statute  of  a  State 
invades  the  domain  of  legislation  which  belongs  exclusively  to  the  Con- 
gress of  the  United  States,  it  is  void,  no  matter  under  what  class  of 
powers  it  may  fall,  or  how  closely  allied  it  may  be  to  powers  conceded 
to  belong  to  the  States."  Substantially  the  same  thing  was  said  by 
Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  9  Wheat.  1.  Neither  the 
unlimited  powers  of  a  State  to  tax,  nor  any  of  its  large  police  powers, 
can_be  exercised  to  such  an  extent  as  to  work  a  practical  assumption  of 
the  powers  properly  conferred  upon  Congress  by  the  Constitution. 
Many  acts  of  a  State  may,  indeed,  affect  commerce,  without  amountit 
to  a  regulation  of  it,  in  the  constitutional  sense  of  the  terra.  And 
it  is  sometimes  difficult  to  define  the  distinction  between  that/which 
merely  aflTects  or  influences  and  that  which  regulates  or  faimishes  a 
rule  of  conduct.  There  is  no  such  difficulty  in  the  [jyesent  case. 
While  we  unhesitatingly  admit  that  a  State  may  pasS/Sanitary  laws, 
and  laws  for  the  protection  of  life,  liberty,  health,  oi/property  within 
its  borders  ;  while  it  may  prevent  persons  and  animftls  suffering  under 
contagious  or  infectious  diseases,  or  convicts,  ^6.,  from  entering  the 
State  ;  while  for  the  purpose  of  self-protection  it  may  establish  quar- 
antine,   and    reasonable    inspection    laws,   'Vi   may   not  interfere  with_ 

transportfltinn    into   or   thrniigli    \hc    Sf-ata,— boytinrl    what    ig    absoLuteJj' 

necessary  for  its  self-protection.     It  may  not,  under  cover  of  exert 


756  RAILROAD    CO.    V.    HUSEN.  [CHAP.  V. 

ing  its  police  powers,  siihstaiitiiiUy  prohibit  or  burden  either  foreign 
or  interstate  commerce.  Upon  this  subject  the  cases  in  92  U.  S.  to 
which  we  have  referred  are  very  instructive.  In  Iltnderson  v.  The 
Mayor,  t&c,  the  statute  of  New  York  was  defended  as  a  police  regu- 
lation to  protect  the  State  against  the  influx  of  foreign  paupers ;  but 
it  was  held  to  be  unconstitutional,  because  its  practical  result  was  to 
impose  a  burden  upon  all  passengers  from  foreign  countries.  And  it 
was  laid  down  that,  "  in  vyhatever  language  a  statute  may  be  framed, 
its  purpose  must  be  determined  b}"  its  natural  and  reasonable  effect." 
The  reach  of  the  statute  was  far  beyond  its~i)rofessed  object,  and  far 
into  the  realm  which  is  within  the  exclusive  jurisdiction  of  Congress. 
So  in  the  case  of  Chy  Lung  v.  Freeman,  where  the  pretence  was  the 
exclusion  of  lewd  women  ;  but  as  the  statute  was  more  far-reaching,  and 
affected  other  immigrants,  not  of  any  class  which  the  State  could  law- 
fully exclude,  we  held  it  unconstitutional.  Neitherof  these  cases  denied 
the  right  of  a  State  to  protect  herself  against  paupers,  convicted  crimi- 
nals, or  lewd  women,  by  necessary  and  proper  laws,  in  the  absence  of 
legislation  by  Congress,  but  it  was  ruled  that  the  right  could  only  arise 
from  vital  necessity,  and  that  it  could  not  be  carried  beyond  the  scope 
of  that  necessity.  These  cases,  it  is  true,  speak  only  of  laws  affecting 
the  entrance  of  persons  into  a  State  ;  but  the  constitutional  doctrines 
the}-  maintain  are  equally  applicable  to  interstate  transportation  of 
property'.  They  deny  validity  to  an}-  State  legislation  professing  to  be 
an  exercise  of  police  power  for  protection  against  evils  from  abroad, 
which  is  beyond  the  necessit}*  for  its  exercise  wherever  it  interferes  with 
the  rights  and  powers  of  the  Federal  government. 

Tried  by  this  rule,  the  statute  of  Missouri  is  a  plain  intrusion  upon 
the  exclusive  domain  of  Congress.  It  is  not  a  quarantine  law.  It  is 
not  an  inspection  law.  It  says  to  all  natural  persons  and  to  all  trans- 
portation companies,  "You  shall  not  bring  into  the  State  any  Texas 
cattle  or  any  Mexican  cattle  or  Indian  cattle,  between  March  1  and 
Dec.  1  in  an}'  year,  no  matter  whether  they  are  free  from  disease  or  not, 
no  matter  whether  they  ma}'  do  an  injury  to  the  inhabitants  of  the  State 
or  not ;  and  if  you  do  bring  them  in,  even  for  the  purpose  of  carrying 
them  through  the  State  without  unloading  them,  you  shall  be  subject  to 
extraordinary  liabilities."  Such  a  statute,  we  do  not  doubt,  it  is  beyond 
the  power  of  the  State  to  enact.  To  hold  otherwise  would  be  to  ignore 
one  of  the  leading  objects  which  the  Constitution  of  the  United  States 
was  designed  to  secure. 

In  coming  to  such  a  conclusion,  we  have  not  overlooked  the  decisions 
of  very  respectable  courts  in  Illinois,  where  statutes  similar  to  the  one 
we  have  before  us  have  been  sustained.  Yeasel  v.  Alexander,  58  111. 
254.  Regarding  the  statutes  as  mere  police  regulations,  intended  to 
protect  domestic  cattle  against  infectious  disease,  those  courts  have 
refused  to  inquire  whether  the  prohibition  did  not  extend  beyond  the 
danger  to  be  apprehended,  and  whether,  tlierefore,  the  statutes  were  not 
fc^omething  more  than  exertions  of  police  power.     That  inquir}-,  they 


CHAP,  v.]  BEER    CO.   V.    MASS.  757 

have  said,  was  for  the  legislature  and  not  for  the  courts.  With  this  we 
cannot  concur.  The  police  power  of  a  State  cannot  obstruct  foreign 
commerce  or  interstate  commerce  beyond  the  necessity  foi-  its  exercise  ; 
and  under  color  of  it  objects  not  within  its  scope  cannot  be  secured  at 
the  expense  of  the~~proteclTon  a^orded  b^  tha  Federal  Constitution. 
And  as  its  range  sometimes  comes  very  near  to  the  field  committed  by 
the  Constitution  to  Congress,  it  is  the  duty  of  the  (^o^ij^  to  guard  vigi- 
Sntl}-  against  any  needlessintrusion. 

Judgment  reversed^  and  the  record  remanded  with  instructions  to 

reverse  the  judgment  of  the  Circuit  Court  of  Grmidy  County,  and 

to  direct  that  court  to  award  a  new  trial. ^ 

In  Beer  Co.  v.  Mass.,  97  U.  S.  25,  32  (1878),  on  error  to  the  Supe- 
rior Court  of  Massachusetts,  the  plaintiff  in  error,  having  been  incor- 
porated in  that  State,  in  1828,  for  the  purpose  of  manufacturing  malt 
liquors,  denied  the  validity  of  a  prohibitory  liquor  law  of  1869,  on  the 
ground  that  it  impaired  the  obligation  of  the  contract  of  their  charter. 
The  Supreme  Court  of  the  United  States  (Bradley,  J.),  after  holding 
that  the  Legislature  of  Massachusetts  had  reserved  to  itself  power  "  to 
pass  any  law  it  saw  fit,"  continued  :  "  But  there  is  another  question  in 
the  case,  which,  as  it  seems  to  us,  is  equally  decisive. 

"The  plaintiff  in  error  was  incorporated  '  for  the  purpose  of  manu- 
facturing malt  liquors  in  all  their  varieties,'  it  is  true  ;  and  the  right  to 
manufacture,  undoubtedly,  as  the  plaintiff's  counsel  contends,  included 
the  incidental  right  to  dispose  of  the  liquors  manufactured.  But 
although  this  right  or  capacity  was  thus  granted  in  the  most  unqualified 
form,  it  cannot  be  construed  as  conferring  any  greater  or  more  sacred 
right  than  any  citizen  had  to  manufacture  malt  liquor  ;  nor  as  exempt- 
ing the  corporation  from  any  control  therein  to  which  a  citizen  would 
be  sul)ject,  if  the  interests  of  the  community'  should  require  it.  IlLilifi. 
public  safety  or  the  public  morals  require  the  disj2ontinuance  of  any 

1  In  Kimmish  v.  Ball,  129  U.  S.  217,  222  (1889),  the  court  (Field,  J.)  said  :  "  The 
case  is,  therefore,  reduced  to  this,  whether  the  State  may  not  provide  that  whoever 
permits  diseased  cattle  in  his  possession  to  run  at  large  within  its  limits  shall  be  liable 
for  any  damages  caused  by  the  spread  of  the  disease  occasioned  thereby  ;  and  upon  that 
we  do  not  entertain  the  slightest  doubt.  Our  answer,  therefore,  to  the  first  question 
upon  which  the  judge  below  differed  is  in  the  negative,  that  the  section  in  question  is 
uot  unconstitutional  by  reason  of  any  conflict  with  the  commercial  clause  of  the  Con- 
stitution. 

"  As  to  the  second  question,  our  answer  is  also  in  the  negative.  There  is  no  denial  of 
any  rights  and  privileges  to  citizens  of  other  States  which  are  accorded  to  citizens  of 
Iowa.  No  one  can  allow  diseased  cattle  to  run  at  large  in  Iowa  without  being  held 
responsible  for  the  damages  caused  by  the  spread  of  disease  thereby  ;  and  the  clause  of 
the  Constitution  declaring  that  the  citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  States  does  not  give  nonresident  citizens 
of  Iowa  any  greater  privileges  and  immunities  in  that  State  than  her  own  citizens  there 
enjoy.  So  far  as  liability  is  concerned  for  the  act  mentioned,  citizens  of  other  States 
and  citizens  of  Iowa  stand  upon  the  same  footing.  Patl  v.  Virginia,  8  Wall.  168." 
Compare  Harriyan  v.  Conn.  River  Luinbir  Co.,  129  Mass.  580. — Ed. 


758  HEAD    MONEY    CASES.  [CHAP.  V 

nianufacture  or  traffifi^the  hand^  the  legislature  cannot  be  stayed  from 
providing  for  its  discontinuance,  by  any  incidental  inconvenience  gjiiiiull 
^ndniduals  or  corporations  may  sutler.     All  rights  are  held  subject  to 
the  police  power  of  the  State. 

"  We  do  not  mean  to  say  that  property  actually  in  existence,  and  in 
which  the  right  of  the  owner  has  become  vested,  may  be  taken  for  the 
public  good  without  duo  compensation.  But  we  infer  that  the  liquor  in 
this  case,  as  in  the  case  of  Bartemeyer  v.  loica,  18  Wall.  129,  was  not 
in  existence  when  the  liquor  law  of  Massachusetts  was  passed.  Had 
the  plaintiff  in  error  relied  on  the  existence  of  the  property  prior  to  the 
law,  it  behooved  it  to  show  that  fact.  But  no  such  fact  is  shown,  and 
no  such  point  is  taken.  The  plaintiff  in  error  boldly  takes  the  ground 
that,  being  a  corporation,  it  has  a  right,  by  contract,  to  manufactiTre 
and  sell  beer  forever,  notwTnistandmg  and  in  sprte  of  any  exigencies 
which  may  occur  in  the  morals  or  the  health  of  the  community,  reqiiir- 
ing  such  manufacture  to  cease.  We  do  not  so  understand  the  rights 
of  the  plaintiff.  Ti'*"  Ifgialnfm-P  had-co-^iower  to  confer  any  such 
rights. 


•'Whatever  differences  of  opinion  may  exist  as  to  the  extent  and 
boundaries  of  thJpolice  pow^rj_andJiowexer_difficult  it  may  be  to  ren- 
der  a  satisfactor3^efinition  of  it,  there  seems  to  be  no  doubt  that  it 
does  extend  to  the  protection  of  the  lives,  health,  and  property-  of  The 
citizens,  and  to  the  preservation  of  good  order  and  the  public  morals. 
Thf'!  Ipp;is1nfi]i-e  oannot,  by  any  contract,  divest  itself  of  the  power  to 
provide  for  these  obiects\  They  belong  emphatically  to  that  class  of 
objects  which  demand  the  application  of  the  maxim,  Salus  popuU  su- 
2'>renia  lex;  and  the^-  are  to  be  attained  and  provided  for  by  such  appi-o- 
priate  means  as  the  legislative  discretion  may  devise.  That  discretion 
can  no  more  be  bargained  away  than  the  power  itself.  Boyd  v.  Ala- 
bama, 94  U.  S.  645. 

"  Since  we  have  already  held,  in  the  case  of  Bartemeyer  v.  loica, 
that  as  a  measure  of  police  regulation,  looking  to  the  preservation  of 
public  morals,  a  State  law  prohibiting  the  manufacture  and  sale  of 
intoxicating  liquors  is  not  repugnant  to  any  clause  of  the  Constitution 
of  the  United  States,  we  see  nothing  in  the  present  case  that  can  afford 
any  sufficient  ground  for  disturbing  the  decision  of  the  Supreme  Court 
of  Massachusetts."  .  .  .  Judgment  affirmed. 

In  the  Head  Money  Cases ^  112  U.  S.  580,  590  (1884),  in  sustaining 
an  Act  of  Congress  of  1882,  imposing  '•  a  duty  of  fift}'  cents  for  each 
and  every  passenger  not  a  citizen  of  the  United  States  who  shall  come 
by  steam  or  sail  vessel  from  a  foreign  port  to  an}-  port  within  the 
United  States,"  Millek,  J.,  for  the  court,  said:  "This  Act  of  Con- 
gress is  similar  in  its  essential  features  to  many  statutes  enacted 
by  States  of  the  Union  for  the  protection  of  their  own  citizens,  and  for 
the  good  of  the  immigrants  who  land  at  seaports  within  their  borders. 

*'T!iat  the  purpose  of  these  statutes  is  humane,  is  highly  beneficial 


CHAP,  v.]  HEAD  MONEY  CASES.  759 

to  the  poor  and  helpless  immigrant,  and  is  essential  to  the  protection  of 
the  people  in  whose  midst  they  are  deposited  by  the  steamsliips,  is 
beyond  dispute.  That  tlie  power  to  pass  such  laws  should  exist  in 
some  legislative  body  in  this  country  is  equally  clear.  This  court  has 
decided  distinctly  and  frequently,  and  alwajs  after  a  full  hearjn^^Jiioni 
able  counsel,  That  it  doesjiot  belong  to  the  Statgs.  That  decision  did 
n'oFrest  TiTany  case  on  the  ground  that  the  State^nd  its  people  were 
not  deeply  interested  in  the  existenee'and  enforcement  of  such  laws, 
and  were  not  capable  of  enforcing  them  if  they  had  the  power  to  enact 
them  ;  but  onJJ^e-ground  that  the  Constitution,  in  the  diyision_pf  powers 
which  it  declares  between  the  States  and  the  general  government,  has 
confeiTC3~tirrs  power  on  the  latter  to  the  exchision  of  the  former.  ^"We 
a"re  now  asked  toUccide  that  it  does  not  exist  in  Congress,  which  is  to 
hold  that  it  does  not  exist  at  all  —  that  the  framers  of  the  Constitution 
have  so  worded  that  remarkable  instrument,  that  the  ships  of  all  nations, 
including  our  own,  can,  without  restraint  or  regulation,  deposit  here,  if 
they  find  it  to  their  interest  to  do  so,  the  entire  European  population  of 
criminals,  paupers,  and  diseased  persons,  without  making  any  provision 
to  preserve  them  from  starvation,  and  its  concomitant  sufferings,  even 
for  tlie  first  few  days  after  they  have  left  the  vessel. 

"This  court  is  not  only  asked  to  decide  this,  but  it  is  asked  to  over- 
rule its  decision,  several  times  made  with  unanimity,  that  the  power 
does  reside  inCongress,  is  conferred  upon  that  body  bxi-he_  express 
language  of  the  Constitution, ^nd  the  attention  of  Congress  djrecte<l  to 
the^utN-vvjiich_arises^  thaUanguage  to  pass  the  very  law  whichjs 
here  in  question. 

"That  these  statutes  are  regulations  of  commerce  — of  commerce 
with  foreign  nations  —  is  conceded  in  the  argument  in  this  case  ;  and 
that  they  constitute  a  regulation  of  that  class  which  belongs  exclusively 
to  Congress  is  held  in  all  the  cases  in  this  court.  It  is  upon  these  propo- 
sitions that  the  court  has  decided  in  all  these  cases  that  the  State  laws 
arc  void.  .  .  .  [Here  the  court  considers  an  objection  to  the  imposition 
in  question  as  being  not  uniform  and  not  levied  to  "provide  for  the 
common  defence  and  general  welfare  of  the  United  States."] 

"  If  it  were  necessary  to  prove  that  the  imposition  of  this  contribu- 
tion on  owners  of  ships  is  made  for  the  general  welfare  of  the  United 
States,  it  would  not  be  difficult  to  show  that  it  is  so,  and  particularly 
that  it  is  among  the  means  which  Congress  may  deem  necessary  and 
proper  for  that  purpose;  and  beyond  this  we  are  not  permitted  to 
inquire. 

"  But  thejtme  answer  to  all  these  objections  is  that  .the  pawer  exer- 
cised in  this  instance  is  not  the  taxing  power.     The  burden  imposed^on 
jiTe  ship  owner  by  this  statute  is  the  mere  incident  of  the  regulation  oX_ 
commerce  — of  that  branch  oOoreign  commerce  which  is  InAiolvedJn 
immigration. " 


760  HEAD   V.    AMOSKEAO    MANUF.    CO.  [ClIAP.  V. 


HEAD  V.   AMOSKEAG  MANUFACTURING   COMPANY. 

Supreme  Court  of  the  United  States,  1885. 

[113  U.  5.9.] 

This  was  a  writ  of  error  to  reverse  a  judgment  of  the  Supreme 
Court  of  the  State  of  New  Hampshire  against  the  plaintiff  in  error, 
upon  a  petition  filed  by  the  defendant  in  error  (a  corporation  estab- 
lished b}'  the  laws  of  New  Hampshire  for  the  manufacture  of  cotton, 
woollen,  iron  and  other  materials)  for  the  assessment  of  damages  for 
the  flowing  of  his  land  by  its  mill-dam  at  Amoskeag  Falls  on  the  Merri- 
mack River,  under  the  general  mill  Act  of  that  State  of  1868,  ch.  20, 
which  is  copied  in  the  margin.  [It  is  omitted  here ;  the  substance  of 
it  sufficientl}'  appears  in  what  follows.] 

In  the  petition  filed  in  the  State  court,  the  Amoskeag  Manufacturing 
Company  alleged  that  it  had  been  authorized  b}-  its  charter  to  purchase 
and  hold  real  estate,  and  to  erect  thereon,  such  dams,  canals,  mills, 
buildings,  machines  and  works  as  it  might  deem  necessar}'  or  useful 
in  carrying  on  its  manufactures  and  business ;  that  it  had  purchased 
the  land  on  both  sides  of  the  Merrimack  River  at  Amoskeag  Falls, 
including  the  river  and  falls,  and  had  there  built  mills,  dug  canals,  and 
established  works,  at  the  cost  of  several  millions  of  dollars,  and,  for 
the  purpose  of  making  the  whole  power  of  the  river  at  the  falls  avail- 
able for  the  use  of  those  mills,  had  constructed  a  dam  across  the  river ; 
that  the  construction  of  the  mills  and  dam,  to  raise  the  water  for  work- 
ing the  mills,  for  creating  a  reservoir  of  water,  and  for  equalizing  its 
flow,  was  of  public  use  and  benefit  to  the  people  of  the  State,  and 
necessary  for  the  use  of  the  mills  for  which  it  was  designed  ;  and  that 
Head,  the  owner  of  a  tract  of  land,  described  in  the  petition,  and 
bounded  by  the  river,  claimed  damages  for  the  overflowing  thereof  by 
the  dam,  which  the  corporation  had  been  unable  satisfactorily  to  adjust ; 
and  prayed  that  it  might  be  determined  whether  the  construction  of  the 
mills  and  dam,  and  the  flowing,  if  any,  of  Head's  land  to  the  depth 
and  extent  that  it  might  or  could  be  flowed  thereby,  were  or  might  be 
of  public  use  or  benefit  to  the  people  of  the  State,  and  whether  they 
were  necessary  for  the  mills,  and  that  damages,  past  or  future,  to  the 
land  by  the  construction  of  the  dam  might  be  assessed  according  to 
the  statute. 

At  successive  stages  of  the  proceedings,  b}'  demurrer,  by  request 
to  the  court  after  the  introduction  of  the  evidence  upon  a  trial  by 
jur3%  and  by  motion  in  arrest  of  judgment.  Head  objected  that  the 
statute  was  unconstitutional,  and  that  the  petition  could  not  be  main- 
tained, because  they  contemplated  the  taking  of  his  propert}'  for  private 
use,  in  violation  of  the  Fourteenth  Amendment  of  the  Constitution  of 
the  United  States,  which  declares  that  no  State  shall  deprive  any  per- 


CHAP,  v.]         HEAD  V.    AMOSKEAG  MANUF.  CO.  76l 

son  of  property  without  due  process  of  law,  nor  den^'  to  an}'  person 
within  its  jurisdiction  the  equal  protection  of  the  laws;  as  well  as  in 
violation  of  the  Constitution  of  the  State,  the  Bill  of  Rights  of  which 
declares  that  all  men  have  certain  natural,  essential  and  inherent  rights, 
among  which  are  the  acquiring,  possessing  and  protecting  property, 
and  that  every  member  of  the  community  has  a  right  to  be  protected 
in  the  enjoyment  of  his  property. 

His  objections  were  overruled  by  the  highest  court  of  New  Hamp- 
shire, and  final  judgment  was  entered,  adjudging  that  the  facts  all  eg;  d 
in  the  petition  wei-e  true,  and  tliat,  upon  payment  or  tender  of  the 
damages  assessed  by  the  verdict,  with  interest,  and  fifty  per  cent  added, 
making  in  all  the  sum  of  $572.43,  tlie  company  have  the  right  to  erect 
and  maintain  the  dam,  and  to  flow  his  land  forever  to  the  depth  and 
extent  to  which  it  might  or  could  be  flowed  or  injured  thereby.  56  N. 
H.  386  ;  59  N.  H.  332,  563. 

Mr.  C.  M.  Morrison,  for  plaintiff  in  error. 

Mr.  George  F.  Hoar  and  Mr.  B.  Wadleigh,  for  defendant  in  error. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court.  He  recited 
the  facts  as  above  stated,  and  continued  : 

The  position  that  the  plaintiff  in  error  has  been  denied  the  equal  pro- 
tection of  tiie  laws  was  not  insisted  upon  at  the  argument.  The  single 
question  presented  for  decision  is  whether  he  has  been  deprived  of  his 
property  witliout  due  process  of  law,  in  violation  of  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States.  It  is  only  as 
l)earing  upon  that  question,  that  this  court,  upon  a  writ  of  error  to  a 
State  court,  has  jurisdiction  to  consider  whether  the  statute  conforms  to 
tlie  Constitution  of  the  State. 

The  charter  of  the  Amoskeag  Manufacturing  Company,  which 
authorized  it  to  erect  and  maintain  its  mills  and  dam,  gave  it  no 
right  to  flow  the  lands  of  otiiors.  Eastman  v.  Amoskeag  Manufactur- 
ing Co.^  44  N.  H.  143.  The  proceedings  in  the  State  court  were  had 
under  the  general  mill  Act  of  New  Hampshire,  which  enacts  that  any 
person,  or  an}-  corporation  authorized  by  its  charter  so  to  do,  may 
erect  or  maintain  on  his  or  its  own  land  a  water  mill  and  mill-dam  upon 
an}-  stream  not  navigable,  pa3'ing  to  the  owners  of  lands  flowed  the 
damages  which,  upon  a  petition  filed  in  court  by  either  party,  ma}'  be 
assessed,  b}'  a  committee  or  by  a  jur}-,  for  the  flowing  of  the  lands  to 
the  depth  and  extent  to  which  the}'  may  or  can  be  flowed  b}*  the  dam. 
N.  H.  Stat.  1868,  ch.  20. 

The  plaintiff  in  error  contends  that  his  property  has  been  taken  b}' 
the  State  of  New  Hampshire  for  private  use,  and  that  an}-  taking  of 
private  property  for  private  use  is  without  due  process  of  law. 

The  defendant  in  error  contends  that  the  raising  of  a  water  power 
upon  a  running  stream  for  manufacturing  purposes  is  a  public  use ;  that 
the  statute  is  a  constitutional  regulation  of  the  rights  of  riparian 
owners ;  and  that  the  remedy  given  by  the  statute  is  due  process  of 
law. 


762  HEAD   •?;.    AMOSKEAG    MANUF.    CO.  [CHAP.  V. 

General  mill  Acts  exist  in  a  great  majorit}'  of  the  States  of  the  Union. 
Such  Acts,  authoiizing  lands  to  be  taken  or  flowed  in  invitiim,  for  the 
erection  and  maintenance  of  mills,  existed  in  Virginia,  Maryland, 
Delaware  and  North  Carolina,  as  well  as  in  Massachusetts,  New 
Hampshire  and  Rhode  Island,  before  the  Declaration  of  Independence  ; 
and  exist  at  this  da}'  in  each  of  these  States,  except  Maryland,  where 
they  were  repealed  in  1832.  One  passed  in  North  Carolina  in  1777  has 
remained  upon  the  statute-book  of  Tennessee.  The}'  were  enacted  in 
Maine,  Kentucky,  Missouri  and  Arkansas,  soon  after  their  adn)ission 
into  tlie  Union.  They  were  passed  in  Indiana,  Illinois,  Michigan,  Wis- 
consin, Iowa,  Nebraska,  Minnesota,  Mississippi,  Alabama  and  Florida, 
while  they  were  yet  Territories,  and  re-enacted  after  they  became  States. 
They  were  also  enacted  in  Pennsylvania  in  1803,  in  Connecticut  in 
1864,  and  more  recently  in  Vermont,  Kansas,  Oregon,  "West  Virginia 
and  Georgia,  but  were  afterwards  repealed  in  Georgia.  The  principal 
statutes  of  the  several  States  are  collected  in  the  margin.  [The  note 
refers  to  the  statutes  Of  twenty-nine  States.     It  is  omitted  here.] 

In  most-of-those  States,  their  validjtx-lias  Ijec"  assumed^w Ithoii t 
dispute  ;  agd-they  were  never  adjudged  to  be— JDvalid  anralxere-miiLil 
since  1870,  and  then  in  three  States  only,  and  for  incompatibilitywith 
thpir  rpsnective  constitutions^_  Louglibridge  v.  Harris  (1871),  42 
Georgia,  500  ;  Tyler  v.  Beacher  (1871),  44  Vermont,  648  ;  Byerson  v. 
Broicn  (1877),  35  Michigan,  333.  The  earlier  cases  in  Tennessee, 
Alabama  and  New  York,  containing  dicta  to  the  same  effect,  were 
decided  upon  other  grounds.  Harding  v.  Goodlett,  3  Yerger,  40 ; 
Memphis  Bailroacl  v.  3Iemphis,  4  Cold  well,  406  ;  Moore  v.  Wright, 
34  Alabama,  311,  333  ;  Bottoms  v.  Brewer,  54  Alabama,  288  ;  Hay  v. 
Cohoes  Co.,  3  Barb.  42,  47,  and  2  N.  Y.  159. 

The  principal  objects,  no  doubt,  of  the  earlier  Acts  were  grist  mills ; 
and  it  has  been  generally  admitted,  even  by  those  courts  which  have 
entertained  the  most  restricted  view  of  the  legislative  power,  that  a 
grist  mill  which  grinds  for  all  comers,  at  tolls  fixed  by  law,  is  for  a 
public  use.     See  also  BJoir  v.  Ctiming  County,  111  U.  S.  363. 

But  the  statutes  of  many  States  are  not  so  limited,  either  in  terms, 
or  in  the  usage  under  them.  In  Massachusetts,  for  more  than  half  a 
century,  the  mill  Acts  have  been  extended  to  mills  for  any  manufactur- 
ing purpose.  Mass.  Stat.  1824,  ch.  153;  Wolcott  Woollen  Manufac- 
turing Co.  v.  Upham,  5  Pick.  292  ;  Palmer  Co.  v.  Ferrill,  17  Pick.  58, 
65.  And  throughout  New  England,  as  well  as  in  Pennsylvania,  Vir- 
ginia, North  Carolina,  Kentucky,  and  many  of  the  Western  States,  the 
statutes  are  equally  comprehensive. 

It  has  been  held  in  many  cases  of  high  authority,  that  special  Acts 
of  incorporation,  granted  by  the  legislature  for  the^  establishment  of 
dams  to  increase  and  improve  the  water  power  of  rivers  and  navigable 
waters^  for  mechanical  and  raanufectimng  purposes,  are  for  a  public 
'  use.  Scndder  v.  Trenton  Delaware  Falls  Co.,  Saxton,  694,  728,  729  ; 
Boston  &   Boxbury  Mill    Corporation  v.   Neicman^  12   Pick.  467 ; 


CHAP,  v.]  HEAD   V.    AMOSKEAG    MANUF.    CO.  763 

Hazeti  V.  Essex  Co.,  12  Cusli.  475;  CommonweaUh  v.  Essex  Co.,  13 
Gra3-,  239,  251,  252  ;  Hankins  v.  Laivrence,  8  Blackford,  2Q)Q  ;  Great 
Falls  Manufacturing  Co.  v.  Feniald,  47  N.  H.  444. 

In  some  of  those  cases,  the  autliority  conferred  bj'  general  mill  Acts 
iip(ui^nny  nvyppr  of  land  upon  n  stream  to  erect  and  maintain  a  mill  on 
his  own  land  and  to  flow  the  land  of  others,  for  manufacturing  purposes, 
has  been  considered  as  resting  on  the    right   of  eminent  domain,  by 

rpasoiT  nf  ^\}P  f^dvnntngr's  iniiiing  tn  tlip  piihlif  fi-nm  the  improvement-O? 

water  power  and  tlie  promotion  of  manufactures.  See  also  Hulyoke 
Co.  V.  Lyman.,  15  Wall.  500,  506,  507  ;  Beekman  v.  Saratoga  &  Sche- 
nectady Railroad,  3  Paige,  45,  73;  Talbot  v.  Hudson^  16  Gra}',  417, 
426.  And  the  validit}'  of  general  mill  Acts,  when  directly  controverted, 
has  often  been  upheld  upon  that  ground,  confirmed  by  long  usage  or 
prior  decisions.  Jordan  \.  Woodward,  40  Maine,  317;  Olmstead  v. 
Camp,  33  Conn.  532  ;  Todd  v.  Austin,  34  Conn.  78  ;  Venard  v.  Cross, 
8  Kansas,  248  ;  Harding  v.  Funk,  8  Kansas,  315  ;  Miller  v.  Troost,  14 
Minnesota,  282  ;  Newcomb  v.  Smith,  1  Chandler,  71  ;  Fisher  v.  Hori- 
con  Co..,  10  Wisconsin,  351;  Babb  v.  Mackey,  10  Wisconsin,  314; 
JBumhamx.  I'homjjson,  35  Iowa,  421. 

In  New  Hampshire,  from  which  the  present  case  comes,  the  legis- 
lature of  the  Province  in  1718  passed  an  Act  (for  the  most  part  co[)ied 
from  the  Massachusetts  Act  of  1714),  authorizing  the  owners  of  mills 
to  flow  lands  of  others,  paying  damages  assessed  by  a  jury.  The  Act 
of  1718  continued  in  force  until  tlie  adoption  of  the  first  Constitution 
of  the  State  in  1784,  and  afterwards  until  June  20,  1792,  and  was 
then  repealed,  upon  a  general  revision  of  the  statutes,  shortly  before  the 
State  Constitution  of  1792  took  effect.  The  provisions  of  the  Bill  of 
Rights,  on  which  the  plaintiff  in  error  relied  in  the  court  below,  were 
exactly  alike  in  the  two  constitutions.  Special  Acts  authorizing  the 
flowing  of  lands  upon  the  payment  of  damages  were  passed  afterwards 
from  time  to  time;  among  others,  the  statute  of  July  8,  1862,  author- 
izing the  Great  Falls  Manufacturing  Company  to  erect  a  dam  upon 
Salmon  Falls  River,  which  was  adjudged  bj'  the  Supreme  Judicial  Court 
of  New  Hampshire  in  1867,  in  an  opinion  delivered  bj-  Chief  Justice 
Perlej',  to  be  consistent  with  the  Constitution  of  that  State,  because 
the  taking  authorized  was  for  a  public  use.  Great  Falls  Manvfact^ir- 
ing  Co.  v.  Fernald,  47  N.  H.  444.  The  statute  now  in  question,  the 
first  general  mill  Act  passed  b}-  the  legislature  of  the  State,  was  passed 
and  took  effect  on  July  3,  1868  ;  was  held  in  Ash  v.  Cum.mings,  50  N. 
H.  591,  after  elaborate  argument  against  it,  to  be  constitutional,  upon  the 
ground  of  the  decision  in  Great  Falls  Manufacturing  Co.  v.  Fernald  ^ 
and  was  enforced  without  question  in  Portland  v.  Morse,  51  N.  H.  188, 
and  in  Toam  v.  Faulkner,  56  N.  H.  255.  In  the  case  at  bar,  and  in 
another  case  since,  the  State  court  held  its  constitutionality  to  be  settled 
by  the  former  decisions.  Amoskeag  Manufacturing  Co.  v.  Head,  56  N. 
H.  386,  and  59  N.  H.  332,  563  ;  Same  v.  Worcester,  60  N.  H.  522. 

The  question  whether  the  erection    and    maintenance    of  mills    for 


764  HEAD   V.    AMOSKEA.G   MANUF.    CO.  [CHAP.  V. 

manufacturing  purposes  under  a  general  mill  Act,  of  which  an}'  owner 
of  land  upon  a  stream  not  navigable  may  avail  himself  at  will,  can  be 
upheld  as  a  taking,  by  delegation  of  the  right  of  eminent  domain,  of 
private  property  for  public  use,  in  the  constitutional  sense,  is  so  im- 
portant and  far  reaching,  that  it  does  not  become  this  court  to  express 
an  opinion  upon  it,  when  not  required  for  the  determination  of  the 
rights  of  the  parties  before  it.  "VYe^prefer  to  rest  the  decis[on  of  this 
case  upon  the  ground  that  such.a  statute^  considered  as^iegulalmg-the 
manner  in  which  the  rights  of  proprietors  of  lands  adjacent  to  a 
stream  may  be  asserted  and  enjoyed,  with  a -due  regard  to  the  interests_ 
of  all,  and  to  the  public  good,  is  within  the  constitutional  power  of  the 
legislqt'im! 

When  property,  in  wbkjl  gpv«^i-g1  povcnn^  hnv<"  ^^comvnon  interest, 

cannot  be  fuUv    a"d    ^Pnofir-inlly    PnjnypH    in    I'fg    Avictinnr    COuditiOll,  tllfi. 

law  often  provides  a  way  in  wiiioh  they  may  compel  one  another  to  suh;. 
mit  to  measures  necessary  to  secure  its  beneficial  enjoyment,  making 
equitable  (;ompensation  to  any  whose  control  of  OJ  interest  in  the  pia- 
perty  is  thereby  modified. 

In  the  familiar  case  of  land  held  by  several  tenants  in  common,  or  even 
by  joint  tenants  with  right  of  survivorship,  any  one  of  them  may  compel 
a  partition,  upon  which  the  court,  if  the  land  cannot  be  equally  divided, 
will  order  oweltv  to  be  paid,  or  in  many  States,  under  statutes  the  con- 
stitutionality of  which  has  never  been  denied,  will,  if  the  estate  is  such 
that  it  cannot  be  divided,  either  set  it  off  to  one  and  order  him  to  com- 
pensate the  others  in  monc}-,  or  else  order  the  whole  estate  to  be  sold. 
Kinff  V.  Heed,  11  Gray,  490;  Bentley  v.  Long  Dock  Co.,  1  McCarter, 
480 ;  s.  c.  on  appeal,  nom.  Manners  v.  Bentley.,  2  McCarter,  501 ; 
Mead  v.  Mitchell ,  17  N.  Y.  210;  Rkhardsonv.  Monson,  23  Conn.  94. 
"Water  rights  held  in  common,  incapable  of  partition  at  law,  ma}-  be  the 
subject  of  partition  in  equity,  either  b}-  apportioning  the  time  and 
extent  of  use,  or  b}*  a  sale  of  the  right  and  a  division  of  the  pro- 
ceeds. Smith  V.  Smith,  10  Paige,  470;  De  Witt  v.  Harvey,  4  Gra}', 
486  ;   3IcGillivray  v.  Evans,  27  California,  92. 

At  the  common  law,  as  Lord  Coke  tells  us,  "  If  two  tenants  in  com- 
mon, or  joint  tenants,  be  of  an  house  or  mill,  and  it  fall  in  deca}',  and 
the  one  is  willing  to  repair  the  same,  and  the  other  will  not,  he  that  is 
willing  shall  have  a  writ  de  rejiaratione  facienda  ;  and  the  writ  saith, 
ad  reparationern,  et  sustentationem  ejusdem  domiis  teneantur  ;  whereb}' 
it  appeareth  that  owners  are  in  that  case  bound  jyro  bono  2Jyblico  to 
maintain  houses  and  mills  which  are  for  habitation  and  use  of  men." 
Co.  Lit.  200  b  ;  i  Kent  Com.  370.  In  the  same  spirit,  the  statutes  of 
Massachusetts,  for  a  hundred  and  seventy-five  j-ears,  have  provided  that 
any  tenant  in  common  of  a  mill  in  need  of  repair  ma}'  notify  a  general 
meeting  of  all  the  owners  for  consultation,  and  that,  if  any  one  refuses 
to  attend,  or  to  agree  with  the  majorit}',  or  to  pa}'  his  share,  the  majority 
may  cause  the  repairs  to  be  made,  and  recover  his  share  of  the  expenses 
out  of  the  mill  or  its  profits  or  earnings.     Mass.  Prov.  Stat.  1709,  ch. 


CHAP,  v.]  HEAD   V.   AMOSKEAG   MANUF.    CO.  765 

3,  1  Prov.  Laws  (State  ed.)  641,  and  Anc.  Chart.  388  ;  Stat.  1795,  ch. 
74,  §§  5-7  ;  Rev.  Stat.  1836,  cli.  116,  §§  44-58  ;  Gen.  Stat.  1860,  ch.  149, 
§§  53-64;  Pub.  Stat.  1882,  ch.  190,  §§  59-70.  And  the  statutes  of 
New  Hampshire,  for  more  than  eighty  years,  have  made  provision  for 
compelling  the  repair  of  mills  in  such  cases.  Roberts  v.  Feavey.,  7 
Foster,  477,  493. 

The  statutes  which  have  long  existed  in  many  States  authorizing  the 
majority  of  the  owners  in  severalty  of  adjacent  meadow  or  swainp  lands 
to  have  commissioners  appointed  to  drain  and  improve  the  whole  tract, 
by  cutting  ditches  or  otherwise,  and  to  assess  and  levy  the  amount  of 
the  expense  upon  all  the  proprietors  in  proportion  to  the  benefits  re- 
ceived, have  been  often  upheld,  independently  of  any  effect  upon  the 
public  health,  as  reasonable  regulations  for  the  general  advantage  of 
those  who  are  treated  for  this  purpose  as  owners  of  a  common  property. 
Coomes  v.  Burt,  22  Pick.  422  ;  Wright  v.  Boston,  9  Cush.  233,  241  ; 
Sherman  v.  Tobeij,  3  Allen,  7  ;  Lowell  v.  Boston,  111  Mass.  454,  469  ; 
French  v.  Kirkland,  1  Paige,  117;  Feojde  v.  Brookli/n,  4  N.  Y.  419, 
438;  Coster  v.  Tkle  Water  Co.,  3  C.  E.  Green,  54,  68,  518,  531; 
O'Reileij  v.  Kankakee  Valley  Draining  Co.,  32  Indiana,  169. 

By  the  maritime  law,  based,  as  Lord  Tenterden  observed,  on  the 
consideration  that  the  actual  employment  of  ships  is  "  a  matter,  not 
merely  of  private  advantage  to  the  owners,  but  of  public  benefit  to  the 
State,"  and  recognized  in  the  decisions  and  the  rules  of  this  court,  courts 
of  admiralty,  when  the  part-owners  of  a  ship  cannot  agree  upon  her 
employment,  authorize  the  majority  to  send  her  to  sea,  on  giving 
security  to  the  dissenting  minority,  to  bring  back  and  restore  the  ship, 
or,  if  she  be  lost,  to  pay  them  the  value  of  their  shares  ;  and  in  such 
case  the  minorit}'  can  neither  recover  part  of  the  profits  of  the  voyage 
nor  compensation  for  the  use  of  the  ship.  Abbott  on  Shipping,  pt.  1, 
ch.  3,  §§  2,  3  ;  The  Steamboat  Orlearis,  11  Pet.  175,  183  ;  Rule  20  in 
Admiralty,  3  How.  vii. ;  The  Marengo,  1  Lowell,  52.  If  the  part- 
owners  are  equally  divided  in  opinion  upon  the  manner  of  employing 
the  ship,  then,  according  to  the  general  maritime  law,  recognized  and 
applied  by  Mr.  Justice  Washington,  the  ship  may  be  ordered  to  be  sold 
and  the  proceeds  distributed  among  them.  The  Seneca,  18  Am.  Jur. 
485  j  s.  c.  3  Wall.  Jr.  395.  See  also  Story  on  Partnership,  §  439  ; 
The  Nelly  Schneider,  3  P.  D.  152. 

But  none  of  the  cases,  thus  put  by  way  of  illustration,  so  strongly 
call  for  the  interposition  of  the  law  as  the  case  before  us. 

The  right  to  tlie  use  of  running  water  is  publici  juris,  and  common 
to  all  the  proprietors  of  the  bed  and  banks  of  the  stream  from  its 
source  to  its  outlet.  Each  has  a  right  to  the  reasonable  use  of  the 
water  as  it  flows  past  his  land,  not  interfering  with  a  like  reasonable 
use  by  those  above  or  below  him.  One  reasonable  use  of  the  water  is  the 
use  of  the  power,  inherent  in  the  fall  of  the  stream  and  the  force  of  the 
current,  to  drive  mills.  That  power  cannot  be  used  without  damming  up 
the  water,  and  thereby  causing  it  to  flow  back.      If  the  water  thus 


766  HEAD   V.    AMOSKEAG    MANUF.    CO.  [CHAP.  V. 

dammed  up  by  one  riparian  propVietor  spread  over  the  lands  of  others, 
thev  could  at  common  law  bring  successive  actions  against  him  for  the 
injury  so  done  them,  or  even  have  the  dam  abated.     Before  the  mill 
Acts,  therefore,  it  was  often  impossible  for  a  riparian  proprietor  to  use 
the  water  power  at  all,  without  the  consent  of  those  above  him.     The_ 
purpose  of  these  statutes  is  to  enable  ai^i_ripanan  propiietorjo  erec-t 
a  mill  and  use  the  water  power  of  the  stream,  provided  li£_does  not 
hiterfere  with  an_eai;li££*^^*-' '■'^^'  another  of  a  like  right  or  with  anx_ 
right  of  the  public ;  and  to  substitute,  for  the  common-law  iNemeches_ 
of  relocated  actions  for  damages  and  prostration  of  the  dam,  a  ii£g 
form  of  remed^y,  by  which  any  one  whose  land  is  flowed  can   have 
assessed,  once  for  all,  either  in  a  gross   sum   or   by   way  of  annual 
daaumxs,  adequate  compensation  for  the  injury. 

"^his  view  of  the  principle  upon  which  general  mill  Acts  rest  has 
been  fully  and  clearly  expounded  in  the  judgments  delivered  by  Chief 
Justice  Shaw  in  the  Sui)reme  Judicial  Court  of  Massachusetts. 

In  delivering  the*  opinion  of  the  court  in  a  case  decided  in  1832,  he 
.said:  "  The  statute  of  1796  is  but  a  revibion  of  a  former  law,  and  the 
origin  of  these  regulations  is  to  be  found  in  the  provincial  statute  of 
1714.  They  are  somewhat  at  variance  with  that  absolute  right  of 
dominion  and  enjoyment  which  every  proprietor  is  supposed  by  law  to 
have  in  his  own  soil  ;  and  in  ascertaining  their  extent  it  will  be  useful 
to  inquire  into  the  principle  upon  which  they  are  founded.  We  think 
tjipy  will  be  found  to  rest  for  their  justification,  partly  upon  the  intei:est 
which  the  community  at  large  has  in  th,e_iia£jiud  employment  of  mills, 
and  partly  upon  the  nature  of  the  property,  which  is  often  so  situated. 
that  it  could  not  be  beneficially  usedjyithout  the  aid  of  this-power.  A 
stream  of  water  often  runs  through  the  lands  of  several  proprietors. 
One  may  have  a  sufficient  mill  site  on  his  own  land,  with  ample  space 
on  his  own  land  for  a  mill-pond  or  reservoir,  but  yet,  from  the  operation 
of  the  well-known  physical  law  that  fluids  will  seek  and  find  a  level,  he 
cannot  use  his  own  property  without  flowing  the  water  back  more  or 
less  on  the  lands  of  some  other  proprietor.  We  think  the  power  given 
by  statute  was  intended  to  apply  to  such  eases,  and  that  the  legislature 
meant  to  provide  that,  as  the  public  interest  in  such  case  coincides 
with  that  of  the  mill-owner,  and  as  the  mill-owner  and  the  owner  of 
lands  to  be  flowed  cannot  both  enjo}-  their  full  rights,  without  some  in- 
terference, the  latter  shall  yield  to  the  former,  so  far  that  the  former 
may  keep  up  his  mill  and  head  of  water,  notwithstanding  the  damage 
done  to  the  latter,  upon  payment  of  an  equitable  compensation  for  the 
real  damage  sustained,  to  be  ascertained  in  the  mode  provided  by  the 
statute."  "  From  this  view  of_the  object  and  purpose  of  the  statute^ 
we  think  it  quite  manifest  that  it  was  designed  to  provide  for  the  most 
useful  and  beneficial  occupation  and  enjoyment  of  natural  streams  and 
watercourses,  where  the  absolute  right  of  each  proprietor  to  use  his^ 
own  land  and  water  privileges,  at  his  own  pleasure,  cannot  be  f u IJy 
enjoyed,  and  one  must  of  necessity,  in  some  degree,  yield  to  the  other." 
J^'iske  V.  Framingham  Manufacturing  Co.^  12  Pick.  68,  70-72. 


CHAP,  v.]        HEAD  V.   AMOSKEAG  MANUF.  CO.  767 

In  another  case,  decided  almost  twenty  years  later,  he  said  :  "  The  re- 
lative rights  of  land-owners  and  mill-owners  are  founded  on  the  estab- 
lished rule  of  the  common  law,  that  every  proprietor,  through  whose 
territory  a  current  of  water  flows,  in  its  course  towards  the  sea,  has  an 
equal  right  to  the  use  of  it,  for  all  reasonable  and  beneficial  purposes, 
including  the  power  of  such  stream  for  driving  mills,  subject  to  a  like 
reasonable  and  beneficial  use,  by  the  proprietors  above  him  and  below 
him,  on  the  same  stream.  Consequently  no  one  can  deprive  another  of 
his  equal  right  and  beneficial  use,  by  corrupting  the  stream,  by  wholly 
diverting  it,  or  stopping  it  from  the  proprietor  below  him,  or  raise  it 
artificially,  so  as  to  cause  it  to  flow  back  on  the  land  of  the  proprietor 
above.  This  rule,  in  this  Commonwealth,  is  slightly  modified  by  the 
mill  Acts,  by  the  well-known  provision,  that  when  a  proprietor  erects 
a  dam  on  his  own  land,  and  the  effect  is,  by  the  necessary  operation  of 
natural  laws,  that  the  water  sets  back  upon  some  land  of  the  proprietor 
above,  a  consequence  which  he  may  not  propose  as  a  distinct  purpose, 
but  cannot  prevent,  he  shall  not  thereby  be  regarded  as  committing  a 
tort,  and  obliged  to  prostrate  his  dam,  but  may  keep  up  his  dam,  pay- 
ing annual  or  gross  damages,  the  equitable  assessment  of  which  is  pro- 
vided for  by  the  Acts.  It  is  not  a  ricvht  to  take  and  use  the  land  of  the 
proprietor  above,  against  his  will,  but  it  is  an  authority  to  use^his  owrt^ 
land  and  water  privilege  to  his  own  advaniage  and  tor  the  belTefit  of  the 
community.  It  is  a  provision  by  law,  for  regulating  the  rights  of  pro- 
prietors, on  one  and  tlie  same  stream,  from  its  rise  to  its  outlet,  in  a 
manner  best  calcu  hi  ted,  on  the  whole,  to  i^romote  and  sfenre  their. 
common  rlgllts  ^"  '^  "  Bates  v.  Weytiioath  Iron  Co.,  8  Cush.  548,  552, 
553. 

Other  opinions  of  Chief  Justice  Shaw  illustrate  the  same  view. 
Williams  v.  Nelson,  23  Pick.  141,  143;  French  v.  Braintree  Manu- 
facturing Co.,  23  Pick.  216,  218-221  ;  Gary  v.  Daniels,  8  Met.  466, 
476,477;  Murdoch  x.  Sticknej/,  8  Cush.  113,  116;  Gould  v.  Boston 
Duck  Co.,  13  Gray,  442,  450.  It  finds  more  or  less  distinct  expression 
in  other  authorities.  Lowell  x.  Boston,  111  Mass.  464-466;  United 
States  v.  Ames,  1  Woodb.  &  Min.  76,  88;  Waddy  v.  Johnson,  5  Ire- 
dell, 333,  339  ;  Jones  v.  Skinner,  61  Maine,  25,  28  ;  Omstead  v.  Camj), 
33  Conn.  547,  550;  Chief  Justice  Redfield,  in  12  Am.  Law  Reg.  (n.  s.) 
498-500.  And  no  case  has  been  cited  in  which  it  has  been  considered 
and  rejected. 

Upon  principle  and  authority,  therefore,  independently  of  any  weight 
due  to  the  opinions  of  the  courts  of  New  Hampshire  and  other  States, 
maintaining  the  validity  of  general  mill  Acts  as  taking  private  property 
for  public  use,  in  the  strict  constitutional  meaning  of  that  phrase,  the 
statute  under  which  the  Amoskeag  Manufacturing  Company  lias  flowed 
the  land  in  question  is  clearly  valid  as  a  just  and  reasonable  exercise  of 
the  power  of  the  legislature,  having  regard  to  the  public  good,  in  a  more 
general  sense,  as  well  as  to  the  rights  of  the  riparian  proprietors,  to 
regulate  the  use  of  the  water  power  of  running  streams,  which  without 


768  WURTS   V.    HOAGLAND    ET   AL,  [CHAP.  V. 

some  such  regulation  could  not  be  beneficiall}'  used.  The  statute  does  not 
authorize  new  mills  to  be  erected  to  the  detriment  of  existing  mills  and 
mill  privileges.  And  b}'  providing  for  an  assessment  of  full  compen- 
sation to  the  owners  of  lands  flowed,  it  avoids  the  difficulty  which 
arose  in  the  case  of  Fxunpdlij  v.  Greea  Batj  Co.,  13  Wall.  16G. 

Being  a  constitutional  exercise  of  legislative  power,  and  providing  a 
suitable  remed}',  b}'  trial  in  the  regular  course  of  justice,  to  recover 
compensation  for  the  injur}-  to  the  land  of  the  plaintiff  in  error,  it  has 
not  deprived  him  of  his  property'  without  due  process  of  law,  in  vio- 
lation of  the  Fourteenth  Amendment  of  the  Constitution  of  the  United 
States.  Walker  v.  Sauvmet^  92  U.  S.  90  ;  Davidson  v.  New  Orleans^ 
96  U.  S.  97  ;  Hurtado  v.  California.^  110  U.  S.  516  ;  Hagar  v.  Recla- 
mation District,  111  U.  S.  70).  Judfjment  affirmed.^ 

Mr.  Justice  Blatchford  did  not  sit  in  this  case,  or  take  an}'  part 
in  its  decision. 


WURTS   V.    HOAGLAND   et  al. 
Supreme  Court  of  the  United  States.     1885. 

[114  i/.  S.  606.] 

This  was  a  writ  of  error  by  the  devisees  of  Mary  V.  Wurts  to  reverse 
a  judgment  confirming  an  assessment  of  commissioners  for  the  drainage 
of  lands  under  the  statute  of  New  Jersey  of  March  8,  1871,  the 
material  provisions  of  which  are  as  follows.  [These  will  be  found  in  a 
note.^] 

1  Compare  LomeJl  v.  Boston,  111  Mass.  454,  464-471  (1873),  Turner  v.  Nije,  154 
Mass.  579  (1891),  infra,  893.  —  Ed. 

2  By  §  I,  "the  Board  of  Managers  of  the  Geological  Survey,  on  the  application  of 
at  lea.st  five  owners  of  separate  lots  of  land  included  in  any  tract  of  land  in  this  State 
which  is  subject  to  overflow  from  freshets,  or  which  is  usually  in  a  low,  marshy,  boggy 
or  wet  condition,"  are  authorized  to  examine  the  tract,  and,  if  they  deem  it  for  the 
interest  of  the  public  and  of  the  land  owners  to  be  affected  thereby,  then  to  make 
surveys,  and  decide  upon  and  adopt  a  system  of  drainage,  and  report  it  to  the  Supreme 
Court  of  the  State  ;  and  thereupon  the  court,  upon  reasonable  notice  published  in  a 
newspaper  circulating  in  the  county  where  the  tract  is,  shall  appoint  three  commis- 
sioners to  superintend  and  carry  out  the  system  of  drainage  so  adopted  and  reported; 
"  provided,  that  if,  at  the  time  fixed  for  such  appointment  of  commissioners,  it  shall 
appear  to  the  court  by  the  written  remonstrance  of  the  owners  of  a  majority  of  the 
said  low  and  wet  lands  duly  authenticated  by  affidavit,  that  they  are  opposed  to  the 
drainage  thereof  at  the  common  expense,  then  the  said  court  shall  not  appoint  such 
commissioners." 

Bv  §  2,  the  commissioners  shall  cause  the  tract  to  be  drained  in  accordance  with 
the  general  plan  of  the  board  of  managers,  and,  after  the  completion  of  the  work, 
report  to  the  Supreme  Court  the  expense  thereof,  together  with  a  general  description 
of  the  lands  which,  in  their  judgment,  ought  to  contribute  to  the  expen.^e  ;  notice  of 
the  report  shall  be  published  for  four  weeks,  in  order  that  any  persons  interested  may 
examine  the  report,  and  file  objections  to  it  ;  if  any  such  objections  are  filed  within  the 
four  weeks,  the  Supreme  Court  shall  determine  upon  the  same  in  a  summary  manner, 


CHAP,  v.]  WURTS   V.    IIOAGLAND    ET   AL.  769 

By  proceedings  had  in  accordance  witli  this  statute,  the  Board  of 
Managers  of  the  Geological  Survey,  upon  the  application  of  more  than 
five  owners  of  separate  lots  of  land  situated  in  the  tract  of  land  known 
as  the  Great  Meadows  on  the  Pequest  River,  examined  and  surveyed 
the  entire  tract,  and  reported  a  plan  for  draining  it  to  the  Supreme 
Court,  and  on  November  15,  1872,  three  commissioners  were  appointed 
to  carry  the  plan  into  execution. 

Pending  the  proceedings,  on  March  19,  1874,  a  supplemental  statute 
was  passed,  by  §  2  of  which,  "  if  the  said  commissioners,  after  having 
commenced  the  drainage  of  such  tract,  and  proceeded  therewith,  shall, 
before  the  drainage  of  the  same  shall  be  completed,  be  compelled  to 
suspend  the  completion  thereof,  from  any  inabilit}-  at  that  time  to  raise 
the  money  required  tlierefor,  they  shall  proceed  to  ascertain  the  tracts 
of  land  benefited  or  intended  to  be  benefited  by  said  drainage,  and 
the  relative  proportions  in  which  the  said  respective  tracts  have  been 
or  will  be  benefited  therebj-,  and  also  the  expenses  already  incurred  in 
said  drainage,  and  as  near  as  may  be  the  additional  expenses  required 
for  the  complccion  thereof,"  and  make  and  report  to  the  court  an 
assessment  of  such  expenses. 

In  accordance  with  that  provision  of  the  statute  of  1874,  the  com- 
missioners, before  completing  the  work,  made  and  reported  to  the  court 
an  assessment  based  upon  an  estimate  of  contemplated  benefits,  which 

and,  without  further  notice,  make  au  order  directing  the  commissioners  "  to  distribute 
and  assess  the  amount  of  said  expense  and  interest,  upon  tiie  lands  contained  within 
the  territory  reported  by  them  originally,  or  as  corrected  by  the  Supreme  Court,  in 
proportion,  as  near  as  they  can  judge,  to  the  benefit  derived  from  said  drainage  by  the 
several  parcels  of  land  to  be  a.sse.ssed ; "  the  assessment,  when  completed,  shall  be 
deposited  in  some  convenient  place  for  inspection  by  the  parties  interested,  and  notice 
of  the  completion  of  tlie  assessment,  and  of  the  place  where  it  is  deposited,  published 
for  six  weeks,  designating  a  time  and  place  when  and  where  the  commissioners  will 
meet  to  hear  objections  to  the  assessment ;  and  the  commissioners,  having  heard  and 
decided  upon  such  objections  as  shall  be  made  to  them,  shall  proceed  to  complete  their 
assessment  and  file  it  in  the  clerk's  office  of  the  Supreme  Court,  and  notice  of  the  filing 
shall  be  published  for  four  weeks,  after  which,  if  no  objections  have  been  made  to  the 
assessment,  it  shall  be  confirmed  by  the  court ;  any  objections  filed  within  the  four 
weeks  the  Supreme  Court  shall  hear  and  determine  in  a  summary  manner,  but  "  shall 
not  reverse  said  assessment  or  any  part  thereof,  except  for  some  error  in  law,  or  in 
the  principles  of  assessment,  made  or  committed  by  said  commissioners  ;  "  if  for  any 
such  cause  the  assessment  or  any  part  thereof  shall  be  reversed,  it  shall  be  referred  to 
the  commissioners  to  be  corrected  accordingly,  and,  when  it  shall  have  been  corrected 
and  filed,  like  proceedings  shall  be  had,  until  the  court  shall  finally  confirm  the 
assessment ;  and  thereupon  the  commissioners  shall  publish  notice  for  four  weeks, 
requiring  the  several  owners  or  other  parties  interested  in  the  lands  assessed  to  pay 
their  assessments. 

By  §  3,  further  provisions  are  made  for  collecting  the  assessment  by  demand  on 
the  owner  of  the  lands  assessed,  and  if  he  cannot  be  found,  or  neglects  or  refuses  to 
pay,  then  by  sale  of  his  land  for  the  least  number  ol  years  that  any  person  will  take 
the  same. 

By  §  5,  the  commissioners  may  from  time  to  time  borrow  the  necessary  moneys  to 
carry  on  the  work  of  draining  the  lands,  and  give  their  bonds  as  such  commis- 
sioners therefor,  and  pledge  for  the  repayment  thereof  the  assessment  to  be  made  as 
aforesaid. 

VOL.  I.  —  49 


770  WURTS   V.    HOAGLAND    ET   AL.  [CHAP.  V. 

was,  for  that  reason,  upon  objections  filed  by  Mrs.  Wurts,  set  aside  by 
an  order  of  the  Supreme  Court,  affirmed  by  the  Court  of  Errors.  10 
Vroom,  433;  12  Vroom,  175. 

On  May  17,  1879,  after  the  completion  of  the  work,  the  commis- 
sioners made  a  report  to  the  court,  pursuant  to  the  statute  of  1871, 
showing  the  expense  to  have  been  $107,916.07.  No  objections  to  that 
report  having  been  filed  after  four  weeks'  notice,  the  court  on  June  23, 
ordered  the  commissioners  to  distribute  that  sum  "  upon  the  land  men- 
tioned in  their  said  report,  in  proportion,  as  nearly  as  the}'  can  judge,  to 
the  benefit  derived  from  said  drainage  by  the  several  parcels  ot  land  to 
be  assessed."  The  commissioners  made  an  assessment  accordingly',  the 
proportion  of  which  on  the  lands  of  Mrs.  Wurts  was  $13,347.84,  and, 
after  notice  to  and  hearing  of  all  parties  who  desired  to  object  to  the 
assessment,  reported  it  to  the  Supreme  Court,  which  directed  it  to  be 
modified  as  to  certain  lands  of  other  parties  lying  outside  the  original 
survey,  and  in  other  respects  confirmed  the  assessment,  notwithstand- 
ing objections  made  to  it  by  the  devisees  of  Mrs.  Wurts ;  and  its 
judgment  was  affirmed  in  the  Court  of  Errors.  13  Vroom,  553  ;  14 
Vroom,  456.  The  judgment  of  the  Court  of  Errors  was  the  final 
judgment  in  the  case,  and  this  writ  of  error  was  addressed  to  the 
Supreme  Court  because  at  the  time  of  suing  out  the  writ  of  error  the 
record  had  been  transmitted  to  that  court  and  was  in  its  possession. 
105  U.  S.  701. 

The  error  assigned  was  that  "  the  Act  of  March  8,  1871,  upon  which 
the  said  judgment  and  proceedings  are  founded,  violates  the  Consti- 
tution of  the  United  States  in  this,  that  it  deprives  the  plaintifl's  in 
error  of  their  pi'opert}'  without  due  process  of  law,  and  denies  to 
them  the  equal  protection  of  the  laws,  and  violates  the  first  section 
of  the  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States." 

Mr.  Samuel  Dickson  and  Mr.  J.  G.  /Shipman,  for  plaintifl!s  in 
error. 

Mr.  Theodore  Little,  for  defendants  in  error. 

Mr.  Justice  Gray,  after  making  the  foregoing  statement  of  facts, 
delivered  the  opinion  of  the  court. 

General  laws  authorizing  the  drainage  of  tracts  of  swamp  and  low 
lands,  1)3'  commissioners  appointed  upon  proceedings  instituted  by  some 
of  the  owners  of  the  lands,  and  the  assessment  of  the  whole  expense  of 
the  work  upon  all  the  lands  within  the  tract  in  question,  have  long 
existed  in  the  State  of  New  Jersey,  and  have  been  sustained  and  acted 
on  by  her  courts,  under  the  Constitution  of  1776,  as  well  as  under  that 
of  1844.  Stats.  December  23,  1783,  Wilson's  Laws,  382;  November 
29,  1788,  and  November  24.  1792,  Paterson's  Laws,  84,  119  ;  Jones  v. 
Lore,  Pennington,  1048;  Doremus  v.  Smith,  1  Southard,  142;  West- 
cott  v.  Garrison,  1  Halsted,  132  ;  State  v.  Frank  cfc  Guisbert  Creek 
Co.,  2  J.  S.  Green,  301;  State  v.  Newark,  3  Dutcher,  185,  194; 
Berdan  v.  Hiser  Drainage  Co.,  cited  3  C.  E.  Green,  69 ;   Coster  v. 


CHAP,  v.]  WURTS   V.    IIOAGLAND    ET   AL.  771 

Tkle  Water  Co.,  3  C.  E.  Green,  54,  68,  518,  531  ;  State  v.  Blake, 
G  Vroora,  208,  and  7  Vroom,  442  ;  Hoagland  v.  Wurts,  12  Vrooni, 
175,  179. 

In  State  v.  N'eioark,  3  Dutcher,  185,  194,  the  Supreme  Court  said: 
"  j^ws  for  the  drainage  or  embanking  of  low  grounds,_and,  to  provide 
for  the  expense,  for  the  mere  benefit  of  the  proprietors^  without  refer- 
ence to  the  public  good,  are  to  De  classed,  not  under  the  taxing,  but  the 
police  power  of  the  governnient." 

In  Coster  v.  Tide  Water  Co.,  3  C.  E.  Green,  54,  518,  the  same  view 
was  strongly-  asserted  in  the  Court  of  Chancery-  and  in  the  Court  of 
Errors.  The  point  there  decided  was  that  a  statute  providing  for  the 
drainage  of  a  large  tract  of  land  overflowed  by  tide-water,  b}'  a  corpo- 
ration chartered  for  the  purpose,  none  of  the  members  of  which  owned 
an}'  lands  within  the  tract,  if  it  could  be  maintained  as  an  exercise  of 
the  right  of  eminent  domain  for  a  public  use,  yet  could  not  authorize  an 
assessment  on  the  owners  of  such  lands  for  anything  be^'ond  the  bene- 
fits conferred  upon  them.  But  the  case  was  clearly  and  sharply 
distinguished  from  the  case  of  the  drainage  of  lands  for  the  exclusive 
benefit  of  the  owners  upon  proceedings  instituted  by  some  of  them. 

Chancellor  Zabriskie  said:  "  But  there  is  another  branch  of  legisla- 
tive power  that  may  be  appealed  to,  as  authorizing  the  taking  of  the 
lands  required  for  the  works  to  drain  these  meadows.  It  is  the  power 
of  the  government  to  prescribe  public  regulations  for  the  better  and 
more  economical  management  of  property  of  persons  whose  property 
adjoins,  or  which,  from  some  other  reason,  can  be  better  managed  and 
improved  by  some  joint  operation,  such  as  the  power  of  regulating  the 
building  of  party  walls  ;  making  and  maintaining  partition  fences  and 
ditches  ;  constructing  ditches  and  sewers  for  the  draining  of  uplands 
or  marshes,  which  can  more  advantageously  be  drained  by  a  common 
sewer  or  ditch.  This  is  a  well-known  legislative  power,  recognized 
and  treated  of  by  all  jurisconsults  and  writers  upon  law  through  the 
civilized  world  ;  a  branch  of  legislative  power  exercised  by  this  State 
before  and  since  the  Revolution,  and  before  and  since  the  adoption  of 
the  present  Constitution,  and  repeatedly  recognized  by  our  courts. 
The  legislature  has  power  to  regulate  these  subjects,  either  b}'  gene- 
ral law,  or  by  particular  laws  for  certain  localities  or  particular  and 
defined  tracts  of  land.  When  the  Constitution  vested  the  legislative 
power  in  the  Senate  and  General  Assembly,  it  conferred  the  power  to 
make  these  public  regulations  as  a  well  understood  part  of  that  legisla- 
tive power."  "  The  principle  of  them  all  is,  to  make  an  improvement 
common  to  all  concerned,  at  the  common  expense  of  all.  And  to  effect 
this  object,  the  Acts  provide  that  the  works  to  effect  the  drainage  ma}' 
be  located  on  any  part  of  the  lands  drained,  paying  the  owner  of  the 
land  thus  occupied  compensation  for  the  damage  b}-  such  use.  So  far 
private  property  is  taken  by  them  ;  farther  it  is  not.  In  none  of  them 
is  the  owner  divested  of  his  fee,  and  in  most  there  is  no  corporation  in 
which  it  could  be  vested,  and  for  all  other  purposes  the  title  of  the  land 


772  WURTS   V.    HOAGLAND   ET   AL.  [CHAP   V. 

remained  in  the  owner.  To  effect  such  common  drainage,  power  was 
in  some  cases  given  to  continue  these  drains  through  adjacent  lands 
not  drained,  upon  compensation.  All  tliis  was  an  ancient  and  well- 
known  exercise  of  legislative  power,  and  may  well  be  considered  as 
included  in  the  grant  of  legislative  power  in  the  Constitution."  3  C.  E. 
Green,  68-71. 

Chief  Justice  Beasle}",  in  delivering  the  judgment  of  the  Court  of 
Errors,  enforced  the  same  distinction,  saying  :  "  This  case,  with  regard 
to  the  grounds  on  which  it  rests,  is  to  be  distinguished  from  that  class 
of  proceedings  by  which  meadows  and  other  lands  are  drained  on  the 
application  of  the  land  owners  themselves.  In  the  present  instance, 
the  State  is  the  sole  actor,  and  public  necessit}'  or  convenience  is  the 
onl}' justification  of  her  intervention.  But  the  regulations  established 
by  the  legislative  power,  whereby  the  owners  of  meadow  lands  are  com- 
pelled to  submit  to  an  equal  burden  of  the  expense  incurred  in  their 
improvement,  are  rules  of  police  of  the  same  character  as  provisions 
concerning  party  walls  and  partition  fences.  To  these  cases,  therefore, 
the  principle  upon  which  the  decision  of  the  present  case  rests  is  not  to 
be  extended."     3  C.  E.  Green,  531. 

These  full  and  explicit  statements  have  been  since  treated  b}'  the 
courts  of  New  Jersey  as  finally  establishing  the  constitutionality  of  such 
statutes. 

In  State  v.  Blake,  6  Vroom,  208,  and  7  Vroom,  442,  a  statute  autho- 
rizing a  tract  of  swamps  and  marsh  lands  to  be  drained  b^-  commissioners 
elected  by  the  owners  of  the  lands,  and  the  entire  expense  assessed  upon 
all  the  owners,  was  held  to  be  constitutional,  although  no  appeal  was 
given  from  the  assessment.  In  the  Supreme  Court  it  was  said  :  "  This 
branch  of  legislative  power  which  regulates  the  construction  of  ditches 
and  secures  the  drainage  of  meadows  and  marsh}'  lands  has  been  exer- 
cised so  long,  and  is  so  fully  recognized,  that  it  is  now  too  late  to  call 
it  in  question.  It  is  clearly  aflfirmed  in  The  Tide  Water  Co.  v.  Coster, 
and  cannot  be  opened  to  discussion."  6  Vroom,  211.  And  the  Court 
of  Errors,  in  a  unanimous  judgment,  approved  this  statement  of  the 
Supreme  Court,  as  well  as  that  of  Chief  Justice  Beasley,  in  Coster  v. 
Tide  Water  Co.^  above  quoted,  7  Vroom,  447,  448. 

The  constitutionality  of  the  statute  of  1871,  under  which  the  proceed- 
ings in  the  case  at  bar  were  had,  was  upheld  by  the  Supreme  Court  and 
the  Court  of  Errors  upon  the  ground  of  the  previous  decisions.  In  re 
Lower  Chatham  Drainage,  6  Vroom,  497,  501  ;  In  re  Pequest  River 
Drainage,  10  Vroom,  433,  434;  12  Vroom,  175,  179  ;  13  Vroom,  553, 
554,  and  14  Vroom,  456.  The  further  suggestion  made  by  the  Supreme 
Court  in  6  Vroom,  501,  506,  and  10  Vroom,  434,  that  this  statute  could 
be  maintained  as  a  taking  of  private  property  for  a  public  use,  was 
disapproved  by  the  Court  of  Errors  in  12  Vroom,  178. 

In  Kean  v.  Driggs  Drainage  Co.,  16  Vroom,  91,  cited  for  the  plain- 
tiffs in  error,  the  statute  that  was  held  unconstitutional  created  a  private 
corporation  with  power  to  drain  lands  without  the  consent  or  application 


CHAP,  v.] 


WUKTS   V.    IIOAGLAND    ET    AL.  773 


Of  any  of  the  owners;  and  the  Supreme  Court  observed  that  in  the 
opinions  of  the  Court  of  Errors  in  the  present  case  and  in  Coster  v. 
Tide  Water  Co.,  the  distinction  was  clearly  drawn  between  meadow 
draina<r5  for  the  exclusive  benefit  of  the  owners,  to  be  done  at  their  sole 
eKpens°c,  and  drainage  undertal<en  by  the  public  primarily  as  a  matter 
of  public  concern,  in  which  case  the  assessment  upon  land  owners  must  • 
be  limited  to  beneQts  imparted.     16  Vroom,  94.  ,   ,  „      ,, 

This  review  of  the  cases  clearly  shows  that  general  laws  for  the 
drainage  of  large  tracts  of^swam^iJinlJowiaiaiZji^^ 
instituted  by  some  of  the  proHietorg_of  the  lands  to  compel  al   to  con- 
t7nS^^trtolfe"i^enje,oLtlAeb^^  l^^ve  been  jnaintained  by  the 

-^^^jntT^fNiWeS^^ 

property  forlhe;;Eublic  use  under  tlisjiglilof^inent  doniaui,  or  to  the 
power  of  suppressii^g  a  nuisance  _cbui^LOii^Jo_the_i^^ 
^ir^HdrE^iTstTtutional  exercise  of  th^^er  of  the  legislaturejo^stab;;. 
irshlW^Ih^^ii~T)V  which  adjojnin^ands,  held  by  various  owners  m 
s^i^^^ftST^d  in  the  improvement  of_which  all  have  acommon  interest, 
bIItwhika>^:iiM^^  <;onditl9u  of  the  whole 

tjl^ri^;^;;^^^]^^^     enjoyed  by  any  of  them  withoutthe_co^ 
.-;;7.-Pnr...  of  all.  maY  bp,  reclaimed  aMSP^lIgBOOOSi^^ 
expense      The  case  comes  within  the  principle  upon  which  this  court 
^Id  the  validity  of  general  mill  Acts  in  Head  v.  Amoskeag  Mamc 
facturmg  Co.,  113  U.  S.  9.  ^  xt        t         , 

It  is  also  well  settled  by  the  decisions  of  the  courts  of  New  Jersey 
that  such  proceedings  are  not  within  the  provision  of  the  Constitution 
of  that  State  securing  the  right  of  trial  by  jury.  New  Jersey  Consti- 
tution of  1776,  art.  22  ;  Constitution  of  1844,  art.  1,  sec.  7 ;  Scudder 
V  Trenton  Delaware  Falls  Co.,  Saxton,  694,  721-725;  Tn  re 
Lower   Chatham  Drainage,  7  Vroom,   442 ;   Howe  v.  Flamfield,  8 

Vroom,  145.  „,      ,     .,,  .    ^,     c  i.^ 

The  statute  of  1871  is  applicable  to  any  tract  of  land  within  the  State 
which  is  subject  to  overflow  from  freshets,  or  which  is  usually  in  low, 
marshy,  boggy  or  wet  condition.  It  is  only  upon  the  application  of  at 
least  five  owners  of  separate  lots  of  land  included  in  the  tract,  that  a 
plan  of  drainage  can  be  adopted.  All  persons  interested  have  oppor- 
tunity by  public  notice  to  object  to  the  appointment  of  commissioners 
to  execute  that  plan,  and  no  commissioners  can  be  appointed  against 
the  remonstrance  of  the  owners  of  the  greater  part  of  the  lands.  All 
persons  interested  have  also  opportunity  by  public  notice  to  be  heard 
before  the  court  on  the  commissioners'  report  of  the  expense  of  the 
work,  and  of  the  lands  which  in  their  judgment  ought  to  contribute  ;  as 
well  as  before  the  commissioners,  and,  on  any  error  in  law  or  in  the 
principles  of  assessment,  before  the  court,  upon  the  amount  of  the 

jisscssrnGntj* 

As  the  statute  is  applicable  to  all  lands  of  the  same  kind,  and  as 
no  person  can  be  assessed  under  it  for  the  expense  of  drainage  without 
notice  and  opportunity  to  be  heard,  the  plaintiffs  in  error  have  neither 


774  YICK   wo   V.    HOPKINS.  [CHAP.  V. 

been  denied  the  equal  protection  of  the  laws,  nor  been  deprived  of  their 
property  without  due  process  of  law,  within  tlie  meaning  of  the  Four- 
teenth Amendment  of  the  Constitution  of  the  United  States.  Barbier 
V.  Connolly,  113  U.  S.  27,  31;  Walker  v.  Sauvinet,  92  U.'  S.  90; 
Davidson  v.  New  Orleans,  96  U.  S.  97  ;  Hagar  v.  Reclaynation  Dis- 
trict, 111  U.  S.  701.  Judgment  affiryned. 


YICK  WO   V.   HOPKINS.      WO   LEE   v.    HOPKINS. 
Slpkeme  Court  or  the  United  States.     1886. 

[118  6^.5.356.] 

These  two  cases  were  argued  as  one  and  depended  upon  precisely 
the  same  state  of  facts  ;  the  first  coming  here  upon  a  writ  of  error  to 
the  Supreme  Court  of  the  State  of  California,  the  second  on  appeal 
from  the  Circuit  Court  of  the  United  States  for  that  district. 

The  plaintiff  in  error,  Yick  Wo,  on  August  24,  1885,  petitioned  the 
Supreme  Court  of  California  for  a  writ  of  habeas  corj^us,  alleging  that 
he  was  illegally  deprived  of  his  personal  libertj'  by  the  defendant  as 
sheriff  of  the  city  and  county  of  San  Francisco. 

The  sheriff  made  return  to  the  writ  that  he  held  the  petitioner  in  cus- 
tody by  virtue  of  a  sentence  of  the  Police  Judges  Court,  No.  2,  of  the 
city  and  county  of  San  Francisco,  whereby  he  was  found  guilty  of  a 
violation  of  certain  ordinances  of  the  board  of  supervisors  of  that 
county,  and  adjudged  to  pay  a  fine  of  $10,  and,  in  default  of  payment, 
be  imprisoned  in  the  county  jail  at  the  rate  of  one  day  for  each  dollar 
of  fine  until  said  fine  should  be  satisfied,  and  a  commitment  in  conse- 
quence of  non-pa3ment  of  said  fine. 

The  ordinances  for  the  violation  of  which  he  had  been  found  guilty 
■were  set  out  as  follows  :  — 

Order  No.  1569,  passed  May  26,  1880,  prescribing  the  kind  of  build- 
ings in  which  laundries  may  be  located. 

"  The  people  of  the  city  and  county  of  San  Francisco  do  ordain  as 
follows : 

"Sec.  1.  It  shall  be  unlawful,  from  and  after  the  passage  of  this 
order,  for  any  person  or  persons  to  establish,  maintain,  or  carry  on  a 
launtlry  within  the  corporate  limits  of  the  city  and  county  of  San  Fran- 
cisco without  having  first  obtained  the  consent  of  the  board  of  super- 
visors, except  the  same  be  located  in  a  building  constructed  either  of 
brick  or  stone. 

"  Sec.  2.  It  shall  be  unlawful  for  an}'  person  to  erect,  build,  or  main- 
tain, or  cause  to  be  erected,  built,  or  maintained,  over  or  upon  the  roof 
of  any  building  now  erected  or  which  may  hereafter  be  erected  within 
the  limits  of  said  city  and  count}',  any  scaflTolding,  without  first  obtain- 
ing the  written  permission  of  the  board  of  supervisors,  which  permit 


CHAP,  v.]  YICK   WO    V.    HOPKINS.  775 

shall  state  fully  for  what  purpose  said  scafToldiug  is  to  be  erected  and 
used,  and  such  scaffolding  sliall  not  be  used  for  any  other  purpose  than 
that  designated  in  such  permit. 

"  Sec.  3.  Any  person  who  shall  violate  any  of  the  provisions  of  this 
order  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dol- 
lars, or  by  imprisonment  in  the  county  jail  not  more  than  six  montlis, 
or  by  both  such  fine  and  imprisonment." 

Order  No.  1587,  passed  July  28,  1880,  the  following  section  : 

"  Sec.  68.  It  shall  be  unlawful,  from  and  after  the  passage  of  this 
order,  for  any  person  or  persons  to  establish,  maintain,  or  carry  on  a 
laundry  within  the  corporate  limits  of  the  city  and  county  of  San  Fran- 
cisco without  having  first  obtained  the  consent  of  the  board  of  super- 
visors, except  the  same  be  located  in  a  building  constructed  either  of 
brick  or  stone." 

The  following  facts  were  also  admitted  on  the  record  :  That  petitioner 
is  a  native  of  China  and  came  to  California  in  1861,  and  is  still  a  subject 
of  the  Emperor  of  China  ;  that  he  has  been  engaged  in  the  laundry  busi- 
ness in  the  same  premises  and  building  for  twenty-two  years  last  past ; 
that  he  had  a  license  from  the  board  of  fire  wardens,  dated  March  3, 
1884,  from  which  it  appeared  "  that  the  above  described  premises  have 
been  inspected  by  the  board  of  fire  wardens,  and  upon  such  inspection 
said  board  found  all  proper  arrangements  for  carrying  on  the  business ; 
t'.iat  the  stoves,  washing  and  drying  apparatus,  and  the  appliances  for 
heating  smoothing  irons  are  in  good  condition,  and  that  their  use  is  not 
dangerous  to  the  surrounding  property  from  fire,  and  that  all  proper 
precautions  have  been  taken  to  comply  with  the  provisions  of  order 
No.  1617,  defining  '  the  fire  limits  of  the  city  and  county  of  San  Fran- 
cisco and  making  regulations  concerning  the  erection  and  use  of  build- 
ings in  said  citj-  and  county,'  and  of  order  No.  1670,  '  prohibiting  the 
kindling,  maintenance,  and  use  of  open  fires  in  houses;'  that  he  had  a 
certificate  from  the  health  officer  that  the  same  premises  had  been  in- 
spected by  him,  and  that  he  found  that  the3'  were  properly  and  suffi- 
ciently drained,  and  that  all  proper  arrangements  for  carrying  on  the 
business  of  a  laundry,  without  injury  to  the  sanitary  condition  of  the 
neighborhood,  had  been  complied  with;  that  the  citj-  license  of  the  pe- 
titioner was  in  force  and  expired  October  1st,  1885  ;  and  that  the  peti- 
tioner applied  to  the  board  of  supervisors,  June  1st,  1885,  for  consent 
of  said  board  to  maintain  and  carr}-  on  his  laundry,  but  that  said  board, 
on  July  1st,  1885,  refused  said  consent."  It  is  also  admitted  to  be 
true,  as  alleged  in  the  petition,  that,  on  February  24,  1880,  "  there  were 
about  320  laundries  in  the  cit}-  and  county  of  San  Francisco,  of  which 
about  240  were  owned  and  conducted  by  subjects  of  China,  and  of  the 
whole  number,  viz.,  320,  about  310  were  constructed  of  wood,  the  same 
material  that  constitutes  nine-tenths  of  the  houses  in  the  cit}'  of  San 
Francisco.  The  capital  thus  invested  by  the  subjects  of  China  was  not 
less  than  two  hundred  thousand  dollars,  and  they  paid  annually  for  rent. 


776  TICK  wo  V.  HOPKixs.  [chap.  v. 

license,  taxes,  gas,  and  water  about  one  hundred  and  eight}'  thousand 
dollars." 

It  was  alleged  in  the  petition,  that  "your  petitioner  and  more  than 
one  hundred  and  fifty  of  his  countrymen  have  been  arrested  upon  the 
charge  of  carrying  on  business  without  having  such  special  consent, 
while  those  who  are  not  subjects  of  China,  and  who  are  conducting 
eighty  odd  laundries  under  similar  conditions,  are  left  unmolested  and 
free  to  enjo}'  the  enhanced  trade  and  profits  arising  from  this  hurtful 
and  unfair  discrimination.  The  business  of  your  petitioner,  and  of 
those  of  his  countiymen  similarly  situated,  is  greatly  impaired,  and  in 
many  cases  practically  ruined  by  this  system  of  oppression  to  one  kind 
of  men  and  favoritism  to  all  others." 

The  statement  therein  contained  as  to  the  arrest,  &c.,  was  admitted 
to  be  true,  with  the  qualification  only,  that  the  eight}'  odd  laundries  re- 
ferred to  are  in  wooden  buildings  without  scaffolds  on  the  roofs. 

It  was  also  admitted  "that  petitioner  and  200  of  his  countrymen 
similarly  situated  petitioned  the  board  of  supervisors  for  permission  to 
continue  their  business  in  the  various  houses  which  they  had  been  occu- 
pying and  using  for  laundries  for  more  than  twenty  years,  and  such  peti- 
tions were  denied,  and  all  the  petitions  of  those  who  were  not  Chinese, 
with  one  exception  of  Mrs.  Mary  Meagles,  were  granted." 

By  section  2  of  article  XI.  of  the  Constitution  of  California  it  is  pro- 
vided that  "  any  county,  cit}',  town,  or  township  may  make  and  enforce 
within  its  limits  all  such  local,  police,  sanitary,  and  other  regulations 
as  are  not  in  conflict  with  general  laws." 

By  section  74  of  the  Act  of  April  19,  1856,  usualh'  known  as  the 
Consolidation  Act,  the  board  of  supervisors  is  empowered,  among  other 
things,  "to  provide  by  regulation  for  the  prevention  and  summary  re- 
moval of  nuisances  to  public  health,  the  prevention  of  contagious  dis- 
eases ;  ...  to  prohibit  the  erection  of  wooden  buildings  within  any 
fixed  limits  where  the  streets  shall  have  been  established  and  graded  ; 
...  to  regulate  the  sale,  storage,  and  use  of  gunpowder  or  other  ex- 
plosive or  combustible  materials  and  substances,  and  make  all  needful 
regulations  for  protection  against  fire ;  to  make  such  regulations  con- 
cerning the  erection  and  use  of  buildings  as  ma\'  be  necessary'  for  the 
safet}'  of  the  inhabitants." 

The  Supreme  Court  of  California,  in  the  opinion  pronouncing  the 
judgment  in  this  case,  said  :  .  .  .  "  The  order  No.  1569  and  section  68 
of  order  No.  1587  are  not  in  contravention  of  common  right  or  unjust, 
unequal,  partial,  or  oppressive,  in  such  sense  as  authorizes  us  in  this 
proceeding  to  pronounce  them  invalid." 

After  answering  the  position  taken  in  behalf  of  the  petitioner,  that 
the  ordinances  in  question  had  been  repealed,  the  court  added:  "We 
have  not  deemed  it  necessary  to  discuss  the  question  in  the  light  of 
supposed  infringement  of  petitioner's  rights  under  the  Constitution  of 
the  United  States,  for  the  reason  that  we  think  the  principles  upon  which 
contention  on  that  head  can  be  based  have  in  effect  been  set  at  rest  by 


CHAP,  v.]  TICK   WO   V.   HOPKINS.  77T 

the  cases  of  JBarbier  v.  Connolly,  113  U.  S.  27,  and  Soon  Hbuj  v. 
Crowley,  113  U.  S.  703."  The  writ  was  accordingly  discharged  and 
the  prisoner  remanded. 

In  the  other  case  the  appellant,  Wo  Lee,  petitioned  for  his  discharge 
from  an  alleged  illegal  imprisonment,  upon  a  state  of  facts  shown  upon 
the  record,  precisely  similar  to  that  in  the  case  of  Yick  Wo.  In  dis- 
posing of  the  application,  the  learned  Circuit  Judge,  Sawyer,  in  his 
opinion,  26  Fed.  Rep.  471,  after  quoting  the  ordinance  in  question,  pro- 
ceeded at  length  as  follows  :  .  .  .  [Here  follows  a  strong  statement  of 
the  judge's  personal  opinion  that  this  ordinance  violates  the  Constitution 
and  treaties  of  the  United  States.] 

But,  in  deference  to  the  decision  of  the  Supreme  Court  of  California 
in  the  case  of  Yick  Wo,  and  contrary  to  his  own  opinion  as  thus  ex- 
pressed, the  circuit  judge  discharged  the  writ  and  remanded  the 
prisoner. 

Mr.  Hall  McAllister,  Mr.  L.  II.  Yan  Schaick,  and  3Ir.  D.  L.  Smoot, 
for  plaintiffs  in  error. 

Mr.  Alfred  Clarke  and  Mr.  II.  G.  Sieberst,  for  defendant  in  error. 

Mk.  Justice  Matthews  delivered  the  opinion  of  the  court. 

In  the  case  of  the  petitioner,  brought  here  by  writ  of  error  to  the 
Supreme  Court  of  California,  our  jurisdiction  is  limited  to  the  question, 
whether  the  plaintiff  in  error  has  been  denied  a  right  in  violation  of  the 
Constitution,  laws,  or  treaties  of  the  United  States.  The  question 
whether  his  imprisonment  is  illegal,  under  the  Constitution  and  laws  of 
the  State,  is  not  open  to  us.  And  although  that  question  might  have 
been  considered  in  the  Circuit  Court  in  the  application  made  to  it,  and 
by  this  court  on  appeal  from  its  order,  yet  judicial  propriety  is  best  con 
suited  by  accepting  the  judgment  of  the  State  court  upon  the  points 
involved  in  that  inquiry. 

That,  however,  does  not  preclude  this  court  from  putting  upon  the 
ordinances  of  the  supervisors  of  the  county  and  city  of  San  Francisco 
an  independent  construction  ;  for  the  determination  of  the  question 
whether  the  proceedings  under  these  ordinances  and  in  enforcement  of 
them  are  in  conflict  with  the  Constitution  and  laws  of  the  United  States, 
necessarilj-  involves  the  meaning  of  the  ordinances,  which,  for  that  pur- 
pose, we  are  required  to  ascertain  and  adjudge. 

We  are  consequcntly_constrained,  at  the  outset^tp  djffer  from  the 
Supreme  Court  of  Calitornia  upon  the  real  meaning  of  the  ordinances 
in  question.  That  court  considered  these  ordinances  as  vesting  in  the 
board  of  supervisors  a  not  unusual  discretion  in  granting  or  withholding 
their  assent  to  the  use  of  wooden  buildings  as  laundries,  to  be  exercised 
in  reference  to  the  circumstances  of  each  case,  with  a  view  to  the  pro- 
tection of  the  public  against  the  dangers  of  fire.  We  are  not  able  to 
concur  in  that  interpretation  of  the  power  conferred  upon  the  super- 
visors. There  is  nothing  in  the  ordinances  which  points  to  such  a  regu- 
lation of  the  business  of  keeping  and  conducting  laundries.  They  seem 
intended  to  confer,  nnd  np.tnally  do  confer,  not  a  discretion  to  be^xef*' 


778  YICK   wo    V.    HOPKINS.  [CHAP.  V 

cised  upon  a  consideration^  of  the  circumstances  of  each  case,  but  a 
naked  and  arCitrary  power  to^ive^or  withhold  consent,  not  only  as  to 
places,  but  as  to  ^iersons.  So  that,  if  an  applicant  for  such  consent, 
being  in  every  way  a  competent  and  qualified  person,  and  having  com- 
plied with  every  reasonable  condition  demanded  by  any  public  interest, 
should,  failing  to  obtain  the  requisite  consent  of  the  supervisors  to  the 
prosecution  of  his  business,  api)ly  for  redress  by  the  judicial  process  of 
mandamus^  to  require  the  supervisors  to  consider  and  act  upon  his  case, 
it  would  be  a  sufficient  answer  for  them  to  say  that  the  law  had  con- 
ferred upon  them  authority  to  withhold  their  assent,  without  reason  and 
without  responsibility.  The  power_giyen  to  them  is  not  confided  tg, 
their  discretion  in  the  legaj_sense  of  thatjterra,  but  is  granted  to  th£ir_ 
mere  walTT^  It  is  purely  arbitrary,  and  acknowledges  neither  guidance, 

nor_X£Straiui- 

This  erroneous  view  of  the  ordinances  in  question  led  the  Supreme 
Court  of  California  into  the  further  error  of  holding  that  they  were  jus- 
tified by  the  decisions  of  this  court  in  the  cases  of  Barhier  v.  Connolly^ 
113  U.S.  27,  and  Soon  Hing  v.  Croicley,  113  U.  S.  703.  .   .  . 

The  ordinance  drawn  in  question  in  the  present  case  is  of  a  very  dif- 
ferent character.  Jt  does  not,  pi-pspi-ihoji^riilpjinrl  conditions  foi-  the_ 
regulation  of  the  use  of  property  for  laundry  purposes,  to  which  all 
similarly  sitiiated  may  conform.  It  allows  without  restriction  the  use 
for  su(;h  purposes  of  buildings  of  brick  or  stone  :  but,  as  to  w^ooden^ 
^Hiildings,  constituting  nearly  all  those  in  previous  jjsc,  it  divides  the 
owners  or  occupiers  into  two  classes,  not  having  respect  to  their  pe r- 
sonal  character  and  qualifications  for  the  business,  nor  the  situation  and 
nature  and  adaptation  of  the  buildiiigs  themselves,  but_merelv^by  an 
^bitrary  line,  on  one  side  of  which  are  those  who  are  permitted  to  pur- 
sue  Jjipii-  industry  by  the  mere  will  and  consent  of  the  sup£nisors^_an^ 
on  the  other  those  from  whom  that  consent  is  withheld,  at  their  mere 
^ill  {^jfrrl  plpnsnrp.-  _Anfl  both  classes  are  alike  only  in  this,  that  Jhey 
are  tenants  at  will,  under  the  supervisors,  oftheir  means^fjiving.  The 
ordinance,  therefore^  also  ditlers  from  the  notunusual  case,  where  dis- 
cretion is  lodged  by  law  in  public  officers  or  bodies  to  grant  or  withhold 
licenses  to  keep  taverns,  or  places  for  the  sale  of  spirituous  liquors,  and 
the  like,  wMien  one  of  the  conditions  is  that  the  applicant  shall  be  a  fit 
person  for  the  exercise  of  the  privilege,  because  in  such  cases  the  fact 
of  fitness  is  submitted  to  the  judgment  of  the  officer,  and  calls  for  the 
exercise  of  a  discretion  of  a  judicial  nature. 

The  rights  of  the  petitioners,  as  affected  b^'  thej2rQceedings_of_wlnch 
they  complain,  arelTot  less,  because  they  are  aliens  aiid_siilyects^f_the 
Emperor  of  China.  Bylhe  third  articIi~of  the  treatyT)etween  this  Gov- 
ernment and  that  of  China,  concluded  November  17,  1880,  22  Stat.  827, 
it  is  stipulated:  "If  Chinese  laborers,  or  Chinese  of  any  other  class, 
now  either  permanently  or  temporarily  residing  in  the  territor}"  of  the 
United  States,  meet  with  ill  treatment  at  the  hands  of  any  other  persons, 
the  Government  of  the  United  States  will  exert  all  its  powers  to  devise 


CHAP,  v.]  YICK   WO   V.    HOPKINS.  779 

measures  for  their  protection,  and  to  secure  to  them  the  same  rights, 
privileges,  immunities,  and  exemptions  as  may  be  enjoyed  by  tlie  citi- 
zens or  subjects  of  the  most  favored  nation,  and  to  whicli  they  are  enti- 
tled by  treaty."  .  .   .  [For  the  passage  here  omitted  see  ante,  p.  532.] 

It  is  contended  on  the  part  of  the  petitioners,  that  the  ordinances  for 
violations  of  which  they  are  severally  sentenced  to  imprisonment,  are 
void  on  their  face,  as  being  within  the  prohibitions  of  the  Fourteenth 
Amendment ;  and,  in  the  alternative,  if  not  so,  that  they  are  void  by 
reason  of  their  administration,  operating  unequally,  so  as  to  punish  in 
the  present  petitioners  what  is  permitted  to  others  as  lawful,  without  any 
distinction  of  circumstances  —  an  unjust  and  illegal  discrimination,  it  is 
claimed,  which,  though  not  made  expressl3'  by  the  ordinances,  is  made 
possible  b}'  them. 

"VVhen  we  consider  the  nature  and  the  theory  of  our  institutions  of 
government,  the  principles  upon  which  they  are  supposed  to  rest,  and 
review  the  history  of  their  development,  we  are  constrained  to  conclude 
that  they  do  not  mean  to  leave  room  for  the  play  and  action  of  pureix 
personaL'and  arbitrary  power.  Sovereignty  itself  is,  of  course,  not  sub- 
ject to  law,  for  it  is  the  author  and  source  of  law ;  but  in  our  system, 
while  sovereign  powers  are  delegated  to  the  agencies  of  government, 
sovereignt}'  itself  remains  with  the  people,  by  whom  and  for  whom  all 
government  exists  and  acts.  And  the  law  is  the  definition  and  limita- 
tion of  power.  It  is,  indeed,  quite  true,  that  there  must  always  be 
lodged  somewhere,  and  in  some  person  or  bod}',  the  authority  of  final 
decision;  and  in  many  cases  of  mere  administration  the  responsibility 
is  purely  political,  no  appeal  lying  except  to  the  ultimate  tribunal  of  the 
public  judgment,  exercised  either  in  the  pressure  of  opinion  or  by  means 
of  the  suffrage.  But  the  fundamental  rights  to  life,  libert}',  and  the 
pursuit  of  happiness,  considered  as  individual  possessions,  are  secured 
by  those  maxims  of  constitutional  law  which  are  the  monuments  show- 
ing the  victorious  progress  of  the  race  in  securing  to  men  the  blessings 
of  civilization  under  the  reign  of  just  and  equal  laws,  so  that,  in  the 
famous  language  of  the  Massachusetts  Bill  of  Rights,  the  government 
of  the  Commonwealth  "may  be  a  government  of  laws  and  not  of  men." 
For,  the  very  idea  that  one  man  may  be  comt^eljed  toJhoIcl_his  life,  or 
the  means  of  living,  or  any  material  right  essential  to  the  enjoyment  of 
life,  at^e  mere  will  of  another,  seems  to  beintolerable  in  any;  country 
where  freedom  prevails,  as  being  the  essence_of^slayei:3;  itself. 

There  are  many  illustrations  that  might  be  given  of  this  truth,  which 
would  make  manifest  that  it  was  self-evident  in  the  light  of  our  system 
of  jurisprudence.  The  case  of  the  political  franchise  of  voting  is  one. 
Though  not  regarded  strlctl}'  as  a  natural  right,  but  as  a  privilege 
merely  conceded  by  society  according  to  its  will,  under  certain  condi- 
tions, nevertheless  it  is  regarded  as  a  fundamental  political  right,  because 
preservative  of  all  rights. 

In  reference  to  that  right,  it  was  declared  by  the  Supreme  Judicial 
Court  of  Massachusetts,  in  Capen  v.  Foster,  12  Pick.  485,  489,  io 


780  YicK  wo  V.  HOPKINS.  [chap.  v. 

the  words  of  Chief  Justice  Shaw,  "  that  in  all  cases  where  the  Constitu- 
tion has  conferred  a  political  right  or  privilege,  and  where  the  Constitu- 
tion has  not  particularly  designated  the  manner  in  which  that  right  is  to 
be  exercised,  it  is  clearly  within  the  just  and  constitutional  limits  of  the 
legislative  power,  to  adopt  any  reasonable  and  uniform  regulations,  in 
regard  to  the  time  and  mode  of  exercising  that  right,  which  are  designed 
to  secure  and  facilitate  the  exercise  of  such  right,  in  a  prompt,  orderly, 
and  convenient  manner;"  nevertheless,  "such  a  construction  would 
afford  no  warrant  for  such  an  exercise  of  legislative  power,  as,  under 
the  pretence  and  color  of  regulating,  should  subvert  or  injuriously  re- 
strain the  right  itself."  It  has  accordingly  been  held  generalh-  in  the 
States,  tliat,  whethef  the  particular  provisions  of  an  Act  of  legislation, 
establishing  means  for  ascertaining  Ihe  qualifications  of  those  entitled 
to  vote,  and  making  previous  registration  in  lists  of  such,  a  condition 
precedent  to  the  exercise  of  the  right,  were  or  were  not  reasonable  regu- 
lations, and  accordingly  valid  or  void,  was  alwa3's  open  to  inquiry,  as  a 
judicial  question.  See  Daggett  v.  Hudson,  1  Western  Reporter,  789, 
decided  by  the  Supreme  Court  of  Ohio,  where  many  of  the  cases  are 
collected  ;  Monroe  v.  Collins,  17  Ohio  St.  665. 

The  same  principle  has  been  more  freely  extended  to  the  quasi-legis- 
lative acts  of  inferior  municipal  bodies,  in  respect  to  which  it  is  an 
ancient  jurisdiction  of  judicial  tribunals  to  pronounce  upon  the  reason- 
ableness and  consequent  validity  of  their  by-laws.  In  respect  to  these, 
it  was  the  doctrine,  that  every  by-law  must  be  reasonable,  not  incon- 
sistent with  the  charter  of  the  corporation,  nor  with  any  statute  of  Par- 
liament, nor  with  the  general  principles  of  the  common  law  of  the  land, 
particularly  those  having  relation  to  the  liberty  of  the  subject  or  the 
rights  of  private  property.  Dillon  on  Municipal  Corporations,  3il  ed., 
§  319,  and  cases  cited  in  notes.  Accordingly,  in  the  case  of  The  State 
of  Ohio  ex  rel.  &c.  v.  The  Cincbmati  Gas-Light  and  Coke  Company, 
18  Ohio  St.  262,  300,  an  ordinance  of  the  city  council  purporting  to  fix 
the  price  to  be  charged  for  gas,  under  an  authority  of  law  giving  discre- 
tionary power  to  do  so,  was  held  to  be  bad,  if  passed  in  bad  faith,  fixing 
an  unreasonable  price,  for  the  fraudulent  purpose  of  compelling  the  gas 
company  to  submit  to  an  unfair  appraisement  of  their  works.  And  a 
similar  question,  very  pertinent  to  the  one  in  the  present  cases,  was 
decided  by  the  Court  of  Appeals  of  Maryland,  in  the  case  of  the  City  of 
Baltimore  v.  Radecke,  49  Maryland,  217.  ..  .  [Here  follows  a  state- 
ment of  this  case.     The  case  itself  is  found  infra,  p.  864.] 

This  conclusion,  and  the  reasoning  on  which  it  is  based,  are  deduc- 
tions from  the  face  of  the  ordinance,  as  to  its  necessary  tendency  and 
ultimate  actual  operation.  In  the  present  cases  we  are  not  obliged  to 
reason  from  the  probable  to  the  actual,  and  pass  upon  the  valid  it}'  of 
the  ordinances  complained  of,  as  tried  merely  by  the  opportunities 
which  their  terras  afford,  of  unequal  and  unjust  discrimination  in  their 
a'lministration.  For  the  cases  present  the  ordinances  in  actual  opera- 
tion, and  the  facts  shown  establish  an  administration  directed  so  exclu- 


CHAh  v.]  YICK   WO   V.   HOPKINS.  781 

sively  against  a  particular  class  of  persons  as  to  warrant  and  require 
the  conclusion,  that,  whatever  may  have  been  the  intent  of  the  ordi- 
nances as  adopted,  they  are  applied  by  the  public  authorities  charged 
with  their  administration,  and  thus  representing  the  State  itself,  with  a 
mind  so  unequal  and  oppressive  as  to  amount  to  a  practical  denial  by 
the  State  of  tliat  equal  protection  of  the  laws  which  is  secured  to  the 
petitioners,  as  to  all  other  persons,  by  the  broad  and  benign  provisions 
of  the  Fourteenth  Amendment  to  the  Constitution  of  the  United  States. 
Though  the  law  itself  be  fair  on  its  face  and  impartial  in  aijpearanc^e, 
vet,  if  it  is  applied  and  administered_^^v  public  authority  with  an  evil 
eye  and  anjinequal  hand,  so  as  practically  to  make  unjust_and  illegal 
discriminations  between  persons  in  similar  circumstances,  material  to_ 
flipii-rjghts.  tlie  denial  of  equal  iustice  is  stjH  within  the  prohibition  of 
tErConstU-ution.  This  principle  of  interpretation  has  been  sanctioned 
by  this  court  in  Henderson  v.  Mayor  of  New  York,  92  U.  S.  259  ;  Chy 
Lung  v.  Freeman,  92  U.  S.  275  ;  Ex  parte  Virginia,  100  U.  S.  339  ; 
Mai  \.  Delaware,  103  U.  S.  370;  and  Soon  Hing  v.  Crowley,  113 
U.  S.  703. 

The  present  cases,  as  shown  by  the  facts  disclosed  in  the  record,  are 
within  this  class.  It  appears  that  both  petitioners  have  complied  with 
every  requisite,  deemed  by  the  law  or  by  the  public  officers  charged  with 
its^ administration,  necessary  for  the  protection  of  neighboring  property 
from  fire,  or  as  a  precaution  against  injury  to  the  public  health.  No_ 
reason  whatever,  except  the  will  of  the  supervisors,  is  assigned  whyihey 
aliould  not  be  permittejLtQ^carry  on,  in  the  accustomed  manner^  their 
liarmless  and  useful  occupatioji^on  which  the^Mlepcnd_fV)rjiJivelihgpd . 
Aiid  while  this  consent  of  the  supervisors  is  withheld  from  them  and  from 
two  hundred  others  who  have  also  petitioned,  all  of  whom  happen  to  be 
Chinese  subjects,  eighty  others,  not  Chinese  subjects,  are  permitted  to 
carry  on  tlie  same  business  under  similar  conditions.  The  fact  of  this 
discrimination  is  admitted.  No  reason  for  it  is  shown,  andthe  conclu- 
sion cannot  be  resisted,  that  no  reason  for  it  exists  except  hostility  to 
the  race  and  nationality  to  which  the  petitioners  belong,  and  which  in 
the  eye  of  the  law  is  not  justified.  The  discrimination  is,  therefore, 
illegal,  and  the  public  administration  which  enforces  it  is  a  denial  of  the 
equal  protection  of  the  laws  and  a  violation  of  the  Fourteenth  Amend- 
ment of  the  Constitution.  The  imprisonment  of  the  petitioners  is, 
therefore,  illegal,  and  they  must  be  discharged.     To  this  end. 

The  judgment  of  the  Supreme  Court  of  California  in  the  case  of  Yick 
Wo,  and  that  of  the  Circuit  Court  of  the  United  States  for  the 
District  of  California  in  the  case  of  Wo  Lee,  are  severally  reversed, 
and  the  cases  rematided,  each  to  the  proper  court,  with  directions 
to  discharge  the  petitioners  from  custody  and  imprisonment.^ 

1  See  ffo  Ah  Kow  v.  Nunnn,  5  Sawyer  U.  S.  C.  C.  552  (1879) ;  Parrott's  Case,  G  lb, 
349  (1880) ;  In  re  Ah  Chong,  6  lb.  451 ;  Ex  parte  Sing  Lee,  96  Cal.  354  (1892).  — Ed. 


782  MUGLER   V.   KANSAS.  [CHAP.  V. 


MUGLER  V.  KANSAS. 
Supreme  Court  of  the  United  States,  1887. 

[123  U.  S.  623.] 

[Two  cases,  entitled  as  above,  on  error  to  the  Supreme  Couit  of 
Kansas,  and  another  case,  Kaiisas  v.  Ziebold,  on  appeal  from  the 
Circuit  Court  of  the  United  States  for  the  District  of  Kansas,  are 
here   grouped   together.] 

The  Constitution  of  the  State  of  Kansas  contains  the  following 
article,  being  art.  15  of  §  10,  which  was  adopted  b}'  the  people 
November   2,    1880: 

"  Tlie  manufacture  and  sale  of  intoxicating  liquors  shall  be  forever 
prohibited  in  this  State,  except  for  medical,  scientific,  and  mechanical 
purposes." 

The  Legislature  of  Kansas  enacted  a  statute  to  carry  this  into  effect, 
the  provisions  of  which  are  set  forth  by  the  court  in  its  opinion  in  this 
case,  to  which  reference  is  made.  This  statute  [approved  Feb.  19, 
1881]  took  effect  on  the  1st  of  May,  1881.    ■ 

The  plaintiff  in  error,  Mugler,  the  proprietor  of  a  brewer}-  in  Saline 
County,  Kansas,  was  indicted  in  the  District  Court  in  that  county  in 
November,  1881,  for  offences  against  this  statute. 

The  first  indictment  against  him  contained  five  counts  charging  that 
he,  on  five  different  specified  days  in  November,  1881,  in  the  county  of 
Saline,  "  unlawfully  did  sell,  barter,  and  give  away  spirituous,  malt, 
vinous,  fermented,  and  other  intoxicating  liquors,"  he  ^'  not  having  a 
permit  to  sell  intoxicating  liquors,  as  provided  by  law,  contrary  to  tlie 
statutes,"  &c.  ;  and  a  sixth  count  charging  that  in  Saline  County,  at 
a  time  named  in  that  month,  he  "  did  unlawfully  keep  and  maintain  a 
certain  common  nuisance,  to  wit:  "  his  brewer^',  then  and  there  "  kept 
and  used  for  the  illegal  selling,  bartering,  and  giving  away,  and  illegal 
keeping  for  sale,  barter,  and  use  of  intoxicating  liquors,  in  violation  of 
the  provisions  of  an  Act,"  &c. 

The  parties  made  an  agreed  statement  of  facts,  which  was  all  the 
evidence  introduced  in  the  case,  and  which  was  as  follows : 

"It  is  hereb}'  stipulated  and  agreed  that  the  facts  in  the  above- 
entitled  case  ai*e,  and  that  the  evidence  would  prove  them  to  be,  as 
follows : 

"  That  the  defendant,  Peter  Mugler,  has  been  a  resident  of  the 
State  of  Kansas  continually-  since  the  j'ear  1872  ;  that,  being  foreign 
born,  he  in  that  year  declared  his  intention  to  become  a  citizen  of  the 
United  States,  and  always  since  that  time  intending  to  become  such 
citizen,  he  did,  in  the  month  of  June,  1881,  by  the  judgment  of  the 
District  Court  of  Wyandotte  Count}',  Kansas,  become  a  full  citizen  of 
the  United  States,  and  since  that  time  has  been  a  citizen  of  the 
United  States  and  of  the  State  of  Kansas. 


CHAP,  v.]  '  MUGLER    V.    KANSAS.  783 

"  Tbat  in  the  year  1877  said  defendant  erected  and  furnished  a 
brewery  on  lots  Nos.  152  and  154  on  Tliird  Street,  in  tlic  city  of 
Salina,  Saline  County,  Kansas,  for  use  in  tlie  manufacture  of  a  malt 
liquor  commonly  known  as  beer ;  tbat  such  building  was  specially  con- 
structed and  adapted  for  the  manufacture  of  such  malt  liquor,  at  an 
actual  cost  and  expense  to  said  defendant  of  ten  thousand  dollars, 
and  was  used  by  him  for  the  purposes  for  which  it  was  designed  and 
intended  after  its  completion  in  1877  and  up  to  May  1,  1881, 

"  That  of  the  beer  so  manufactured  and  on  hand  prior  to  February 
19,  1881,  said  defendant  made  one  sale  since  May  1,  1881,  which 
is  the  sale  charged  in  the  first  count  of  the  indictment,  said  sale 
being  made  on  the  above-described  premises ;  that  the  beer  so  sold 
was  in  the  original  packages  in  which  it  was  placed  after  its  manufac- 
ture, and  was  not  sold  for  use  nor  used  on  said  premises ;  and  that 
at  the  time  of  such  sale  said  defendant  had  no  permit  to  sell  intoxi- 
cating liquors,  as  provided  by  chapter  128  of  Laws  of  1881." 

Mugler  was  adjudged  to  be  guilty,  and  was  sentenced  to  pay  a  fine 
of  one  hundred  dollars  and  costs,  and  motions  for  a  new  trial  and  in 
arrest  of  judgment  were  overruled.  This  judgment  being  affirmed  b}^ 
the  Supreme  Court  of  the  State  on  appeal,  the  cause  was  brought  here 
by  writ  of  error  on  his  motion. 

The  indictment  in  the  second  case  charged  that,  on  the  first  day  of 
November,  1881,  in  Saline  County  he  "  did  unlawfully  manufacture, 
and  aid,  assist,  and  abet  in  the  manufacture  of  vinous,  spirituous, 
malt,  fermented,  and  other  intoxicating  liquors,  in  violation  of  the 
provisions  of  an  Act,"  &c.,  he  then  and  there  "  not  having  taken  out 
and  not  having  a  permit  to  manufacture  intoxicating  liquors  as  pro- 
vided b}-  law,  contrary  to  the  statutes,'*  &c. 

The  parties  made  the  following  agreed  statement  of  facts  which  was 
all  the  evidence  introduced  in  the  case. 

'•It  is  hereby  stipulated  and  agreed  that  the  facts  in  the  above- 
entitled  case  are,  and  that  the  evidence  would  prove  them  to  be,  as 
follows  : 

''That  the  defendant,  Peter  Mugler,  had  been  a  resident  of  the 
State  of  Kansas  continually  since  the  year  1872  ;  that,  being  foreign 
born,  he  in  that  year  declared  his  intention  to  become  a  citizen  of  the 
United  States,  and  always  since  that  time  intending  to  become  such 
citizen,  he  did,  in  the  month  of  June,  1881,  by  the  judgment  of  the 
District  Court  of  Wyandotte  County,  Kansas,  become  a  full  citizen  of 
the  United  States  and  of  tlie  State  of  Kansas. 

"  That  in  the  year  1877  said  defendant  erected  and  furnished  a  brew- 
ery on  lots  Nos.  152  and  154  on  Third  Street,  in  the  city  of  Salina, 
Saline  County,  Kansas,  for  use  in  the  manufacture  of  an  intoxicating 
malt  liquor  commonly  known  as  beer. 

"That  such  building  was  speciallj-  constructed  and  adapted  for  the 
manufacture  of  such  malt  liquor,  at  an  actual  cost  and  expense  to  said 
defendant  of  ten  thousand  dollars,  and  was  used  by  him  for  the  pur- 


7«4  MUGLER   V.   KANSAS.  [cHAP.  V. 

po  OS  for  which  it  was  designed  and  intended  after  its  completion  in 
U77  and  up  to  May  1st,  1881.  That  said  brewery  was  at  all  times 
after  its  completion  and  on  May  1,  1881,  worth  the  sum  often  thou- 
sand dollars  for  use  in  the  manufacture  of  said  beer,  and  is  not 
worth  to  exceed  the  sum  of  twenty-five  hundred  dollars  for  any 
other  purpose.  That  said  defendant,  since  October  1,  1881,  has  used 
said  brewery  in  the  manner  and  for  the  purpose  for  which  it  was  con- 
structed and  adapted  by  the  manufacturing  therein  of  such  intoxicating 
malt  liquors,  and  at  the  time  of  such  manufacture  of  said  malt  liquors 
said  defendant  had  no  permit  to  manufacture  the  same  for  medical, 
scientific,  or  mechanical  purposes,  as  provided  by  chapter  128  of  Laws 
of  1881." 

The  defendant  was  adjudged  to  be  guilty,  and  was  fined  one  hun- 
dred dollars  and  costs,  and,  as  in  the  other  case,  motions  for  a  new 
trial  and  in  arrest  of  judgment  wei'e  overruled,  and  the  judgment  being 
affirmed  by  the  Supreme  Court  of  the  State  of  Kansas  on  appeal,  the 
defendant  sued  out  a  writ  of  error  to  review  it.  .  .  .  [The  assign- 
ment of  errors  is  here  set  forth.  It  suflficienth'  appears  in  the 
opinion.] 

Mr.    George  G.    Vest^  for  plaintiff"  in  error. 

Mr.  B.  S.  Bradford,  Attorney-General  of  the  State  of  Kansas, 
Mr.  George  R.  Peck,  Mr.  J.  B.  Johnson  and  Mr.  George  J.  Barker^ 
for  defendant  in  error,   submitted  on  their  brief. 

On  the  7th  March,  1885,  the  Legislature  of  Kansas  passed  an  Act 
"amendatory  of  and  supplemental  to"  the  Act  of  1881.  Among 
other  changes  made,  §  13  was  amended  so  as  to  read  as  shown  in  the 
footnote.^ 

1  For  convenience  this  section  is  reprinted  here,  although  it  will  he  found,  iufra,  in 
the  opinion  of  the  court. 

"  Sec.  13.  All  places  where  intoxicating  liquors  are  manufactured,  sold,  bartered, 
or  given  away  in  violation  of  any  of  the  provisions  of  this  Act,  or  where  intoxicating 
liquors  are  kept  for  sale,  barter,  or  delivery  in  violation  of  this  Act  are  hereby  declared 
to  be  common  nuisances,  and  upon  the  judgment  of  any  court  having  juri-sdiction  find- 
ing such  a  place  to  be  a  nuisance  under  this  section,  the  sheriff,  his  deputy,  or  under 
sheriff,  or  any  constable  of  the  proper  county,  or  marshal  of  any  city  wnere  the  same 
is  located,  shall  be  directed  to  shut  up  and  abate  such  place  by  taking  possession 
thereof  and  destroying  all  intoxicating  liquors  found  therein,  together  with  all  signs, 
screens,  bars,  bottles,  glasses,  and  other  property  u.«ed  in  keeping  and  maintaining 
said  nuisance,  and  the  owner  or  keeper  thereof  shall,  upon  conviction,  be  adjudged 
guilty  of  maintaining  a  common  nuisance,  and  .shall  be  punished  by  a  fine  of  not  less 
than  one  hundred  dollars  nor  more  than  five  hundred  dollars,  and  by  imprisonment  in 
the  county  jail  not  less  than  thirty  days  nor  more  than  ninety  days.  The  attorney- 
general,  county  attorney,  or  any  citizen  of  the  county  where  such  nuisance  exists,  or  is 
kept,  or  is  maintained,  may  maintain  an  action  in  the  name  of  the  State  to  abate  and 
perpetually  enjoin  the  same.  The  injunction  shall  be  granted  at  the  commencement 
of  the  action,  and  no  bond  shall  be  required.  Any  person  violating  the  terms  of  any 
injunction  granted  in  such  proceeding,  shall  be  punished  as  for  contempt,  by  a  fine  of 
not  less  than  one  hundred  nor  more  than  five  hundred  dollars,  or  by  imprisonment  in 
the  county  jail  not  less  than  thirty  day.s  nor  more  than  six  months,  or  by  both  such 
tine  and  imprisonment,  in  the  discretion  of  the  court." 


CHAP,  v.]  MUGLER   V.    KANSAS.  785 

On  the  13th  August,  1886,  there  was  filed  in  the  office  of  the  Dis- 
trict Court  for  the  County  of  Atchison,  Kansas,  an  information  against 
Ziebold  and  his  partner,  wlio  were  proprietors  of  a  brewery  there. 
The  information  prayed  that  tiie  brewery  miglit  be  adjudged  to  be  a 
common  nuisance  ;  that  it  be  ordered  to  be  shut  up  and  abated ;  that 
the  defendants  be  enjoined  from  using  or  permitting  to  be  used  the 
premises  as  a  place  where  intoxicating  liquors  were  sold,  bartered,  or 
given  away,  or  were  kept  for  barter,  sale,  or  gift,  otherwise  than  b^- 
authority  of  law ;  and  that  the  defendants  might  be  enjoined  from 
keeping  the  brewery  open,  and  from  selling,  bartering,  or  giving 
away,  or  keeping  for  sale,  barter,  gift,  or  use  in  or  about  the  premises, 
or  manufacturing  for  barter,  sale,  or  gift  in  the  State  of  Kansas,  any 
malt,  vinous,  spirituous,  fermented,  or  other  intoxicating  liquors,  and 
from  permitting  such  liquors  to  be  sold,  &c.,  or  kept  for  sale,  &c.,  or 
manufactured  for  sale,  &e.  in  the  State  of  Kansas.  On  the  defend- 
ants' motion  this  case  was  removed  to  the  Circuit  Court  of  the  United 
States,  where  an  amended  bill  in  equity  was  filed,  praying  for  the  relief 
asked  for  in  the  State  court.  After  joinder  of  issue  and  hearing  the 
Circuit  Court  dismissed  the  bill,  from  which  decree  the  State  appealed. 

Mr.  S.  B.  Bradford.,  Attoi'nej'-General  of  the  State  of  Kansas, 
Mr.  Edwin  A.  Austin.,  Assistant  Attorney-General  of  that  State,  and 
Mr.  J.  F.  Tufts.,  Assistant  Attorne}-  General  for  Atchison  County, 
Kansas,  for  appellant  submitted  on  their  brief,  October  25,  1887, 
Mr.  Bradford  moved  the  court  to  reopen  the  cause  and  reassign  it 
for  argument.     October  26,  1887,  the  court  denied  the  motion. 

Mr.  Joseph  H.  Choate.,  for  appellee,  Mr.  Robert  M.  Eaton  and 
Mr.  John  C.    Tomlinson  were  with  him  on  his  brief. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court:  — 

These  cases  involve  an  inquiry  into  the  validity  of  certain  stat- 
utes of  Kansas  relating  to  the  manufacture  and  sale  of  intoxicating 
liquors.  .  .  . 

By  a  statute  of  Kansas,  approved  March  3,  1868,  it  was  made  a 
misdemeanor,  punishable  by  fine  and  imprisonment,  for  any  one, 
directl}^  or  indirectly,  to  sell  spirituous,  vinous,  fermented,  or  other 
intoxicating  liquors,  without  having  a  dram-shop,  tavern,  or  grocery 
license.  It  was  also  enacted,  among  other  things,  that  every  place 
where  intoxicating  liquors  were  sold  in  violation  of  the  statute  should 
be  taken,  held,  and  deemed  to  be  a  common  nuisance ;  and  it  was 
required  that  all  rooms,  taverns,  eating-houses,  bazaars,  restaurants, 
groceries,  coffee-houses,  cellars,  or  other  places  of  public  resort  where 
intoxicating  liquors  were  sold,  in  violation  of  law,  should  be  abated 
as  public  nuisances.     Gen.  Stat.   Kansas,    1868,   c.   35,   §  6. 

But,  in  1880,  the  people  of  Kansas  adopted  a  more  stringent  policy. 
On  the  2d  of  November  of  that  year,  they  ratified  an  amendment 
to  the  State  Constitution,  which  declared  that  the  manufacture  and  sale 
of  intoxicating  liquors  should  be  forever  prohibited  in  that  State,  except 
for  mec^ical,  scientific,  and  mechanical  purposes. 
«   VOL.  I.  —  50 


786  MUGLEK   V.    KANSAS.  [CHAP.  V. 

In  order  to  give  effect  to  that  ameiuluicnt,  the  legislature  repealed 
the  Act  of  18G8,  and  passed  an  Act,  approved  February  19,  1881,  to 
take  effect  May  1,  1881,  entitled  *"  An  Act  to  prohibit  the  niauul'acture 
and  sale  of  intoxicating  liquors,  except  for  medical,  scientific,  and 
mechanical  purposes,  and  to  regulate  the  manufacture  and  sale  thereof 
for  such  excepted  purposes."  Its  first  section  provides  "  that  anv 
person  or  persons  who  shall  manufacture,  sell,  or  bartei  any  spiritu- 
ous, malt,  vinous,  fermented,  or  other  intoxicating  liquors  shall  be 
guilty  of  a  misdemeanor :  Provided,  however,  That  such  liquors  ma}' 
be  sold  for  medical,  scientific,  and  mechanical  purposes,  as  provided 
in  this  Act."  The  second  section  makes  it  unlawful  for  an}-  person 
to  sell  or  barter  for  eitlier  of  such  excepted  purposes  any  malt,  vinous, 
spirituous,  fermented,  or  other  intoxicating  liquors  without  having  pro- 
cured a  druggist's  permit  therefor,  and  prescribes  the  conditions  upon 
which  such  permit  may  be  granted.  The  third  section  relates  to  the 
giving  by  physicians  of  prescriptions  for  intoxicating  liquors  to  be 
used  by  their  patients,  and  the  fourth,  to  the  sale  of  such  liquors  by 
druggists.  The  fifth  section  forbids  any  person  from  manufacturing 
or  assisting  in  the  manufacture  of  intoxicating  liquors  in  the  State, 
except  for  medical,  scientific,  and  mechanical  purposes,  and  makes 
provision  for  the  granting  of  licenses  to  engage  in  the  business  of 
manufacturing  liquors  for  such  excepted  purposes.  The  seventh  sec- 
tion declares  it  to  be  a  misdemeanor  for  any  person,  not  having  the 
required  permit,  to  sell  or  barter,  directly  or  indirectly,  spirituous, 
malt,  vinous,  fermented,  or  other  intoxicating  liquors  ;  the  punishment 
prescribed  being,  for  the  first  offence,  a  fine  not  less  than  one  hundred 
nor  more  than  five  hundred  dollars,  or  imprisonment  in  the  county 
jail  not  less  than  twenty  nor  more  than  ninety  days  ;  for  the  second 
offence,  a  fine  of  not  less  than  two  hundred  nor  more  than  five  hundred 
dollars,  or  imprisonment  in  the  county  jail  not  less  than  sixty  days 
nor  more  than  six  months ;  and  for  every  subsequent  offence,  a  fine 
not  less  than  five  hundred  nor  more  than  one  thousand  dollars,  or 
imprisonment  in  the  county  jail  not  less  than  three  months  nor  more 
than  one  year,  or  both  such  fine  and  imprisonment,  in  the  discretion 
of  the  court.  The  eighth  section  provides  for  similar  fines  and  punish- 
ments against  persons  who  manufacture,  or  aid,  assist,  or  abet  the 
manufacture  of  any  intoxicating  liquors  without  having  the  required 
permit.  The  thirteenth  section  declares,  among  other  things,  all 
places  where  intoxicating  liquors  are  manufactured,  sold,  bartered, 
or  given  away,  or  are  kept  for  sale,  barter,  or  use,  in  violation  of 
the  Act,  to  be  common  nuisances  ;  and  provides  that  upon  the  judg- 
ment of  any  court  having  jurisdiction  finding  such  place  to  be  a 
nuisance,  the  proper  officer  shall  be  directed  to  shut  up  and  abate 
the  same. 

Under  that  statute,  the  pi'osecutions  against  Mugler  were  instituted. 
It  contains  otiier  sections  in  addition  to  those  above  referred  to  ;  but  as 
they  embody  merely  the  details  of  the  general  scheme  adopted  by  the 


CHAP,  v.]  MUGLER   V.    KANSAS.  787 

State  for  the  prolul)ition  of  the  uianufacture  and  sale  of  intoxicating 
liquors,  except  for  the  purposes  specified,  it  is  unnecessary  to  set  them 
out. 

On  the  7th  of  March,  1885,  the  legislature  passed  an  Act  amenda- 
tory and  supplementary  to  that  of  1881.  The  thirteenth  section  of 
the  former  Act,  being  the  one  upon  which  the  suit  against  Ziebold 
&  Hagelin  is  founded,  will  be  given  in  full  in  a  subsequent  part  of 
this  opinion.   .   .   . 

The  general  question  in  each  case  is,  whether  the  foregoing  statutes 
of  Kansas  are  in  conflict  with  that  clause  of  the  Fourteenth  Amend- 
ment, which  provides  that  "  no  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States ;  nor  shall  an}-  State  deprive  any  person  of  life,  libert}-, 
or  property,  without  due  process  of  law." 

That  legislation  by  a  State  prohibiting  the  manufacture  within  her 
limits  of  intoxicating  liquors,  to  be  there  sold  or  bartered  for  general 
use  as  a  beverage,  does  not  necessarily  infringe  an}'  right,  privilege, 
or  immunity  secured  by  the  Constitution  of  the  United  States,  is  made 
clear  by  the  decisions  of  this  court,  rendered  before  and  since  the 
adoption  of  the  Fourteenth  Amendment ;  to  some  of  which,  in  view 
of  questions  to  be  presently'  considered,  it  will  be  well  to  refer.  .  .  . 
[Here  follows  a  statement  of  The  License  Cases,  5  How.  504,  and 
quotations  from  Bartmeyer  v.  Iowa,  18  Wall.  129,  and  Beer  Co.  v. 
Mass.,  97  U.  S.  25.] 

Finally,  in  Foster  y.  Kajisas,  112  U.  S.  201,206,  the  court  said  that 
the  question  as  to  the  constitutional  power  of  a  State  to  prohibit  the 
manufacture  and  sale  of  intoxicating  liquors  was  no  longer  an  open 
one  in  this  court.  These  cases  rest  upon  the  acknowledged  right  of 
the  States  of  the  Union  to  control  their  purely  internal  affairs,  and,  in 
so  doing,  to  protect  the  health,  morals,  and  safety  of  their  people  bv 
regulations  that  do  not  interfere  with  the  execution  of  the  powers  of 
the  general  government,  or  violate  rights  secured  b}'  the  Constitution 
of  the  United  States.  The  power  to  establish  such  regulations,  as  was 
said  in  Gibbons  v.  Ogden,  9  Wheat.  1,  203, reaches  everything  within 
the  territory  of  a  State  not  surrendered  to  the  national  government. 

It  is,  however,  contended,  that,  although  the  State  may  prohibit  the 
manufacture  of  intoxicating  liquors  for  sale  or  barter  within  her  limits, 
for  general  use  as  a  beverage,  "  no  convention  or  legislature  has  the 
rigiit,  under  our  form  of  government,  to  prohibit  any  citizen  from 
manufacturing  for  his  own  use,  or  for  export,  or  storage,  any  article 
of  food  or  drink  not  endangering  or  affecting  the  rights  of  others.'* 
The  argument  made  in  support  of  the  first  branch  of  this  proposition, 
briefly  stated,  is,  that  in  the  implied  compact  between  the  State  and 
the  citizen  certain  rights  are  reserved  by  the  latter,  which  are  guaran- 
teed b}'  the  constitutional  provision  protecting  persons  against  being 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law,  and 
irith  which  the  State  cannot  interfere  ;  ihat  among  those  rights  is  that 


788  MUGLER   V.    KANSAS.  [CHAP.  V. 

of  manufacturing  for  one's  use  either  food  or  drink  ;  and  that  while, 
according  to  the  doctrines  of  the  Commune,  the  State  may  control 
the  tastes,  appetites,  habits,  dress,  food,  and  drink  of  the  people,  our 
system  of  government,  based  upon  the  individuality  and  intelligence 
of  the  citizen,  does  not  claim  to  control  him,  except  as  to  his  conduct 
to  others,  leaving  him  the  sole  judge  as  to  all  that  only  affects  himself. 

It  will  be  observed  that  the  proposition,  and  the  argument  made  in 
support  of  it,  equally  concede  that  the  right  to  manufacture  drink  for 
one's  personal  use  is  subject  to  the  condition  that  such  manufacture 
does  not  endanger  or  affect  the  rights  of  others.  If  such  manufacture 
does  prejudicially  affect  the  rights  and  interests  of  the  community,  it 
follows,  from  the  very  premises  stated,  that  society  has  the  power  to 
protect  itself,  by  legislation,  against  tlie  injurious  consequences  of  that 
business.  As  was  said  in  Munn  v.  Illinois,  94  U.  S.  113,  124,  while 
power  does  not  exist  with  the  whole  people  to  control  rights  that  are 
purely  and  exclusively  private,  government  may  require  ^^each  citizen 
to  so  conclucT  himself,  and  so  use  bis  own  property,  as  not  unneces- 
sarily~to  injure  another.'' 

Uut  by  wTiom,  or  by  what  authority,  is  it  to  l>e  determined  whether 
the  manufacture  of  particular  articles  of  drink,  either  for  general 
use  or  for  the  personal  use  of  the  maker,  will  injuriously  affect  the 
public?  Power  to  determine  such  questions,  so  as  to  bind  all,  must 
exist  somewhere  ;  else  societ}"  will  be  at  the  mercy  of  the  few,  who, 
regarding  onh-  their  own  appetites  or  passions,  may  be  willing  to 
imperil  the  peace  and  security  of  the  many,  provided  only  they  are 
permitted  to  do  as  they   please.     Under  our   system  that  power  is 

lodged  with  the  legislative  branch  of  the  government^ It  belongs  to 

that  ijepnrti'^p"*'  ^^>  pvert,  \s\\\\^  -'^'•^  knf>wn  as_liia_pQli£e__powers  of  the 
State,  and  to  determine,  primarily  what  measures  are^appropriate  or 
Tieedfpl  for  the  protec.t.ion  of_thG  public  moralsT~tEe"3£^^^^^  healtbT 
or  the^pablic  safety. 

It  does  not  at  all  follow  that  every  statute  enacted  ostensibly  for 
the  promotion  of  these  ends,  is  to  be  accepted  as  a  legitimate  exertion 
of  the  police  powers  of  the  State.  There  are,  of  necessity,  limits 
beyond  which  legislation  cannot  rightfully  go.  .  .  . 

Xhe-cmiits  jire_not,  bound  by-  inere~forms,  nor  are  they-to^be  misled 

\y^  mexe  pretiP"''^"  _They_arR  "t  Mbe**^ mdeed,-ai£-under  a-SQlem.n 

djjfy  —  to  lorik  at^thfi^ubstance  of  thingay  wlieneyei;  thej-  entsiLJipon 
th"  inquixjl^^^^'^r  th^  legislntjirf  hf^s  trgiig,^i*',"r^^^  the  limits  oLJts 
authority.  If,  therefore,  a  statute  purporting  to  nave  been  enacted 
to  protect  the  public  health,  the  public  morals,  or  the  public  safety', 
has  no  real  or  substantial  relation  to  those  objects,  or  is  a  palpable 
invasion  of  rights  secured  by  the  fundamental  law,  it  is  the  dut}'  of  the 
courts  to  so  adjudge,  and  thereby  give  effect  to  the  Constitution. 

Keeping  in  view  these  principles,  as  governing  the  relations  of  the 
judicial  and  legislative  departments  of  government  with  each  other, 
it  is  diflScult  to  perceive  any  ground  for  the  judiciary  to  declare  that 


789 


CHAP,  v.]  MUGLER   V.    KANSAS. 

the  prohibition  by  Kansas  of  the  manufacture  or  sale,  within  her  limits, 
of  intoxicating  liquors  for  general  use  there  as  a  beverage,  is  not 
fairly  adapted  to  the  end  of  protecting  the  community  against  the  evils 
which  confessedly  result  from  the  excessive  use  of  ardent  spirits.  There 
is  no  justification  for  holding  that  the  State,  under  the  guise  merely  ^f 
police  regulations,  is  here  aiming  to  deprive  the  citizen  of  his  con- 
^UHti^lTIaliihtiT  for  we  c^not  shut  out  of  view  the  fact  within  tke 
g-nr^wlprloRof  all.  lEiTtlir^blic  health,  th^  public  morals,  and  the 
nnblic  sS^wT^av  be  endangered  by  the  general  use  of  intoxicating 
fe;:[k771^the  fact,  establiih^  by  statistics  accessible  to  eyep 
one,  that  the  idleness,  disorder^pau^eiism^and  crime  existi.i^m  the 

^untixMe.in^^£imfi-deS^^  ^^  ^-^"'  ^    -.      '  ] 

foiiTTSUtTdeems  the'  absolute  prohibition  of  the  manufacture  and 

sale  within  her  limits,  of  intoxicating  liquors  for  other  than  medical, 
scientific,  and  manufacturing  purposes,  to  be  necessary  to  the  peace 
and  security  of  society,  Jhe_courts  cannot,  without  usurping  legisla- 
tive functions,  override  thT^dUlf  the  people  as  thus  expressed  by 
their  chosen  representatives.  They\ay^  nothing  to  do  wit^  the  mere 
policy  of  legislation.  Indeed,  it  is  a  fundamental  principle  in^' 
f.^.},..    ;nHi^]^;;:;;^;^l^to'the__Di:^^  liberty,  that 

one  of  the  separate  deimr^ments  of  government  shaU^jaot  usurp  powers 
committed  by  the  Constitution  to  anothei-  dej)artment._And  so,  if,  m 
the  judgment  of  th^l^gislaturejhe^  intoxicating  liquors 

for  t.he°makeril7^^Tn^iir^^rarSvm:age^woul^^  tend  to  cripple,  if  it  did 
7:7r:jpfpnt,  the  oflfort  to  guard  the  community  against  the  evils  attending. 
tl^rSSiSSSliEiiiS^  for  the  courts,  upon  the^r 

vipw.  ns  to  whnt,  ■•«  ^^<^^^  --^"^^  siLfcal^Jbr  th^-eammunity,  tO-_disregai-d 
fhplogi^lntive  determina,tk)n  nf  that  question.  So  far  from  such  a  regu- 
lation liaving  no  relation  to  the  general  end  sought  to  be  accomplished, 
the  entire  scheme  of  prohibition,  as  embodied  in  the  Constitution  and 
laws  of  Kansas,  might  fail,  if  tliejighjLQLeacIi  citizeiL.to4tiamifactui:e_La- 
|n^,Vntincr  liqnnrs  for  his  own  usc  as  a  beverage  were_recognized.  Such 
a  ricrht  does  not  inhere  in  citizcnshi^.,-Kfli:-CanJt  be  said  tliiLt,gQ\:ei-n: 
i^i^t  interferer^ith_oi-   h^v^   anv   one's    constitutional   righjsof 

liberty  or  of  propertx,jv^£iLilU£t£iming^-^^ 
sale  of  intoxicatiii^jlrinksjor  general  or  individual  use,  as  a  beverage, 
arTor  may  becomeThurtful  to  society,  and  constitute,  therefore,  a  busi- 
ness in  which  no  one  may  lawfully  engage.  Tiiose  rights  are  best  se- 
cured, in  our  government,  by  the  observance,  upon  the  part  of  all,  of  such 
reo-ulations  as  are  established  by  competent  authority  to  promote  the 
common  <TOod.  N-  ^^na_m^^ghtf^ll^■  do  that  whichjhe  law-making 
power,    upon    ye^P^^^^^^^l^^^^^^^,   declares   to   be   preiudicial  to  jlje. 

generaljEiilfara. —  ,        . 

'ThiTc^nclusion  is  unavoidable,  unless  the  Fourteenth  Amendment 
of  the  Constitution  takes  from  the  States  of  tlie  Union  those  powers 
of  police  that  were  reserved  at  the  time  the  original  Constitution 
was  adopted.     But  this  court  has  declared,  upon  full  consideration,  m 


790  MUGLLU   V.    KANSAS.  [cHAP.  V. 

Barhier  \.  Connolly,   113  U.  S.  27,  31,   tliat  the  Fourteenth  Amend- 
ment hiul  no  such  effect.  .  .   . 

...  It  is  contended  that,  as  the  prnii:iry  and  principal  use  of  beer 
is  as  a  beverage ;  as  their  respective  breweries  were  erected  when  it 
was  lawful  to  engage  in  the  manufacture  of  beer  for  every  purpose  ;  as 
such  establishments  will  become  of  no  value  as  property,  or,  at  least, 
will  be  materially  diminished  in  value,  if  not  employed  in  the  manu- 
facture of  beer  for  every  purpose ;  the  prohibition  upon  their  being 
so  employed  is,  in  effect,  a  taking  of  i)roperty  for  public  use  without 
compensation,  and  depriving  the  citizen  of  his  property  without  due 
process  of  law.  In  other  words,  although  the  State,  in  tlie  exercise 
of  her  police  powers,  may  lawfully  prohibit  the  manufacture  and  sale, 
within  her  limits,  of  intoxicating  liquors  to  be  used  as  a  beverage, 
legislation  having  that  object  in  view  cannot  be  enforced  against  those 
who,  at  the  lime,  happen  to  own  proi)erty,  the  chief  value  of  which 
consists  in  its  fitness  for  such  manufactining  purposes,  unless  com- 
pensation is  first  made  for  the  diminution  in  the  value  of  their  prop- 
erty, resulting  from  sucli  prohibitory  enactments. 

This  interpretation  of  the  Fourteenth  Amendment  is  inadmissible. 
It  cannot  be  supposed  that  the  States  intended,  by  adopting  that 
Amendment,  to  impose  restraints  upon  the  exercise  of  their  powers 
for  the  protection  of  the  safety,  health,  or  morals  of  the  community. 
In  respect  to  contracts,  the  obligations  of  which  are  protected  against 
hostile  State  legislation,  this  court  in  liutc/ters'  Union  Co.  v.  Cres- 
cent City  Co.,  Ill  U.  S.  746,  751,  said  that  the  State  could  not,  by 
any  contract,  limit  the  exercise  of  her  power  to  the  prejudice  of  the 
public  health  and  the  public  morals.  So,  in  Stone  v.  Mississippi,  101 
U.  S.  814,  816,  where  the  Constitution  was  invoked  against  the  repeal 
by  the  State  of  a  charter,  granted  to  a  private  corporation,  to  conduct 
a  lottery,  and  for  which  that  corporation  paid  to  llie  State  a  valuable 
consideration  in  mone}',  the  court  said  :  "  No  legislature  can  baroain 
^way  the  public  health  or  the  piLblio  morals.  The  people  themselves 
cannot  do  it,  much  less  their  servants.  .  .  .  Government  is  organ- 
ized with  a  view  to  their  preservation,  and  cannot  divest  itself  of 
the  power  to  provide  for  them."  Again,  in  New  Orleans  Gas  Co. 
V.  Lotiisiana  Light  Co.,  115  U.  S.  650,  672:  "The  constilutional 
prohibition  upon  State  laws  impairing  the  obligation  of  contracts  does 
not  restrict  the  power  of  the  State  to  protect  the  public  health,  the 
public  morals,  or  the  public  safety,  as  the  one  or  the  other  may  be 
involved  in  the  execution  of  such  contracts.  Riolits_aiid_4)rhjl£g<^ 
arisjngJVpm  contracts  with  a  State_are  subject  to  r^g«la44aua_fQii  liis. 
t2rotection  of  the  onblio.  hpnUJi  the  pubh>  mornls,  and  the  public  safety. 
in  the  same  sense,  and  to  the  same  extent,  as  are  all  contracts  and  all 
property,  whether  owned  by  natural  persons  or  corporatimis.'' 

The  principle,  that  no  person  shall  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law,  was  embodied,  in  substance,  m  the 
constitutions  of  nearlj*  all,  if  not  all,  of  the  States  at  the  time  of  the  adop- 


CHAP,  v.]  MUGLER   V.    KANSAS.  791 

tion  of  the  Fourteenth  Amendment ;  and  it  has  never  been  regarded 
as  incompatible  with  the  principle,  equally  vital,  because  essential  to, 
the  peace  and  safety  of  society,  that  all  projjerty  in  this  CQUQtrv  is 
held  under  the  im|)lied  obligation  that  the  owner^s  use^of  it  shallji^t 
Ije  injudOlltJ  to  Lhen!ommunity.  Beer  Co.  v.  Massachusetts,  97  U.  S.  25, 
32;  ComnioimeaUk  ^Alger,  7  Cush.  53.  An  illustration  of  this 
doctrine  is  afforded  by  Patterson  v.  Kentucky,  97  U.  S.  501.  .  .  . 
[Here  follows  a  statement  of  this  case.] 

See  also   United  States  v.  Dewltt,  9  Wall.  41  ;  License  Tax  Cases. 
5  Wall.  462  ;  Fercear  v.  Comviomcealth,  5  Wall.  475. 

Another  decision,  very  much  in  point  upon  this  branch  of  the  case, 
is  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659,  667,  also  decided  after 
the  adoption  of  the  Fourteenth  Amendment.     The  court  there  sustained 
the   validity  of  an  ordinance  of  the  village   of  Hyde  Park,  in  Cook 
County,    Illinois,    passed  under   legislative    authority,    forbidding  any 
person  from  transporting  through  that  village  oftal  or  other  offensive 
or  unwholesome  matter,  or  from  maintaining  or  carrying  on  an  offen- 
sive or  unwholesome  business  or  establishment  within  its  limits.     The 
Fertilizing  Company  had,  at  large  expense,   and  under  authoi-ity  ex- 
pressly conferred  by  its  cliarter,  located  its  works  at  a  particular  point 
in  the  county.     Besides,  the  charter  of  the  village,  at  that  time,  pro- 
vided that  it  should  not  interfere  with  parties  engaged  in  transporting 
animal  matter  from  Chicago,  or  from  manufacturing  it  into  a  fertilizer 
or  other  chemical  product.     The  enforcement  of  the  ordinance  in  ques- 
tion operated  to  destroy  the  business  of  the  company,  and  seriously  to 
impair  the  value  of  its  property.     As,  however,  its  business  had  become 
a  nuisance  to  the  community  in  which  it  was  conducted,  producing  dis- 
comfort, and  often  sickness,  among  large  masses  of  people,  the  court 
maintained  tlie  authority  of  the  village,  acting  under  legislative  sanc- 
tion, to  protect  the  public  health  against  such  nuisance.     It  said  :  ^'  We 
cannot  doubt  that  the  police  power  of  the  State  was  applicable  and 
adequate  to  give  an  effectual  remedy.     That  power  belonged  to  the 
States  when  the   Federal    Constitution   was  adopted.     They  did  not 
surrender  it,  and  they  all  have  it  now.     It  extends  to  the  entire  prop- 
erty and  business  within  their  local  jurisdiction.     Both  are  subject  to 
it  in  all  proper  cases.     It  rests  upon  the  fundamental  principle  that 
every  one  shall  so  use  his  own  as  not  to  wrong  and  injure  another.     To 
regulate  and  abate  nuisances  is  one  of  its  ordinary  functions." 

It  is  supposed  by  the  defendants  that  the  doctrine  for  which  they 
contend  is  sustained  by  Pumpelly  v.  Green  Bay  Co.,  13  Wall.  166. 
But  in  that  view  we  do  not  concur.  That  was  an  action  for  the  recov- 
ery of  damages  for  the  overflowing  of  the  plaintiff's  land  by  water, 
resulting  from  the  construction  of  a  dam  across  a  river.  The  defence 
was  that  the  dam  constituted  a  part  of  the  system  adopted  by  the  State 
for  improving  the  navigation  of  Fox  and  Wisconsin  rivers ;  and  it  was 
contended  that  as  the  damages  of  which  the  plaintiff  complained  were 
onlv  the  result  of  tlie  improvement,  under  legislative  sanction,  of  a 

V 


792  MUGLER   V.    KANSAS.  [cHAP.  V. 

navigable  stream,  he  was  not  entitled  to  compensation  from  the  State 
or  its  agents.  The  case,  therefore,  involved  the  question  whether  the 
overflowing  of  the  plaintiff's  land,  to  such  an  extent  that  it  became 
practically  unfit  to  be  used,  was  a  taking  of  property,  within  the  mean- 
ing of  the  Constitution  of  Wisconsin,  providing  that  "  the  property  of 
no  person  shall  be  taken  for  public  use  without  just  compensation 
tlierefor."  This  court  said  it  would  be  a  very  curious  and  unsatisfactory 
result,  were  it  held  that,  "  if  the  government  refrains  from  the  absolute 
conversion  of  real  property  to  the  uses  of  the  public,  it  can  destroy  its 
value  entirely,  can  inflict  irreparable  and  permanent  injury  to  any 
extent,  can,  in  effect,  subject  it  to  total  destruction,  without  making 
any  compensation,  because,  in  the  narrowest  sense  of  that  word,  it  is 
not  taken  for  the  public  use.  Such  a  construction  would  pervert  the 
constitutional  provision  into  a  restriction  upon  the  rights  of  the  citizen, 
as  those  rights  stood  at  the  common  law,  instead  of  the  government, 
and  make  it  an  authority  for  the  invasion  of  private  right  under  the 
pretext  of  the  public  good,  which  had  no  warrant  in  the  laws  or 
practices  of  our  ancestors."     pp.  177,  178. 

These  principles  have  no  application  to  the  case  under  consideration. 
The  question  in  Purnpelly  v.  Green  Bay  Company  arose  under  the 
State's  power  of  eminent  domain  ;  while  the  question  now  before  us 
arises  under  what  are,  strictly,  the  police  powers  of  the  State,  exerted 
for  the  protection  of  the  health,  morals,  and  safety  of  the  people. 
That  case,  as  this  court  said  in  Transportation  Co.  v.  Chicago.,  99 
U.  S.  635,  642,  was  an  extreme  qualification  of  the  doctrine,  universally' 
held,  that  "  acts  done  in  the  proper  exercise  of  governmental  powers, 
and  not  directly  encroaching  upon  private  property,  though  these  con- 
sequences may  impair  its  use,"  do  not  constitute  a  taking  within  the 
meaning  of  the  constitutional  provision,  or  entitle  the  owner  of  such 
property  to  compensation  from  the  State  or  its  agents,  or  give  him  any 
right  of  action.  It  was  a  case  in  which  there  was  a  "permanent 
flooding  of  private  propertv,"  a  "  physical  invasion  of  the  real  estate 
of  the  private  owner,  and  a  practical  ouster  of  his  possession."  His 
property  was,  in  effect,  required  to  be^  devoted  to  the  use  of  the  public, 
and,  consequentl}-,  he  was  entitled  to  compensation. 

As  already  stated,  the  present  case  must  be  governed  b)'  principles 
that  do  not  involve  the  power  of  eminent  domain,  in  the  exercise  of 
which  property  may  not  be  taken  for  public  use  without  compensation. 
A  prohibition  simpl3'  upon  the  use  of  property  for  purposes  that  are 
declared,  by  valid  legisTatTonTto  be  injurious  to  the_^ealth21norals,  or 
safety  of  the  community,  cannot,  in  any_just  sense,  be  dfifinied  a  taking 
or  an  appropriation  of  property  for  the  public  benefit.  Such  legislation 
does  not  disturb  the  owner  in  the  control  or  use  of  his  property  for 
lawful  purposes,  nor  restrict  his  right  to  dispose  of  it,  but  is  only 
a  declaration  by  the  State  that  its  use  b}'  an}-  one,  for  certain  forbidden 
purposes,  is  prejudicial  to  the  public  interests.  Nor  can  legislation  of 
that  character  come  within  the  Fourteenth  Amendment,  in  an}*  case, 


CHAP.  V.l  MUGLER   V.   KANSAS.  793 

unless  it  is  apparent  that  its  real  object  is  not  to  protect  the  commu- 
nity, or  to  promote  the  general  well-being,  but,  under  the  guise  of 
police  regulation,  to  deprive  the  owner  of  his  liberty  and  property, 
without  due  process  of  law.  The  power  which  the  States  have  of  pro- 
hibiting such  use  by  individuals  of  their  property  as  will  be  prejudicial 
to  the  health,  the  morals,  or  the  safety  of  the  public,  is  not  —  and,  con- 
sistently with  the  existence  and  safety  of  organized  society,  cannot  be 
—  burdened  with  the  condition  that  the  State  must  compensate  sueh 
individual  owners  for  pecuniary  losses  they  may  sustain,  by  reason  of 
their  not  being  permitted,  by  a  noxious  use  of  their  property,  to  inflict 
injury  upon  the  community.  The^exercij^Df^the, police  power  by  the 
destruction  of  property  which  is  itself  a  public  nuisance,  or  the  pro- 
hil)[tion  of  its  use  in  a  particular  wav.  whereby  its_mlLie_  he£OiU£S. 
dpj2iycintpd,  is  very  difforpnt  from  taking  laroperty  for  public  uae,_m- 

from  deorivino;  a  person  of  hi''  property  without  due  process  of  law. In 

the  one  case^   a  nuisancf*  ""H'  ^'^  nbntpfl :   in  the  other,  unoffending 

pmpprty   is   takep    nwny    f^-r^m   on    innnfPnf.   nwnpr. 

It  is  true,  that,  when  the  defendants  in  these  cases  purchased  or 
erected  their  breweries,  the  laws  of  the  State  did  not  forbid  the  manu- 
facture of  intoxicating  liquors.     But  the  State  did  not  thereby  give  any 
assurance,  or  come  under  an  obligation,  that  its  legislation  upon  that 
subject  would  remain  unchanged.      Indeed,  as  was  said  in   Stone  v. 
llisslssipjn,  above  cited,  the  supervision  of  the  public  health  and  the 
public  morals  is  a  governmental  power,  "  continuing  in  its  nature," 
and  "  to  be  dealt  with  as  the  special  exigencies  of  the  moment  may 
require  ;  "  and  that,  "  for  this  purpose,  the  largest  legislative  discretion 
is  allowed,  and  the  discretion  cannot  be  parted  with  any  more  than  the 
power  itself."     So  in  Beer  Co.  v.  Massachusetts,  97  U.  S.  32  :  "  If  tlie. 
public  safety  or  the  public  morals  require  the  discontinuance^oL-apy- 
mahutacture  or  imfft^^rTITe  hand  of  the  legislature  cannot  be  sta^^^ 
from  providing  for  its  discontinuance  bx_im^LIilf'^<^"T,-'il  incr>nvenipn.ce 
which  individuals  or  corporations  may_^aiiflcr." 

It  now  remams  to  consider  certain  questions  relating  particular!}'  to 
the  thirteenth  section  of  the  Act  of  1885.  That  section  —  which  takes 
the  place  of  §  13  of  the  Act  of  1881— is  as  follows.  .  .  .  [This  is 
given  ante,  p.  784,  note.] 

It  is  contended  by  counsel  in  the  case  of  Kansas  v.  Zieholcl  &  Hage- 
Un,  that  the  entire  scheme  of  this  section  is  an  attempt  to  deprive 
persons  who  come  within  its  provisions  of  their  property  and  of  their 
liberty  without  due  process  of  law ;  especially,  when  taken  in  connec- 
tion with  that  clause  of  §  14  (amendatory  of  §  21  of  the  Act  of  1881) 
which  provides  that  "  in  prosecutions  under  this  Act,  by  indictment  or 
otherwise,  ...  it  shall  not  be  necessary  in  the  first  instance  for  the  State 
to  prove  that  the  party  charged  did  not  have  a  permit  to  sell  intoxicating 
liquors  for  the  excepted  purposes." 

We  are  unable  to  perceive  anything  in  these  regulations  inconsistent 
with  the  constitutional  guarantees  of  liberty  and  property.     The  State 


794  MUGLER   V.    KANSAS.  [CHAP.  V. 

having  authoi'it}' to  prohibit  the  manufacture  and  sale  of  intoxicating 
liquors  for  other  than  medical,  scientific,  and  mechanical  purposes,  we 
do  not  doubt  her  power  to  declare  that  an}'  place,  kept  and  maintained 
for  the  illegal  manufacture  and  sale  of  such  liquors,  shall  be  fleemed  a 
common  nuisance,  and  be  abated,  and,  at  the  same  time,  to  provide  for 
the  indictment  and  trial  of  the  offender.  One  is  a  proceeding  against 
the  property  used  for  forbidden  purposes,  while  the  other  is  for  the 
punishment  of  the  offender. 

It  is  said  that  by  the  thirteenth  section  of  the  Act  of  1885,  the  legis- 
lature, finding  a  brewery  within  the  State  in  actual  operation,  without 
notice,  trial,  or  hearing,  by  the  mere  exercise  of  its  arbitrary'  caprice, 
declares  it  to  be  a  common  nuisance,  and  then  prescribes  the  conse- 
quences which  are  to  follow  inevitably  by  judicial  mandate  required  b}' 
the  statute,  and  involving  and  permitting  the  exercise  of  no  judicial 
discretion  or  judgment;  that  the  brewery  being  found  in  operation,  the 
court  is  not  to  determine  whether  it  is  a  common  nuisance,  but,  under 
the  command  of  the  statute,  is  to  find  it  to  be  one  ;  tliat  it  is  not  the 
liquor  made,  or  the  making  of  it,  which  is  thus  enacted  to  be  a  common 
nuisance,  but  the  place  itself,  including  all  the  property-  used  in  keep- 
ing and  maintaining  the  common  nuisance;  that  the  judge  having  thus 
signed  without  inquirj-  —  and,  it  ma}'  be,  contrary  to  the  fact  and 
against  his  own  judgment — the  edict  of  the  legislature,  the  court  is 
commanded  to  take  possession  b}'  its  officers  of  the  place  and  shut  it 
up  ;  nor  is  all  this  destruction  of  property,  b}-  legislative  edict,  to  be 
made  as  a  forfeiture  consequent  upon  conviction  of  any  offence,  but 
raerel}'  because  the  legislature  so  commands  ;  and  it  is  done  by  a  court 
of  equity,  without  any  previous  conviction  first  had,  or  any  trial  known 
to  the  law. 

Tiiis,  certainly,  is  a  formidable  arraignment  of  the  legislation  of 
Kansas,  and  if  it  were  founded  upon  a  just  interpretation  of  her  stat- 
utes, the  court  would  have  no  difficulty  in  declaring  that  they  could  not 
be  enforced  without  infringing  the  constitutional  rights  of  the  citizen. 
But  those  statutes  have  no  such  scope  and  are  attended  with  no  such 
results  as  the  defendants  suppose.  The  court  is  not  required  to  give 
effect  to  a  legislative  "  decree  '*  or  "  edict,"  unless  every  enactment  by 
the  law-making  power  of  a  State  is  to  be  so  characterized.  It  is  not 
declared  that  ever}'  establishment  is  to  be  deemed  a  common  nuisance 
because  it  may  have  been  maintained  prior  to  the  passage  of  the  statute 
as  a  place  for  manufacturing  intoxicating  liquors.  The  statute  is  pro- 
spective in  its  operation,  that  is,  it  does  not  put  the  brand  of  a  common 
nuisance  upon  any  place,  unless,  after  its  passage,  that  place  is  kept 
and  maintained  for  purposes  declared  by  the  legislature  to  be  injurious 
to  the  community.  Nor  is  the  court  required  to  adjudge  any  place  to 
be  a  common  nuisance  simply  because  it  is  charged  by  the  State  to  be 
such.  It  must  first  find  it  to  be  of  that  chnracter;  that  is,  must 
ascertain,  in  some  legal  mode,  wliether  since  the  statute  was  passed 
th"  plnce  in  question  has  been,  or  is  being,  so  used,  as  to  make  it  a 
common  nuisance. 


CHAP,  v.]  MUGLER   V.    KANSAS.  795 

Equally  untenable  is  the  proposition  that  proceedings  in  equity  for 
the  purposes  indicated  in  the  thirteenth  section  of  the  statute  are 
inconsistent  with  due  process  of  law.  "  In  regard  to  public  nui- 
sances," Mr.  Justice  Story  says,  "the  jurisdiction  of  courts  of  equity 
seems  to  be  of  a  very  ancient  date,  and  has  been  distinctly  tiaced 
back  to  the  reign  of  Queen  Elizabeth.  The  jurisdiction  is  applicable 
not  only  to  public  nuisances,  strictly  so  called,  but  also  to  purprestures 
upon  public  rights  and  property.  ...  In  case  of  public  nuisances, 
properly  so  called,  an  indictment  lies  to  abate  them,  and  to  punish  the 
offenders.  But  an  information,  also,  lies  in  equity  to  redress  the  griev- 
ance by  way  of  injunction."  2  Story's  Eq.  §§  921,  922.  The  ground 
of  this  jurisdiction  in  cases  of  purpresture,  as  well  as  of  public  nui- 
sances, is  the  ability  of  courts  of  equity  to  give  a  more  speedy,  effectual, 
and  permanent  remedy,  than  can  be  had  at  law.  They  can  not  only 
prevent  nuisances  that  are  threatened,  and  before  irreparable  mischief 
ensues,  but  arrest  or  abate  those  in  progress,  and,  by  perpetual  injunc- 
tion protect  the  public  against  them  in  the  future  ;  whereas  courts  of 
law  can  only  reach  existing  nuisances,  leaving  future  acts  to  be  the 
subject  of  new  prosecutions  or  proceedings.  This  is  a  salutary  juris- 
diction, especially  where  a  nuisance  affects  the  health,  morals,  or  safety 
of  the  community.  Though  not  frequently  exercised,  the  power  un- 
doubtedly exists  in  courts  of  equity  thus  to  protect  the  public  against 
injury.  District  Attorney  v.  Lynn  and  Boston  Railroad  Co.,  IG  Gray, 
242,  245  ;  Attorney-General  v.  New  Jersey  Itailroad,  2  Green,  Ch. 
139;  Attor)iey- General  v.  Tudor  Ice  Co.,  104  Mass.  239,  244;  State 
V.  3Iayor,  5  Porter  (Ala.),  279,  294;  Iloole  v.  Attorney -General,  22 
Ala.  190,  194;  Attoriiey -General  v.  Hunter,  1  Dev.  Eq.  12;  Attorney- 
Gejieral  V.  Forbes,  2  Myl.  &  Cr.  123,  129,  133:  Attorney- General  v 
Great  Northern  Raihoay  Co.,  1  Drew.  &  Sm.  154,  161  ;  Eden  on 
Injunctions,  259  ;  Kerr  on  Injunctions  (2d  ed.),  168. 

As  to  the  objection  that  the  statute  makes  no  provision  for  a  jury 
trial  in  cases  like  this  one,  it  is  sufficient  to  say  that  such  a  mode  of 
trial  is  not  required  in  suits  in  equity  brought  to  abate  a  public  nui- 
sance. The  statutory  direction  that  an  injunction  issue  at  the  commence- 
ment of  the  action  is  not  to  be  construed  as  dispensing  with  such 
preliminary  proof  as  is  necessary  to  authorize  an  injunction  pending 
the  suit.  The  court  is  not  to  issue  an  injunction  simply  because  one  is 
asked,  or  because  the  charge  is  made  that  a  common  nuisance  is  main- 
tained in  violation  of  law.  The  statute  leaves  the  coui't  at  liberty  to 
give  effect  to  the  principle  that  an  injunction  will  not  be  granted 
to  restrain  a  nuisance,  except  upon  clear  and  satisfactory  evidence  that 
one  exists.  Here  the  fact  to  be  ascertained  was,  not  whether  a  place, 
kept  and  maintained  for  purposes  forbidden  by  the  statute,  was,  per  se, 
a  nuisance  —  that  fact  being  conclusively  determined  by  the  statute 
itself — but  whether  the  place  in  question  was  so  kej^t  and  maintained. 

If  the  proof  upon  that  point  is  not  full  or  sullK-imt.  tlie  court  can 
refuse  an  injunction,  or  postpone  action  until  the  State  first  obtains  the 


796  MUGLER    V.    KANSAS,  [CHAP.  Y, 

verdict  of  a  jur}'  in  her  favor.  In  tliis  case,  it  cannot  be  denied  that 
the  defendants  kept  and  maintained  a  place  that  is  within  the  statutory 
definition  of  a  common  nuisance.  Their  petition  for  the  removal  of  the 
cause  from  the  State  court,  and  their  answer  to  the  bill,  admitted  ever}- 
fact  necessary  to  maintain  this  suit,  if  the  statute,  under  which  it  was 
brought,  was  constitutional. 

Touching  the  provision  that  in  prosecutions,  b}-  indictment  or  other- 
wise, the  State  need  not,  in  the  first  instance,  prove  that  the  defendant 
has  not  the  permit  required  by  the  statute,  we  may  remark  that,  if  it 
has  any  application  to  a  proceeding  like  this,  it  does  not  deprive  him  of 
the  presumption  that  he  is  innocent  of  any  violation  of  law.  It  is  only 
a  declaration  that  when  the  State  has  proven  that  the  place  described 
is  kept  and  maintained  for  the  manufacture  or  sale  of  intoxicating 
liquors  —  such  manufacture  or  sale  being  unlawful  except  for  specified 
purposes,  and  then  only  under  a  permit  —  the  prosecution  need  not 
prove  a  negative,  namel}',  that  the  defendant  has  not  the  required 
license  or  permit.  If  the  defendant  has  such  license  or  permit,  he  can 
easily  produce  it,  and  thus  overthrow  the  prima  facie  case  established 
by  the  State. 

A  portion  of  the  argument  in  behalf  of  the  defendants  is  to  the  effect 
that  the  statutes  of  Kansas  forbid  the  manufacture  of  intoxicating 
liquors  to  be  exported,  or  to  be  carried  to  other  States,  and,  upon  that 
ground,  are  repugnant  to  the  clause  of  the  Constitution  of  the  United 
States,  giving  Congress  power  to  regulate  commerce  with  foreign 
nations  and  among  the  several  States.  We  need  only  sa}',  upon  this 
point,  that  there  is  no  intimation  in  the  record  that  the  beer  which  the 
respective  defendants  manufactured  was  intended  to  be  carried  out  of 
the  State  or  to  foreign  countries.  And,  without  expressing  an  opinion 
as  to  whether  such  facts  would  have  constituted  a  good  defence,  we 
observe  that  it  will  be  time  enough  to  decide  a  case  of  that  character 
when  it  shall  come  before  us.^ 

For  the  reasons  stated^  we  are  of  opinion  that  the  judgments  of  the 
Supreme  Court  of  Kansas  hare  not  denied  to  Mugler^  the  plaintiff  in 
error,  any  right,  privilege,  or  immunity  secured  to  him  by  the  Consti- 
tution of  the  United  States,  and  its  judgment,  in  each  case,  is,  accord- 
ingly, affirmed.  We  are,  also,  of  opinion  that  the  Circuit  Court  of 
the  United  States  erred  in  dismissing  the  bill  of  the  State  against 
Ziebold  &  Hagelin.  The  decree  in  that  case  is  reversed,  and  the 
cause  remanded,  loith  directions  to  enter  a  decree  granting  to  the  State 
such  relief  as  the  Act  of  March  7,  1885,  authorizes.^ 

[Field,  J.,  gave  a  dissenting  opinion.] 

1  Held,  that  they  would  not,  in  Kidd  v.  Pearson,  128  U.  S.  1  (1888).  —  Ed. 

2  As  to  the  relation  between  this  extensive  power  of  the  States  and  the  Constitution 
and  laws  of  the  United  States,  see  Boicman  v.  Chic.  <!i-  .V.  W.  Rij.  Co.,  125  U.  S.  46.'> 
(1888)  ;  Leisy  v.  Uardin,  135  U.  S.  100  (1890),  and  In  re  Rahrer,  140  U.  S.  545 
(1891).  — Ed.  -.   -'    .   .,  - 


CHAP,  v.]  SMITH   V.   ALABAMA.  797 

In  Smith  v.  Alabama.,  124  U.  S.  465  (1888),  on  error  to  tbe  Supreme 
Court  of  Alabama,  the  validity  was  in  question  of  a  statute  of  that 
State  requiring  all  locomotive  engineers  to  be  examined  and  licensed  Ijy 
a  State  Court.  In  holding  this  valid,  Matthews,  J.,  for  the  court,  said  : 
"  The  grant  of  power  to  Congress  in  the  Constitution  to  regulate  com- 
merce with  foreign  nations  and  among  the  several  States,  it  is  conceded, 
is  paramount  over  all  legislative  powers  which,  in  consequence  of  not 
having  been  granted  to  Congress,  are  reserved  to  the  States.  It  follows 
that  any  legislation  of  a  State,  although  in  pursuance  of  an  acknowl- 
edged power  reserved  to  it,  which  conflicts  with  the  actual  exercise  of 
the  power  of  Congress  over  the  subject  of  commerce,  must  give  way  be- 
fore the  supremac}'  of  the  national  authorit}'.  As  the  regulation  of 
commerce  may  consist  in  abstaining  from  prescribing  positive  rules  for 
its  conduct,  it  cannot  always  be  said  that  the  power  to  regulate  is  dor- 
mant because  not  affirmatively  exercised.  And  when  it  is  manifest  that 
Congress  intends  to  leave  that  commerce,  which  is  subject  to  its  juris- 
diction, free  and  unfettered  by  any  positive  regulations,  such  intention 
would  be  contravened  by  State  laws  operating  as  regulations  of  com- 
merce as  much  as  though  these  had  been  expressly  forbidden.  In  such 
cases,  the  existence  of  the  power  to  regulate  commerce  in  Congress  has 
been  construed  to  be  not  only  paramount  but  exclusive,  so  as  to  with- 
draw the  subiect  as  the  basis  of  legislation  altogether  from  the  States. 
.  .  .  But  the  provisions  on  the  subject  contained  in  the  statute  of  Ala- 
bama under  consideration  are  not  regulations  of  interstate  commerce. 
It  is  a  misnomer  to  call  them  such.  ,,  Considered  in  themselves,  they  are 
parts  of  that  body  of  the  local  law  which,  as  we  have  alread}'  seen, 
properly  governs  the  regulation  between  carriers  of  passengers  and 
merchandise  and  the  public  who  employ'  them,  which  are  not  misplaced 
until  they  come  in  conflict  with  express  enactments  of  Congress  in 
the  exercise  of  its  power  over  commerce,  and  which,  until  so  displaced, 
according  to  the  evident  intention  of  Congress,  remain  as  the  law  gov- 
erning carriers  in  the  discharge  of  their  obligations,  whether  engaged  in 
the  purely  internal  commerce  of  the  State  or  in  commerce  among  the 
States."  1 

1  A  like  result  was  reached  in  Nashville,  ^c.  Railway  y.  Ala.,  128  U.  S.  96  (1888), 
in  considering  another  statute  of  the  same  State  requiring,  in  the  case  of  various  classes 
of  railroad  employees,  an  examination  and  a  certificate  of  fitness,  as  regards  color- 
blindness and  defective  vision,  from  a  State  board  of  medical  men.  See  Jamieson  r. 
Ind.  Nat.  Gas  Co.,  128  Ind.  555.  — Ed. 


798  CKOWLEY    V.    CHRISTEiNSEN.  [CKAP.  V, 


CROWLEY   V.   CHRISTENSEN. 
Supreme  Court  of  the  United  States.     1890. 

[137  U.  S.  86.] 

This  was  an  appeal  fiora  an  order  of  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  California  discharging,  on  habeas 
co}-pus,  the  petitioner  for  the  writ,  the  appellee  here,  from  the  custody 
of  the  chief  of  police  of  the  city  and  county  of  San  P'rancisco,  by  whom 
he  was  held  under  a  warrant  of  arrest  issued  by  the  Police  Court  of  that 
municipalit}-,  upon  a  charge  of  having  engaged  in  and  carried  on  in 
that  city  the  business  of  selling  spirituous,  malt,  and  fermented  liquors 
and  wines  in  less  quantities  than  one  quart,  without  the  license  required 
^  by  the  ordinance  of  the  city  and  county.  The  ordinance  referred  to 
provided  that  every  peison  who  sold  such  liquors  or  wines  in  quantities 
less  tlian  one  quart  should  be  designated  as  "  a  retail  liquor-dealer"  and 
as  ''a  grocer  and  retail  liquor-dealer,"  and  that  no  license  as  such 
liquor-dealer,  after  January  1,  1886,  "shall  be  issued  by  the  collector 
of  licenses,  unless  the  person  desiring  the  same  shall  have  obtained  the 
written  consent  of  a  majority  of  the  Board  of  Police  Commissioners  of 
the  city  and  county  of  San  Francisco  to  carry  on  or  conduct  said  busi- 
ness ;  but,  in  case  of  refusal  of  such  consent,  upon  application,  said 
Board  of  Police  Commissioners  shall  grant  the  same  upon  the  written 
recommendation  of  not  less  than  twelve  citizens  of  San  Francisco  own- 
ing real  estate  in  the  block  or  square  in  which  said  business  of  retail 
liquor-dealer  or  grocery  and  retail  liquor-dealer  is  to  be  carried  on  ;  " 
and  that  such  license  should  be  issued  for  a  period  of  only  three  months. 
The  ordinance  further  declared  that  any  person  violating  this  provision 
should  be  deemed  guilty  of  a  misdemeanor. 

The  Constitution  of  California  provides,  in  the  eleventh  section  of 
Article  11,  that  "  any  county,  city,  town,  or  township  may  make  and 
enforce  within  its  limits  all  such  local,  police,  sanitary,  and  other  regu- 
lations as  are  not  in  conflict  with  general  laws." 

The  petitioner  had,  previously  to  June  10,  1889,  carried  on  the  busi- 
ness of  retail  liquor-dealer  in  San  Francisco  for  some  years,  under 
licenses  from  the  Board  of  Police  Commissioners,  but  his  last  license 
was  to  expire  on  the  17th  of  that  month.  Previously  to  its  expiration 
he  was  informed  by  the  Police  Commissioners  that  the}'  had  withdrawn 
their  consent  to  the  further  issue  of  a  license  to  him.  He  afterwards 
tendered  to  the  collector  of  license  fees,  through  which  officer  it  was  the 
practice  of  the  Board  to  issue  the  licenses,  the  sum  required  for  a  new 
license,  but  the  tender  was  not  accepted,  and  his  application  for  a  new 
license  was  refused.  He  then  applied  to  the  Police  Commissioners  for 
a  hearing  before  them  on  the  question  of  revoking  their  consent  to  the 
issue  of  a  further  license  to  him.  Such  hearing  was  accorded  to  him, 
and  the  time  fixed  for  it  was  the  24th  of  June.     But,  before  any  hearing 


CHAP,  v.]  CROWLEY   V.    CHRISTENSEN.  799 

was  had,  he  was  arrested  upon  a  warrant  of  the  Police  Court  upon  the 
charge  of  carrying  on  the  business  of  a  retail  liquor-dealer  without  a 
license.  He  then  obtained  from  the  Supreme  Court  of  the  State  a  writ 
of  habeas  corpus  to  be  discharged  from  tlie  arrest,  but  tliat  court,  on 
tlie  2d  of  August,  1890,  held  the  ordinance  valid  and  remanded  liim  to 
the  custody  of  the  chief  of  police.  He  then  applied  for  the  allowance  of 
an  appeal  from  this  order  to  the  Supreme  Court  of  the  United  States, 
but  it  was  refused  by  the  Chief  Justice  of  the  State  Court,  and  the 
Associate  Justice  of  the  Supreme  Court  of  the  United  States  assigned 
to  the  circuit,  who  could  have  allowed  the  appeal,  was  absent  from  the 
State,  On  the  7th  of  August  following  a  new  complaint  was  made 
against  the  petitioner,  charging  him  with  unlawfuU}'  engaging  in  and 
carrying  on  in  San  Francisco  the  business  of  a  retail  liquor-dealer  with- 
out a  license  under  the  ordinance  of  the  city  and  county.  Upon  this 
complaint  a  warrant  was  issued  under  which  he  was  arrested.  He  there- 
upon applied  to  the  Circuit  Court  of  the  United  States  for  a  writ  of 
habeas  corpus,  which  was  issued. 

In  return  to  the  writ,  the  chief  of  police,  the  appellant  here,  stated 
that  he  held  the  petitioner  under  the  warrant  mentioned  by  the  petitioner 
and  several  other  warrants  issued  by  the  Police  Court  of  the  city  and 
county,  upon  different  charges,  made  at  different  times,  of  his  conduct- 
ing and  carrying  on  the  business  of  a  retail  liquor-dealer  in  San  Fran- 
cisco without  a  license,  as  required  by  the  ordinance  of  the  city  and 
count}'.  He  also  stated,  among  otlier  things,  that  a  further  license  to 
the  petitioner  was  refused  by  the  Police  Commissioners,  because  the}- 
had  reason  to  believe  that  the  business  was  carried  on  by  him  under  his 
existing  license  in  such  a  manner  as  to  be  offensive,  and  violative  of  the 
criminal  laws  of  the  State  and  of  the  rights  of  others.  In  support  of 
tiiis  charge  it  was  averred  that  in  that  business  the  petitioner  was  assisted 
by  one  whom  he  represented  and  claimed  to  be  his  wife,  and  that  she 
had  on  one  occasion  stolen  one  hundred  and  sixty  dollars  from  a  person 
who  visited  his  saloon,  and  been  convicted  of  the  offence  in  the  Superior 
Court  of  the  city  and  county,  and  sentenced  to  be  imprisoned  for  one 
j'ear,  and  on  another  occasion  had  stolen  a  watch  and  a  scarf-pin  from 
a  person  at  the  saloon,  and  was  held  to  answer  for  the  charge.  It  was 
also  averred  that  tliere  were  more  than  sixteen  citizens  of  San  Francisco 
owning  real  estate  in  the  block  on  which  the  petitioner  carried  on  his 
business.  It  did  not  appear  that  on  the  hearing  of  the  application  an}' 
proof  was  offered  of  the  facts  alleged  either  in  the  petition  or  in  the 
return.  The  case  was  heard  upon  exceptions  or  demurrer  to  the  return. 
To  that  part  respecting  the  alleged  larceny  by  the  wife  and  her  convic- 
tion, the  demurrer  was  on  the  ground  that  the  return  also  showed  ihat 
an  appeal  had  been  taken  from  the  conviction,  which  was  then  pending, 
and  that  she  might  be  acquitted  of  the  offence  charged. 

Several  objections  were  urged  by  the  petitioner  to  the  ordinance.    Some  " 
of  them  were  of  a  technical  character,  and  could  not  be  considered.    Of 
the  others  only  one  was  noticed,  which  was,  that  by  it  '■'  the  State  of 


800  CROWLEY  V.   CHRISTENSEN.  [CHAP.  V. 

California,  by  its  officers,  denies  to  him  tlie  equal  protection  of  the  laws, 
and  makes  and  enforces  against  him  a  law  which  abridges  his  privileges 
and  immunities  as  a  citizen  of  the  United  States,"  contrary  to  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United  States. 

The  court  held  that  the  ordinance  made  the  business  of  the  petitioner 
depend  upon  the  arbitrary  will  of  others,  and  in  that  respect  denied  to 
him  the  equal  protection  of  the  laws,  and  accordingly  ordered  his  dis- 
charge. 43  Fed.  Rep.  243.  From  that  order  the  case  was  brought  to 
this  court  by  appeal  under  §§  763  and  764  of  the  Revised  Statutes,  this 
latter  section  as  amended  by  the  Act  of  March  3,  1885,  c.  353,  23  Stat. 
437. 

Mr.  Davis  Louderback  and  Mr.  J.  D.  Page,  for  appellant. 

Mr.  Alfred  Clarke  and  Mr.  Joseph  D.  Redding,  for  appellee. 

Mr.  Justice  Field,  after  stating  the  case  as  above,  delivered  the 
opinion  of  the  court. 

It  is  undoubtedly  true  that  it  is  the  right  of  every  citizen  of  the  United 
States  to  pursue  any  lawful  trade  or  business,  under  such  restrictions  as 
are  imposed  upon  all  persons  of  the  same  age,  sex,  and  condition.  Rut 
the  possession  and  enjoyment  of  all  rights  are  subject  to  such  reason- 
able conditions  as  may  be  deemed  by  the  governing  authority  of  the 
country  essential  to  the  safety,  health,  peace,  good  order,  and  morals  of 
the  communit3'.  Even  liberty  itself,  the  greatest  of  all  rights,  is  not 
unrestricted  license  to  act  according  to  one's  own  will.  It  is  only  free- 
dom from  restraint  under  conditions  essential  to  the  equal  enjoyment  of 
the  same  right  by  others.  It  is  then  liberty  regulated  by  law.  The 
right  to  acquire,  enjoy,  and  dispose  of  property  is  declared  in  the  Con- 
stitutions of  several  States  to  be  one  of  the  inalienable  rights  of  man. 
But  this  declaration  is  not  held  to  preclude  the  legislature  of  any  State 
from  passing  laws  respecting  the  acquisition,  enjoyment,  and  disposition 
of  property-.  What  contracts  respecting  its  acquisition  and  disposition 
shall  be  valid  and  what  void  or  voidable  ;  when  they  shall  be  in  writing 
and  when  they  may  be  made  orally  ;  and  by  what  instruments  it  may  be 
conveyed  or  mortgaged  are  subjects  of  constant  legislation.  And  as  to 
the  enjoyment  of  property,  the  rule  is  general  that  it  must  be  accom- 
panied with  such  limitations  as  will  not  impair  the  equal  enjoyment  by 
others  of  their  property.  Sic  idere  tuo  ut  alienum  non  Icedas  is  a 
maxim  of  universal  application. 

For  the  pursuit  of  any  lawful  trade  or  business,  the  law  imposes  simi- 
lar conditions.  Regulations  respecting  them  are  almost  infinite,  varying 
with  the  nature  of  the  business.  Some  occupations  by  the  noise  made 
in  their  pursuit,  some  by  the  odors  they  engender,  and  some  by  the  dan- 
gers accompanying  them,  require  regulations  as  to  the  locality  in  which 
they  shall  be  conducted.  Some  by  the  dangerous  character  of  the 
articles  used,  manufactured,  or  sold  require,  also,  special  qualifications 
in  the  parties  permitted  to  use,  manufacture,  or  sell  them.  All  tliis  is 
but  common  knowledge,  and  would  hardly  be  mentioned  were  it  not  for 
the  position  often  taken,  and  vehemently  pressed,  that  there  is  something 


CHAP,  v.]  CROWLEY   V.    CHRISTENSEN.  801 

wrong  in  principle  and  objectionable  in  similar  restrictions  when  applied 
to  the  business  of  selling  by  retail,  in  small  quantities,  spirituous  and 
intoxicating  liquors.  It  is  urged  that,  as  the  liquors  are  used  as  a  bev- 
erage, and  the  injury  following  them,  if  taken  in  excess,  is  voluntarily 
inflicted  and  is  confined  to  the  party  offending,  their  sale  should  be 
without  restrictions,  the  contention  being  that  what  a  man  shall  drink, 
equally  with  what  he  shall  eat,  is  not  properlj-  matter  for  legislation. 

There  is  in  this  position  an  assumption  of  a  fact  which  does  not  exist, 
that  when  the  liquors  are  taken  in  excess  the  injuries  are  confined  to  the 
party  ollending.  The  injury,  it  is  true,  first  falls  upon  him  in  his  health, 
which  the  habit  undermines  ;  in  his  morals,  which  it  weakens  ;  and  in 
the  self-abasement  which  it  creates.  But,  as  it  leads  to  neglect  of  busi- 
ness and  waste  of  propert}'  and  general  demoralization,  it  affects  those 
who  are  immediately  connected  with  and  dependent  upon  him.  By  the 
general  concurrence  of  opinion  of  every  civilized  and  Christian  com- 
munity, there  are  few  sources  of  crime  and  misery  to  society  equal  to 
the  dram  shop,  where  intoxicating  liquors,  in  small  quantities,  to  be 
drunk  at  the  time,  are  sold  indiscrirainateh'  to  all  parties  applying. 
The  statistics  of  every  State  show  a  greater  amount  of  crime  and  misery 
attributable  to  the  use  of  ardent  spirits  obtained  at  these  retail  liquor 
saloons  than  to  an}'  other  source.  The  sale  of  such  liquors  in  this  way 
has  therefore  been,  at  all  times,  b}-  the  courts  of  every  State,  considered 
as  the  proper  subject  of  legislative  regulation.  Not  only  ma}'  a  license 
be  exacted  from  the  keeper  of  the  saloon  before  a  glass  of  his  liquors 
can  be  thus  disposed  of,  but  restrictions  may  be  imposed  as  to  the  class 
of  persons  to  wliom  they  may  be  sold,  and  the  hours  of  the  day  and  the 
days  of  the  week  on  which  the  saloons  may  be  opened.  Their  sale  in 
that  form  may  be  absolutely  prohibited.  It  is  a  question  of  public  ex- 
pediency and  public  morality,  and  not  of  Federal  law.  The  police 
power  of  the  State  is  fully  competent  to  regulate  the  business — to 
mitigate  its  evils  or  to  suppress  it  entirely.  There  is  no  inherent  right 
in  a  citizen  to  thus  sell  intoxicating  liquors  by  retail ;  it  is  not  a  privi- 
lege of  a  citizen  of  the  State  or  of  a  citizen  of  the  United  States.  As 
it  is  a  business  attended  with  danger  to  the  community  it  may,  as  already 
said,  be  entirely  prohibited,  or  be  permitted  under  such  conditions  as 
will  limit  to  the  utmost  its  evils.  The  manner  and  extent  of  regulation 
rest  in  the  discretion  of  the  governing  authority.  That  authority  may 
vest  in  such  officers  as  it  may  deem  proper  the  power  of  passing  upon 
applications  for  permission  to  carry  it  on,  and  to  issue  licenses  for  that 
purpose.  It  is  a  matter  of  legislative  will  only.  As  in  many  other 
cases,  the  officers  ma}'  not  always  exercise  the  power  conferred  upon 
them  with  wisdom  or  Justice  to  the  parties  affected.  But  that  is  a  mat- 
ter which  does  not  affect  the  authoritv  of  the  State  ;  nor  is  it  one  which 
can  be  brought  under  the  cognizance  of  the  courts  of  the  United 
States. 

The  Constitution  of  California  vests  in  the  municipality  of  the  city 
and  county  of  San  Francisco  the  right  to  make  "  all  such  loea],  police, 
VOL.  I.  —  51 


802  CROWLEY    V.    CHKISTENSEN.  [CHAP.  V. 

sanitar}',  and  other  fegulations  as  are  not  in  conflict  with  general  laws." 
The  Supreme  Court  of  the  State  has  decided  tliat  the  ordinance  in  ques- 
tion, under  which  the  petitioner  was  arrested  and  is  lield  in  custody,  was 
thus  authorized  and  is  valid.  That  decision  is  binding  upon  us  unless 
some  inlftbition  of  the  Constitution  or  of  a  law  of  the  United  States  is 
violated  by  it.  We  do  not  perceive  that  there  is  any  such  violation. 
The  learned  Circuit  Judge  ^  saw  in  the  provisions  of  the  ordinance  em- 
powering the  police  commissioners  to  grant  or  refuse  their  assent  to  the 
application  of  the  petitioner  for  a  license,  or  failing  to  obtain  their 
assent  upon  application,  requiring  it  to  be  given  upon  the  recommenda- 
tion of  twelve  citizens  owning  real  estate  in  the  block  or  square  in 
which  his  business  as  a  retail  dealer  in  liquors  was  to  be  carried  on,  the 
delegation  of  arbitrary  discretion  to  the  police  commissioners,  and  to 
real  estate  owners  of  the  block,  which  might  be  and  was  exercised  to 
deprive  the  petitioner  of  the  equal  protection  of  the  laws.  And  he 
considers  that  his  view  in  this  respect  is  supported  by  the  decision  in 
Yick  Wo  v.  IIo2)kins,  118  U.  S.  356. 

In  that  case  it  appeared  that  an  ordinance  of  the  cit}-  and  county  of 
San  Francisco  passed  in  July,  1880,  declared  that  it  should  be  unlawful 
after  its  passage  "  for  any  person  or  persons  to  establish,  maintain,  or 
carry  on  a  laundry  within  the  corporate  limits  of  the  cit}-  and  county  of 
San  Francisco  without  having  first  obtained  the  consent  of  the  board  of 
supervisors,  except  the  same  be  located  in  a  building  constructed  either 
of  brick  or  stone."  The  ordinance  did  not  limit  the  power  of  the  super- 
visors to  grant  such  consent,  where  the  business  was  carried  on  in 
wooden  buildings.  It  left  that  matter  to  the  arbitrary  discretion  of  the 
board.  Under  the  ordinance  the  consent  of  the  supervisors  was  refused 
to  the  petitioner  to  carry  on  the  laundr}'  business  in  wooden  buildings, 
where  it  had  been  conducted  by  him  for  over  twenty  years.  He  had,  at 
the  time,  a  certificate  from  the  board  of  fire  wardens  that  his  premises 
had  been  Inspected  by  them,  and  upon  such  inspection  they  had  found 
all  proper  arrangements  for  carr3'ing  on  the  business,  and  that  all  proper 
precautions  had  been  taken  to  comply  with  the  provisions  of  the  ordi- 
nance defining  the  fire  limits  of  the  city  and  count}' ;  and  also  a  certifi- 
cate from  the  health  oflRcer  that  the  premises  had  been  inspected  by  him 
and  were  properly  and  suflSciently  drained,  and  that  all  proper  arrange- 
ments for  carr3-ing  on  the  business  of  a  laundry  without  injur}'  to  the 
sanitary  conditions  of  the  neighborhood  had  been  complied  with.  The 
limits  of  the  city  and  county  embraced  a  territory  some  ten  miles  wide 
by  fifteen  or  more  in  length,  much  of  it  being  occupied  at  the  time, 
as  stated  bj-  the  Circuit  Judge,  as  farming  and  pasture  lands,  and 
much  of  it  being  unoccupied  sand  banks,  in  many  places  without 
buildings  within  a  quarter  or  half  a  mile  of  each  other.  It  appeared 
also  that,  in  the  practical  administration  of  the  ordinance,  consent  was 
given  by  the  board  of  supervisors  to  some  parties  to  carry  on  the  laun- 

*  For  his  opinion,  see  In  re  Christensen,  43  Fed.  Rep.  243.  —  Ed. 


CHAP,  v.]  CROWLEY   V.    CHRISTENSEN  803 

dry  business  in  buildings  other  than  those  of  brick  or  stone,  but  that  all 
applications  coming  from  the  Chinese,  of  whom  the  petitioner  was  one, 
to  carry  on  the  business  in  such  buildings  were  refused.  This  court  said 
of  the  ordinance  :  "  It  allows  without  restriction  the  use  for  such  pur- 
poses of  buildings  of  brick  or  stone  ;  but,  as  to  wooden  buildings, 
constituting  nearly  all  those  in  previous  use,  it  divides  the  owners  or 
occupants  into  two  classes,  not  having  respect  to  their  personal  character 
and  qualifications  for  the  business,  nor  the  situation  and  nature  and 
adaptation  of  the  buildings  themselves,  but  merely  bj'  an  arbitrar}' line, 
on  one  side  of  which  are  those  who  are  permitted  to  pursue  their  indus- 
try by  the  mere  will  and  consent  of  the  supervisors,  and,  on  the  other, 
those  from  whom  that  consent  is  withheld,  at  their  mere  will  and  pleas- 
ure. And  both  classes  are  alike  only  in  this,  that  they  are  tenants  at 
will,  under  the  supervisors,  of  their  means  of  living.  The  ordinance, 
therefore,  also  differs  from  the  not  unusual  case,  where  discretion  is 
lodged  by  law  in  public  officers  or  bodies  to  grant  or  withhold  licenses 
to  keep  taverns,  or  places  for  the  sale  of  spirituous  liquors  and  the  like, 
when  one  of  the  conditions  is  that  the  applicant  shall  be  a  fit  person  for 
the  exercise  of  the  privilege,  because  in  such  cases  the  fact  of  fitness  is 
submitted  to  the  judgment  of  the  officer,  and  calls  for  the  exercise  of  a 
discretion  of  a  judicial  nature." 

It  will  thus  be  seen  that  that  case  was  essentially  difTerent  from  the 
one  now  under  consideration,  the  ordinance  there  held  invalid  vesting 
uncontrolled  discretion  in  the  board  of  supervisors  with  reference  to  a 
business  harmless  in  itself  and  useful  to  the  communit}' ;  and  the  dis- 
cretion appearing  to  have  been  exercised  for  the  express  purpose  of 
depriving  the  petitioner  of  a  privilege  that  was  extended  to  others.  In 
the  present  case  the  business  is  not  one  that  any  person  is  permitted  to 
carry  on  without  a  license,  but  one  that  ma}^  be  entirely  prohibited  or 
subjected  to  such  restrictions  as  the  governing  authority  of  the  city  may 
prescribe. 

It  would  seem  that  some  stress  is  placed  upon  the  allegation  of  the 
petitioner  that  there  were  not  twelve  persons  owners  of  real  property  in 
the  block  where  the  business  was  to  be  carried  on.  This  allegation  is 
denied  in  the  return,  which  alleges  that  there  were  more  than  sixteen 
such  property  holders.  As  the  case  was  heard  upon  exceptions  or  de- 
murrer to  the  return,  its  averments  must  be  taken  as  true.  At  common 
law  no  evidence  was  necessar}-  to  support  the  return.  It  was  deemed  to 
import  verity  until  impeached.  Hurd  on  Habeas  Corpus,  book  2,  c.  3, 
§§  8,  9,  and  10  ;  Church  on  Same,  §  122.  And  this  rule  is  not  changed 
b}'  any  statute  of  the  United  States.  It  must,  tlierefore,  be  considered 
as  a  fact  in  the  case  that  there  were  more  tli.in  sixteen  owners  of  real 
estate  in  the  block.  But  if  the  fact  were  otherwise,  and  there  was  not 
the  number  stated  in  the  petition,  the  result  would  not  be  affected.  If 
there  were  no  property  holders  in  the  block,  the  discretionar}'  authority 
would  be  exercised  finally  by  the  police  commissioneis,  and  their  refusal 
to  grant  the  license  is  not  a  matter  for  review  by  this  court,  as  it  violates 


804  BUDD   V.   NEW   YORK.  [cHAP.  V. 

no  principle  of  Federal  law.  We  however  find  in  the  return  a  statement 
which  would  fully  justif}'  the  action  of  the  commissioners.  It  is  averred 
that  in  the  conduct  of  the  liquor  business  tlie  petitioner  was  assisted  bv 
his  wife,  and  that  she  was  twice  arrested  for  larcenies  committed  fiom 
persons  visiting  his  saloon,  and  in  one  case  convicted  of  the  offence  and 
sentenced  to  be  imprisoned,  and  in  the  other  held  to  answer.  These 
larcenies  alone  were  a  sufficient  indication  of  the  character  of  the  place 
in  which  the  business  was  conducted,  for  the  exercise  of  the  discre- 
tion of  the  police  commissioners  in  refusing  a  further  license  to  the 
petitioner. 

The  order  discharging  the  petitioner  must  be 

Reversed,  and  the  cause  remanded  tvith  directions  to  take  further 
proceedi?igs  in  conformity  with  this  opinion,  and  it  is  so  ordered.^ 


BUDD  V.   NEW  YORK. 

NEW  YORK  EX  KEL.  ANNAN  v.   WALSH. 

NEW  YORK  EX  REL.  PINTO  v.   WALSH. 

Supreme  Court  of  the  United  States.     1892. 

[143  U.  5.  517.]  2 

[Error  to  the  Superior  Court  of  Buffalo,  New  York,  and  to  the 
Supreme  Court  of  New  York.] 

Mr.  Benjamin  F.  Tract/  and  Mr.  William  iV!  Dykman,  for  Annan 
and  Pinto,  plaintiffs  in  error.  Mr.  Spencer  Clinton,  for  Budd,  plaintiff 
in  error.  Mr.  J.  A.  Hyland,  for  the  defendants  in  error  in  644  and 
645.  Mr.  George  T.  Qiiinby  filed  a  brief  for  the  defendants  in  error 
in  719  [Btcddv.  iT.  Y.]. 

Mr.  Justice  Rlatchford,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

The  main  question  involved  in  these  cases  is  whether  this  court  will 
adhere  to  its  decision  in  Munn  v.  Illinois,  94  U.  S.  113. 

The  Court  of  Appeals  of  New  York,  in  People  v.  Budd,  117  N.  Y. 
1,  held  that  chapter  581  of  the  laws  of  1888  did  not  violate  the  consti- 
tutional guarantee  protecting  private  propert}',  but  was  a  legitimate 
exercise  of  the  police  power  of  the  State  over  a  business  affected  with 
a  public  interest.     In  regard  to  the  indictment  against  Budd,  it  held 

1  See  Ex  parte  Sing  Lee,  96  Cal.  354  (1892).  Compare  Chic.  Ri/.  Co.  v.  Minn.,  ante, 
p.  660,  and  note,  p.  673.  In  Sharp  v.  Wakefield,  [1891]  Appeal  Cases.  173,  182,  a  case 
relating  to  licenses  for  selling  intoxicating  liquors,  Lord  Bramwell  said:  "Houses 
of  public  entertainment  and  for  the  sale  of  drink  have  been  in  this  country,  and  in 
many  others,  the  subject  of  regulation  for  police  purposes;  not  for  what  one  may  call 
economic  purposes,  like  the  fixing  of  the  price  of  bread  or  the  wages  of  labor,  but  for 
the  maintenance  of  order." — Ed. 

^  The  facts  are  sufficiently  given  in  the  opinion.  —  Ed. 


CHAP,  v.]  BUDD  V.   NEW  YORK.  805 

that  the  charge  of  exacting  more  than  the  statute  rate  for  elevating 
was  proveil,  and  that  as  to  the  alleged  overcharge  for  shovelling,  it 
appeared  that  the  carrier  was  compelled  to  pay  $4  for  each  lUOO 
bushels  of  grain,  which  was  the  charge  of  the  shovellers'  union,  by 
wliich  the  worlc  was  performed,  and  that  the  union  paid  the  elevator, 
for  the  use  of  the  latter's  steam  sliovel,  $1.75  for  each  1000  bushels. 
The  court  held  that  there  was  no  error  iu  submitting  to  the  jury  the 
question  as  to  the  overcharge  for  shovelling ;  that  the  intention  of  the 
statute  was  to  confine  the  charge  to  the  "  actual  cost"  of  the  outside 
labor  required  ;  and  that  a  violation  of  the  Act  in  that  particular  was 
proved  ;  but  that,  as  the  verdict  and  sentence  were  justified  b}'  proof 
of  the  overcharge  for  elevating,  even  if  the  alleged  overcharge  for 
shovelling  was  not  made  out,  the  ruling  of  the  Superior  Court  of 
ButTalo  could  not  have  prejudiced  Budd.  Of  course,  this  court,  in 
these  cases,  can  consider  only  the  Federal  questions  involved. 

It  is  claimed,  on  behalf  of  Budd,  that  the  statute  of  the  State  of 
New  York  is  unconstitutional,  because  contrary  to  the  provisions  of 
section  1  of  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States,  in  depriving  the  citizen  of  his  property  without  due 
process  of  law ;  that  it  is  unconstitutional  in  fixing  the  maximum 
charge  for  elevating,  receiving,  weighing  and  discharging  grain  by 
means  of  floating  and  stationar}'^  elevators  and  warehouses  at  five- 
eighths  of  one  cent  a  bushel  and  in  forbidding  the  citizen  to  make  any 
profit  upon  the  use  of  his  property  or  labor ;  and  that  the  police  power 
of  tlie  State  extends  only  to  property  or  business  which  is  devoted  b}^ 
its  owner  to  the  public,  by  a  grant  to  the  public  of  the  right  to  demand 
its  use.  It  is  claimed  on  behalf  of  Annan  and  Pinto  that  floating  and 
stationary  elevators  in  the  port  of  New  York  are  private  property,  not 
affected  with  an}'  public  interest,  and  not  subject  to  the  regulation  of 
rates. 

''Trimming"  in  the  canal-boat,  spoken  of  in  the  statute,  is  shovel- 
ling the  grain  from  one  place  to  another,  and  is  done  b}'  longshoremen 
with  scoops  or  shovels;  and  "  trimming"  the  ship's  cargo  when  load- 
ing is  stowing  it  and  securing  it  for  the  voyage.  Floating  elevators 
are  primarily  boats.  Some  are  scows,  and  have  to  be  towed  from 
place  to  place  by  steam  tugs  ;  but  the  majority  are  propellers.  When 
the  floating  elevator  arrives  at  the  ship  and  makes  fast  alongside  of 
her,  the  canal-boat  carrying  tlie  grain  is  made  fast  on  the  other  side  of 
tlie  elevator.  A  long  wooden  tube,  called  "  the  leg  of  the  elevator," 
and  spoken  of  in  the  statute,  is  lowered  from  the  tower  of  the  elevator 
so  that  its  lower  end  enters  the  hold  of  the  canal-boat  in  the  midst  of 
the  grain.  The  "spout"  of  the  elevator  is  lowered  into  the  ship's 
hold.  The  machinery  of  the  elevator  is  then  set  in  motion,  tlie  grain 
is  elevated  out  of  the  canal-boat,  received  and  weighed  in  the  elevator, 
and  discharged  into  the  ship.  The  grain  is  lifted  in  '•  buckets  "  fastened 
to  an  endless  belt  which  moves  up  and  down  in  tlie  leg  of  the  elevator. 
The  lower  end  of  the  leg  is  buried  in  the  grain  so  that  the  buckets  are 


806  BUDD  V.   NEW  YORK.  [CUAP.  V. 

submerged  in  it.  As  the  belt  moves,  eacli  bucket  goes  up  full  of  grain, 
and  at  the  upper  end  of  the  leg,  in  the  elevator  tower,  empties  its  con- 
tents into  the  hopper  which  receives  the  grain.  The  operation  would 
cease  unless  the  grain  was  trimmed  or  shovelled  to  the  leg  as  fast  as 
it  is  carried  up  by  the  buckets.  There  is  a  gang  of  longshoremen  who 
shovel  the  grain  from  all  parts  of  the  hold  of  the  canal-boat  to  "  the 
leg  of  the  elevator,"  so  that  the  buckets  ma}'  be  always  covered  with 
grain  at  the  lower  end  of  the  leg.  This  "trimming  or  shovelling  to 
the  leg  of  the  elevator,"  when  the  canal-boat  is  unloading,  is  that  part 
of  the  work  which  the  elevator  owner  is  required  to  do  at  the  "  actual 
cost." 

In  the  Budd  and  Pinto  cases,  the  elevator  was  a  stationar}*  one  on 
land  ;  and  in  the  Annan  case,  it  was  a  floating  elevator.  In  the  Budd 
case,  the  Court  of  Appeals  held  that  the  words  "  actual  cost,"  used  in 
the  statute,  were  intended  to  exclude  any  charge  b}-  the  elevator  be- 
3'ond  the  sum  specified,  for  the  use  of  its  machinery  in  shovelling,  and 
the  ordinary  expenses  of  operating  it,  and  to  confine  the  charge  to  tlie 
actual  cost  of  the  outside  labor  required  for  trimming  and  bringing  the 
grain  to  the  leg  of  the  elevator ;  and  that  the  purpose  of  the  statute 
could  be  easily  evaded  and  defeated  if  the  elevator  owner  were  per- 
mitted to  separate  the  services,  and  charge  for  the  use  of  the  steam 
shovel  any  sum  which  might  be  agreed  upon  between  him  and  the 
shovellers'  union,  and  thereby,  under  color  of  charging  for  the  use  of 
his  steam  shovel,  exact  from  the  carrier  a  sum  for  elevating  beyond 
the  rate  fixed  therefor  by  the  statute. 

The  Court  of  Appeals,  in  its  opinion  In  the  Budd  case,  considered 
fully  the  question  as  to  whether  the  legislature  had  power,  under  the 
Constitution  of  tiie  State  of  New  York,  to  prescribe  a  maximum  charge 
for  elevating  grain  b}'  stationary  elevators,  owned  by  individuals  or 
corporations  who  had  appropriated  their  property  to  that  use  and  were 
engaged  in  that  business;  and  it  answered  the  inquiry  in  the  affirma- 
tive. It  also  reviewed  the  case  of  Mann  v.  Illinois,  94  U.  S.  113,  and 
arrived  at  the  conclusion  that  this  court  there  held  that  the  legislation 
in  question  in  that  case  was  a  lawful  exercise  of  legislative  power,  and 
did  not  infringe  that  clause  of  the  Fourteenth  Amendment  to  the  Con- 
stitution of  the  United  States  which  provides  that  no  State  shall 
"  deprive  any  person  of  life,  libertj'  or  property  without  due  process  of 
law  ;  "  and  that  the  legislation  in  question  in  that  case  was  similar  to, 
and  not  distinguishable  in  principle  from,  the  Act  of  the  State  of  New 
York. 

In  regard  to  Mnnn  v.  Illinois,  the  Court  of  Appeals  said  that  the 
question  in  that  case  was  raised  by  an  individual  owning  an  elevator 
and  warehouse  in  Chicago,  erected  for.  and  in  connection  with  which 
he  had  carried  on,  the  business  of  elevating  and  storing  grain,  many 
years  prior  to  the  passage  of  the  Act  in  question,  and  prior  also  to  the 
adoption  of  the  amendment  to  the  Constitution  of  Illinois  in  1870, 
declaring  all  elevators  and  warehouses,  where  grain  or  other  property 


rilAP.  v.]  BUDD   V.    NEW   YORK.  807 

is  stored  for  a  compensation,  to  be  public  warehouses.  The  Court  of 
Appeals  then  cited  the  cases  of  People  ex  rel.  etc.  v.  B.  &  A,  B.  R. 
Co.,  70  N.  Y.  5G9  ;  BertJwlfx.  0' Reilli/.  74  N.  Y.  509  ;  B.  E.  S.  R. 
R.  Co.  V.  B.  S.  R.  R.  Co.,  Ill  N.  Y.  132;  and  Peojjle  v.  Khifj,  110 
N.  Y.  418,  as  cases  in  which  JIuuji  v.  Illutols  had  been  referred  to  by 
it,  and  said  that  it  could  not  overrule  and  disregard  Mann  v.  Illinois 
without  subverting  the  principle  of  its  own  decision  in  People  v.  King., 
and  certainl}'  not  without  disregarding  many  of  its  deliberate  expres- 
sions in  approval  of  the  principle  of:  Mann  v.  Illinois. 

The  Court  of  Appeals  further  examined  the  question  whether  the 
power  of  the  legislature  to  regulate  the  charge  for  elevating  grain, 
where  the  business  was  carried  on  b}'  individuals  upon  their  own 
premises,  fell  within  the  scope  of  the  police  power,  and  whether  the 
statute  in  question  was  necessary  lor  the  public  welfare.  It  affirmed 
that,  while  no  general  power  resided  in  the  legislature  to  regulate 
private  business,  prescribe  the  conditions  under  which  it  should  be 
conducted,  fix  the  price  of  commodities  or  services,  or  interfere  with 
freedom  of  contract,  and  while  the  merchant,  manufacturer,  artisan 
and  laborer,  under  our  system  of  government,  are  left  to  pursue  and 
provide  for  their  own  interests  in  their  own  way,  untrammelled  by 
burdensome  and  restrictive  regulations,  which,  however  common  in 
rude  and  irregular  times,  are  inconsistent  with  constitutional  liberty, 
yet  there  might  be  special  conditions  and  circumstances  wiiich  brought 
the  business  of  elevating  grain  within  pn"ncii)lcs  which,  b^-  the  common 
law  and  the  practice  of  free  governments,  justified  legislative  control 
and  regulation  in  the  particular  case,  so  that  the  statute  would  be  con- 
stitutional ;  that  the  control  which,  by  common  law  and  by  statute, 
was  exercised  over  common  carriers,  was  conclusive  upon  the  point 
that  the  right  of  the  legislature  to  regulate  the  charges  for  services  in 
connection  with  the  use  of  property  did  not  depend  in  every  case  upon 
the  question  whether  there  was  a  legal  monopoly,  or  whether  special 
governmental  privileges  or  protection  had  been  bestowed  ;  that  there 
were  elements  of  publicity  in  the  business  of  elevating  grain  which 
peculiarl}' affected  it  with  a  public  interest;  that  those  elements  were 
found  in  the  nature  and  extent  of  the  business,  its  relation  to  the  com- 
merce of  the  State  and  country,  and  the  practical  monopoly"  enjo3'ed 
by  those  engaged  in  it;  that  about  120.000,000  bushels  of  grain  come 
annually  to  Buffalo  from  the  West ;  that  the  business  of  elevating 
grain  at  Buffalo  is  connected  mainly  witii  lake  and  canal  transporta- 
tion ;  that  the  grain  received  at  New  York  in  1887  by  way  of  the 
Erie  Canal  and  Hudson  River,  during  the  season  of  canal  navigation, 
exceeded  46,000,000  bushels,  an  amount  very  largely  in  excess  of  the 
grain  received  during  the  same  period  by  rail  and  by  river  and  coast- 
wise vessels  ;  that  the  elevation  of  that  grain  from  lake  vessels  to 
canal-boats  takes  place  at  Buffalo,  where  there  are  thirty  or  fortN'  ele- 
vators, stationary  and  floating  ;  that  a  large  proportion  of  the  surplus 
cereals  of  the  country  passes  through  the  elevators  at  Buffalo  and  finds 


808  BUDD  V.    NEW  YORK.  [CHAP.  V. 

its  way  through  the  Erie  Canal  and  Hudson  River  to  the  seaboard  at 
New  York,  whence  it  is  distributed  to  tlie  markets  of  the  world  ;  that 
the  business  of  elevating  grain  is  an  incident  to  the  business  of  trans- 
portation, the  elevators  being  indispensable  instrumentalities  in  the 
business  of  the  common  carrier,  and  in  a  broad  sense  performing  the 
work  of  carriers,  being  located  upon  or  adjacent  to  the  waters  of 
the  State,  and  transferring  the  cargoes  of  grain  from  the  lake  vessels 
to  the  canal-boats,  or  from  the  canal-boats  to  the  ocean  vessels,  and 
thereby  performing  an  essential  service  in  transpoitation ;  that  b\- 
their  means  the  transportation  of  grain  by  water  from  the  upper  lakes 
to  the  seaboard  is  rendered  possible  ;  that  the  business  of  elevating 
grain  thus  has  a  vital  relation  to  commerce  in  one  of  its  most  impor- 
tant aspects  ;  that  ever}'  excessive  charge  made  in  the  course  of  the 
transportation  of  grain  is  a  tax  upon  commerce  ;  that  the  public  has  a 
deep  interest  that  no  exorbitant  charges  shall  be  exacted  at  any  point, 
upon  the  business  of  transportation  ;  and  that  whatever  impaired  the 
usefulness  of  the  Erie  Canal  as  a  highway  of  commerce  involved  the 
public  interest. 

The  Court  of  Appeals  said  that,  in  view  of  the  foregoing  exceptional 
circumstances,  the  business  of  elevating  grain  was  affected  with  a  pub- 
lic interest,  within  the  language  of  Lord  Chief  Justice  Hale,  in  his 
treatise  De  Portibus  3Iarls  (Harg.  Law  Tracts,  78)  ;  that  the  case 
fell  within  the  principle  which  permitted  the  legislature  to  regulate  the 
business  of  common  carriers,  ferrymen  and  hackmen,  and  interest  on 
the  use  of  money  ;  that  the  underlying  principle  was,  that  business  of 
certain  kinds  holds  such  a  peculiar  relation  to  the  public  interest  that 
there  is  superinduced  upon  it  the  right  of  public  regulation  ;  and  that 
the  court  rested  tlie  power  of  the  legislature  to  control  and  regulate 
elevator  charges  upon  the  nature  and  extent  of  the  business,  the  exis- 
tence of  a  virtual  monopoly,  the  benefit  derived  from  the  Erie  Canal's 
creating  the  business  and  making  it  possible,  the  interest  to  trade  and 
commerce,  the  relation  of  the  business  to  the  property  and  welfare  of 
the  State,  and  the  practice  of  legislation  in  analogous  cases,  collectively 
creating  an  exceptional  case  and  justifying  legislative  regulation. 

The  opinion  further  said  that  the  criticism  to  which  the  case  of 
Munn  V.  Illinois  had  been  subjected  proceeded  mainly  upon  a  limited 
and  strict  construction  and  definition  of  the  police  power ;  that  there 
was  little  reason,  under  our  system  of  government,  for  placing  a  close 
and  narrow  interpretation  on  the  police  power,  or  restricting  its  scope 
so  as  to  hamper  the  legislative  power  in  dealing  with  the  varying 
necessities  of  society  and  the  new  circumstances  as  they  arise  calling 
for  legislative  intervention  in  the  public  interest ;  and  that  no  serious 
invasion  of  constitutional  guarantees  by  the  legislature  could  withstand 
for  a  long  time  the  searching  influence  of  public  opinion,  which  was 
sure  to  come  sooner  or  later  to  the  side  of  law,  order  and  justice,  how- 
ever it  might  have  been  swayed  for  a  time  b}-  passion  or  prejudice,  or 
whatever  aberrations  might  have  marked  its  course. 


CHAP,  v.]  BUDD  V.   NEW  YORK.  809 

We  regard  these  views  which  we  have  referred  to  as  announced  by 
the  Court  of  Appeals  of  New  York,  so  far  as  they  support  the  validity 
of  the  statute  in  question,  as  sound  and  just.  .  .  . 

This  court,  in  Miinn  v.  Illinois,  the  opinion  being  delivered  by  Chief 
Justice  Waite,  and  there  being  a  published  dissent  by  only  two  justices, 
considered  carefully  the  question  of  the  repugnancy  of  the  Illinois 
statute  to  the  Fourteenth  Amendment.  It  said,  that  under  the  powers 
of  government  inherent  in  every  sovereignty,  "the  government  regu- 
lates the  conduct  of  its  citizens  one  towards  another,  and  the  manner 
in  which  each  shall  use  his  own  property,  when  such  regulation  be- 
comes necessary  for  the  public  good  ;  "  and  that,  "  in  their  exercise  it 
has  been  customary  in  England  from  time  immemorial,  and  in  this 
country  from  its  first  colonization,  to  regulate  ferries,  common  carriers, 
hackmen,  bakers,  millers,  wharfingers,  innkeepers,  etc.,  and  in  so 
doing  to  fix  a  maximum  of  charge  to  be  made  for  services  rendered, 
accommodations  furnished,  and  articles  sold."  It  was  added:  "To 
this  day,  statutes  are  to  be  found  in  many  of  the  States  upon  some  or 
all  these  subjects  ;  and  we  think  it  has  never  yet  been  successfully 
contended  that  such  legislation  came  within  any  of  the  constitutional 
prohibitions  against  interference  with  private  property."  It  announced 
as  its  conclusions  that,  down  to  the  time  of  the  adoption  of  the  Four- 
teenth Amendment,  it  was  not  supposed  that  statutes  regulating  the 
use,  or  even  the  price  of  the  use,  of  private  property  necessarily  de- 
prived an  owner  of  his  propert}'^  without  due  process  of  law ;  that, 
■when  private  property  was  devoted  to  a  public  use,  it  was  subject  to 
public  regulation  ;  that  Munn  and  Scott,  in  conducting  the  business  of 
their  warehouse,  pursued  a  public  employment  and  exercised  a  sort  of 
public  oflSce,  in  the  same  sense  as  did  a  common  carrier,  miller,  ferry- 
maoj  innkeeper,  wharfinger,  baker,  cartman  or  hackne}'  coachman ; 
that  they  stood  in  the  very  gateway  of  commerce  and  took  toll  from 
all  who  passed  ;  that  their  business  tended  "  to  a  common  charge," 
and  had  become  a  thing  of  public  interest  and  use ;  that  the  toll  on  the 
grain  was  a  common  charge  ;  and  that,  according  to  Lord  Chief  Justice 
Hale,  every  such  warehouseman  "  ought  to  be  under  a  public  regula- 
tion, viz."  that  he  "  take  but  reasonable  toll." 

This  court  further  held  in  Munn  v.  Iliinois,  that  the  business  in 
question  was  one  in  which  the  whole  public  had  a  direct  and  positive 
interest ;  that  the  statute  of  Illinois  simply  extended  the  law  so  as  to 
meet  a  new  development  of  commercial  progress ;  that  there  was  no 
attempt  to  compel  the  owners  of  the  warehouses  to  grant  the  public  an 
interest  in  their  property,  but  to  declare  their  obligations  if  they  used 
it  in  that  particular  manner;  that  it  mattered  not  that  Munn  and  Scott 
had  built  their  warehouses  and  established  their  business  before  the 
regulations  complained  of  were  adojjted  ;  that,  the  property  being 
clothed  with  a  pulilic  interest,  what  was  a  reasonable  compensation  for 
its  use  was  not  a  judicial,  but  a  legislative  question  ;  that,  in  countries 
where  the  common  law  prevailed,  it  had  been  customary  from  time 


810  BUDD  V.   NEW  YORK.  [CHAP.  V. 

immemorial  for  the  legislature  to  declare  what  should  b^  a  reasonable 
compensation  under  such  circumstances,  or  to  fix  a  maximum  beyond 
which  an\-  charge  made  would  be  unreasonable  ;  that  the  warehouses 
of  Munn  and  Scott  were  situated  in  Illinois  and  their  business  was 
carried  on  exclusively  in  that  State  ;  that  the  wareliouses  were  no  more 
necessarily-  a  part  of  commerce  itself  than  the  dray  or  the  cart  by 
which,  but  for  them,  grain  would  be  transferred  from  one  railroad 
station  to  another  ;  that  their  regulation  was  a  thing  of  domestic  con- 
cern ;  that,  until  Congress  acted  in  reference  to  their  interstate  rela 
tions,  the  State  might  exercise  all  the  powers  of  government  over 
them,  even  though  in  so  doing  it  might  operate  indirectly  upon  com- 
merce outside  its  immediate  jurisdiction  ;  and  that  the  provision  of  §  9 
of  article  1  of  the  Constitution  of  the  United  States  operated  only  as 
a  limitation  of  the  powers  of  Congress,  and  did  not  affect  the  States  in 
the  regulation  of  their  domestic  affairs.  The  final  conclusion  of  the 
court  was,  that  the  Act  of  Illinois  was  not  repugnant  to  the  Constitu- 
tion of  the  United  States  ;  and  the  judgment  was  affirmed. 

In  Sinking  Fund  Cases,  99  U.  S.  700,  747,  Mr.  Justice  Bradle}', 
who  was  one  of  the  justices  who  concurred  in  the  opinion  of  the  court 
in  Munn  v.  Illinois,  speaking  of  that  case,  said:  "  The  inquiry  there 
was  as  to  the  extent  of  the  police  power  in  cases  where  the  public 
interest  is  affected  ;  and  we  held  that  when  an  employment  or  business 
becomes  a  matter  of  such  public  interest  and  importance  as  to  cieate 
a  common  charge  or  burden  upon  the  citizen  ;  in  other  words,  when  it 
becomes  a  practical  monopoly,  to  which  the  citizen  is  compelled  to 
resort,  and  by  means  of  which  a  tribute  can  be  exacted  from  the  com- 
munit}-,  it  is  subject  to  regulation  by  the  legislative  power."  Although 
this  was  said  in  a  dissenting  opinion  in  Sinking  Fund  Cases,  it  shows 
what  Mr.  Justice  Bradley  regarded  as  the  principle  of  the  decision  in 
Munn  V.  Illinois. 

In  Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  347,  354, 
this  court  said  :  "That  it  is  within  the  power  of  ^he  government  to 
regulate  the  prices  at  which  water  shall  be  sold  by  t/ne  who  enjoys  a 
virtual  monopoly  of  the  sale,  we  do  not  doubt.  That  question  is 
settled  by  what  was  decided  on  full  consideration  in  Munn  v.  Illinois, 
94  U.  S.  113.  As  was  said  in  that  case,  such  regulations  do  not  de- 
prive a  person  of  his  property-  without  due  process  of  law." 

In  Wabash  &c.  EaiUcay  Co.  v.  Illinois,  118  U.  S.  557,  569,  Mr. 
Justice  Miller,  who  had  concurred  in  the  judgment  in  Munn  v.  Illinois, 
referred,  in  delivering  the  opinion  of  the  court,  to  that  case,  and  said: 
"  That  case  presented  the  question  of  a  private  citizen,  or  unincorpo- 
rated partnership,  engaged  in  the  warehousing  business  in  Chicago, 
free  from  an}-  claim  of  right  or  contract  under  an  Act  of  Incorporation 
of  any  State  whatever,  and  free  from  the  question  of  continuojis  trans- 
portation through  several  States.  And  in  that  case  the  court  was  pre- 
sented with  the  question,  which  it  decided,  whether  any  one  engaged 
in  a  public  business,  in  which  all  the  public  had  a  right  to  require  bis 


CHAP,  v.]  BUDD  V.   NEW  YORK.  811 

service,  could  be  regulated  by  Acts  of  the  Legislature  in  the  exercise  of 
this  public  function  and  public  dut}-,  so  far  as  to  limit  the  amount  of 
charges  that  should  be  made  for  such  services." 

In  Boiv  V.  Beidelituin,  125  U.  S.  G80,  G86,  it  was  said  by  Mr.  Justice 
Gray,  in  delivering  the  opinion  of  the  court,  that  in  Mann  v.  Illinois 
the  court,  after  affirming  the  doctrine  that  by  the  common  law  carriers 
or  other  persons  exercising  a  public  employment  could  not  charge 
more  than  a  reasonable  compensation  for  tlieir  services,  and  that  it  is 
within  the  power  of  the  legislature  "  to  declare  what  shall  be  a  reason- 
able compensation  for  such  services,  or  perhaps,  more  properly  speak- 
ing, to  fix  a  maximum  beyond  which  any  charge  made  would  be  un- 
reasonable," said  that  to  limit  the  rate  of  charges  for  services  rendered 
in  the  public  employment,  or  for  the  use  of  property  in  which  the  pub- 
lic has  an  interest,  was  only  changing  a  regulation  which  existed  be- 
fore, and  established  no  new  principle  in  the  law,  but  only  gave  a  new 
effect  to  an  old  one. 

In  Cliicago  &c.  Railway  Co.  v.  Minnesota,  134  U.  S.  418,  461,  it 
was  said  by  Mr.  Justice  Bradley,  in  his  dissenting  opinion,  in  which 
Mr.  Justice  Gray  and  Mr.  Justice  Lamar  concurred,  that  the  decision 
of  the  court  in  that  case  practically  overruled  Munn  v.  Illinois;  but 
tlie  opinion  of  the  court  did  not  say  so,  nor  did  it  refer  to  Munn  v. 
Illinois;  and  we  are  of  opinion  that  the  decision  in  the  case  in  134 
U.  S.  is,  as  will  be  hereafter  shown,  quite  distinguishable  from  the  present 
cases. 

It  is  thus  apparent  that  this  court  has  adhered  to  the  decision  in 
Munn  V.  Illinois  and  to  the  doctrines  announced  in  the  opinion  of  the 
court  in  that  case  ;  and  those  doctrines  have  since  been  repeatedly  en- 
forced in  the  decisions  of  the  courts  of  the  States. 

In  Railway  v.  Railway,  30  Ohio  St.  604,  616,  in  1877,  it  was  said, ' 
citing  Munn  v.  Illinois  :  "  When  the  owner  of  property  devotes  it  to 
a  public  use,  he,  in  effect,  grants  to  the  public  an  interest  in  such  use, 
and  must,  to  the  extent  of  the  use,  submit  to  be  controlled  by  the  pub- 
lic, for  the  common  good,  as  long  as  he  maintains  the  use,"  That  was 
a  decision  by  the  Supreme  Court  Commission  of  Ohio. 

In  State  v.  Gas  Company,  34  Ohio  St.  572,  582,  in  1878,  Munn  v. 
Illinois  was  cited  with  approval,  as  holding  that  where  the  owner  of 
propert}^  devotes  it  to  a  use  in  which  the  public  have  an  interest,  he  in 
effect  grants  to  the  public  an  interest  in  such  use,  and  must,  to  the 
extent  of  that  interest,  submit  to  be  controlled  by  the  public,  for  the 
common  good,  so  long  as  he  maintains  the  use;  and  the  court  added 
that  in  Munn  v.  Illinois  the  principle  was  applied  to  warehousemen 
engaged  in  receiving  and  storing  gmin  ;  that  it  was  held  that  their 
rates  of  charges  were  subject  to  legislative  regulation  ;  and  that  the 
principle  applied  with  greater  force  to  corporations  when  they  were 
invested  with  franchises  to  be  exercised  to  subserve  the  public  interest. 

The  Supreme  Court  of  Illinois,  in  Buggies  v.  People,  91  Illinois, 
256,  262,  in  1878,  cited  Munn  v.   People,  69  Illinois,  80,  which  was 


812  BUDD  V.   NEW  YORK.  [CHAP.  V. 

affirmed  in  Munn  v.  Illinois,  as  holding  that  it  was  competent  for  the 
General  Assembly  to  fix  the  maximum  charges  by  individuals  keeping 
public  warehouses  for  storing,  handling  and  shipping  grain,  and  that, 
too,  when  such  persons  had  derived  no  special  privileges  from  the 
State,  but  were,  as  citizens  of  the  State,  exercising  the  business  of 
storing  and  handling  grain  for  individuals. 

The  Supreme  Court  of  Alabama,  in  Davis  v.  The  State,  68  Ala- 
bama, 58,  in  1880,  held  that  a  statute  declaring  it  unlawful,  within 
certain  counties,  to  transport  or  move,  after  sunset  and  before  sunrise 
of  the  succeeding  day,  any  cotton  in  the  seed,  but  permitting  the  owner 
or  purchaser  to  remove  it  from  the  field  to  a  place  of  storage,  was  not 
unconstitutional.  Against  the  argument  that  the  statute  was  such  a 
despotic  interference  with  the  rights  of  private  property  as  to  be  tan- 
tamount, in  its  practical  effect,  to  a  deprivation  of  ownership  "  without 
due  process  of  law,"  the  court  said  that  the  statute  sought  only  to 
regulate  and  control  the  transportation  of  cotton  in  one  particular  con- 
dition of  it,  and  was  a  mere  police  regulation,  to  which  there  was  no 
constitutional  objection,  citing  Munn  v.  Illinois.  It  added,  that  the 
object  of  the  statute  was  to  regulate  traffic  in  the  staple  agricultural 
product  of  the  State,  so  as  to  prevent  a  prevalent  evil,  which,  in  the 
opinion  of  the  law-making  power,  might  do  much  to  demoralize  agri- 
cultural labor  and  to  destroy  the  legitimate  profits  of  agricultural  pur- 
suits, to  the  public  detriment,  at  least  within  the  specified  territory. 

In  Baker  v.  Tlie  State,  54  Wisconsin,  3G8,  373,  in  1882,  Mtinn  v. 
Illinois  was  cited  with  approval  by  the  Supreme  Court  of  Wisconsin, 
as  holding  that  the  Legislature  of  Illinois  had  power  to  regulate  public 
warehouses,  and  the  warehousing  and  inspection  of  grain  within  that 
State,  and  to  enforce  its  regulations  by  penalties,  and  that  such  legis- 
lation was  not  in  conflict  with  any  provision  of  the  Federal  Constitution. 

The  Court  of  Appeals  of  Kentucky,  in  1882,  in  Nash  v.  Page,  80 
Kentucky,  539,  545,  cited  3fu7in  v.  Illinois,  as  applicable  to  the  case 
of  the  proprietors  of  tobacco  warehouses  in  the  city  of  Louisville,  and 
held  that  the  character  of  the  business  of  the  tobacco  warehousemen 
was  that  of  a  public  employment,  such  as  made  them  subject,  in  their 
charges  and  their  mode  of  conducting  business,  to  legislative  regulation 
and  control,  as  having  a  practical  monopoly  of  the  sales  of  tobacco  at 
auction. 

In  1884,  the  Supreme  Court  of  Pennsylvania,  in  Girard  Storage  Co. 
V.  Southwark  Co.,  105  Penn.  St.  248,  252,  cited  Munn  v.  Illinois  as 
involving  the  rights  of  a  private  person,  and  said  that  the  principle 
involved  in  the  ruling  of  this  court  was,  that  where  the  owner  of  such 
property  as  a  warehouse  devoted  4t  to  a  use  in  which  the  public  had  an 
interest,  he  in  effect  granted  to  the  public  an  interest  in  such  use,  and 
must,  therefore,  to  the  extent  thereof,  submit  to  be  controlled  by  the 
public  for  the  common  good,  as  long  as  he  maintained  that  use. 

In  Samjer  v.  Davis,  136  Mass.  239,  in  1884,  the  Supreme  Judicial 
Court  of  Massachusetts  said  that  nothing  is  better  established  than  the 


CHAP,  v.]  BUDD  V.   NEW  YOKK.  813 

power  of  the  legislature  to  make  what  are  called  police  regulations, 
declaring  in  what  manner  property  shall  be  used  and  enjoyed  and  busi- 
ness carried  on,  with  a  view  to  the  good  order  and  benefit  of  the  com- 
munity, even  though  they  may  interfere  to  some  extent  with  the  full 
enjoyment  of  private  property,  and  although  uo  compensation  is  given 
to  a  person  so  inconvenienced  ;  and  Munn  v.  Illinois  was  cited  as 
holding  that  the  rules  of  the  common  law  which  had  from  time  to  time 
been  estal)lislied,  declaring  or  limiting  the  right  to  use  or  enjoy  prop- 
erty, might  themselves  be  changed  as  occasion  might  require. 

The  Supreme  Court  of  Indiana,  in  1885,  in  Brechbill  v.  Randall, 
102  Indiana,  528,  held  that  a  statute  was  valid  which  required  persons 
selling  patent  rights  to  file  with  the  clerk  of  the  county  a  copy  of  the 
patent,  with  an  affidavit  of  genuineness  and  authority  to  sell,  on  the 
ground  that  the  State  had  power  to  make  police  regulations  for  the  pro- 
tection of  its  citizens  against  fraud  and  imposition  ;  and  the  court 
cited  Mium  v.  Illinois  as  authority. 

The  Supreme  ^ourt  of  Nebraska,  in  1885,  in  Webster  Telej^hone 
Case,  17  Nebraska,  120,  held  that  when  a  corporation  or  person  as- 
sumed and  undertook  to  supply  a  public  demand,  made  necessary  by 
the  recpiirements  of  the  commerce  of  the  country,  such  as  a  public  tele- 
phone, such  demand  must  be  supplied  to  all  alike,  without  discrimina- 
tion ;  and  Munn  v.  Illinois  was  cited  by  the  prevailing  party  and  by 
the  court.  The  defendant  was  a  corporation,  and  had  assumed  to  act 
in  a  capacity  which  was  to  a  great  extent  public,  and  had  undertaken 
to  satisfy  a  public  want  or  necessity,  although  it  did  not  possess  any 
special  privileges  by  statute  or  any  monopoly  of  business  in  a  given 
territory  ;  yet  it  was  held  that,  from  the  very  nature  and  character  of 
its  business,  it  had  a  monopoly  of  the  business  which  it  transacted. 
The  court  said  that  no  statute  had  been  deemed  necessary  to  aid  the 
courts  in  holding  that  where  a  person  or  company  undertook  to  supply 
a  public  demand,  which  was  "  affected  with  a  public  interest,"  it  must 
supply  all  alike  who  occupied  a  like  situation,  and  not  discriminate  in 
favor  of  or  against  any. 

In  Stone  v.  Yazoo  &  Miss.  Valley  R.  Co.,  62  Mississippi,  607,  639, 
the  Supreme  Court  of  Mississippi,  in  1885,  cited  Munn  v.  Illinois  as 
deciding  that  the  regulation  of  warehouses  for  the  storage  of  grain, 
owned  by  private  individuals,  and  situated  in  Illinois,  was  a  tiling  of 
domestic  concern  and  pertained  to  the  State,  and  as  affirming  the  right 
of  the  State  to  regulate  the  business  of  one  engaged  in  a  public  employ- 
ment therein,  although  that  business  consisted  in  storing  and  trans- 
ferring immense  quantities  of  grain  in  its  transit  from  the  fields  of 
production  to  the  markets  of  the  world. 

In  Hockett  v.  The  State,  105  Indiana,  250,  258,  in  1885,  the  Su- 
preme Court  of  Indiana  held  that  a  statute  of  the  State  which  pre- 
scribed the  maximum  price  which  a  telephone  company  should  charge 
for  the  use  of  its  telephones  was  constitutional,  and  that  in  legal  con- 
templation  all  the  instruments  and  appliances  used  by  a  telephone 


814  BUDD  V.   NEW  YORK.  [CHAP.  V. 

compan}'  in  the  transaction  of  its  business  were  devoted  to  a  public 
use,  and  tlie  property  thus  devoted  became  a  legitimate  subject  of 
legislative  regulation.  It  cited  Mann  v.  Illinois  as  a  leading  case  in 
support  of  that  proposition,  and  said  that  although  that  case  had  been 
the  subject  of  comment  and  criticism,  its  authority  as  a  precedent  re- 
mained unshaken.  This  doctrine  was  confirmed  in  Central  Union 
Telephone  Co.  v.  Bradbury,  106  Indiana,  1,  in  the  same  year,  and  in 
Central  Union  Telephone  Co.  v.  The  State,  118  Indiana,  194,  207,  in 
1888,  in  which  latter  case  Munn  v.  Illinois  was  cited  by  the  court. 

In  Chesapeake  &  Potomac  Telephone  Co.  v.  Balto.  &  Ohio  Tele- 
graph Co.,  66  Maryland,  399,  414,  in  1886,  it  was  held  that  the  tele- 
graph and  the  telephone  were  public  vehicles  of  intelligence,  and  those 
who  owned  or  controlled  them  could  no  more  refuse  to  perform  im- 
partially the  functions  which  they  had  assumed  to  discharge  than  a 
railway  company,  as  a  common  carrier,  could  rightfully  refuse  to  per- 
form its  duty  to  the  public ;  and  that  the  legislature  of  the  State  had 
full  power  to  regulate  the  services  of  telephone  cotnpanies,  as  to  the 
parties  to  whom  facilities  should  be  furnished.  The  court  cited  Munn 
V.  Illinois,  and  said  that  it  could  no  longer  be  controverted  that  the 
legislature  of  a  State  had  full  power  to  regulate  and  control,  at  least 
within  reasonable  limits,  public  employments  and  property  used  ia 
connection  therewith  ;  that  the  operation  of  the  telegraph  and  the  tele- 
phone in  doing  a  general  business  was  a  public  emplo3'ment,  and  the 
instruments  and  appliances  used  were  property  devoted  to  a  public  use 
and  in  which  the  public  had  an  interest ;  and  that,  such  being  the  case, 
the  owner  of  the  property  thus  devoted  to  public  use  must  submit  to 
have  that  use  and  employment  regulated  by  public  authority  for  the 
common  good. 

In  the  Court  of  Chancery  of  New  Jerse}',  in  1889,  in  Delaware,  &c. 
JRailroad  Co.  v.  Central  Stock -Yard  Co.,  45  N.  J.  Eq.  50,  60,  it  was 
held  that  the  legislature  had  power  to  declare  what  services  warehouse- 
men should  render  to  the  public,  and  to  fix  the  compensation  that 
might  be  demanded  for  such  services ;  and  the  court  cited  Munn  v. 
Illinois  as  properl}'  holding  that  warehouses  for  the  storage  of  grain 
must  be  regarded  as  so  far  public  in  their  nature  as  to  be  subject  to 
legislative  control,  and  that  when  a  citizen  devoted  his  property  to  a 
use  in  which  the  public  had  an  interest,  he  in  effect  granted  to  the 
public  an  interest  in  that  use,  and  rendered  himself  subject  to  control, 
in  that  use,  by  the  bod}'  politic. 

In  Za7tesville  v.  Gas-Light  Company,  47  Ohio  St.  1,  in  1889,  it  was 
said  by  the  Supreme  Court  of  Ohio,  tliat  the  principle  was  well  estab- 
lished, that  where  the  owner  of  property  devotes  it  to  a  use  in  which 
the  public  have  an  interest,  he  in  effect  grants  to  the  public  an  interest 
in  such  use,  and  must  to  the  extent  of  that  interest  submit  to  be  con- 
trolled bj'  the  public  for  the  common  good,  as  long  as  he  maintains 
the  use ;  and  that  such  was  the  point  of  the  decision  in  Munn  v. 
Illinois. 


CHAP,  v.]  BUDD   V.   NEW   YORK.  815 

We  must  regard  the  principle  maintained  in  Mimn  v.  Illinois  as 
Grmly  established  ;  and  we  think  it  covers  the  present  cases,  in  respect 
to  the  charge  for  elevating,  receiving,  weighing  and  discharging  the 
grain,  as  well  as  in  respect  to  the  charge  for  trimming  and  shovelling 
to  the  leg  of  the  elevator  when  loading,  and  trimming  the  cargo  when 
loaded.  If  the  shovellers  or  scoopers  chose,  they  might  do  the  shovel- 
ling by  hand,  or  might  use  a  .steam-shovel.  A  steam-shovel  is  owned 
by  the  elevator  owner,  and  th(?  power  for  operating  it  is  furnished  by 
the  engine  of  the  elevator ;  ani  if  the  scooper  uses  the  steam-shovtl, 
he  pays  the  elevator  owner  for  the  use  of  it. 

The  answer  to  the  suggestion  that  by  tlie  statute  the  elevator  owner 
is  foj^bidden  to  make  any  profit  from  the  business  of  shovelling  to  the 
leg  of  the  elevator  is  that  made  by  the  Court  of  Appeals  of  New  York 
in  the  case  of  Budd,  that  the  words  "  actual  cost,"  used  in  the  statute, 
were  intended  to  exclude  any  charge  by  the  elevator  owner,  beyond 
the  sum  specified  for  tlie  use  of  his  machinery  in  shovelling  and  the 
ordinary  expenses  of  operating  it,  and  to  confine  the  charge  to  the 
actual  cost  of  the  outside  labor  required  for  trimming  and  bringing 
the  grain  to  the  leg  of  the  elevator;  and  that  the  purpose  of  the 
statute  could  be  easily  evaded  and  defeated  if  the  elevator  owner  was 
permitted  to  separate  the  services,  and  to  charge  for  the  use  of  liis 
steam-shovel  any  sum  which  might  be  agreed  upon  between  liimself 
and^he  shovellers'  union,  and  thereby,  under  color  of  charging  for  the 
use  of  his  steam-shovel,  to  exact  of  the  carrier  a  sum  for  elevating  be- 
yond the  rate  fixed  by  the  statute. 

We  are  of  opinion  that  the  Act  of  the  Legislature  of  New  York  is 
not  contrary  to  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States,  and  does  not  deprive  tlie  citizen  of  his  property  without 
due  process  of  law  ;  that  the  Act,  in  fixing  the  maximum  charges  which 
it  specifies,  is  not  unconstitutional,  nor  is  it  so  in  limiting  the  charge 
for  shovelling  to  the  actual  cost  thereof;  and  that  it  is  a  proper  exer- 
cise of  the  police  power  of  the  State. 

On  the  testimony  in  the  cases  before  us  the  business  of  elevating 
grain  is  a  business  charged  with  a  public  interest,  and  those  who  carry 
it  on  occupy  a  relation  to  the  community  analogous  to  that  of  common 
carriers.  The  elevator  owner,  in  fact,  retains  the  grain  in  his  custody 
for  an  appreciable  period  of  time,  because  he  receives  it  into  his  cus- 
tod}',  weighs  it,  and  then  discharges  it,  and  his  employment  is  thus 
analogous  to  that  of  a  warehouseman.  In  the  actual  state  of  the  busi- 
ness the  passage  of  the  grain  to  the  city  of  New  York  and  other  places 
on  the  seaboard  would,  without  the  use  of  elevators,  be  practically  im- 
possible. The  elevator  at  Buffalo  is  a  link  in  the  chain  of  transporta- 
tion to  the  seaboard,  and  the  elevator  in  the  harbor  of  New  Y''ork  is  a 
like  link  in  the  transportation  abroad  by  sea.  The  charges  made  bv 
the  elevator  influence  the  price  of  grain  at  the  point  of  destination  oa 
the  seaboard,  and  that  influence  extends  to  the  prices  of  grain  at  ine 
places  abroad  to  which  it  goes.     The  elevator  is  devoted  by  its  owner, 


816  BUDD  V.   NEW  YOUK.  [CHAP.  V. 

who  engages  in  the  business,  to  a  use  in  which  the  public  has  an  inter- 
est, and  he  must  submit  to  be  controlled  by  public  legislation  for  the 
common  good. 

It  is  contended  in  the  briefs  for  the  plaintiffs  in  error  in  the  Annan 
and  Pinto  cases  that  the  business  of  the  relators  in  handling  grain  was 
wholh-  private,  and  not  subject  to  regulation  by  law  ;  and  that  tlioy 
had  received  from  the  State  no  cliarter,  no  privileges  and  no  immunity, 
and  stood  before  the  law  on  a  footing  with  the  laborers  they  employed 
to  shovel  grain,  and  were  no  more  subject  to  regulation  than  any  oilier 
individual  in  the  communit}-.  But  these  same  facts  existed  in  Mitnn 
V.  llli7iois.  In  that  case,  the  parties  offending  were  private  individuals, 
doing  a  private  business,  without  any  privilege  or  monopoly  granted  to 
them  by  the  State.  Not  only  is  the  business  of  elevating  grain  affected 
with  a  public  interest,  but  the  records  show  that  it  is  an  actual  monop- 
ol}',  besides  being  incident  to  the  business  of  transportation  and  to 
that  of  a  common  cari'ier,  and  thus  of  a  quasi-public  character.  The 
Act  is  also  constitutional  as  an  exercise  of  the  police  power  of  the 
State, 

So  far  as  the  statute  in  question  is  a  regulation  of  commerce,  it  is  a 
regulation  of  commerce  only  on  the  waters  of  the  State  of  New  York. 
It  operates  only  within  the  limits  of  that  State,  and  is  no  more  ob- 
noxious as  a  regulation  of  interstate  commerce  than  was  the  statute  of 
Illinois  in  respect  to  warehouses,  in  Miinn  v.  Illinois.  It  is  of  the 
same  character  with  navigation  laws  in  respect  to  navigation  within 
the  State,  and  laws  regulating  wharfage  rates  within  the  State,  and 
other  kindred  laws.^  .  .  . 

In  the  cases  before  us,  the  records  do  not  show  that  the  charges 
fixed  by  the  statute  are  unreasonable,  or  that  propert}-  has  been  taken 
without  due  process  of  law,  or  that  there  has  been  any  denial  of  the 
equal  protection  of  the  laws ;  even  if  under  any  circumstances  we 
could  determine  that  the  maximum  rate  fixed  b}'  the  legislature  was 
unreasonal)le. 

In  Georgia  Banking  Co.  v.  Smith,  128  U.  S.  174,  179,  in  the 
opinion  of  the  court,  delivered  by  Mr.  Justice  Field,  it  was  said  that 
this  court  had  adjudged  in  numerous  instances  that  the  legislature  of  a 
State  had  the  power  to  prescribe  the  charges  of  a  railroad  compan}' 
for  the  carriage  of  persons  and  merchandise  within  its  limits,  in  the 
absence  of  any  contract  to  the  contrary,  subject  to  the  limitation  that 
the  carriage  is  not  required  without  reward,  or  upon  conditions  amount- 
ing to  the  taking  of  propert}-  for  public  use  without  just  compensation, 
and  that  what  is  done  does  not  amount  to  a  regulation  of  foreign  or 
interstate  commerce. 

It  is  further  contended  for  the  plaintiffs  in  error  that  the  statute  in 
question  violates  the  Fourteenth  Amendment,  because  it  takes  from 
Uie  elevator  owners  the  equal  protection  of  the  laws,  in  that  it  applies 

1  For  a  passage  omitted  here,  see  antt,  p.  671.  — Ed. 


CHAP,  v.]  LAWTON    V.    STEELE.  817 

only  to  places  which  have  130,000  population  or  more,  and  does  not 
apply  to  places  which  have  less  than  130,000  population,  and  thus 
operates  against  elevator  owners  in  the  larger  cities  of  the  State.  The 
law  operates  equally  on  all  elevator  owners  in  places  having  130,000 
population  or  more ;  and  we  do  not  perceive  how  they  are  deprived  of 
the  equal  protection  of  the  laws,  within  the  meaning  of  the  P'ourteenth 
Amendment.  Judgments  affirmed. 

[Brewer,  J.,  gave  a  dissenting  opinion  in  which  Field,  J.,  and 
Brown,  J.,  concurred.] 


LAWTON  V.  STEELE.       " 
Supreme  Court  of  the  United  States.     1894. 
[152  U.  S.  133.] 

In  error  to  the  Supreme  Court  of  the  State  of  New  York. 

This  was  an  action  at  law  instituted  in  the  Supreme  Court  for  the 
county  of  Jefferson  by  the  plaintiffs  in  error  against  the  defendant  in 
error,  together  with  Edward  L.  Sargent  and  Richard  U.  Sherman,  for 
the  conversion  of  fifteen  hoop  and  fyke  nets  of  the  alleged  value  of 
$525.  Defendants  Steele  and  Sargent  interposed  a  general  denial. 
Defendant  Sherman  pleaded  that  he,  with  three  others,  constituted  the 
"Commissioners  of  Fisheries"  of  the  State  of  New  York,  with  power 
to  give  directions  to  game  and  fish  protectors  with  regard  to  the  enforce- 
ment of  the  game  law ;  that  defendant  Steele  was  a  game  and  fish  pro- 
tector, duly  appointed  by  the  Governor  of  the  State  of  New  York,  and 
that  the  nets  sued  for  were  taken  possession  of  by  said  Steele,  as  such 
game  and  fish  protector,  upon  the  ground  that  they  were  maintained 
upon  the  waters  of  the  State  in  violation  of  existing  statutes  for  the 
protection  of  fish  and  game,  and  thereby  became  a  public  nuisance. 

The  facts  were  undisputed.  The  nets  were  the  property  of  the  plain- 
tiffs, and  were  taken  away  by  the  defendant  Steele,  and  destroyed.  At 
the  time  of  the  taking,  most  of  the  nets  were  in  the  waters  of  the  Black 
River  Bay,  being  used  for  fishing  purposes,  and  the  residue  were  upon 
the  shore  of  that  bay,  having  recently  been  used  for  the  same  purpose. 
The  plaintiffs  were  fishermen,  and  the  defendant  Steele  was  a  State 
game  and  fish  protector.  The  taking  and  destruction  of  the  nets  were 
claimed  to  have  been  justifiable  under  the  statutes  of  the  State  relating 
to  the  protection  of  game  and  fish.  Plaintiffs  claimed  there  was  no 
justification  under  the  statutes,  and  if  they  constituted  such  justifica- 
tion upon  their  face,  they  were  unconstitutional.  Defendant  Sherman 
was  a  State  Fish  Commissioner.  Defendant  Sargent  was  President 
of  the  .Jefferson  County  Fish  and  Game  Association,  Plaintiffs  claimed 
these  defendants  to  be  liable  upon  the  ground  that  they  instigated, 
incited,  or  directed  the  taking  and  destruction  of  the  nets. 
VOL.  I.  —  52 


818  LAWTON   V.    STEELE.  [CHAP.  V. 

Upon  trial  before  a  jury  a  verdict  was  rendered,  subject  to  the  opin- 
ion of  the  court,  in  favor  of  the  plaintiffs  against  defendant  Steele  for 
the  sum  of  $216,  and  in  favor  of  defendants  Sargent  and  Siierman. 
A  motion  for  a  new  trial  was  denied,  and  judgment  entered  upon  the 
verdict  for  $216  damages  and  $166.09  costs.  On  appeal  to  the  General 
Term  this  judgment  was  reversed,  and  a  new  trial  ordered,  and  a  fur- 
ther appeal  allowed  to  the  Court  of  Appeals.  On  appeal  to  the  Court 
of  Appeals,  the  order  of  the  General  Term  granting  a  new  trial  was 
affirmed,  and  judgment  absolute  ordered  for  the  defendant.  119  N.  Y, 
226.     Plaintiffs  thereupon  sued  out  a  writ  of  error  from  this  court. 

LeH  H.  Broion,  for  plaintiffs  in  error. 

Elo)i  R.  Brown,  for  defendant  in  error. 

Mr.  Justice  Brown,  after  stating  the  facts  in  the  foregoing  language, 
delivered  the  opinion  of  the  court. 

This  case  involves  the  constitutionality  of  an  Act  of  the  Legislature 
of  the  State  of  New  York  known  as  chapter  591,  Laws  of  New  York  of 
1880,  as  amended  by  chapter  317,  Laws  of  New  York  of  1883,  entitled 
"  An  Act  for  the  Appointment  of  Game  and  Fish  Protectors." 

By  a  subsequent  Act  enacted  in  1886  : 

"  Section  1.  No  person  shall  at  any  time  kill  or  take  from  the  waters 
of  Henderson  Bay  or  Lake  Ontario,  within  one  mile  from  the  shore, 
between  the  most  westerly  point  of  Pillar  Point  and  the  boundary  line 
between  the  counties  of  Jefferson  and  Oswego,  .  .  .  any  fish  of  any 
kind  b}-  any  device  or  means  whatever  otherwise  than  b}-  hook  and  line 
or  rod  held  in  hand.  But  this  section  shall  not  apply  to  or  prohibit  the 
catching  of  minnows  for  bait,  providing  the  person  using  nets  for  that 
purpose  shall  not  set  them,  and  shall  throw  back  any  trout,  bass,  or 
any  other  game  fish  taken,  and  keep  only  chubs,  dace,  suckers,  or 
shiners. 

"  Sec.  2.  An}'  person  violating  an}'  of  the  provisions  of  this  Act 
shall  be  guilty  of  a  misdemeanor,  and  liable  to  a  penalty  of  $50  for 
each  offence."     Laws,  1886,  c.  141. 

By  the  Act  of  1880,  as  amended  by  the  Act  of  1883 : 

"  Sec.  2.  Any  net,  pound,  or  other  means  or  device  for  taking  or 
capturing  fish,  or  whereb}'  they  may  be  taken  or  captured,  set,  put, 
floated,  had,  found,  or  maintained,  in  or  upon  any  of  the  waters  of  this 
State,  or  upon  the  sliores  of  or  islands  in  any  of  the  waters  of  this 
State,  in  violation  of  an}'  existing  or  hereafter  enacted  statutes  or  laws 
for  the  protection  of  fish,  is  hereby  declared  to  be,  and  is,  a  public 
nuisance,  and  may  be  abated  and  summarily  destroyed  by  any  person, 
and  it  shall  be  the  duty  of  each  and  every  protector  aforesaid  and  of 
every  game  constable  to  seize  and  remove  and  forthwith  destroy  the 
same,  .  .  .  and  no  action  for  damages  shall  lie  or  be  maintained 
against  any  person  for  or  on  account  of  any  such  seizure  and 
destruction." 

This  last  section  was  alleged  to  be  unconstitutional  and  void  for 
three  reasons  :   (1)  as^depriving  the  citizen  of  his  property  without  due 


CHAP,  v.]  LAWTON   V.    STEELE.  819 

process  of  law;  (2)  as  being  in  restraint  of  the  liberty  of  the  citizen ; 
(3)  as  beino;  an  interference  with  the  admiralty  and  maritime  jurisdiction 
of  the  United  States. 

The  trial  court  ruled  the  first  of  the  above  propositions  in  plaintiffs 
favor,  and  the  others  against  them,  and  judgment  was  thereupon 
entered  in  favor  of  the  plaintiffs. 

The  eonstitutionalitv  of  the  section  in  question  was,  however,  sus- 
tained by  the  General  Term  and  by  the  Court  of  Appeals,  upon  the 
<Tround  of  its  being  a  lawful  exercise  of  the  police  power  of  the  State. 
°  The  extent  and  limits  of  what  is  known  as  the  ''police  power"  have 
been  a  fruitful  subject  of  discussion  in  the  appellate  courts  of  nearly 
every  State  in  the  Union.     It  is  universally  conceded  to  include  every- 
thing essential  to  the  public  safety,  health,  and  morals,  and  to  justify 
the  destruction  or  abatement,  by  summary  proceedings,  of  whatever  may 
be  regarded  as  a  public  nuisance.     Under  this  power  it  has  been  held 
that  The  State  may  order  the  destruction  of  a  house  falling  to  decay,  or 
otherwise  endangering  the  lives  of  passers-by  ;  the  demolition  of  such  as 
are  in  the  path  of  a  conflagration  ;  the  slaughter  of  diseased  cattle  ;  the 
destruction  of  decayed  or  unwholesome  food  ;  the  prohibition  of  wooden 
buildings  in  cities  ;  the  regulation  of  railways  and  other  means  of  public 
conveyance,  and  of  interments  in  burial-grounds;    the  restriction  of, 
objectionable  trades  to  certain  localities  ;  the  compulsory  vaccination  of 
children;  the  confinement  of  the  insane  or  those  afflicted  with  conta- 
gious diseases  ;  the  restraint  of  vagrants,  beggars,  and  habitual  drunk- 
ards ;  the  suppression  of  obscene  publications  and  houses  of  ill  fame  ; 
and  the  prohibition  of  gambling-houses  and  places  where  intoxicating 
liquors  are  sold.     Beyond  this,  however,  the  State  may  interfere  wher- 
ever the  public  interests  demand  it,  and  in  this  particular  a  large  dis- 
cretion is  necessarily  vested  in  the  legislature  to  determine,  not  only 
what  the  interests  of  the  public  require,  but  what  measures  are  neces- 
sary for  the  protection  of  such  interests.      Barhier  v.  Connolly,  113 
U.  S.  27  ;  Kidd  v.  Pearson,  128  U.  S.  1.     To  justify  the  State  in  thus 
interposing  its  authority  in  beludf  of  the  public,  it  must  appear,  first, 
tjjatjhe  intefes^^  the  public  generally,  as  distinguished  from  tliose 
of  aparticular  class,  requim_auchjiiterference  ;  and,  second,  that  the 
means  are  reasonably- necessary  for  the  accomplishment  of  thej)uri22^ 
and  not  unduly  o^pressive_LLP""  individuals.     The  legislature  may  not, 
under  the  guise  of  protecting  the_public  jntei-ests,  arbitrarily;  jnterfere 
with  private  business,  or  impose  unusual  and  unnecessary  restrictions 
upon  lawful  occupations^  In  other  words,  its  determination  as  to^  w hat 
is  a  proper  exercise  of  its  police  powers  is  not  final  or  conclusive,  but 
is  subject  to  the  supervision_of  Jhe  cour^.  .  .  .  [Here   reference  is 
made  to  Henderson  v.  Mayor,  92  U.  S.  259  ;    Chy  Lnng  v.  Freeman, 
92  U.  S.  265  ;  R.  R.  Co.  v.  Hnseyi,  95  U.  S.  465  ;  Rockioell  v.  Near- 
ing,  35  N.  Y.  302  ;  Austin  v.  Murray,  16  Pick.  121  ;    Watertoicn  v. 
Mayo,  109  Mass.  315  ;   The  Slaughter-House  Cases,  16  Wall.  36  ;  7w  re 
Cheesebroiigh,  78  N.  Y.  232  ;  and  Hroicn  v.  Perkins,  12  Gray,  89.] 


820  LAWTON   V.   STEELE.  [CHAP.  V. 

The  preservation  of  game  and  fish,  however,  has  alwaj's  been  treated 
as  witliin  the  proper  domain  of  the  police  power,  and  laws  limiting  the 
season  within  which  birds  and  wild  animals  may  be  killed  or  exposed 
for  sale,  and  prescribing  the  time  and  manner  in  which  fish  ma}'  be 
caught,  have  been  repeatedly  upheld  b^-  the  courts.  Thus  in  /Smith  v. 
Mari/kmd,  18  How.  71,  it  was  held  that  the  State  had  a  right  to  pro- 
tect its  fisheries  in  Chesapeake  Bay  b}'  making  it  unlawful  to  take  or 
capture  oysters  with  a  scoop  or  drag,  and  to  inflict  the  penalt}'  of  for- 
feiture upon  the  vessel  employed  in  this  pursuit.  The  avowed  object 
of  the  Act  was  to  prevent  the  destruction  of  the  oysters  bj-  the  use  of 
particular  instruments  in  taking  them.  '*  It  does  not  touch,"  said  the 
court,  "  the  subject  of  the  common  liberty  of  taking  oysters  save  for 
the  purpose  of  guarding  it  from  injury  to  whom  it  may  belong  and  b}' 
■whomsoever  it  may  be  enjoyed."  It  was  held  that  the  right  of  for- 
feiture existed,  even  though  the  vessel  was  enrolled  for  the  coasting 
trade  under  the  Act  of  Congress.  So  in  Smith  v.  Levinus,  8  N.  Y. 
472,  a  similar  Act  was  held  to  be  valid,  although  it  vested  certain  legis- 
lative powers  in  boards  of  supervisors,  authorizing  them  to  make  laws 
for  the  protection  of  shell  and  other  fish.  In  State  v.  Moherts,  59  N. 
H.  256,  which  was  an  indictment  for  taking  fish  out  of  navigable  waters 
out  of  the  season  prescribed  b}-  statute,  it  was  said  by  the  court:  "At 
common  law  the  right  of  fishing  in  navigable  waters  was  common  to  all. 
The  taking  and  selling  of  certain  kinds  of  fish  and  game  at  certain  sea- 
sons of  the  \ear  tended  to  the  destruction  of  the  privilege  or  right  by 
the  destruction  consequent  upon  the  unrestrained  exercise  of  the  right. 
This  is  regarded  as  injurious  to  the  community',  and,  therefore,  it  is 
within  the  authorit}'  of  the  legislature  to  impose  restriction  and  limita- 
tion upon  the  time  and  manner  of  taking  fish  and  game,  considered 
valuable  as  articles  of  food  or  merchandise.  For  this  purpose  fish  and 
game  laws  are  enacted.  The  power  to  enact  such  laws  has  long  been 
exercised,  and  so  beneficially  for  the  public  that  it  ought  not  now  to  be 
called  into  question."  Comnionivealth\.  CAop/w,  5  Pick.  199  ;  McCready 
V.  Virginia,  94  U.  S.  391;  Vinton  v.  Welsh,  9  Pick.  92;  Common- 
wealth V.  Essex  Co.,  13  Gray,  248;  Phelps  v.  Racey,  60  N.  Y.  10; 
HolyoJce  Co.  v.  Lyman,  15  Wall.  500  ;  Geritile  v.  State,  29  Ind.  409  ; 
State  v.  Leivis,  33  N.  E.  R.  1024. 

As  the  waters  referred  to  in  the  Act  are  unquestionably  within  the 
jurisdiction  of  the  State  of  New  York,  there  can  be  no  valid  objection 
to  a  law  regulating  the  manner  in  which  fishing  in  these  waters  shall  be 
carried  on.  Hooker  v.  Gummings,  20  Johns.  91.  Xhg-duty  of  pre- 
serving the  fisheries  of  a  State  from  extinction,  by  prohibiting  exhaus- 
Tive  methods  of  fishing,  or  the  use  of  such  destructive  instruments  as 
are  likelj'  to  result  in  the  extermination  of  the  young  as  well  as  the 
mature  fish,  is  as  clear  as  its  power  to  secure  to  its  citizens,  as  far  as 
possible,  a  supply  of  any  other  wholesome  food. 

The  mnia^-ftnd  niily  rr^tj-diffipnlty  pQnnpcted  with  the  Act  in  question 
isin^its  declaration  that  any  net,  &c.,  maintained  in  violation  ofanj' 


CHAP,  v.]  LA.WTON   V.    STEELE.  821 

law  for  the  protection  of  fisheries^  is  to  be  treated  as  a  public  nuisance, 
"  and  ma}-  be  abated  and  summarily  destroyed  b}-  any  person,  and' it 
shall  be  the  duty  of  each  and  every  protector  aforesaid  and  ever}'  game 
constable  to  seize,  remove,  and  forthwith  destroy  the  same."  /The 
legislature,  however,  undoubtedly  possessed  the  power  not  only  to  pro- 
hibjt  fishing  by  nets  in  these  waters,  but  to  make  it  a  criminal  offence, 
and  to  take  such  measures  as  were  reasonable  and  necessary  to  prevent 
such  offences  in  the  future.  ^  It  certainly  could  not  do  this  more  effec- 
tually  than  by  deatroyiug.  the  means  of  the_  offence.  If  the  nets  were 
being  used  in  a  manner  detrimental  to  the  interests  of  the  public,  we 
think  it  was  within  the  power  of  the  legislature  to  declare  them  to  be 
nuisances,  and  to  authorize  the  officers  of  the  State  to  abate  them.  Hart 
v.  The  Mayor ^  9  Wend.  571  ;  Meeker  v.  Van  Rensselaer,  15  Wend. 
397.  An  Act  of  the  Legislature  which  has  for  its  object  the  preserva- 
tion of  the  public  interests  against  the  illegal  depredations  of  private 
individuals  ought  to  be  sustained,  unless  it  is  plainly  violative  of  the 
Constitution,  or  subversive  of  private  rights.  In  this  case  there  can  be 
no  doubt  of  the  right  of  the  legislature  to  authorize  judicial  proceedings 
tobe_taken  for  the  condemnation  of  the  nets  in  qiLe&tLou,.aQd_^  their  sale 
or  destruction  by  process  of  law.  Congress  has  assumed  this  power  in 
a  large  number  of  cases,  by  authorizing  the  condemnation  of  property 
which  has  been  made  use  of  fortlie  purpose  of  defrauding  the  revenue. 
Examples  of  this  are  vessels  illegally  registered  or  owned,  or  employed 
in  smuggling  or  other  illegal  traffic ;  distilleries  or  breweries  illegally 
carried  on  or  operated,  and  buildings  standing  upon  or  near  the  boundary 
line  between  the  United  States  ancl  another  country,  and  used  as  depots 
for  smuggling  goods.  In  all  thesa  eases,  however,  the  forfeiture  was 
decreed  by  judicial  proceeding,  jiut  wherp  flie  property  is  of  little 
value,  and  jts  use  for  the  illegal  purpose  is  clear,  the  legislature  may 
declare  it  to  be  n  niusanpp,  ji"rl  S"hjppi^J:n  snmmnry  nhatement.  In- 
stances of  this  are  the  power  to  kill  diseased  cattle  ;  to  pull  down/nouses 
in  the  path  of  conflagrations  ;  the  destruction  of  decayed  fruit  a- fish  or 
unwholesome  meats,  of  infected  clothing,  obscene  books  or  piqcures,  or 
instruments  which  can  only  be  used  for  illegal  purposes,  "^hile  the 
legislature  has  no  rigiit  arbitrarily  to  declare  that  to  be  a  nuisance 
"wKicnjs  clearl}Miol^o,  a^ood  deal  must  be  left  to  its  discretion  in  that 
regard,  and  if  the  object  to  be  accomplished  is  conducive  to  the  public 
interests^  it  nm*  exercise  a  large  liberty  of  choice  in  the  means  em- 
ployed._  Newark,  &c.  Rioy  Co.  v.  Hunt,  50  N.  J.  Law,  308  ;  Blasier 
V.  Miller,  10  Hun,  435;  Mouse's  Case,  12  Coke,  62;  Stone  v.  The 
Mayor,  25  Wend.  173  ;  Am.  Print  Works  v.  Lawrence,  21  N.  J.  Law, 
248;  Same  v.  Same,  23  Id.  590. 

It  is  not  easy  to  draw  the  line  between  cases  where  property  illegally 
used  may  be  destroyed  summarily  and  where  judicial  proceedings  are 
necessary  for  its  condemnation.  If  the  property  were  of  great  value, 
as,  for  instance,  if  it  were  a  vessel  employed  for  smuggling  or  other 
illegal  purposes,  it  would  be  putting  a  dangerous  power  in  the  hands  of 


822  LAWTOX   V.    STEELE.  [CHAP.  V. 

a  custom  officer  to  permit  him  to  sell  or  destroy  it  as  a  public  nuisance, 
and  the  owner  would  have  good  reason  to  complain  of  such  act  as 
depriving  him  of  his  property  without  due  process  of  law.  But  where 
the  property  is  of  trifling  value,  and  its  destruction  is  necessary  to  effect 
the  object  of  a  certain  statute,  we  think  it  is  within  the  power  of  the 
legislature  to  order  its  summary  abatement.  For  instance,  if  the  legis- 
lature should  prohibit  the  killing  of  fish  by  explosive  shells,  and  should 
order  the  cartridges  so  used  to  be  destroyed,  it  would  seem  like  belittling 
the  dignity  of  the  judiciary  to  require  such  destruction  to  be  preceded 
by  a  solemn  condemnation  in  a  court  of  justice.  The  same  remark 
might  be  made'  of  the  cards,  chips,  and  dice  of  a  gambling-room. 

The  value  of  the  nets  in  question  was  but  $15  apiece.  The  cost  of 
condemning  one  (and  the  use  of  one  is  as  illegal  as  the  use  of  a  dozen), 
by  judicial  proceedings,  would  largely  exceed  the  value  of  the  net,  and 
doubtless  the  State  would,  in  many  cases,  be  deterred  from  executing 
the  law  by  the  expense.  The3-  could  only  be  removed  from  the  water 
with  difficulty,  and  were  liable  to  injury-  in  the  process  of  removal. 
The  object  of  the  law  is  undoubtedly  a  beneficent  one,  and  the  State 
ought  not  to  be  hampered  in  its  enforcement  by  the  application  of  con- 
stitutional provisions  which  are  intended  for  the  protection  of  substan- 
tial rights  of  property.  It  is  evident  that  the  efficacy  of  this  statute 
would  be  very  seriously  impaired  by  requiring  every  net  illegally  used 
to  be  carefully  taken  from  the  water,  carried  before  a  court  or  magis- 
trate, notice  of  the  seizure  to  be  given  bj-  publication,  and  regular  judi- 
cial proceedings  to  be  instituted  for  its  condemnation. 

There  is  not  a  State  in  the  Union  which  has  not  a  constitutional  pro- 
vision entitling  persons  charged  with  crime  to  a  trial  by  jur^-,  and  yet 
from  time  immemorial  the  practice  has  been  to  try  persons  charged  with 
petty  offences  before  a  police  magistrate,  who  not  only  passes  upon  the 
question  of  guilt,  but  metes  out  the  proper  punishment.  This  has 
never  been  treated  as  an  infraction  of  the  Constitution,  though  techni- 
cally a  person  may  in  this  way  be  deprived  of  his  liberty  without  tlic 
intervention  of  a  jur}'.  Callan  v.  Wilson,  127  U.  S.  540,  and  cases 
cited.  So  the  summary  abatement  of  nuisances  without  judicial  process 
or  proceeding  was  well  known  to  the  common  law  long  prior  to  the 
adoption  of  the  Constitution,  and  it  has  never  been  supposed  that  the 
constitutional  provision  in  question  in  this  case  was  intended  to  inter- 
fere with  the  established  principles  in  that  regard. 

Nor  is  a  person  whose  property  is  seized  under  the  Act  in  question 
without  his  legal  remed}'.  If  in  fact  his  propert}'  has  been  used  in  vio- 
lation of  the  Act,  he  has  no  just  reason  to  complain  ;  if  not,  he  may 
replevy  his  nets  from  the  officer  seizing  them,  or,  if  they  have  been 
destroyed,  may  have  his  action  for  their  value.  In  such  cases  the  bur- 
den would  be  upon  the  defendant  to  prove  a  justification  under  the 
statute.  As  was  said  by  the  Supreme  Court  of  New  Jersey  in  a  simi- 
lar case  {Am..  Print  Works  v.  Laicrence,  21  N.  J.  Law,  248,  259)  : 
"The  party  is  not,  in  point  of  fact,  deprived  of  a  trial  by  jury.     The 


CHAP,  v.]  LAWTON    V.    STEELE.  823 

evidence  necessaiy  to  sustain  the  defence  is  changed.  Even  if  the 
party  were  deprived  of  a  trial  b}-  jury,  the  statute  is  not,  therefore, 
necessarily  unconstitutional."  Indeed,  it  is  scarcely  possible  that  any 
actual  injustice  could  be  done  in  the  practical  administration  of  the 
Act. 

It  is  said,  however,  that  the  nets  are  not  in  themselves  a  nuisance, 
but  are  perfectly  lawful  acts  of  manufacture,  and  are  ordinarily  used  for 
a  lawful  purpose.  This  is,  however,  by  no  means  a  conclusive  answer. 
Many  articles,  such,  for  instance,  as  cards,  dice,  and  other  articles  used 
for  gambling  purposes,  are  perfectly  harmless  in  themselves,  but  may 
become  nuisances  by  being  put  to  an  illegal  use,  and  in  such  cases  fall 
within  the  ban  of  the  law  and  may  be  summarih'  destroyed.  It  is  true 
that  this  rule  does  not  always  follow  from  the  illegal  use  of  a  harmless 
article.  A  house  may  not  be  torn  down  because  it  is  put  to  an  illegal  use, 
since  it  ma}'  be  as  readily  used  for  a  lawful  purpose  (Eli/x.  Supervisors, 
36  N.  Y.  297),  but  wliere  minor  articles  of  personal  property  are  de- 
voted to  such  use  the  fact  that  they  may  be  used  for  a  lawful  purpose 
would  not  deprive  the  legislature  of  the  power  to  destroy  them.  The 
power  of  the  legislature  to  declare  that  which  is  perfectly  innocent  in 
itself  to  be  unlawful  is  beyond  question  {People  v.  West,  106  N.  Y. 
293),  and  in  such  case  the  legislature  may  annex  to  the  prohibited  act 
all  the  incidents  of  a  criminal  offence,  including  the  destruction  of  prop- 
erty denounced  I)}'  it  as  a  public  nuisance. 

In  We/ler  v.  Snover,  42  N.  J.  Law,  341,  it  was  held  that  a  fish  war- 
den for  a  county,  appointed  by  the  Governor,  had  the  right,  under  an  Act 
of  the  Legislature,  to  enter  upon  land  and  destroy'  a  fish  basket  con- 
structed in  violation  of  the  statute,  togetiier  with  the  materials  of  whicii 
it  was  composed,  so  that  it  might  not  again  be  used.  It  was  stated  in 
that  case  that  "after  a  statute  has  declared  an  invasion  of  a  public 
right  to  be  a  nuisance  it  may  be  abated  b}'  the  destruction  of  the  object 
used  to  effect  it.  The  person  who,  with  actual  or  constructive  notice 
of  the  law,  sets  up  such  nuisance  cannot  sue  the  officer  whose  duty  it 
has  been  made  by  the  statute  to  execute  its  provisions."  So  in  WU- 
liams  V.  Jilackwall,  2  H.  &  C.  33,  the  right  to  take  possession  of  or 
destroy  any  engine  placed  or  used  for  catching  salmon  in  contravention 
of  law  was  held  to  extend  to  all  persons,  and  was  not  limited  to  con- 
servators or  officers  appointed  under  the  Act. 

It  is  true  there  are  several  cases  of  a  contrarv  purport.  Some  of 
these  cases,  however,  may  be  explained  upon  the  ground  that  the  prop- 
ert}'  seized  was  of  considerable  value  (leck  v.  Afiderson,  57  Cal.  251, 
boats  as  well  as  nets  ;  Dunn  v.  Burleigh,  62  Me.  24,  teams  and  sup- 
plies in  lumbering  ;  King  v.  Hayes,  80  Me.  206,  a  horse)  —  in  others  the 
court  seems  to  have  taken  a  more  technical  view  of  the  law  than  the 
necessities  of  the  case  or  an  adequate  protection  of  the  owner  required. 
Lowrij  v.  Rainwater,  70  Mo.  152;  State  v.  Bobbins,  124  Ind.  308; 
JUdgeivaij  v.  West,  60  Ind.  371. 

LTpon  the  whole,  we  agree  with  the  Court  of  Appeals  in  holding  this 


824  LAWTON    V.    STEELE.  [CHAP.  V. 

Act  to  be  constitutional,  and  the  jiulgraent  of  the  Supreme  Court  is, 
therefore  Affirvied. 

Mr.  Chief  Justice  Fuller  (with  whom  concurred  Mr.  Justice  Field 
and  Mr.  Justice  Brewer)  dissenting. 

In  my  opinion  the  legislation  in  question,  so  far  as  it  authorizes  the 
summary  destruction  of  fishing-nets  and  prohibits  any  action  for  dam- 
ages on  account  of  such  destruction,  is  unconstitutional. 

Fishing-nets  are  in  themselves  articles  of  property  entitled  to  the  pro- 
tection of  the  law,  and  I  am  unwilling  to  concede  to  the  legislature  of  a 
State  the  power  to  declare  them  public  nuisances,  even  when  put  to  use 
in  a  manner  forbidden  by  statute,  and  on  that  ground  to  justify  their 
abatement  b^'  seizure  and  destruction  without  process,  notice,  or  the 
observance  of  an}'  judicial  form. 

The  police  power  rests  upon  necessity  and  the  right  of  self-protection 
but  private  property  cannot  be  arbitrarily  invaded  under  the  mere  guise 
of  police  regulation,  nor  forfeited  for  the  alleged  violation  of  law  b}-  its 
owner,  nor  destroyed  by  way  of  penalty  inflicted  upon  him,  without 
opportunit}'  to  be  heard. 

It  is  not  doubted  that  the  abatement  of  a  nuisance  must  be  limited 
to  the  necessity  of  the  occasion,  and,  as  the  illegal  use  of  fishing-nets 
would  be  terminated  by  their  withdrawal  from  the  water  and  the  public 
be  fully  protected  b}-  their  detention,  the  lack  of  necessity  for  the  arbi- 
trary proceedings  prescribed  seems  to  me  too  obvious  to  be  ignored. 
Nor  do  I  perceive  that  the  difficult}'  which  may  attend  their  removal, 
the  liability  to  injur}'  in  the  process,  and  their  comparatively  small  value 
ordinarily,  affect  the  principle,  or  tend  to  show  their  summary  destruc- 
tion to  be  reasonably  essential  to  the  suppression  of  the  illegal  use. 
Indeed,  I  think  that  that  argument  is  to  be  deprecated  as  weakening  the 
importance  of  the  preservation,  without  impairment  in  ever  so  slight  a 
degree,  of  constitutional  guarantees. 

I  am,  therefore,  constrained  to  withhold  my  assent  to  the  judgment 
just  announced,  and  am  authorized  to  say  that  Mr.  Justice  Field  and 
Mr.  Justice  Brewer  concur  in  this  dissent.^ 

1  See  State  v.  Lewis,  33  N.  E.  Rep.  1024  (Ind.,  April,  1893),  holding  valid  a  statute 
making  it  criminal  to  have  in  one's  possession  a  gill  net  or  seine,  with  certain  excep- 
tions.    And  so  aa  to  gaming  implements,  Hastings  v.  Haug,  85  Mich.  87  (1891).  —  Ed, 


CHAP,  v.]  GODDARD,   PETITIONEE.  825 


GODDARD,  Petitioner. 
Supreme  Judicial  Court  of  Massachusetts.     1835. 

[16  Pick.  504.] 

Petition  for  a  certiorari  to  the  Municipal  Court  for  the  city  of 
Boston. 

In  January  1835,  the  city  marshal  of  Boston  made  a  complaint  to  t!ie 
Police  Court,  in  the  name  of  the  Commonwealth,  against  Goddard,  ar 
the  occupant  of  a  house  and  lot  of  land  situate  on  Kingston  Street,  i: 
the  city  of  Boston,  and  not  in  that  part  of  the  city  called  South  Boston, 
for  neglecting  and  refusing  to  remove  the  snow  from  the  sidewalk  in 
Kingston  Street,  adjacent  to  his  land.  The  defendant  was  sentenced 
to  pa}'  a  fine  and  costs,  and  he  appealed  to  the  Municipal  Court. 

At  the  trial  in  that  court  it  was  admitted,  that  the  facts  alleged  in 
the  complaint  were  true.  S.  D.  Parker.,  Count}"  Attorney,  and  B.  M. 
Curtis^  in  support  of  the  complaint,  read  the  17th  section  of  the  city 
ordinance  passed  on  August  22,  1833,  viz..,  that  "  the  tenant,  occupant, 
and  in  case  there  shall  be  no  tenant,  the  owner  of  any  building  or  lot 
of  land  bordering  on  any  street,  lane,  court,  or  public  place  within  the 
city  (excepting  that  part  of  the  city  called  South  Boston),  where  there 
is  any  footway  or  sidewalk,  shall  after  the  ceasing  to  fall  of  any  snow, 
if  in  the  day  time,  within  six  hours,  and  if  in  the  night  time,  before  two 
of  the  dock  in  the  afternoon  succeeding,  cause  the  same  to  be  removed 
therefrom  ;  and  in  default  thereof  shall  forfeit  and  pay  a  sum  not  less 
than  one  dollar,  and  not  more  than  four  dollars,  for  each  and  every  day 
that  the  same  shall  afterwards  remain  on  such  footway  or  sidewalk  ;  " 
also,  the  clause  from  the  15th  section  of  the  city  charter  (St.  1821, 
c  110,)  which  declares,  "that  the  mayor  and  aldermen  and  common 
council  of  the  said  city  shall  have  power  to  make  all  such  needful  and 
salutary  by-laws,  as  towns,  by  the  laws  of  this  Commonwealth,  have 
power  to  make  and  establish  ;  and  to  annex  penalties,  not  exceeding 
twenty  dollars,  for  the  breach  thereof;"  also  the  clause  in  St.  1785, 
c.  75,  §  7,  which  empowers  the  inhabitants  of  any  town  "  to  make  and 
agree  upon  such  necessary  rules,  orders,  and  by-laws  for  the  direct- 
ing, managing,  and  ordering  the  prudential  affairs  of  such  towns,  as 
they  shall  judge  most  conducive  to  the  peace,  welfare  and  good  order 
thereof."  .  .  . 

The  defendant's  counsel  moved  the  court  to  instruct  the  jury,  that 
the  by-law  in  question  was  inoperative  and  void.  .  .  .  But  the  judge 
instructed  the  jury  that  the  by-law  was  valid  and  effectual.  .   .  . 

The  jury  found  a  verdict  against  the  defendant,  and  he  was  sentenced 
to  pay  a  fine  of  four  dollars  and  costs  of  suit. 

The  defendant  filed  exceptions  to  the  instructions  of  the  judge, 
and  now  petitioned  for  a  certiorari  in  order  that  the  sentence  might  be 
reversed. 


826  GODDARD,    PETITIONER.  [f:HAP.  V. 

JBartlett  insisted  on  the  exceptions. 

C.  P.  Curtis,  in  behalf  of  the  city  of  Boston. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court.  No  question  is 
made  of  the  facts  in  this  case,  but  it  is  conceded,  that  the  petitioner 
did  not  clear  the  sidewalk  in  front  of  his  land,  in  the  manner  required 
b}'  the  by-law  of  the  city,  and  he  justifies  this  on  the  ground  that  the 
law  itself  is  invalid  and  of  no  binding  force.  For  the  purpose  of  having 
this  question  deliberately  considered,  and  for  the  purpose  of  taking 
several  exceptions  to  the  course  of  proceedings,  the  petitioner  has 
praN'ed  for  a  writ  of  certiorari  to  the  Municipal  Court.   .  .   . 

3.  Another,  and  perhaps  the  most  important  objection,  is,  that  the 
by-law  is  one  imposing  a  tax  or  duty  upon  the  citizens,  and  it  is  a  vio- 
lation of  the  Constitution  in  this,  that  it  is  partial,  and  unequal,  and 
contravenes  that  fundamental  maxim  of  our  social  system,  that  all 
burdens  and  taxes  laid  on  the  people  for  the  public  good  shall  be 
equal. 

But  the  court  are  all  of  opinion,  that  the  b3--law  in  question  is  not 
obnoxious  to  this  ol)jection. 

]t  is  not  speaking  strictly,  to  characterize  this  cit}'  ordinance  as  a 
law  levying  a  tax,  the  direct  or  principal  object  of  which  is,  the  raising 
of  revenue.  It  imposes  a  duty  upon  a  large  class  of  persons,  the  perform- 
ance of  which  requires  some  labor  and  expense,  and  therefore  indirectly 
operates  as  a  law  creating  a  burden.  But  we  think  it  is  rather  to  be 
regarded  as  a  police  regulation,  requiring  a  duty  to  be  performed,  highly 
salutary  and  advantageous  to  the  citizens  of  a  populous  and  closclj' 
built  cit}',  and  which  is  imposed  upon  them  because  the}'  are  so  situated 
as  that  they  can  most  promptly  and  convenientlv  perform  it,  and  it 
is  laid,  not  upon  a  few,  but  upon  a  numerous  class,  all  those  who  are  so 
situated,  and  equally  upon  all  who  are  within  the  description  composing 
the  class- 
It  is  said  to  be  unequal,  because  it  singles  out  a  particular  class  of 
citizens,  to  wit,  the  owners  and  occupiers  of  real  estate,  and  imposes 
the  duty  exclusively  upon  them. 

If  this  were  an  arbitrary  selection  of  a  class  of  citizens,  without  ref- 
erence to  their  peculiar  fitness  and  ability  to  perform  the  duty,  the 
objection  would  have  great  weight,  as  for  instance,  if  the  expense  of 
clearing  the  streets  of  snow  were  imposed  upon  the  mechanics,  or  mer- 
chants, or  an}'  oth^r  distinct  class  of  citizens,  between  whose  conveni- 
ence and  accommodation,  and  the  labor  to  be  done,  there  is  no  natural 
relation.  But  suppose  there  is  a  class  of  citizens  who  will  themselves 
commonly  derive  a  benefit  from  the  performance  of  some  public  dut}', 
we  can  see  no  inequality  in  requiring  that  all  those  who  will  derive 
such  benefit,  shall  bj-  a  general  and  equal  law  be  required  to  do  it. 
Supposing  a  by-law  should  require  every  inhabitant,  who  keeps  a  cart, 
truck  or  other  team,  or  a  coach  or  other  carnage,  to  turn  out  himself 
or  send  a  man,  with  one  or  more  horses,  after  each  heav}'  fall  of  snow, 
to  assist  in  levelling  it.     Although  other  citizens  would  derive  a  benefit, 


CHAP,  v.]  GODDARD,    PETITIONER.  827 

yet  as  these  derive  some  peculiar  benefit,  accompanied  with  the  ability, 
I  can  at  present  perceive  no  valid  objection  to  a  by-law  requiring  it,  on 
the  ground  of  iuequalit}'.  Supposing  a  general  regulation,  that  at 
certain  seasons  of  the  year,  ever}'  shopkeeper  should  sprinkle  the  side- 
walk in  front  of  his  own  shop,  or  sweep  it,  inasmuch  as  he  has  a  peculiar 
benefit,  and  as  the  duty  is  equal  upon  all  who  come  within  the  descrip- 
tion, it  seems  to  us  to  be  equal,  in  the  sense  in  vvliich  the  law  requires 
all  such  burdens  to  be  equal.  And  it  appears  to  us  that  the  case  before 
us  is  similar,  y  Although  the  sidewalk  is  part  of  the  public  street,  and 
the  public  have  an  easement  in  it,  yet  the  adjacent  occupant  often 
is  the  owner  of  the  fee,  and  generally  has  some  peculiar  interest  in  it, 
and  benefit  from  it,  distinct  from  that  which  he  enjoys  in  common  with 
the  rest  of  the  community.  He  has  this  interest  and  benefit,  often  in 
accommodating  his  cellar-door  and  steps,  a  passage  for  fuel,  and  the 
passage  to  and  from  his  own  house  to  the  street.  To  some  purposes, 
therefore,  it  is  denominated  his  sidewalk.  For  his  own  accommodation, 
he  would  have  an  interest  in  clearing  the  snow  from  his  own  door. 
The  owners  and  occupiers  of  house-lots  and  other  real-estate,  therefore, 
have  an  interest  in  the  performance  of  tliis  dut}',  peculiar  and  somewhat 
distinct  from  that  of  the  rest  of  the  community. 

Besides,  from  their  situation,  they  have  the  power  and  ability  to 
perform  this  dut}',  with  the  promptness  which  the  benefit  of  the  com- 
munit}'  requires,  and  the  duty  is  divided,  distributed  and  apportioned 
upon  so  large  a  number,  that  it  can  be  done  promptly  and  effectually, 
and  without  imposing  a  ver\'  severe  burden  upon  an}-  one.  Supposing 
a  by-law  should  require,  what  is  often  done,  in  practice,  that  upon  an 
alarm  of  fire  in  the  night,  all  householders,  on  streets  leading  to  and 
near  the  fire,  should  exhibit  a  light.  This  would  seem  to  be  reasonable. 
Or  that  all  the  owners  or  occupiers  of  dwelling-houses,  having  a  well 
an;I  pump,  should  keep  them  in  repair  at  their  own  expense,  to  be  used 
in  case  of  fire.  It  would  operate  partially,  but  it  seems  to  us  not 
unequal,  in  the  sense  in  which  we  are  using  that  term.  /The  city  might 
keep  persons  ready  in  every  street,  to  light  torches  and  flambeaux  in 
case  of  fire,  and  the  expense  be  paid  from  the  treasury  ;  still,  it  appears 
to  me,  that  as  householders  would  derive  a  benefit  from  the  opeiation 
of  this  general  regulation,  as  their  local  situation  puts  it  peculiarly 
within  their  power  and  abilit}-  to  perform  it  without  great  expense,  and 
as  it  is  equal  in  its  terms,  it  would  not  be  obnoxious  to  the  charge  of 
being  invalid  for  partiality  and  inequality. 

In  all  these  cases  the  answer  to  the  objection  of  pai'tiality  and  ine- 
quality is,  that  the  duty  required  is  a  duty  upon  the  person  in  respect  to 
the  property  which  he  holds,  occupies  and  enjoys,  under  the  protection 
and  benefit  of  the  laws,  that  it  operates  upon  each  and  all  in  their  turns, 
as  they  become  owners  or  occupiers  of  such  estates,  and  it  ceases  to  be 
required  of  them,  when  they  cease  to  be  thus  holders  and  occupiers  of 
the  estate,  in  respect  to  which  the  duty  is  required.  In  this  respect  it 
is  like  a  land  tax,  or  house  tax,  it  does  not  bear  upon  owners  of  per- 


828  GRIDLEY  V.   BLOOMINGTON.  [CHAP.  V 

sonal  propert}',  and  therefore  does  not  bear  upon  all  citizens  alike,  but 
is  not  on  that  account  unequal  or  partial,  in  the  sense  contemplated  bv 
the  Declaration  of  Rights,  requiring  all  taxes  and  burdens  to  be  equal 
and  impartial. 

The  court  are  all  of  opinion,  that  as  a  bj'-law,  the  regulation  in  ques- 
tion was  a  reasonable  one,  that  it  was  not  repugnant  to  the  Constitution 
or  laws  of  the  Commonwealth,  and  that  the  conviction  was  right. 

Petition  dismissed. 


GRIDLEY  V.  BLOOMINGTON. 
Supreme  Court  of  Illinois.     1878. 

[88  ///.  554] 

Appeal  from  the  Circuit  Court  of  McLean  Count}'. 

Complaint,  under  oath,  was  made,  charging  that  defendant  permitted 
snow  to  remain  upon  the  sidewalk  abutting  on  premises  occupied  b}' 
him  as  a  "wood  and  stable  lot,"  contraiy  to  an  ordinance  of  the  cit}^ 
which  provides,  that  "whoever,  being  the  occupant  of  an}-  occupied 
premises,  or  the  owner  of  an}'  vacant  premises,  shall  suffer  an}-  snow  to 
remain  on  any  sidewalk  or  footway  adjacent  thereto  longer  than  six 
hours  from  the  time  it  ceases  falling,  or  if  the  cessation  be  in  the  night 
time,  then  longer  than  six  hours  after  sunrise  on  the  next  morning,  shall 
be  fined  five  dollars,  and  be  subject  to  a  like  penalty  for  each  day  such 
snow  so  remains  after  the  first  penalty  has  been  incurred." 

Proof  was  made  that  defendant,  on  the  16th  day  of  February,  1875, 
owned  and  occupied  Lot  3,  in  White's  addition  to  Bloomington,  as  a  wood 
and  stable  lot ;  that  there  was  a  sidewalk  on  the  south  side  of  the  lot, 
which  abutted  on  Grove  Street ;  that  defendant  did  not  remove  the 
snow  that  had  fallen  on  the  sidewalk,  two  or  three  days  before,  to  the 
depth  of  several  inches,  within  six  hours  after  sunrise  on  the  day  men- 
tioned in  the  complaint,  and  that  the  sidewalk  in  question  was  within 
the  corporate  limits  of  the  city. 

It  was  admitted  for  the  defence,  that  White's  addition  to  Bloomington 
was  laid  out  by  James  White  on  the  7th  day  of  April,  1836. 

On  the  trial,  defendant  was  found  guilty,  and  fined  in  the  sum  of  three 
dollars,  and  from  the  judgment  rendered  against  him  defendant  prosecutes 
his  appeal  to  this  court. 

Mr.  E.  31.  Prince,  and  Messrs.  Karr  &  Karr,  for  the  appellant. 

Mr.  Justice  Scott  delivered  the  opinion  of  the  court :  — 

The  ordinance  under  which  defendant  was  prosecuted,  imposes  a  fine 
upon  any  one  who  shall  permit  snow  to  remain  upon  the  sidewalk  abut- 
ting premises  occupied  or  owned  by  him,  longer  than  a  period  of  six 
hours  after  it  ceases  to  fall,  or  if  the  cessation  is  in  the  night  time,  then 
longer  than  six  hours  after  sunrise  on  the  next  morning.     The  validity 


CHAP,  v.]  GUIDLEY   V.    BLOOMINGTON.  829 

of  that  ordinance  is  the  onl}-  question  made  on  the  argument.  It  was 
admitted  the  lot  occupied  by  defendant  was  one  of  an  addition  to 
Blooniington  that  was  laid  out  in  1836,  and  hence  it  follows,  under  the 
decisions  of  this  court,  the  fee  of  the  street  in  front  of  the  premises  was 
either  in  the  original  proprietor  or  in  the  corporation.  Indianapolis, 
MoomiJigton  &  Western  H.  R.  (Jo.  v.  Hartley^  67  111.  439  ;  Gebhardt 
V.  Reeves,  75  Id.  301. 

The  public  had  an  easement  over  the  street  in  front  of  the  lot  occupied 
and  owned  b^'  defendant,  and  it  makes  no  difference,  so  far  as  this  deci- 
sion is  concerned,  whether  the  fee  of  the  street  passed  by  the  plat  and 
dedication  to  the  corporation,  or  whether  it  remained  in  the  original 
proprietor.  It  is  plain  defendant  has  no  other  interest  in  the  street  in 
front  of  his  property  than  any  other  citizen  of  the  municipality.  The 
same  is  true  of  the  sidewalk.  It  is  a  part  of  the  street  set  apart  for  the 
exclusive  use  of  persons  travelling  on  foot,  and  is  as  much  under  the  con- 
trol of  the  municipal  government  as  the  street  itself.  The  owner  of  the 
adjacent  lot  is  under  no  more  obligation  to  keep  the  sidewalk  free  from 
obstructions,  than  he  is  the  street  in  front  of  his  premises.  He  may 
not  himself  obstruct  either  so  as  to  impede  travel  on  foot  or  in  car- 
riages. It  will  be  conceded  the  citizen  is  not  bound  to  keep  the  street 
in  front  of  his  premises  free  from  snow  or  anything  else  that  might 
impede  travel ;  then,  upon  what  principle  can  he  be  fined  for  not  remov- 
ing snow  or  other  obstruction  from  the  sidewalk  in  which  he  has  no 
interest  other  than  what  he  has  in  common  with  all  other  persons  resi- 
dent in  the  city?  It  is  certain!}'  not  upon  the  principle  under  which 
assessments  are  made  against  the  owner  for  building  sidewalks  in  front 
of  his  property.  Tlie  cases  are  not  analogous.  Such  assessments  are 
maintained  on  the  ground  the  sidewalk  enhances  the  value  of  the  prop- 
erty, and  to  the  extent  of  the  special  benefits  conferred  the^-  are  held  to 
be  valid. 

It  would  be  absurd  to  suppose  that  assessments  for  benefits  for  local 
improvements  could  be  enforced  by  fines  or  penalties,  as  in  the  ordi- 
nance under  which  defendant  was  fined.  Nor  do  we  think  this  ordinance 
can  be  upheld  as  an  exercise  of  the  police  power  inherent  in  all  munici- 
pal governments.  It  was  expressly  decided  by  this  court,  in  City  of 
Ottawa  V.  Spencer,  40  111.  211,  that  local  improvements  of  either  side- 
walks or  streets  cannot  be  compelled,  under  the  general  police  power. 
The  legislature  must  afford  the  necessar}-  power  for  constructing  all 
needful  improvements,  subject  to  constitutional  limitations;  and  when 
one  mode  of  making  such  improvements  is  sanctioned  by  the  Constitution, 
no  other  can  be  adopted. 

Keeping  streets  and  sidewalks  in  repair,  and  free  from  obstructions 
that  impede  travel  or  render  it  dangerous,  is  referable  to  the  same  power 
as  for  constructing  new  improvements.  The  sidewalk,  as  was  declared 
in  the  case  cited,  is  as  much  a  public  highwa}',  free  to  the  use  of  all,  as 
the  street  itself,  and,  upon  principle,  it  follows,  the  citizen  cannot  be 
laid  under  obligations,  under  our  laws,  to  keep  it  free  from  obstructions 


830  GRIDLEY  V.   BLOOMINGTON.  [CHAP.  V. 

iu  front  of  his  property  at  his  own  expense,  any  more  than  the  street 
itself,  eitlier  by  the  exercise  of  the  police  power  or  by  fines  and  penalties 
imposed  by  ordinance,  or  by  direct  legislative  action. 

Our  conclusion  is,  the  ordinance  in  question  is  invalid,  and  the  judg- 
ment must  be  reversed  and  the  cause  remanded. 

Judyment  reversed} 

^  The  doctrine  of  this  case  was  affirmed  in  Chlcmjo  v.  O'Brien,  111  111.  532  (188-t). 
The  court  (Scholfield,  C.  J.)  said:  "  It  is  conceded  by  counsel  for  appellant  that 
this  court,  in  Gridley  v.  Cittf  of  Bloominyton,  88  111.  554,  decided  the  only  question 
involved  iu  this  case  (namely,  the  validity  of  the  ordiuauce  under  which  the  suit  is 
prosecuted)  against  appellaut ;  but  they  conteud  that  decision  is  based  upon  incorrect 
grounds,  and  should  therefore  be  overruled.  They  conteud  that  the  ordinance  is  but 
a  proper  police  regulation,  and  that,  as  such,  it  should  be  sustained.  In  support  of 
this  position  they  cite  Bunsall  et  ux.  v.  Maijor,  etc.,  19  Ohio,  418;  Pa.rton  v.  Sweet,  13 
N.J.  (1  Green)  196;  Mayor,  etc.  v.  Maberry,  6  Humph.  368;  Washington  v.  Mai/or, 
etc.,  1  Swan  (Teuu.),  177;  Woodbridye  v.  City  of  Detroit,  8  Mich.  274;  and  other 
cases. 

"  In  City  of  Chicago  v.  Lamed,  34  111.  203,  — a  case  very  elaborately  argued  by  able 
counsel,  —  the  principle  involved  in  tiie  decisions  of  tiiese  cases  was  carefully  considered, 
and  it  was  held  they  could  not  apply  here,  —  that  they  were  decided  under  constitutions 
so  materially  different  from  ours,  that  tlie  same  liue  of  reasoning  is  not  applicable  to 
both.  And  in  City  of  Ottawa  v.  Spencer,  ^0  111.  211,  which  was  a  proceeding  to  charge 
the  adjacent  lot-owner  with  the  cost  of  building  a  sidewalk,  the  same  question  was 
again  before  the  court,  and  it  was  then  insisted,  as  it  is  now,  that  the  charges  may  be 
sustained  as  within  tlie  police  power,  but  the  position  was  held  untenable.  In  passing 
upon  this  point,  it  was  there  said  :  '  It  is  also  urged  that  this  may  be  referred  to  the 
police  power  of  the  State,  which  has  been  delegated  to  the  city,  and  may  therefore  be 
properly  exercised  ;  and  in  support  of  the  proposition  we  are  referred  to  the  decisions 
of  the  Supreme  Court  of  Tennessee  ;  Mayor,  etc.  v.  Maberry,  6  Humph.  368  ;  Washing- 
ton V.  The  Mayor  and  Aldermen  of  Nashville,  1  Swan,  177;  White  v.  The  Mayor  and 
Aldermen  of  Na.shvi/le,  2  Id.  364.  These  cases  go  to  the  length  of  sustaining  the  doc- 
trine contended  for  by  plaintiffs  in  error.  They  announce  the  doctrine  that  such 
improvements  may  be  compelled  under  the  general  police  power.  If  this  be  so,  by  an 
exercise  of  the  same  power  we  presume  that  the  owner  could  be  compelled  to  con- 
struct and  keep  in  repair  public  roads,  bridges,  and  culverts  fronting  upon  or  ruuning 
through  his  lands,  or  the  owner  of  a  city  or  village  lot  could  be  compelled  to  make  and 
repair  the  street  in  front  of  his  property.  A  sidewalk  is  a  portion  of  a  public  high- 
way, appropriated,  it  is  true,  to  pedestrians  alone,  but  still  open  and  free  to  all  ])er- 
sons  desiring  to  use  and  enjoy  it  as  a  public  highway.  It  is  as  much  a  public  highway 
in  the  mode  of  its  use  as  the  street  itself.  The  difference  in  the  manner  of  their  use 
does  not  render  one  public  more  than  the  other.  They  are  both  free  to  be  properly 
used  and  enjoyed  by  the  entire  public,  and  are  constructed  alike  for  their  use.  That 
the  legislature  may  afford  the  necessary  power  of  constructing  such  improvements  so 
essentially  necessary  to  the  comfort  and  convenience  of  the  community  is  apparent ; 
but  under  our  Constitution  we  think  the  mode  authorized  in  this  case  is  not  sanctioned, 
and  that  the  principles  announced  in  the  case  of  Lamed  v.  The  City  of  Chicago  fully 
govern  and  control  this  case.' 

"  P2ven  the  police  power,  comprehensive  as  it  is,  has  some  limitations.  It  cannot  be 
held  to  sanction  the  taking  of  private  property  for  public  use  without  making  just 
compen.sation  therefor,  however  essential  tliis  miglit  be,  for  the  time,  to  the  public 
health,  safety,  etc.  And  upon  like  principle,  a  purely  pulilic  burden  cannot  be  laid 
upon  a  private  individual,  except  as  authorized  in  cases  to  exercise  the  right  of  eminent 
domain,  or  by  virtue  of  proper  proceedings  to  enforce  special  a.ssessments  or  special 
taxation.  The  drainage  of  malarial  swamps  would  surely  largely  contribute  to  pro- 
mote the  public  health ;  but  could  it  be  contended  that  therefore  the  burden  of  such 


CHAP,  v.]  CARTHAGE   V.    FREDERICK.         .  831 

Tn  Carthage  v.  FredcricJc,  122  N.Y.  2G8,  277  (1890),  in  sustaining 
tlie  constitutionality  of  a  local  ordinance  of  the  same  sort  as  that  in  the 
case  of  Goddard,  Petitioner,  the  Court  of  Appeals  (Second  Division), 
Vann,  J.,  said  :  "  If  this  power  of  local  legislation  can  be  conferred  upon 
the  largest  city  in  the  State,  it  can  also  be  confeired  upon  the  smallest 
village  that  the  legislature  sees  fit  to  incorporate.  In  this  latitude  the 
accumulation  of  snow  upon  sidewalks  in  large  quantities  is  a  matter  of 
course.  Its  presence  retards  travel,  interrupts  business,  and  interferes 
with  the  safety  and  convenience  of  all  classes.  It  is  a  frequent  cause 
of  accidents  and  thus  affects  the  property  of  every  person  who  is  liable 
to  assessment  to  pay  the  damages  caused  by  a  failure  to  remove  it.  But 
how  is  it  possible  for  the  authorities  of  a  large  city,  with  many  hundred 
miles  of  streets,  to  remove  the  snow  in  time  to  prevent  injury  to  those 
who  have  the  right  to  travel  upon  the  sidewalks  unless  they  can  require 
the  owners  and  occupants  of  adjacent  property  to  remove  it?  P:very 
man  can  conveniently  and  promptly  attend  to  that  which  is  in  front  of 
his  own  door,  and  it  is  both  reasonable  and  necessary  that  he  should 
be  compelled  to  do  so.  We  think  that  the  ordinance  under  considera- 
tion is  valid  ;  that  it  conflicts  with  no  provision  of  the  Constitution,  and 
that  it  is  the  duty  of  the  courts  to  enforce  it. 

"In  reaching  this  conclusion,  we  have  not  overlooked  the  case  of 
Gridley  v.  City  of  Bloomington,  88  111.  554,  but  have  given  it  the 

drainage  may  be  laid  upon  some  siugle  person  to  be  arbitrarily  selected,  or  upon  those 
who  happen  to  own  the  adjacent  dry  land,  in  disregard  of  tiie  princij^les  applicable  to 
special  assessments  and  special  taxation?  Undoubtedly,  the  allowing  of  ice  or  snow 
to  remain  upon  a  sidewalk  may  be  declared  a  nuisance,  but  it  must  be  a  public  nui- 
sance, and  one,  too,  not  caused  by  the  act  of  the  adjacent  property  holder,  but  solely 
by  the  action  of  the  elements.  No  one  ijuestions  the  right  of  the  munici])ality  to  pre- 
vent such  use  of  property  and  such  action  of  the  citizen  as  may  be  injurious  to  the 
public  ;  but  the  adjacent  lot-owner  has  no  ownership  or  control  of  the  adjacent  street, 
and  this  ordinance  seeks  to  control  the  action  of  no  one  while  on  the  street.  The  lot- 
owner  is  held  responsible  solely  and  simply  for  the  accident  of  owning  property  near 
the  nuisance.  He  may  have  no  more  actual  control  of  the  street,  or  necessity  to  use  it, 
than  if  liis  property  were  miles  away  ;  still,  he  is  held  responsible  for  a  result  he  could  not 
control,  and  to  the  production  of  which  he  did  not  even  theoretically  contril)ute.  The 
qisl  of  the  whole  argument  is  merely  that  it  is  convenient  to  hold  him  resjionsible.  It 
is  not  perceived  why  it  would  not  be  equally  convenient  to  hoM  him  responsilile  for  the 
entire  police  government  of  so  much  of  the  street 

"  Counsel  seem  to  wish  to  draw  a  distinction  between  the  present  case  and  the 
cases  of  Ciin  of  Chicago  v.  Lamed,  and  Ciiy  of  Oltaim  v.  S/vncef,  siipia,  upon  the 
ground  that  it  is  here  neither  sought  to  construct  nor  repair  a  sidewalk,  but  simply  to 
keep  it  in  a  passable  condition.  Hut  tlie  difference  is  in  tlie  extent  and  not  in  the  char- 
acter of  the  burden  sought  to  be  imposed.  The  principle  is  precisely  the  same  in  each 
case.  The  object  is  to  fit  the  streets,  or  s(j  much  as  is  occupied  by  sidewalks,  for  travel ; 
and  if  the  power  to  compel  tlie  private  person  to  accomplish  this  result  exists  at  all,  it 
must  extend  to  the  necessary  means  in  eacli  case.  It  is  impossible  to  point  out  why 
the  removal  of  a  snow-bank  should  rest  on  a  different  principle  from  that  applicable  to 
filling  a  hole,  or  nailing  down  a  board. 

"  We  are  satisfied  with  the  entire  correctness  of  the  ruling  in  Gridhii  v.  City  of 
Bloominglon,  supra,  and  being  so  satisfied,  the  judgment  below  must  be  affirmed." 

Judgment  affirmed, 

Dickey,  Sheldon,  and  Craig,  JJ.,  dissenting.  — Ed. 


832  REINKEN   V.    FUEHRING.  [CHAP.  V. 

attention  to  which  it  is  entitled  b}'  the  high  standing  of  the  court  that 
decided  it.  The  argument  upon  which  the  opinion  in  that  case  rests  is 
that,  as  the  fee  of  the  street  was  in  the  corporation,  and  the  sidewalk 
was  a  part  of  the  street,  the  lot-owner  had  no  more  interest  in  the  side- 
walk in  front  of  his  premises  than  an\-  other  citizen  of  the  municipality', 
because  it  was  set  apart  for  the  exclusive  use  of  persons  travelling  on 
foot  and  was  as  much  under  the  control  of  the  municipal  government  as 
the  street  itself. 

"We  are  unable  to  yield  to  this  reasoning,  because  it  overlooks  not 
only  the  public  safety  and  general  convenience,  but  also  the  peculiar 
interest  that  every  owner  or  occupant  of  real  propertv  has  in  a  clean 
sidewalk  in  front  of  his  own  premises.  Whatever  adds  to  the  usefulness 
of  a  sidewalk  adds  both  to  the  rental  and  permanent  value  of  the  adja- 
cent lot. 

"  After  carefully  examining  all  of  the  questions  presented  by  counsel, 
we  think  the  judgment  should  be  affirmed." 

All  concur  except  Follett,  Ch.  J.,  not  sitting. 

Judgment  affirmed. 


REINKEN  V.  FUEHRING. 
Supreme  Court  of  Indiana.     1891. 

[130  Ind.  382.] 

Appeal  from  Circuit  Court,  Marion  County ;  E.  A.  Brown,  Judge. 

Action  bj'  Fred.  Fuehring  and  others  against  Henry  Eeinken,  Sr.,  to 
foreclose  a  lien  on  defendant's  real  estate.  Defendant  appeals  from  a 
judgment  overruling  his  demurrer  to  the  complaint.     Affirmed. 

Denny  &  Elliott,  for  appellant. 

Augustus  L.  Mason,  for  appellees. 

CoFFET,  J.  The  appellees  brought  this  suit  in  the  Marion  County 
Circuit  Court  to  foreclose  a  lien  for  the  amount  assessed  against  the 
appellant's  real  estate  for  sweeping  the  street  in  front  of  his  property 
in  the  city  of  Indianapolis,  under  a  contract  made  between  the  city  and 
the  appellees  pursuant  to  the  provisions  of  the  city  charter.  A  demurrer 
to  the  complaint  was  overruled,  and  the  appellees  had  judgment,  from 
which  this  appeal  is  prosecuted.  The  charter  of  the  cit}'  of  Indianapolis 
is  found  in  Acts  Gen.  Assem.  1891,  p.  137.  It  provides  for  the  mode 
of  improving  the  streets,  and  the  payment  for  such  improvements  ;  and 
confers  on  the  city,  through  its  proper  officers,  the  power  to  make  con- 
tracts for  sprinkling  and  sweeping  such  streets  in  the  city  as  it  may 
deem  proper,  and  to  assess  against  the  property  holders  abutting  on 
such  streets  the  cost  of  such  sprinkling  and  sweeping.  /The  only  ques- 
tion before  us  for  decision  relates  to  the  constitutionality  of  so  much  of 
the  Act  as  authorizes  the  city  to  contract  for  sprinkling  and  sweeping 
the  streets  at  the  cost  of  the  property  holders  along  the  line  of  such 


CHAP,  v.]  REINKEN    V.    FUEHRING.  83'd 

streets, 'it  being  contcrKled  b}'  the  appellant  that  these  provisions  are 
unconstitutional  for  tlie  reasons  :  Firnt.  That  it  violates  the  provision 
of  our  State  Constitution  requiring  an  equal  and  uniform  rate  of  taxation. 
Second.  Because,  even  if  the  cit}'  has  power  to  compel  abutting  property 
owners  to  pa}'  for  sweeping  the  streets  in  front  of  their  propert}-,  it  has 
no  power  to  compel  them  to  do  so,  and  at  the  same  time  compel  them 
to  pay  into  the  general  fund  a  part  of  the  costs  of  cleaning  other  streets, 
as  provided  for  in  the  Act.  Third.  Because  the  proceeding  which  the 
Act  attempts  to  authorize  amounts  to  a  taking  of  private  property  with- 
out due  compensation  and  due  process  of  law. 

To  support  his  contention  as  to  the  first  proposition  presented,  the 
appellant  relies  to  some  extent  upon  the  case  ofGridley  v.  Ciiy  of  liloom- 
ington,  88  111.  554,  and  the  case  of  City  of  Chicago  v.  O'Brien,  111  111. 
532.  These  cases  hold  that  an  ordinance  making  it  the  duty  of  the 
owner  or  person  occupying  premises  abutting  upon  a  street  to  keep  the 
sidewalks  free  from  snow  and  ice,  and  providing  for  tlie  enforcement  of 
such  ordinance  by  the  infliction  of  penalties,  is  void.  The  cases  seem 
to  rest  principall}'  upon  the  peculiarity  of  the  laws  of  the  State  of  Illinois, 
under  which  the  lot-owner  does  not  own  the  fee  in  the  street.  The  last 
case,  however,  was  decided  by  a  divided  court,  three  of  the  judges  refus- 
ing to  concur  in  the  conclusion  reached.  Tlie  authorities  make  a  clear 
distinction  between  the  word  '■'taxation"  and  the  word  "assessment."  ^ 
"  'Taxes'  are  impositions  for  purposes  of  general  revenue.  'Assess-  |  m  y 
ments  are'speeillt'and  local  impositions  upon  property  in  the  immediate  j^" 
vicimtj;  of  an  improvement  for  the  public  welfare,  which  arc  necessary  '  -^., 
to  pay  for  the  improvement,  and  laid  with  reference  to  the  special  benefit 
which  such  property  derives  from  the  expenditure."  Palmer  v.  Stianp/i, 
29  Ind.  329.  This  distinction  is  recognized  in  nearly  all  the  States  of 
the  Union.  For  a  collection  of  the  authorities  upon  this  subject  see 
the  case  above  cited.  The  assessment,  therefore,  made  against  the 
owners  of  property  along  the  streets  required  to  be  swept  under  the  Act 
in  question,  to  pay  the  expense  of  such  sweeping,  is  not  a  tax,  but  a 
local  assessment. 

The  question  is  then  presented  as  to  whether  a  local  assessment  for 
this  purpose  can  be  sustained  under  our  Constitution.  If  it  can  be  sus- 
tained at  all,  it  must  be  upon  the  grounds  that  it  is  the  proper  exercise 
of  the  police  power  of  the  State,  and  a  special  benefit  to  the  abutting 
property  owner.  The  power  of  a  municipal  corporation  to  order  side- 
walks of  a  particular  kind,  and  to  assess  against  the  abutting  property 
owner  an  amount  necessaiy  to  pay  for  the  same,  and  to  pay  for  keeping 
tlie  same  in  repair  and  proper  condition  for  the  use  of  the  public,  is 
generally  upheld  upon  the  ground  that  it  is  proper  exercise  of  the  police 
power  of  the  State.  Goddard,  Petitioner,  16  Pick.  504  ;  Pabner  v. 
IVay,  6  Colo.  106;  Cooley,  Tax'n,  pp.  396,  397;  State  v.  Mayor,  37 
N.  J.  Law,  423  ;  Kirhy  v.  Boylston.,  14  Gray,  252  ;  Pedrick  v.  Bailey, 
12  Gray,  163;  Moore  v.  Gadsden,  93  N.Y.  12;  Hartford  \.  Tak-oii, 
48  Conn.  525.  Judge  Cooley  says  :  "The  cases  for  assessments  for  the 
vol..  I.  —  53 


834  REINKEN    V.    FUr.HRING,  [CIIAP.  V. 

construction  of  walks  by  the  side  of  streets  in  cities  and  other  populous 
places  are  more  distinctly  referable  to  the  police  power.  These  foot- 
walks  are  not  only  required,  as  a  rule,  to  be  put  and  kept  in  proper 
Condition  for  use  by  the  adjacent  proprietors,  biit  it  is  quite  customary 
/  to  confer  by  tlie  municipal  charters  full  authority  upoVi  the  municipalities 
to  order  walks  of  a  kind  and  quality  by  them  prescribed  to  be  constructed 
by  the  owners  of  adjacent  lots,  at  their  own  expense,  within  a  time  lim- 
ited by  the  order  for  the  purpose  ;  and  that,  in  case  of  their  failure  so 
to  construct  them,  it  shall  be  done  by  the  public  authorities,  and  tlie 
cost  collected  from  such  owners,  or  made  a  lien  upon  their  property. 
When  this  is  done,  the  duty  must  be  looked  upon  as  a  regulation  of 
police,  made  because  of  the  peculiar  interest  such  owners  have  in  the 
walks,  and  because  their  situation  gives  them  peculiar  fitness  and  ability 
for  the  performing  with  promptness  and  convenience  the  duty  of  putting 
them  in  a  proper  state,  and  afterwards  keeping  them  in  a  condition 
suitable  for  use."    Cooley,  Tax'n,  supra. 

Assuming,  as  held  by  these  authorities,  that  the  power  to  make  local 
assessments  to  pay  for  local  improvements  or  benefits  is  to  be  referred 
to  the  police  power  of  the  State,  we  are  naturally  led  to  inquire  whether 
the  assessments  provided  for  in  the  charter  now  under  consideration 
amouirts  to-  a  taking  of  private  property  without  compensation,  and 
without  due  process  of  law,  as  contended  by  the  appellant.  Mr.  Sedgwick, 
in  his  valuable  work  on  Statutory  and  Constitutional  Law,  435,  says; 
"The  clause  prohibiting  the  taking  of  private  property  without  compen- 
sation is  not  intended  as  a  limitation  of  the  exercise  of  those  police 
powers  which  are  necessary"  to  the  tranquillity  of  ever}*  well-ordered 
community,  nor  of  that  general  power  over  private  property  which  is 
necessary  for  the  orderly  existence  of  all  governments.  It  has  always 
been  held  that  the  legislature  ma}*  make  police  regulations,  although 
the}-  ma}-  interfere  with  the  full  enjoyment  of  private  property,  and 
though  no  compensation  is  given."  .  .  .  [Here  follows  a  citation  from 
1  Dillon,  Munic.  Corp.  212,  and  a  statement  of  the  cases  of  Goddard, 
Petitioner,  and  Carthage  v.  Frederick.'\ 

The  principles  which  rule  the  cases  above  cited  cannot,  in  our  opin- 
ion, be  distinguished  from  the  principles  which  rule  the  case  at  bar. 
Of  course,  it  is  not  claimed  that  in  the  exercise  of  the  police  power  such 
assessments  could  be  made  and  collected  from  the  abutting  property 
owner  unless  he  had  a  special  interest  and  derived  a  special  benefit 
therefrom,  not  enjoyed  by  the  public  in  general ;  but  if  he  has  a  special 
interest  in  the  improvement  of  the  street  and  sidewalk,  and  in  keeping 
them  free  from  snow  and  ice,  so  he  has  a  special  interest  in  keeping  them 
free  from  accumulating  filth.  It  is  matter  of  common  observation,  of 
which  we  must  take  notice,  that  property  located  upon  well-improved 
streets,  kept  clean,  is  more  desirable  than  property  on  unimproved 
streets  where  mud  and  filth  are  permitted  to  accumulate  and  obstruct 
their  use.  It  is  safe  to  assert,  we  think,  that  keeping  a  street  clean 
adds  to  the  rental,  if  not  to  the  permanent  value,  of  property  located 


CHAP,  v.]  REINKEN    V.   FUEHRING.  835 

thereon  :  and  for  this  reason,  among  others,  the  abutting  property  owner 
has  a  special  interest  in  snch  cleaning,  not  enjoyed  by  the  general  com- 
munity. For  the  reason  that  the  public  in  general  has  an  interest  in 
keeping  the  streets  free  from  filth,  the  city  may,  in  exercising  the  police 
power  conferred  upon  it  by  the  State,  order  them  swept ;  and  for  the 
further  reason  that  the  abutting  property  owner  derives  a  benefit  from 
such  sweeping  not  enjoyed  by  the  general  public,  he  may  be  required 
by  assessments  to  pay  the  expenses  incident  to  such  sweeping.  It  fol- 
lows from  what  we  have  said  that  the  assessments  provided  for  by  the 
Act  under  consideration  do  not  amount  to  a  taking  of  private  property 
without  compensation  and  without  due  process  of  law. 

Assessments  of  the  kind  we  are  now  considering  are  made  upon  the 
principle  that  the  person  assessed  is  benefited  in  the  increased  vahie  of 
his  property,  either  rental  or  permanent,  over  and  above  the  benefits 
received  by  the  public,  in  a  sura  equal  to  the  amount  he  is  required  to 
_pay^-  It  is  upon  this  theory  alone  that  they  can  be  sustained.  If  the 
property  owner  is  fully  compensated  for  his  outlay  in  the  enhanced  value 
of  his  property,  we  see  no  reason  why  he  may  not  be  taxed  generally, 
also,  with  the  balance  of  the  public,  for  cleaning  other  streets  in  which 
the  public  alone  have  an  interest,  and  which  are  not,  and,  indeed,  cannot 
be,  swept  as  the  streets  upon  which  his  property  abuts.  We  are  not 
able  to  perceive  how  such  a  tax  would  be  unjust  or  inequitable,  inas- 
much as  he  receives  as  much  benefit  therefrom,  in  contemplation  of  law, 
as  any  other  memlier  of  the  community.  As  he  has  been  full}-  compen- 
sated for  his  outlay  in  sweeping  the  street  upon  which  his  property  is 
situated,  he  should  not  be  heard  to  complain  of  such  payment  when 
called  upon  to  bear  his  portion  of  other  public  burdens.  Nor  do  we\ 
think  the  fact  that  the  statute  contemplates  the  sweepiJig  of  the  cross- 
ings renders  it  invalid.  It  cannot  be  said  that  the  property  owners  do 
not  receive  a  special  benefit  from  keeping  them  clean.  Sweeping  the 
street  in  front  of  the  property  would  be  of  little  benefit  if  filth  and  rub- 
bish were  permitted  to  accumulate  upon  the  crossings,  so  as  to  render 
them  unfit  for  use.  If  the  property  does  in  fact  receive  a  special  benefit 
from  sweeping  the  crossings,  there  is  no  reason  why  those  who  are  thus 
benefited  should  not  pay  the  expenses.  Having  carefully  examined  all 
the  objections  urged  against  the  validity  of  so  much  of  the  statute  as  is 
here  called  in  question,  we  have  reached  the  conclusion  that  it  is  not 
unconstitutional,  and  that  the  court  did  not,  therefore,  err  in  overruling 
a  demurrer  to  the  complaint  before  us.  Judgment  affirmed. 

Elliott,  C.  J.,  took  no  part  in  the  decision  of  this  cause. 


836  COMMONWEALTH   V.    CAKTER.  [CHAP.  V. 


COMMONWEALTH  v.  CARTER. 
Supreme  Judicial  Coukt  of  Massachusetts.     1882, 

[132  Jfass.  12] 

Indictment  for  an  assault,  on  September  28,  1880,  upon  Martin 
Griffin,  an  inspector  of  milk,  while  said  Griffin  was  in  the  discharge  of 
his  duty  as  such  inspector.  .  .  . 

The  jury  returned  a  verdict  of  guilty  ;  and  the  defendant  alleged 
exceptions. 

J.  D.  Thomson,  for  the  defendant. 

C.  H.  J^arrows,  Assistant  Attorney-General  ( G.  Marston,  Attor- 
ney-General, with  him),  for   the  Commonwealth. 

Field,  J.  The  only  question  argued  in  this  case  is  the  constitution- 
ality of  the  St.  of  1864,  c.  122.  §  2,  so  far  as  it  authorizes  inspectors 
of  milk  to  "  enter  any  place  where  milk  is  stored  or  kept  for  sale,  and 
all  carriages  used  in  the  conveyance  of  milk  ;  and  whenever  they  have 
reason  to  believe  any  milk  found  therein  is  adulterated',  they  shail  take 
specimens  thereof  and  cause  the  same  to  be  analyzed,  or  otherwise 
satisfactorily  tested,  the  result  of  which  they  shall  record  and  preserve 
as  evidence." 

It  is  contended  that  this  provision  is  unconstitutional,  because  it 
authorizes  the  taking  of  property  without  consent  or  comi)ensation  ; 
warrants  unreasonable  searches  and  seizures  ;'  compels  one  to  furnish 
evidence  against  himself;  and  is  not  within  the  police  power  of  the 
Commonwealth.  An  analysis  of  a  specimen  of  milk  offered  for  sale  is 
an  appropriate  means  of  carrying  into  effect  the  various  provisions  of 
the  statutes  regulating  the  sale  of  milk  in  this  Commonwealth.  In  the 
case  at  bar,  the  can  of  milk  was  taken  from  a  carriage  used  in  the  con- 
veyance of  milkj  and  it  is  unnecessary  to  consider  whether  tlie  words 
of  the  section  "place  where  milk  is  stored  or  kept  for  sale"  may 
or  may  not  include  a  dwelling-house,  and  whether,  if  construed  to 
include  a  dwelling-house,  they  do  not  purport  to  give  a  power 
whicli  the  legislature  could  not  give,  because  the  clause  authorizing  an 
entry  into  any  place  where  milk  is  stored  or  kept  for  sale  is  separable 
from  that  which  authorizes  an  entry  into  all  carriages  used  in  the  con- 
veyance of  milk.  Neither  is  the  power  granted  in  violation  of  the  pro- 
vision of  art.  12  of  the  Declaration  of  Rights,  that  no  subject  shall  be 
compelled  to  accuse,  or  furnish  evidence  against  himself  If  tlie  seizure 
is  such  as  is  authorized  by  the  Constitution  and  a  law  passed  in  pursu- 
ance thereof,  the  fact  that  the  thing  seized  may  be  used  in  evidence  in 
a  criminal  charge  against  the  person  from  whose  possession  it  is  taken, 
does  not  render  the  seizure  itself  a  violation  of  the  Declaration  of 
Riglits.  Commonwealth  v.  Dana,  2  Met.  329,  337.  If  the  statute 
had  required  that  all  milk  offered  for  sale  should  first  be  inspected,  it 
would  hardly  be  contended  that  the   trifling  injury  to  property  occa- 


CHAP,  v.]  PEOPLE  V.   EWER.  837 

sioned  by  taking  samples  for  inspection  would  be  such  a  taking  of 
private  property  for  public  use  as  to  require  that  compensation  be 
made  therefor.  Such  an  injury  to  property  is  a  necessary  incident  to 
the  enforcement  of  reasonable  regulations  affecting  trade  in  food. 
Private  property  is  held  subject  to  the  exercise  of  such  public  rights, 
forTlie^couimon  benefit ;  and  in  the  case  of  licensed  dealers  in  merchan- 
dise, the  injury  suffered  by  inspection  is  accompanied  by  advantages 
which  must  be  regarded  as  a  sufficient  compensation.  Bancroft  v. 
Cambi-id(/e,  126  Mass.  438,  441.  Instead  of  requiring  all  milk  offered 
for  sale  to  be  first  inspected,  the  legislature  for  obvious  reasons  has 
permitted  licensed  dealers  to  sell  milk  without  inspection,  has  imposed 
penalties  for  selling  adulterated  milk,  has  defined  what  shall  be  deemed 
adulterated  milk,  and  has  provided  that  when  the  inspector  of  milk  has 
reason  to  believe  that  any  milk  has  been  adulterated  he  may  take  speci- 
mens thereof  in  order  that  by  analysis  or  otherwise  he  may  determine 
whether  the  milk  has  been  adulterated.  Such  a  seizure  of  milk  for  the 
purposes  of  examination  is  a  reasonable  method  of  inspection,  and  does 
not  require  a  warrant.  It  is  a  supervision  under  the  laws  by  a  public 
officer  of  a  trade  which  concerns  the  public  health,  and  is  within  the 
police  power  of  the  Commonwealth.  Commonwealth  v.  Ducey^  126 
Mass.  269.     Jones  v.  Root^  6  Gray,  435. 

There  is  nothing  in  this  case  which  requires  us  to  determine  the 
rights  of  the  defendant,  if  the  inspector  had  attempted  to  take  a  larger 
quantity  of  milk  for  analysis  than  was  reasonably  necessary  for  the 
performance  of  his  duties.  We  have  not  found  it  necessar}'  to  con- 
sider whether  the  defendant,  by  voluntaril}'  accepting  a  license  to  sell 
milk,  has  not  assented  to  the  conditions  and  regulations  which  the 
legislature  has  seen  fit  to  impose  upon  the  exercise  of  the  trade 
licensed.  See  Pitkin  v.  Springfield,  112  Mass.  509 ;  Bertholf  v. 
O'Reilly,  74  N.  Y.  509,  517.  Exceptions  overruled. 


PEOPLE  V.   EWER. 
New  York  Court  of  Appeals.     1894. 

[36  Northeastern  Reporter,  4.] 

Appeal  from  Supreme  Court,  General  Term,  first  department.  .  .  . 

Charlotte  Ewer  was  arrested  upon  a  police  magistrate's  warrant, 
charged  with  a  misdemeanor  in  violating  section  292  of  the  Penal  Code 
by  exhibiting  her  child,  Mildred  Ewer,  as  a  dancer  at  the  Broadwa}' 
Theatre  in  New  York  Cit}-.  The  examination  before  the  magistrate 
sustained  the  charge,  and  showed  that  she  was  of  the  age  of  seven 
years,  and  went  bj'  the  stage  name  of  "  La  Regaloncita ; "  that  she 
was  clad  in  the  usual  style  of  the  ballet-dancer,  in  a  low-necked,  sleeve- 
less, and  short  dress,  and  wore  purple  tights  ;  that  she  danced  upon  the 


838  PEOPLE   V.    EWER.  [CHAP.  V. 

stage  to  the  music  of  an  orchestra,  elevating  her  legs,  moving  upon  her 
toes,  and  posturing  with  her  figure.  Her  mother,  being  held  upon  the 
charge,  sued  out  writs  of  habeas  corpus  and  cerfAorari,  to  wliich  the  mag- 
istrate made  return  of  his  proceedings,  etc.  The  prisoner  demurred  to 
the  return  ;  alleging  that  there  were  no  sufficient  grounds  for  holding  her, 
and  that  the  statute  under  which  she  was  arrested  was  unconstitutional. 
The  provisions  of  the  Code  under  which  this  arrest  was  made  read  that  "  a 
person  who  .  .  .  exhibits  ...  a  female  child  apparently  or  actually 
under  the  age  of  fourteen  years,  ...  or  who,  having  the  care,  etc.,  of 
such  a  child  as  parent,  etc.,  ...  in  any  way  consents  to  the  emploj'- 
ment  or  exhibition  of  such  a  child  either  as  ...  a  dancer  ...  or  in 
a  theatrical  exhibition  ...  or  in  any  .  .  .  exhibition  dangerous  or 
injurious  to  the  life,  limb,  health  or  morals  of  the  child  ...  is  guilty 
of  a  misdemeanor."  At  the  Special  Term  the  writs  were  dismissed,  and 
the  prisoner  was  remanded.  The  order  of  that  court  was  affirmed  at 
the  General  Term,  and  the  defendant  has  appealed  to  this  court 

A.  J.  Dlttenhoefer  and  David  Gerber,  for  appellant.  Be  Lancey 
Nicoll,  Dist.  Atty.  {Elbridge  T.  Gerry,  of  counsel),  for  the  people. 

Gray,  J.  The  question  we  shall  determine  upon  this  appeal  is 
whether  the  statute  under  which  the  appellant  was  arrested  violates 
any  just  and  personal  rights  secured  to  her  by  the  Constitution  of  the 
State.  If  it  is  such  an  interference  with  the  legal  relation  of  parent 
and  child  as  exceeds  the  limits  within  which  the  legislature,  exercising 
the  sovereign  power  of  the  State,  ma}-  regulate  and  control  that  rela- 
tion, then  it  is  the  dut}'  of  the  courts  to  declare  its  unconstitutionalit}' ; 
but,  if  it  is  within  a  proper  and  legitimate  exercise  of  legislative  func- 
tions, the  courts  ma}-  not  interfere.  This  question  falls  within  those 
which  are  classified  under  the  head  of  the  police  power  of  the  State. 
The  extent  of  the  exercise  of  that  power,  with  which  the  legislature  is 
invested,  and  which  it  has  so  freely  exerted  in  many  directions,  within 
constitutional  limits,  is  a  matter  resting  in  discretion,  to  be  guided  by 
the  wisdom  of  the  people's  representatives.  It  is  difficult,  if  not  im- 
I)ossible,  to  define  the  police  power  of  a  State,  or,  under  recent  judi- 
cial decisions,  to  say  where  the  constitutional  boundaries  limiting  its 
exercise  are  to  be  fixed.  It  is  a  power  essential  to  be  conceded  to  the 
State,  in  the  interest,  and  for  the  welfare,  of  its  citizens.  We  ma^' 
sa\-  of  it  that  when  its  operation  is  in  the  direction  of  so  regulating  a 
use  of  private  property-,  or  of  so  restraining  personal  action,  as  mani- 
festly to  secure  or  to  tend  to  the  comfort,  prosperit}'  or  protection  of 
the  community,  no  constitutional  guarantee  is  violated,  and  the  legisla- 
tive authority  is  not  transcended.  But  the  legislation  must  have  some 
relation  to  these  ends  ;  for,  to  quote  the  expressions  of  Mr.  Justice 
Field  in  the  Slaxighter- House  Cases,  16  Wall.  36,  "  under  the  mere 
guise  of  police  regulations,  personal  rights  and  private  property  cannot 
he  arbitrarily  invaded."  In  Peojile  v.  King,  110  N.  Y.  418,  is  N.  E. 
245,  it  was  well  observed  b}'  Judge  Andrews:  "  B>'  means  of  this 
power  the  legislature  exercises  a  supervision  over  matters  affecting  the 


CHAP,  v.]  PEOPLE   V.    EWEK,  R39 

common  weal.  ...  It  ma}'  be  exerted  whenever  necessar}'  to  secure 
the  peace,  good  order,  health,  morals,  and  general  w^ilfare  of  the  com- 
munity, and  the  propriety  of  its  exercise,  within  constitutional  limits, 
is  purely  a  matter  of  legislative  discretion,  with  which  courts  cannot 
interfere."  The  assumption  of  the  exercise  of  this  extiaordinary  and 
very  necessary  power  has  been  the  subject  of  severe  criticism  in  the 
o[)iMions  of  judges,  when  it  lias  been  sought  thereby  to  regulate  and 
control  in  the  interest  of  the  public  the  conduct  of  corporate  or  indi- 
vidual business  transactions.  Munn  v.  State  of  Illinois,  94  U.  S.  113, 
ma}^  be  referred  to  as  starting  a  current  of  authority  in  this  country. 
But  no  such  criticism  can  find  just  grounds  for  cavilling  at  legislation 
whose  ends  clearly  tend  to  promote  the  health  or  moral  well-being  of 
the  members  of  society.  To  that  class  of  legislation  this  statute 
belongs.  By  preventing  the  exhibition  of  children  of  tender  and  im- 
mature age  upon  the  theatrical  or  other  public  stage,  the  legislature  is 
exercising  that  right  of  supervision  and  control  over  the  child  which  in 
ever}'  civilized  State  inheres  in  the  government,  and  which  nothing  in 
the  legal  relations  of  parent  and  child  should  be  deemed  to  forbid. 
The  proposition  is  indisputable  that  the  custod}'  of  the  child  by  the 
parent  is  within  legislative  regulation.  The  parent,  by  natural  law, 
is  entitled  to  the  custod}'  and  care  of  the  child,  and,  as  its  natural 
guardian,  is  held  to  the  performance  of  certain  duties.  To  society, 
organized  as  a  State,  it  is  a  matter  of  paramount  interest  that  the 
child  shall  be  cared  for,  and  that  the  duties  of  support  and  education 
be  performed  by  the  parent  or  guardian,  in  order  that  the  child  shall 
become  a  healthful  and  useful  member  of  the  comnninity.  It  has  been 
well  remarked  that,  the  better  organized  and  trained  the  race,  the  better 
it  is  prepared  for  holding  its  own.  Hence  it  is  that  laws  are  enacted 
looking  to  the  compulsory  education  by  parents  of  their  children,  and 
to  their  punishment  for  cruel  treatment,  and  which  limit  and  regulate 
the  employment  of  children  in  the  factory  and  the  workshop,  to  prevent 
injury  from  excessive  labor.  It  is  not,  and  cannot  be,  disputed  that  the 
interest  which  the  State  has  in  the  physical,  moral,  and  intellectual  well- 
])eing  of  its  members  warrants  the  implication  and  the  exercise  of  every 
just  power  which  will  result  in  preparing  the  child,  in  future  life,  to  sup- 
port itself,  to  serve  the  State,  and,  in  all  the  relations  and  duties  of 
adult  life,  to  perform  well  and  capably  its  part.  .  .  . 

The  learned  counsel  for  the  appellant  does  not,  in  the  main,  contest 
the  right  and  the  duty  of  the  State  to  protect,  and  to  promote  by  ade- 
quate legislation,  the  health  and  morals  of  its  citizens,  but  bases  his 
arguments  here  upon  the  proposition,  substantially,  that  the  legislature 
cannot  take  from  parents  the  right  to  employ  their  children  in  any  law- 
ful occupation,  not  indecent  or  immoral,  or  dangerous  to  life,  limb, 
health,  or  morals.  That  proposition  may  be  readily  conceded.  It  is 
true  enough  that  if  the  court  could  say  that  this  legislation  was  an 
arbitrary  exercise  of  the  legislative  power,  depriving  the  parent  of  a 
right  to  a  legitimate  use  of  his  child's  services,  —  that,  while  ostensibly 


840  PEOPLE    V.    EWEK.  [CHAP.  V. 

for  the  promotion  of  the  well-being  of  children,  in  reality  it  strikes  at 
an  inalienable  right  or  at  the  personal  libei'tj  of  the  citizen,  and  bnt 
remotely  concerned  the  interests  of  the  community,  —  it  would  be  its 
duty  to  so  pronounce,  and  to  declare  its  invalidity.  But  this  legislation 
has  no  such  destructive  effect  or  tendency.  It  does  not  deprive  the 
parent  of  the  child's  custod}-,  nor  does  it  abridge  any  just  rights.  It 
interferes  to  prevent  the  public  exhibition  of  children,  under  a  certain 
age,  in  spectacles  or  performances  which,  by  reason  of  the  place  or 
hour,  of  the  nature  of  the  acts  demanded  of  the  child  performer,  and 
of  the  surroundings  and  circumstances  of  the  exhibition,  are  deemed  by 
the  legislature  prejudicial  to  the  physical,  mental,  or  moral  well-being 
of  the  child,  and  hence  to  the  interests  of  the  State  itself.  Take  the 
facts  of  this  case,  and  they  seem  sufBcientl}'  to  warrant  the  interference 
of  the  law.  It  is  not  necessar}'  to  reason  upon  them.  The  scant}' 
dress  of  the  ballet-dancer,  the  pirouetting  and  the  various  other  de- 
scribed movements  with  the  limbs,  and  the  vocal  efforts  cannot  be  said 
to  be  without  possible  prejudice  to  the  physical  condition  of  the  child, 
while  in  the  glare  of  the  footlights,  the  tinsel  surroundings,  and  the 
incense  of  popular  applause,  it  is  not  impossible  that  the  immature 
mind  should  contract  such  unreal  views  of  existence  as  to  unfit  it  for 
the  stern- realities  and  exactions  of  later  life.  The  statute  is  not  to  be 
construed  as  applying  only  when  the  exhibition  offends  against  morals 
or  decenc}',  or  endangers  life  or  limb,  by  what  is  required  of  the  child 
actor.  Its  application  is  to  all  public  exhibitions  or  shows.  That  any 
and  all  such  shall  be  deemed  prejudicial  to  the  interests  of  the  child, 
and  contrary  to  the  policy  of  the  State  to  permit,  was  for  the  legisla- 
ture to  consider  and  sa}'. 

The  right  to  personal  libert}'  is  not  infringed  upon  because  the  law 
imposes  limitations  or  restraints  upon  the  exercise  of  the  faculties  with 
which  the  child  may  be  more  or  less  exceptionall}'  endowed.  The  in- 
alienable right  of  the  child  or  adult  to  pursue  a  trade  is  indisputable ; 
but  it  must  be  not  only  one  which  is  lawful,  but  which,  as  to  the  child 
of  immature  years,  the  State  or  sovereign,  as7;«?'e«s^^a^;v"c€,  recognizes 
as  proper  and  safe.  It  is  not  the  strict  moralist's  view,  dictated  h\ 
prejudice,  but  the  view  from  the  standpoint  of  a  member  of  the  bod}' 
politic,  which  ranges  the  judgment  in  support  of  legislative  interference 
to  restrain  the  parent  from  permitting  an  employment  of  the  child 
under  circumstances  deemed  unsuited  to  its  proper  mental,  moral,  or 
physical  development.  In  the  judgment  of  the  legislature  it  was 
deemed  as  unsuitable  for  the  youth  of  the  community,  under  a  certain 
age,  to  dance  or  to  perform  in  public  exhibitions  in  the  ways  men- 
tioned as  it  was  deemed  unsuitable  for  them  to  work  in  the  factor}', 
except  under  certain  limitations  as  to  age,  hours,  etc. 

We  have  not  overlooked  certain  cases  referred  to  by  the  appellant's 
counsel  to  show  the  invalidity  of  this  legislation  as  an  exercise  of  the 
police  power  of  the  State,  or  to  show  a  violation  of  constitutional 
rights.     They  establish  that  the  legislature  has  no  right,   under   the 


CHAP,  v.]  PEOPLE   V.    CANNON.  841 

guise  of  protecting  health  or  morals,  to  enact  laws  which,  bearing  but 
remotely,  if  at  all,  upon  these  matters  of  public  concern,  deprive  the 
citizen  of  the  right  to  pursue  a  lawful  occupation.  Such  were  In  re 
Jacobs,  98  N.  Y.  98 ;  People  v.  Marx,  99  N.  Y.  377,  2  N.  E.  29  ; 
People  V.  Gillson,  109  N.  Y.  389  17  N.  E.  343  ;  People  v.  Rosenberg, 
138  N.  Y.  410,  34  N.  E.  285.  We  are  referred  to  some  cases  in 
Illinois,  but  they  are  neither  applicable  nor  autiioritative  upon  the  ques- 
tion before  us. 

Further  discussion  is  unnecessary.  We  might  have  remained  satis- 
fied with  the  able  and  clear  exposition  of  his  views  by  the  learned 
justice  at  the  special  term  had  not  the  range  taken  by  the  arguments 
of  counsel  seemed  to  call  for  a  brief  expression  by  us  of  our  view  of 
the  principle  of  State  interference.  The  order  should  be  affirmed.  All 
concur.     Order  affirmed. 


PEOPLE  V.   CANNON. 
New  York  Court  of  Appeals.     1893. 

[139  iV.  y.  32] 

Appeals  from  judgments  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  entered  upon  orders  which  affirmed 
judgments  convicting  the  defendants  of  violation  of  the  "  Bottling  Act " 
(Cirap.  377,  Laws  of  1887,  as  amended  by  chap.  181,  Laws  of  1888), 
entered  upon  verdicts  of  the  Court  of  General  Sessions  of  the  Peace  of 
the  city  and  county  of  New  York. 

Each  defendant  was  convicted  upon  a  separate  indictment  and  trial 
of  a  violation  of  what  is  described  in  the  various  records  as  the 
"Bottling  Act,"  and  known  as  chapter  377  of  the  Laws  of  1887,  as 
amended  by  chapter  181  of  the  Laws  of  1888. 

The  first  three  sections  of  the  Act  are  here  alone  material.  The  title 
of  the  Act  and  the  sections  spoken  of  read  as  follows : 

"  An  Act  to  protect  the  owners  of  bottles,  boxes,  siphons  and  kegs 
used  in  the  sale  of  soda  waters,  mineral  and  aerated  waters,  porter,  ale, 
cider,  ginger  ale,  milk,  cream,  small  beer,  lager  beer,  weiss  beer,  beer, 
white  beer  or  other  beverages."  ^  .  .  . 

1  Section  1  enables  dealers  in  soda  water  and  many  other  things,  who  furnish  the 
goods  in  stamped  bottles,  kegs,  etc.,  to  register  the  name  or  device  so  stamped.  Sec- 
tion 2  makes  criminal  the  filling  of  such  registered  bottles,  etc.,  with  the  substance 
for  which  it  is  intended,  or  the  selling,  giving,  or  otherwise  disposing  of  them  without 
the  written  consent  of,  or  unless  purchased  from,  the  party  so  making  them.  Section  .3 
makes  such  forbidden  use  of  the  vessels,  etc.,  by  any  other  party  than  the  one  whose 
device  they  bear,  for  the  sale  of  certain  specified  contents,  or  the  buying,  selling,  using 
or  traflicking  in  such  vessels,  without  such  written  consent,  or  the  having  them,  by 
any  junk  dealer,  or  second-hand  dealer,  in  his  po.s.session,  without  such  written  consent, 
—  presumptive  evidence  of  said  unlawful  use,  etc.  —  Ed. 


842  PEOPLE   V.    CANNON.  [CHAP.  V. 

There  were  three  counts  in  each  indictment,  one  for  unlawfully  bu}'- 
ing  from  a  person  to  the  grand  jury  unknown,  one  for  unlawful]}'  taking 
from  a  person  to  the  grand  jury  unknown,  and  one  for  unlawfully 
trafficking  in  and  disposing  of  in  a  manner  and  by  means  to  the  grand 
jur}'  unknown  certain  bottles  (describing  them  as  having  marks  on 
them,  etc.,  as  provided  for  in  the  first  section  of  the  above  Act).  The 
defendants  are  dealers  in,  among  other  articles,  second-hand  bottles  of 
all  descriptions  They  are  among  the  largest  dealers  in  those  articles 
in  the  city  of  New  York,  have  been  engaged  in  that  business  for  a 
number  of  years,  and  their  stock  on  hand  at  the  time  when  the  occur- 
rences herein  spoken  of  took  place,  reached  in  each  case  to  the  number 
of  several  hundred  thousand  bottles.  Neither  of  the  defendants  was 
able  to  tell  of  whom  or  where  he  purchased  the  bottles  which  are  the 
subject  of  complaint  in  his  case.  The\-  purchase  all  kind  of  bottles 
from  whoever  comes  with  them,  if  satisfied  they  have  not  been  stolen. 
Their  purchases  come  from  all  over  the  country  by  rail  and  in  vessels, 
and  packed  in  boxes  and  barrels,  and  they  are  ignorant  of  the  kinds  of 
bottles  that  thus  come  until  the}'  have  been  taken  from  the  various 
railroad  stations  or  vessels  and  brought  to  their  stores  and  sorted  out. 
The  defendants  claimed  to  be  ignorant  of  the  possession  of  any  of  the 
classes  of  bottles  described  in  the  indictments  until  their  places  were 
visited  by  the  police  under  a  searcli-warrant  sworn  out  by  a  detective 
em[)loyed  by  an  association  of  manufacturers  of  soda  waters,  beer,  etc., 
and  who  were  the  owners  of  bottles  registered  as  provided  for  by 
the  law. 

Among  all  the  bottles  that  were  in  the  possession  of  the  defendants, 
there  are  involved  in  this  proceeding  but  very  few,  as  the  evidence 
shows  there  were  only  found  an  insignificant  quantity  of  registered 
bottles  as  compared  with  the  immense  numbers  of  others  which  were  on 
hand  and  dealt  in  by  the  defendants. 

Everett  P.   Wheeler,  for  appellants. 

Wm.  J.  Gaynor,  for  Bartholf,  appellant. 

Wm.  Travers  Jerome^  for  respondents. 

Peckham,  J.  These  prosecutions  have  been  instituted  for  the  pur- 
pose of  obtaining  a  decision  in  regard  to  the  validity  of  the  law  under 
which  the  convictions  have  been  secured.  Counsel  for  both  parties 
have  so  stated,  and  the  courts  below  have  distinctly  ruled  upon  the 
various  propositions  raised,  so  that  the  constitutionality  of  the  statute 
might  be  fairly  tested. 

It  is  claimed  that  the  Act  deprives  all  persons  other  than  the  manu- 
facturers of  the  right  to  traffic  in  or  give  away  sparkling  or  aerated 
liquors  or  beer  which  have  ever  been  placed  in  a  trade-mark  bottle.  It 
is  said  that  if  the  manufacturer  refuses  to  sell  the  bottle,  he  in  effect 
prohibits  the  sale  or  gift  of  that  which  is  contained  in  it,  except  over 
the  counter,  and  it  is  urged  that  the  legislature  cannot  grant  to  the 
manufacturer  such  a  monopoly. 

It  is  needless  to  speculate  as  to  the  powers  of  the  legislature  upon 


CHAP,  v.]  PEOPLE   r.    CANNON.  843 

this  subject,  because  we  are  of  the  opinion  the  statute  is  not  susceptible 
of  any  such  construction. 

It  is  made  unlawful  for  any  one  to  fill  u[)  with  soda  waters,  etc.,  any 
bottle  marked  and  distinguished  as  in  the  first  section  of  the  Act  is  pro- 
vided, or  to  deface,  erase  or  obliterate  any  such  mark  on  such  bottle,  or 
to  sell,  etc.,  or  to  otherwise  dispose  of,  or  traffic  in  the  same,  without 
the  written  consent  of,  or  unless  the  same  have  been  purchased  from 
the  person  whose  mark  is  on  the  bottle.  This  provision  of  the  Act 
refers  to  tlie  use  of  these  empty  bottles  by  some  one  other  than 
the  owner  of  the  marks  thereon,  and  after  the  original  contents  of 
such  bottles  have  been  taken  out,  and  then  unlawfully  using  or  traffick- 
ing in  the  empty  bottles. 

After  the  retail  dealer  or  any  one  else  has  purchased  the  soda  water 
or  beer  from  the  manufacturer,  and  the  same  has  been  delivered  to  him 
packed  in  the  bottles  thus  marked,  he  is  not  prevented  by  anything  in 
the  statute  from  himself  selling  such  soda  water  or  beer  and  delivering 
the  same  to  the  purchaser  packed  in  the  same  bottles  in  which  it  was 
delivered  to  him  from  the  manufacturers.  This  process  may  be  con- 
tinued indefinitel}'.  The  Act  is  not  aimed  at  the  sale  and  delivery  of 
the  water  or  beer  packed  in  the  original  bottles  as  it  came  from  the 
manufacturer,  but  it  is  aimed  at  an  unlawful  dealing  in  empty  bottles 
that  have  been  marked,  and  after  their  original  contents  have  been 
used.  If  otherwise,  it  is  clear  that  an  enormous  amount  of  the  business 
of  the  manufacturers  would  be  curtailed.  It  is  a  fact  which  every  one 
knows,  that  large  amounts  of  the  liquors  originally  put  up  in  these 
bottles  are  sold  by  the  manufacturers  to  the  retail  dealers,  who  sell 
them  to  the  customers,  who  take  them  away  in  the  original  bottles  in 
which  the  manufacturers  delivered  them  to  the  retail  dealers,  and  it 
cannot  be  contended  with  any  degree  of  plausibility,  as  it  seems  to  us, 
that  there  is  anything  in  the  language  of  the  statute,  properly  con- 
stiued,  which  prohibits  such  a  dealing  in  and  delivery  of  the  liquors 
by  any  one  into  whose  possession  and  ownership  the}-  have  lawfully 
come. 

Nor  is  there  any  just  foundation  for  the  assertion  that  the  Act  neces- 
sarily destroys  or  unlawfully  decreases  the  trade  in  empty  bottles,  which 
is  a  fair  trade  and  one  entitled  to  the  equal  protection  of  tlie  law.  The 
Act  contains  no  provision  in  regard  to  empty  bottles  in  general.  It 
forbids  the  use  or  traffic  in  certain  kinds  of  bottles  without  the  written 
consent  of  the  owners  of  the  marks  on  them,  or  unless  they  have  them- 
selves once  sold  the  bottles.  It  is  not  necessar}'  that  they  should  have 
sold  to  the  person  using  them.  A  sale  of  the  bottles  to  any  one  there- 
after precludes  the  application  of  the  provisions  of  the  statute.  A 
bottle  that  has  been  marked  as  described  in  the  first  section,  and  has 
thereafter  been  used  by  the  owner  of  the  marks  for  the  purpose  of 
identifying  in  the  market  the  particular  goods  manufactured  by  him 
and  put  up  in  such  l)ottles,  ought  not  to  be  used  for  other  purposes 
against   the  will  of   the  manufacturer,   so  long  as  he   has   not   sold 


844  PEOPLE   V.   CANNON.  [CHAP.  V. 

tlie  bottles  to  any  one,  nor  autliorized  any  one  to  use  or  traffic  in 
them  ;  in  other  language,  so  long  as  he  continues  the  owner  of  the 
bottles. 

And  this  kind  of  use  or  traffic  the  law  is  intended  to  prevent. 

Under  the  broadest  delinition  of  the  term  liberty',  as  used  in  the  Con- 
stitution, it  is  not  probable  that  any  one  would  contend  that  it  covers, 
or  ought  to  cover,  the  liberty  of  dealing  in  property  w  hich  the  original 
owner  has  not  sold  to  any  one  or  authorized  any  one  else  to  deal  in. 
And  yet  the  claim  that  the  Act  destroys  the  trade  in  second-hand 
bottles  would  lead  to  this  result  if  it  were  allowed.  Because  the  Act 
prohibits  the  dealing  in  the  property  of  a  third  person  without  his  con- 
sent, it  ma}'  be  that  the  business  of  the  second-hand  bottle-dealer  is 
affected  so  far  as  to  necessitate  further  precautions  in  regard  to  making 
purchases,  than  would  otherwise  be  necessary.  Before  purchasing 
second-hand  bottles  he  must  be  assured  that  the  person  selling  has  the 
right  to  sell  them,  and  that  he,  the  dealer,  has  the  right  to  buy  them. 
This  ma}'  require  more  of  an  inspection  of  the  kinds  of  bottles  purchased 
than  the  dealer  has  heretofore  been  accustomed  to  give,  but  there  is 
nothing  improper  in  such  obligation,  and  if  he  fail  to  perform  it  he  must 
omit  it  at  his  peril.  The  Act  in  question  has  a  tendency  to  prevent 
frauds  upon  the  public  in  the  way  of  filling  these  bottles  with  articles  of 
the  same  nature  as  originally  put  in  them,  but  not  manufactured  by  the 
owners  of  the  marks.  Even  though  there  may  already'  be  a  section  or 
sections  of  the  Penal  Code  which  cover  such  a  subject,  that  does  not 
render  the  further  enactment  of  the  legislature  upon  the  same  subject 
void.  If  naturally  there  may  be  trouble  in  showing  that  the  person  of 
whom  the  second-hand  dealer  purchased  had  himself  obtained  the  bot- 
tles of  some  one  who  had  purchased  them  from  the  manufacturers,  or 
who  had  their  written  consent  to  deal  in,  use  or  traffic  in  them,  such 
fact  is  only  an  additional  reason  for  not  purchasing  such  bottles  imtil  it 
is  clear  that  they  may  be  lawfully  purchased.  The  Act  does,  undoubt- 
edly, in  this  respect  seriously  hamper  any  one  dealing  in  these  kinds  of 
empty  bottles.  I  can,  however,  see  no  constitutional  objection  to  the 
enactment  based  on  that  ground.  A  mere  possessor  of  one  of  these 
empty  bottles  may  wish  to  fill  it  without  using  the  trade-mark.  It  is 
true  he  is  prohibited  from  effacing  the  trade-mark,  or  erasing  it,  and 
this,  it  is  said,  destroys  all  property  in  the  bottle,  because  the  person 
who  possesses  it  can  make  no  earthly  use  of  it.  But  in  the  case  to 
which  the  Act  is  applicable,  the  person  who  has  the  bottle  in  his  pos- 
session has  no  property  right  in  it,  and  never  did  have.  The  conse- 
quence may  be  that  he  has  no  right  to  use  the  bottle  himself,  and  that 
he  does  not  stand  in  a  position  with  regard  to  the  person  from  whom  he 
procured  the  bottle  and  contents,  to  require  such  person  to  take  it  back 
and  give  him  its  value,  or  an  agreed  sum,  after  the  contents  have  been 
used.  This  may  be  his  misfortune,  but  it  does  not  create  any  right. 
As  he  never  owned  the  bottle,  or  had  any  property  right  in  it  of  that 
nature,  that  fact  does  not  and  cannot  affect  him. 


CHAP,  v.]  PEOPLE   V.   CANNON.  845 

I  fail  to  find  any  constitutional  defect  in  this  statute  so  far  as  its 
general  features  under  review  in  these  cases  are  concerned. 

There  is  a  ground  of  invalidity  now  to  be  noticed  that  has  been  urged 
in  regard  to  that  portion  of  the  Act  which  relates  to  matters  of  evi- 
dence. That  portion  of  section  three  of  the  Act  which  provides  that 
the  having  by  an}'  junk  dealer  or  dealers  in  second-hand  articles,  pos- 
session of  these  kinds  of  marked  bottles,  or  kegs,  without  the  written 
consent  of  the  owner  of  sucli  marks,  shall  be  presumptive  evidence  of 
the  unlawful  use,  purchase  and  traffic  in  such  bottles,  is  asserted  to  be 
unconstitutional  as  an  invasion  by  the  legislature  of  the  domain  of  the 
judicial  branch  of  the  government. 

It  is  said  the  legislature  can  create  and  define  a  crime,  but  it 
cannot  declare  what  shall  be  prima  facie,  evidence  of  its  commission. 
Whether  the  crime  as  defined  by  the  legislature  has  been  committed 
by  an  accused  is  a  question  for  the  court  and  jury,  and  it  is  claimed 
that  no  direction  to  the  court  or  jury  as  to  what  shall  be  considered 
frima  facie  proof  can  be  given  by  the  legislature.  It  may  be  remarked 
at  the  outset  that  this  question  does  not  arise  in  the  case  of  Cannon. 
The  defendant  in  that  case  agreed  upon  a  state  of  facts  upon  which  the 
judgment  of  the  court  and  jury  was  requested,  and  in  the  statement  it 
was  agreed  that  the  corporation  which  owned  the  marks  and  bottles  in 
question  had  never  granted  any  written  or  oral  consent  that  the  bottles 
should  be  used  or  trafficked  in  and  had  never  sold  or  given  away  any 
such  bottle. 

In  the  other  two  cases  the  question  is  fairly  up,  and  must  be 
decided. 

The  legislature  of  this  State  possesses  the  whole  legislative  power  of 
the  people,  except  so  far  as  such  power  may  be  limited  by  our  Consti- 
tution. Bank  of  Chenango  v.  Brown,  26  N.  Y.  467.  The  power  to 
enact  such  a  provision  as  that  under  discussion  is  founded  upon  the 
jurisdiction  of  the  legislature  over  rules  of  evidence,  both  in  civil  and 
criminal  cases.  This  court  has  lately  had  the  question  before  it. 
Board  of  Excise  Commrs.  v.  Merchant,  103  N.  Y.  143.  The  Act  in 
that  case  provided  that  whenever  any  person  was  seen  to  drink  in 
a  shop,  etc.,  spirituous  liquors  which  were  forbidden  to  be  drank  therein, 
it  should  be  prima  facie  evidence  that  such  liquors  were  sold  by  the 
occupant  of  the  premises  or  his  agent  with  the  intent  that  the  same 
should  be  drank  therein.  The  defendant  was  an  occupant  of  premises 
where  liquor  could  not  be  legally  sold  to  be  drank  there,  and  he  was 
prosecuted  for  selling  the  same  in  violation  of  the  Act.  The  only  evi- 
dence of  a  sale  by  the  accused  occupant  was  the  fact  that  a  person  was 
seen  to  drink  liquor  upon  the  premises,  and  a  conviction  was  asked  for 
under  the  provisions  of  the  Act  quoted.  The  defendant  was  convicted, 
and  his  counsel  urged  that  the  Act  was  unconstitutional  on  the  ground 
that  it  violated  the  constitutional  guarantees  of  due  process  of  law  and 
trial  by  jur^'.  It  was  held  the  claim  was  unfounded  and  that  the  gen- 
eral power  of  the  legislature  to  prescribe  rules  of  evidence  and  methods 


846  PEOPLE   V.    CANNON.  [CHAP,  V. 

of  proof  was  undoubted,  and  bad  not  been  illegall}-  exercised  in  tbat 
case.  It  is  true  it  was  a  case  for  the  recovery  of  a  penalty  and  was 
brought  by  the  commissioners  of  excise,  and  a  civil  judgment  for  dam- 
ages was  recovered.  It  was,  however,  treated  as  a  quasi  criminal 
case  and  criminal  prosecutions  were  cited  in  support  of  the  principle 
decided  in  it. 

It  cannot  be  disputed  that  the  courts  of  this  and  other  States  are 
committed  to  the  general  principle  that  even  in  criminal  prosecutions 
the  legislature  may  with  some  limitations  enact  that  when  certain  facts 
have  been  proved  they  shall  he  jjrima  facie  evidence  of  the  existence  of 
the  main  fact  in  question.  (See  cases  cited  in  103  N.  Y.  143,  sujyra.) 
The  limitations  are  that  the  fact  upon  which  the  presumption  is  to  rest 
must  have  some  fair  relation  to,  or  natural  connection  with  the  main 
fact.  The  inference  of  the  existence  of  the  main  fact  because  of  tlie 
existence  of  the  fact  actually  proved,  must  not  be  merely  and  purely 
arbitrar}-,  or  wholly  unreasonable,  unnatural  or  extraordinary,  and  the 
accused  must  have  in  each  case  a  fair  opportunitv  to  make  his  defence, 
and  to  submit  the  whole  case  to  the  jur^-,  to  be  decided  by  it  after  it 
has  weighed  all  the  evidence  and  given  such  weight  to  the  presumption 
as  to  it  shall  seem  proper.  A  provision  of  this  kind  does  not  take  away 
or  impair  the  right  of  trial  by  jurj*.  It  does  not  in  realit}'  and  finally 
change  the  burden  of  proof.  The  people  must  at  all  times  sustain  the 
burden  of  proving  the  guilt  of  the  accused  beyond  a  reasonable  doubt. 
It,  in  substance,  enacts  that,  certain  facts  being  proved,  the  jury  may 
regard  them,  if  believed,  as  sufficient  to  convict,  in  the  absence  of 
explanation  or  contradiction.  Even  in  that  case,  the  court  could  not 
legally  direct  a  conviction.  It  cannot  do  so  in  an}-  criminal  case.  That 
is  solely  for  the  jury,  and  it  could  have  the  right,  after  a  survey  of  the 
whole  case,  to  refuse  to  convict  unless  satisfied  beyond  a  reasonable 
doubt  of  tlie  guilt  of  the  accused,  even  though  the  statutorj-  prima 
facie  evidence  were  uncontradicted.  The  case  of  Commonwealth  v. 
Williams,  6  Gra}',  1,  supports  this  view. 

Without  the  aid  of  the  statute,  the  presumption  provided  for  therein 
might  not  arise  from  the  facts  proved,  although  the  statute  says  the}' 
shall  be  sufficient  to  authorize  such  presumption.  The  legislature  has 
the  power  to  make  these  facts  sufficient  to  authorize  the  presumption 
{State  V.  Mellor,  13  R.  I.  at  669),  and  the  jury  has  the  power,  in  the 
absence  of  all  other  evidence,  to  base  its  verdict  thereon,  if  satisfied 
that  the  defendant  is  guilty.  But  the  jury  must  in  all  cases  be  satisfied 
of  guilt  beyond  a  reasonable  doubt,  and  the  enactment  in  regard  to  the 
presumption  merel}'  permits,  but  cannot  in  effect  direct  the  jury  to  con- 
vict under  any  circumstances.  The  dissenting  opinion  of  Mr.  Justice 
Thomas,  delivered  in  Commonwealth  v.  Williams,  6  Gra}',  supra, 
contains  all  that  can  be  said  against  the  validity  of  this  kind  of 
legislation. 

It  is  argued,  however,  that  assuming  the  validity  of  the  provision  in 
cases  of  excise  sales  and  kindred  cases,  such  as  having  in  possession 


CHAP,  v.]  PEOPLE   V.   CANNON.  847 

game  out  of  season  (Phe!ps  v.  Race//,  GO  N.  Y.  10),  and  in  civil  eases, 
sucli  as  providing  tliat  the  comptroller's  deed  upon  a  sale  of  land  for 
taxes  affords  a  presumption  of  the  regularity  of  all  prior  proceedings 
(Howard  v.  Moot,  64  N.  Y.  262  ;  Colnuni  v.  Shattuck,  62  Id.  348),  yet 
the  principle  does  not  apply  to  a  case  like  this.  The  reason  alleged  is 
that  the  fact  which  is  to  be  regarded  as^'^-i/zia  facie  evidence  of  guilt, 
uiz.,  the  possession  of  the  bottles  by  a  dealer  in  second-hand  bottles 
without  the  written  consent  of  the  owner,  was  not  one  sufficiently 
identified  in  ordinary  circumstances  with  guilt  to  make  it  the  foundation 
of  such  a  presumption. 

The  case  of  People  v.  Lijon^  27  Hun,  180,  was  a  prosecution  under 
the  same  section  of  the  statute  as  that  in  Commissioners  of  Excise  v. 
Merchant,  103  N.  Y.,  supra.  One  of  the  judges  at  the  General  Term  in 
illustration  of  his  meaning  that  the  fact  from  which  the  inference  of  guilt 
may  be  drawn  should  have  some  kind  of  natural  reference  to,  or  bearing 
upon  the  main  fact,  said  that  if  the  legislature  could  provide  for  such  a 
presumption,  it  could  enact  that  the  drinking  of  liquors  a  mile  distant 
from  such  premises  should  be  prima  facie  evidence  of  a  sale  on  the 
premises  with  intent  that  the  liquors  should  be  drank  there.  Or  it 
might  enact  that  if  a  dead  body  were  found  in  any  house,  it  should  be 
prima  fade  evidence  that  the  occupier  of  the  house  had  murdered  the 
deceased.  The  learned  judge  thought  the  Act  in  question  was  entirely 
arbitrary  and  had  no  regard  to  the  connection  or  want  of  connection 
between  the  fact  from  which  the  presumption  was  to  flow  and  the  guilt 
of  the  accused.  Yet  this  particular  enactment,  thus  condemned  by  the 
Supreme  Court,  was  upheld  b}-  this  court  in  Com,mlssloners  v.  Mer- 
chant, supra,  103  N.  Y.  The  cases  cited  by  wa}'  of  illustration  by  the 
learned  judge  in  his  opinion  in  the  Supreme  Court  are,  in  our  view,  far 
beyond  the  mark  and  contain  nothing  in  common  with  the  enactment 
here  under  review.  In  the  cases  supposed  there  would  be,  as  the 
learned  judge  said,  no  kind  of  connection  between  the  fact  proved  and 
the  main  fact  in  controversy.  Such  an  enactment  would  be  purely 
arbitrary.  In  this  case,  however,  we  think  such  connection  exists.  Of 
course  the  fact  from  which  the  presumption  is  to  be  drawn  may  exist 
without  the  existence  of  the  main  fact.  That  is  true  in  all  cases.  In 
other  words,  the  two  facts  are  not  necessarily  inseparable.  But  in  this 
ease  the  fact  of  the  possession  of  these  kinds  of  bottles  b}'  a  dealer  in 
second4iand  articles  without  the  written  consent  of  the  owner,  while  it 
may  be  innocent,  yet  the  presumption  of  an  unlawful  use  or  traffic  in 
them  is  not  so  forced  or  so  extraordinary  as  to  be  regarded  bj-  sensible 
and  unprejudiced  men  as  unreasonable  or  unnatural.  It  is  some  evi- 
dence of  the  main  fact  and  the  strength  of  it  is  properly  a  matter  for 
legislative  enactment  in  the  first  instance,  subject  to  its  submission  to 
the  jury  for  its  deliberation  and  determination.  So  the  presumption 
from  the  possession  of  certain  birds  out  of  season,  that  they  were 
unlawfully  killed  or  taken  in  the  State,  is  not  a  certain  presumption  in 
any  sense.  A  person  might  of  course  have  the  birds  and  have  procured 
them  in  another  State,  and,  therefore,  not  be  guilty  of  a  violation  of 


848  PEOPLE   V.    CANNON.  [CHAP.  V. 

the  game  law.  Yet  the  presumption  of  a  violation  of  the  statute  is  not 
such  a  forced  and  unnatural  one  that  the  legislature  ma}-  not  enact  that 
it  shall  be  made  and  thus  leave  the  defendant  to  explain  it.  Common- 
wealth V.  Williams,  6  Gra}',  supra.,  at  page  6  in  opinion  of  Shaw,  Ch.  J. 

Nor  can  it  be  successfull}'  maintained  that  this  species  of  legislation 
is  to  be  confined  to  those  cases  where  the  explanation  of  the  fact  from 
which  the  presumption  is  to  arise  is  peculiarly  within  the  knowledge  of 
the  party  who  is  accused.  There  are  man}-  cases  in  the  books  (and 
they  are  cited  in  the  cases  already  alluded  to),  where  the  principle  is 
held  that  the  burden  of  proving  the  existence  of  a  fact  peculiarl}-  within 
the  knowledge  of  the  accused,  is  at  common  law  placed  upon  him. 
Potter  V.  Deijo,  19  Wend.  361  ;  People  v.  Nyce,  34  Hun,  298.  If 
legislation  were  confined  to  such  cases,  it  is  plain  that  it  would  be 
entirely  unnecessar}'  and  would  accomplish  nothing,  as  the  law  would 
place  the  burden  of  explanation  upon  the  defendant  without  the  aid  of 
the  statute.  Within  the  limitations  alread}*  alluded  to  and  described, 
the  statute  may  provide  for  the  presumption  and  call  upon  the  defend- 
ant to  explain  the  fact.  In  prosecutions  for  the  sale  of  liquor  without 
a  license  the  Supreme  Court  of  Massachusetts  held  that  under  the  old 
Act  the  prosecution  must  prove  by  proper  evidence  that  the  accused 
had  no  license,  and  no  presumption  that  he  had  none  could  arise  from 
the  fact  of  selling.  Commomvealth  v.  Thurloiv.,  24  Pick.  374.  There- 
upon the  legislature  passed  an  Act  that  in  all  prosecutions  for  selling 
liquors,  the  legal  presumption  should  be  that  the  defendant  had  not 
been  licensed,  thus  reversing  what  had  been  held  to  be  the  common-law 
rule  in  Commonwealth  v.  Thurloiv,  siqjra.  This  was  held  to  be  within 
the  power  of  the  legislature.  Commonwealth  v.  Kelly,  10  Cush.  69,  70  ; 
Same  v.  Williams,  siijjra.  It  is  true,  the  fact  of  having  a  license  is 
one  peculiarly  within  the  knowledge  of  the  party  licensed.  Yet  the 
validity  of  legislation  is  recognized  in  these  cases,  although  it  enacts 
that  a  presumption  shall  be  made  from  certain  facts  which  at  common 
law  would  not  give  rise  to  wciy  such  presumption.  I  do  not  know  of 
any  constitutional  principle  which,  while  permitting  the  legislature  to 
enact  that  the  legal  presumption  arising  from  the  sale  of  liquor  shall  be 
that  the  person  selUng  had  no  license,  yet,  at  the  same  time,  prevents 
the  enactment  of  a  provision  like  the  one  in  the  statute  under  discus- 
sion. If  the  legislature  have  the  power  in  the  first  instance,  I  think  it 
follows  that  it  must  have  the  power  in  the  other.  I  can  see  no  solid 
ground  for  distinction  between  the  two  cases.  That  it  has  the  power  in 
the  first  case  is  substantially  conceded  by  all.  The  inference  of  guilt, 
under  the  provision  in  question  here,  is  quite  as  strong  as  in  many  other 
cases  that  arise  under  statutory  enactments,  and  we  think  it  is  suf- 
ficiently reasonable  and  natural  to  warrant  a  legislature  in  passing  such 
an  Act.  The  opinion  of  this  court  upon  the  question  of  the  policy  of  this 
kind  of  legislation  is  not  at  all  material,  and  will  not,  therefore,  be  stated. 

The  effect  of  the  presumption  is  to  call  upon  the  accused  for  some 
explanation.     If  none  be  given,  the  jury  may,  as  I   have  said,  still 


CHAP,  v.]  PEOPLE    V.    CANNON.  ^^9 

;m  .  hnt  if  thev  convict,  the  verdict  may  be  upheld  as 

,: raeru;:«"™.mcrt  "U^:.  r.:  p.ovi.o„  m.  »„  the  ^^^ 

lounutu  uy  .         *  j-e,  for  it  leaves  an  accused  a  fan   op- 

::r„U  t  ^:  -e.non,  .be  p,es„.pUo„,  to  explain  t„e 
!r«rst-.nces  under  which  the  bottles  came  into  his  ,»ssess,on,  am 
tinttbey  we.^  of  such  a  nature  as  to  show  him  innocent  of  an  unlawful 

"AT^rrs^c^d-i^rbottles  intending  to  obey  ti,e  law  wouU, 

.^.tx:-  -:--:■  riiifoi  =f:LinI^Ms;."o^ 

"'"'si  r;::  nu^;  or tuditonal  possession,  fairly  explained  and 
in.     Such  a  mo meniai}  ui  doubtful,  would 

believed  by  the  jury,  or  ui  regaul  to  which  ^'^^^  J  ^^^^ 

d  f™  e  It  m-rght  be  difflcult  of  proof,  it  is  said,  and  th,s  n>ay  son  e- 
ttaes  b  true.  !f  difflcult  of  proof,  the  defendant  should  hn.k  of  that 
beire  he  P  n;hases  or  deals  in  them,  and  decides  to  run  the  nsk. 

Tl,e  Rhode  Island  Supreme  Court  has  held  an  Act  nneons.tufonal 
whS  in  s:blnce  pvovi.led  that  the  notorious  character  o    the  p^^ 
•        «.  tl,P  nntoriouslv  bad  or  intemperate  character  of  the  peisons 
Tquent  "  t  .e  sam:  ir  the  keeping  if  implements  or  »m™''«--- 
s>n  V    pertaining  to  a  grog  shop  where  liquors  are  sold   sho  dd  be 
;  W«L  evidence  that  the  liquors  were  kept  on  "«  P-'T-^/"'     "! 
Iroose  of  sale  within  the  State.     State  v.  Besivwk,  18  R.  I.  211, 
*rv  KaL   Id.  528.     The  same  court,  and  in  the  same  volume  of 
«       portf  held  «,at  a  statute  providing  that  evidence  of  the  sale  or 
w3  of  intoxieatino  liquors  for  sale  in  any  building  should  he  prma 
)       '  ^ide::r«;afthe%l  or  keeping  was  "''gah  and  that  tl.  prem.es 
Cere  nuisances,  was  constitutional.     State  v.  Hiff^tm,  13  R.  I.  330, 

'TLf'lZ'cL'M  the  court  said  that  the  introduction  in  the 
law  of  hf  prfnc  p  e  ha^  a' person  could  be  punished  for  what  other 
peo^e  said'  about  him  was  to  render  all  eonstitut iona  projons 
rnavailln^  for  his  protection.  The  distinction  is  pla.n,  I  thn.k,  b^ 
twee,T  he  two  classes  of  cases,  and  the  statute  under  revew  here  does 
Torcome  wUhin  the  principle  which  the  Ri>ode  Island  court  held  to  be 

"  te'Icl^dcT^'"  iCin  question  cannot  be  assailed  upon 
''"'  '"'»-'  Swi^  Cannon  ca.  an,  reverse,  in  the  otUers> 

.  Compare  S.aU  v.  BucK  25  S.  W.  Bep.  5,3  (Mo.  .894),  B^.e.  V.  ff.»<,  .22  Mas.. 
S05,  .5K.-521.  — Kd. 

VOL.  I.  —  54 


850  BIRMINGHAM    MIN.    R.    R.    CO.    V.    PARSONS.  [CHAP.  V. 


In  Birmingham  Min.  R.  B.  Co.  v.  Parsons.,  13  So.  Rep.  602  (Ala. 
July,  1893),  the  court  (Haralson,  J.)  said:  "In  Zeiglerx.  Railroad 
Co.,  58  Ala.  594,  we  had  occasion  to  pass  upon  the  validity  of  an  Act 
which  provided  :  '  That  from  and  after  the  passage  of  this  Act,  all  cor- 
porations, person  or  persons,  owning  or  controlling  any  railroad  in  this 
State,  shall  be  liable  for  all  damages  to  live  stock,  or  cattle  of  an}' 
kind,  caused  by  locomotive  or  railroad  cars.'  It  was  there  said  of  that 
statute,  that  it  dispenses  with  all  proof  of  the  wrong  it  seeks  to  redress. 
'  It  declares  that  the  railroad  corporation  shall  make  reparation  for  an 
injury  inflicted  in  the  authorized  prosecution  of  its  lawful  business, 
without  a  semblance  of  fault,  negligence,  or  want  of  skill  in  its  em- 
ployees, —  an  injury  which  no  human  prudence  or  foresight  could  pre- 
vent :  and  yet  the  statute  will  not  allow  the  railroad  to  exculpate  itself 
by  proof  of  the  highest  qualifications  and  most  watchful  vigilance. 
This  falls  short  of  due  process  of  law.  .  .  .  We  can  perceive  of  no  rea- 
son, in  law  or  morals,  for  holding  them  [railroad  companies]  to  a 
stricter  measure  of  accountability  for  inevitable  misfortunes  than  would 
be  exacted  from  natural  persons  for  injuries  which  result  from  una- 
voidable accident,  or  accidents  which  no  human  prudence  can  foresee 
or  avert.'  This  case,  in  these  utterances,  has  been  many  times  ap- 
proved by  us,  and  other  courts.  Wilhurn  v.  McCalley.,  G3  Ala.  443; 
Meacl\.  Larkin,  66  Ala.  88;  Davis  v.  State^  68  Ala.  63;  Green  v. 
State,  73  Ala.  32  ;  Railroad  Co.  v.  Hembree.,  85  Ala.  485,  5  South. 
Rep.  173.  Under  the  influence  of  these  decisions,  we  are  constrained 
to  hold  that  the  second  section  of  said  Act,  in  that  it  imposes  an  abso- 
lute liability  on  railroad  companies,  irrespective  of  compliance  on  their 
part  with  the  duties  prescribed  in  its  first  section,  and  without  any  fault 
on  their  part,  is  in  violation  of  constitutional  right.  The  first  section, 
however,  without  reference  to  the  second,  and  independent!}'  of  it,  pre- 
scribes the  duty  on  these  companies  '  to  put  in  cattle  or  stock  guards 
upon  their  respective  lines  of  roads,  and  keep  the  same  in  order,' 
and  for  a  failuie  to  do  so  they  are  liable  to  the  party  injured  b}'  their 
neglect.  To  prescribe  the  duties-imposed  b}'  this  section,  we  have  seen, 
is  a  valid  exercise  of  the  power  of  the  State.  It  may  be  maintained  as 
such,  separate  from  the  second  section.  3  Brick.  Dig.  p.  128,  §  28; 
Ex  parte  Coicert,  92  Ala.  97,  9  South.  Rep.  225.  And  '  ever}'  person, 
while  violating  an  express  statute,  is  a  wrongdoer,  and  as  such  is,  ex 
necessitate.,  negligent  in  the  eye  of  the  law,  and  every  innocent  party 
injured  thereby  is  entitled  to  a  civil  remedy  therefor ; '  and  when  a  duty 
is  required,  and  no  remedy  provided  for  its  breach,  the  remedy  is  by 
common-law  procedure.  Grey  v.  Trade  Co.,  55  Ala.  403  ;  Lowndes 
Go.  V.  Hunter,  49  Ala.  507  ;  Autauga  Co.  v.  Davis,  32  Ala.  703."  * 

1  But  see  McCandkss  v.  Richmond,  ^c.  R.  Co,  16  S.  E.  Rep.  429  (So.  Ca.  Dec, 
1892).  — Ed. 


CHAP,  v.]  STATE   V.    DIVINE.  851 


STATE   V.   DIVINE. 
Supreme  Court  of  North  Carolina.     1887. 

[98  N.  C.  778.] 

This  was  a  criminal  action,  tried  before  Clark,  Judge,  at  January 
Term,  1887,  of  Robeson  Superior  Court. 

Tlie  prosecution  of  the  defendant,  commenced  by  warrant,  issued  by 
a  justice  of  tlie  peace  of  Columbus  County,  and  tried  by  him,  charges 
the  defendant,  as  superintendent  of  tiie  Wilmington,  Columbia,  and 
Augusta  Railroad  Company,  with  a  personal  criminal  responsibility, 
for  the  running  over  and  killing  two  cows,  the  property  of  J.  C. 
Powell,  the  prosecutor,  by  a  train  movitig  over  its  track,  on  May  19th, 
1886.  The  proceeding  is  instituted  under  the  Act  of  1880,  ch.  13, 
which  is  brought  forward,  and  constitutes  the  four  lust  sections,  2327, 
2328,  2329,  2330,  of  chapter  10  of  vol.  II.  of  The  Code.  [These  sec- 
tions are  placed  in  a  note.^] 

^  The  enactment  is  in  these  words  :  ~—  ' 

"  When  any  cattle,  horses,  mules,  sheep  or  other  live  stock  shall  be  killed  or  In- 
jured by  any  car  or  engine  running  on  any  railroad  in  the  counties  of  Columbus,  New 
Hanover,  Brunswick,  Bladen,  Kobeson,  Richmond,  Anson,  Union,  Gaston,  Lincoln, 
Cleveland,  and  Burke,  it  shall  be  a  misdemeanor ;  and  the  president,  receiver,  and 
superintendent  of  such  road,  and  also  the  engineer  and  conductor  in  charge  of  the 
train  or  engine  by  which  such  killing  or  injury  is  done,  may  be  indicted  for  such  kill- 
ing or  injury  :  Provided,  if  the  parties  indictable  under  this  section  shall,  within  six 
months  after  the  killing  as  aforesaid  of  any  stock  mentioned  in  this  section,  and 
before  any  indictment  is  preferred  or  warrant  issued,  pay  the  owner  of  such  stock  as 
may  be  killed  his  charges  for  said  stock,  or  in  the  event  the  charges  are  too  high,  or 
tiiought  to  be  so,  such  sum  or  sums  as  may  be  assessed  by  three  commissioners, — 
one  to  be  chosen  by  the  party  whose  stock  is  killed  or  injured,  a  second  by  the  party 
accused  of  killing  the  same,  and  the  third  by  the  two  commissioners  chosen  as  above 
indicated,  who  shall  meet  at  some  place  in  the  county  where  the  stock  is  killed  or 
injured,  to  be  selected  by  the  parties  interested, —  within  thirty  days  after  they  are 
chosen  ai.d  accepted,  such  payment  shall  be  a  bar  to  any  prosecution  under  this  sec- 
tion ;  and  the  decision  of  two  of  said  commissioners  shall  be  final  for  the  purposes 
of  this  section  :  Provided  further,  if  any  person  or  persons  lial)le  to  indictment  under 
this  section,  shall  within  the  time  prescribed,  propose  to  the  party  endamaged  to 
refer  the  matter  of  damages  in  the  manner  hereinbefore  indicated  to  three  commis- 
sioners, and  the  party  endamaged  shall  refuse  or  decline  such  proposition,  such 
refusing  or  declining  shall  be  a  bar  to  any  prosecution  under  this  section  :  Provided  also, 
if  the  party  endamaged  shall,  at  any  time  before  the  indictment  is  preferred,  or  war- 
rant issued,  directly  or  indirectly,  receive  any  sum  in  full  compensation  of  his  damages, 
such  compensation  shall  be  a  bar  to  any  prosecution  under  this  section ;  and  if  any 
compensation  be  so  received  after  indictment  is  preferred  or  warrant  issued,  or  if  after 
said  time  the  party  accused  shall  pay  or  tender  to  the  owner  of  the  stock  killed  the 
value  of  the  same,  as  decided  by  the  commissioners,  as  above  provided,  —  in  either 
case  the  prosecution  shall  go  no  further,  and  the  accused  shall  be  charged  only  with 
accrued  cost." 

The  second  section  prescribes  the  punishment  by  "  fine  not  exceeding  fifty  dollars, 
or  imprisonment  not  longer  than  thirty  days." 

The  third  provides  that,  "  when  stock  is  killed  or  injured  by  a  running  engine  as 


852  STATE   V.    DIVINE.  [CHAP.  V. 

Upon  an  appeal  to  the  Superior  Court  from  the  judgnjent  rendered 
against  the  defendant  by  the  justice  of  the  peace,  a  special  verdict  was 
found  by  the  jury  in  these  words  :  "  The  cattle  were  killed  by  the  cars 
of  the  Wilmington,  Columbia,  and  Augusta  Railroad  Company  as 
alleged,  under  the  following  circumstances,  to  wit :  That  at  the  time 
of  the  killing  it  was  a  bright  moonlight  night,  about  10  p.  m.  ;  that  the 
train  was  on  schedule  time,  running  at  the  rate  of  forty  miles  per  hour ; 
that  the  cattle  could  have  been  seen  at  least  one  hundred  yards  ahead 
of  the  train ;  that  the  cattle  were  not  seen  by  the  engineer  until  struck 
by  the  train;  that  the  Cattle  were  the  property  of  J.  C.  Powell;  that 
the  corporation  owning  the  road  is  the  same  which  was  chartered  by  the 
Act  of  March  1st,  1870,  as  the  Wilmington  and  Carolina  Railroad 
Company ;  that  the  defendant  is  the  superintendent  of  the  said  Wil- 
mington, Columbia,  and  Augusta  Railroad  Company ;  that  the  said 
company  refused  to  refer  the  matter  to  arbitration ;  that  the  defendant, 
J.  F.  Devine,  was  not  on  the  train  that  did  the  killing,  and  was  in  no 
way  connected  with  said  killing." 

The  court  being  of  opinion  that  the  defendant  was  not  guilty,  ad- 
judged that  he  go  without  day,  and  the  Solicitor  appealed. 

The  Attorney- General^  for  the  State.  Mr.  Geo.  Davis  (by  brief), 
for  the  defendant.  ... 

Smith,  C  J.  .  .  .  The  objections  to  the  validit}'  of  the  legislation  are 
pointed  out  and  forcibly  presented  in  the  brief  of  defendant's  counsel, 
with  an  arra}'  of  numerous  rulings  in  their  support,  as  follows  :  — 

1.  In  its  whole  structure  and  manifest  purpose  it  creates  out  of  a  pri- 
vate civil  injur}'  a  public  prosecution,  to  subserve  the  interests  of  the 
injured  party,  and  to  be  put  in  operation  or  arrested  at  his  instance  and 
election.  2.  It  assumes  a  criminal  liability  to  have  been  incurred  by 
an  officer  of  a  railroad  corporation,  without  his  concurrence  in  the  act 
of  the  subordinate,  and,  assuming  negligence  and  guilt,  puts  him  on 
the  defensive,  and  requires  him  to  repel  the  presumption,  when  he  in 
no  manner  participated  in  what  was  done.  3.  It  undertakes  to  drive 
the  accused  to  an  adjustment  of  the  claim  for  damages  by  assenting  to 
a  reference  to  arbitration,  and  to  deprive  him  of  his  constitutional  right 
to  be  tried  in  the  courts  of  the  State  —  tribunals  provided  under  the 
Constitution  —  and  bj-  a  properl}-  constituted  jur}*,  acting  under  a  judge. 
4.  It  places  at  the  election  of  the  claimant  the  institution  of  the  prose- 
cution, which  otherwise  is  suspended,  by  making  a  proposition  for  a 
reference.  5.  It  discriminates,  without  apparent  difference,  between 
counties  and  railroads,  giving  partial  operation  to  a  law,  general  in  its 
provisions  and  equallj'  applicable  to  all,  by  which  the  same  act  is  ren- 
dered criminal  in  one  locality  which  is  not  so  in  another,  and  raising 

car  in  the  counties  enumerated,  it  shall  be  prima  facie  evidence  of  negligence  on  the 
trial  of  the  indictment." 

The  fourth  section  declares  that  the  indictment  against  the  officers  of  railroad  com- 
panies shall  not  lie  "  until  a  proposition  to  refer  the  matter  has  been  proposed  by  the 
party  claiming  that  he  has  been  damaged." 


CHAP,  v.]  STATE   V.    DIVINE.  853 

out  of  an  act  done  In*  one  employee  a  presumption  of  guilt  against 
another  employee,  who  did  not,  in  any  wa}-,  participate  in  it. 

We  do  not  perceive  any  difficulty  in  the  Act  of  1856-57  ( The  Code, 
§  2326)  raising  a  presumption  of  negligence  on  the  part  of  the  company 
from  the  fact  of  killing  or  injuring  stock,  in  a  civil  suit  for  reparation, 
brought  within  six  months  thereafter,  as  is  explained  in  the  opinion  in 
Doggett  v.  Railroad,  81  N.  C.  459,  and  whose  validitj'  has  not  been 
questioned  in  the  numerous  cases  which  have  been  before  the  court. 
But  the  present  case  passes  far  beyond  the  limits  of  that  enactment,  in 
fastening  a  criminal  responsibility,  not  upon  the  principal  whose  agent 
does  the  injury,  but  upon  a  co-employee  in  the  same  general  service, 
and  this  not  upon  all,  but  specially  upon  railroads  that  run  through  or 
in  particular  counties. 

We  do  not  say  that  there  may  not  be  local  legislation,  for  it  is  ver^' 
common  in  our  statute-books,  but  that  an  act  divested  of  an}'  peculiar 
circumstances,  and  per  se  made  indictable,  should  be  so  throughout  the 
State,  as  essential  to  that  equalit\'  and  uniformity  which  are  fundamen- 
tal conditions  of  all  just  and  constitutional  legislation. 

Looking  at  the  Indictment,  it  will  be  seen  that  the  only  material  alle- 
gations are,  that  the  prosecutor's  cattle  were  killed  by  a  moving  train 
on  the  road  of  the  compau}^  of  which  the  defendant  is  superintendent, 
without  connecting  him  with  the  act ;  and  scarcely  more  definite  is  the 
special  verdict. 

Do  these  words  impute  crime,  and  upon  mere  proof  of  these  facts  is 
the  charge  established,  and  must  the  defendant  be  convicted  unless  he 
repels  the  negligence  which  the  statute  presumes  in  the  subordinate 
employed  in  managing  the  train?  The  very  question  involves  an  an- 
swer, unless  all  the  safeguards  thrown  around  one  accused  of  crime  are 
disregarded,  and  he  left  without  their  protection.  The  defendant  was 
not  on  the  train  when  the  accident  occurred,  and  has  no  personal  rela- 
tion to  it,  except  such  as  results  from  his  position  as  a  higher  officer  of 
the  road,  —  making  the  offence  one  by  construction.  Judge  Coole}', 
in  his  work  on  Constitutional  Limitations,  at  page  309,  referring  to 
a  trial  for  criminal  offences  of  different  grades,  uses  this  impressive  lan- 
guage :  "  The  mode  of  investigating  the  facts,  however,  is  the  same  in 
all,  and  this  is  through  a  trial  by  jur}',  surrounded  by  certain  safe- 
guards, which  are  a  well-understood  part  of  the  system,  and  which 
the  government  cannot  dispense  with,"  meaning,  as  we  understand, 
that  the  charge  must  go  before  the  jury,  and  the  guilt  of  the  accused 
proved  to  them,  with  the  presumption  of  innocence  until  this  is  done. 

In  Cummings  v.  Missouri,  4  Wall.  328,  Mr.  Justice  Field,  referring 
to  certain  enactments  in  that  State,  says:  "The  clauses  in  question 
subvert  the  presumption  of  innocence,  and  alter  the  rules  of  evidence 
which,  heretofore,  under  the  universally  recognized  principles  of  the 
common  law,  have  been  supposed  to  be  fundamental  and  unchange- 
able." "  But  I  have  no  hesitation  in  saying,"  remarks  Selden,  J.,  in 
Wynehamer  v.  The  People,  13  N.  Y.  446,  ''  That  they  (the  legislature) 


854  OHIO   AND   MISSISSIPPI   KAILWAY   CO.    V.    LACKEY.       [CHAP.  V. 

cannot  subvert  that  fundamental  rule  of  justice  whicli  lioids  that  ever}' 
one  shall  be  presumed  innocent  until  he  is  proved  guilty." 

The  case  is  not  analogous  to  that  wherein  for  civil  purposes  negli- 
gence is  inferred  from  the  fact  of  killing  stock,  and  requiring  matters 
in  excuse  to  be  shown,  which  lie  peculiarly  within  the  knowledge  of 
the  agent  who  perpetrated  the  act,  or  controls  the  running  of  the 
engine  when  it  is  done;  nor  to  the  statute  (T/ie  Code,  §  1005)  which 
makes  the  having  about  the  person  one  of  the  deadly  weapons  forbidden 
to  be  carried,  or  wovn,  jirima  facie  evidence  of  concealment;  for  this 
is  the  sole  personal  act  of  the  part}-,  of  the  consequences  of  which  he  is 
aware,  and  because  a  small  weapon,  if  concealed,  would  be  almost 
impossible  of  pi'oof  direct,  while  the  possession  of  such  is  intimatel}'  and 
naturally  connected  with  the  secret  carrying,  and  furnishes  strong  evi- 
dence of  the  fact. 

In  San  Manteo  v.  Railroad,  8  Am.  &  Eng.  R.  R.  Cases,  10,  in  con- 
struing the  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States,  it  is  said  :  "  Whatever  the  State  ma}-  do,  it  cannot  deprive  any 
one  within  its  jurisdiction  of  the  equal  protection  of  the  laws.  And  by 
equal  protection  of  the  laws  is  meant  equal  security  under  them,  by 
every  one  on  similar  terms  in  his  life,  his  liberty,  his  property,  and  in 
the  pursuit  of  happiness." 

Substantially  the  same  doctrine  is  announced,  and  by  the  same  emi- 
nent judge  (Mr.  Justice  Field),  in  Barhier  v.  Connolly,  113  U.  S.  31, 
in  which  he  adds,  "  that  no  greater  burdens  should  be  laid  upon  one 
than  are  laid  upon  others  in  the  same  calling  and  condition." 

From  what  has  been  said,  it  results  that  the  legislation  in  question 
has  not  the  sanction  of  the  Constitution,  and  cannot  be  upheld  as  within 
the  competency  of  the  law-making  power  to  enact. 

We  have  gone  into  this  inquiry  in  order  to  settle  the  question  of  the 
ralidity  of  the  statute  in  the  application  to  the  case  before  us,  and 
because  it  will  practically  put  an  end  to  the  litigation.  But  for  the 
defect  in  the  special  verdict  we  are  compelled  to  direct  that  it  be  set 
aside  for  further  proceedings  in  the  court  below. 

Reversed  and  sj)ecial  verdict  set  aside. 


OHIO  AND  MISSISSIPPI   RAILWAY  COMPANY  v.  LACKEY. 
Supreme  Court  of  Illinois.     1875. 

[78  ///.  55.] 

Appeal  from  the  Circuit  Court  of  Marion  County ;  the  Hon.  Silas 
L.  Bryan,  Judge,  presiding.     Mr.  H.  P.  Buxton,  for  the  appellant. 
Mr.  Justice  Breese  delivered  the  opinion  of  the  court : 
This  is  an  appeal  from  the  judgment  of  the  Marion  Circuit  Court, 


CHAP,  v.]       OHIO    AND    MISSISSIPPI    RAILWAY    CO.    V.    L.\CKEY.  8.j5 

rendered  at  the  October  term,  1870,  upon  the  following  agreed  state  of 
facts : 

"  It  was  agreed  in  this  case  that,  during  the  year  1869,  three  persons 
were  run  over  and  killed  by  trains  on  the  railroad  of  appellant,  in 
Marion  County,  and  the  appellee,  being  coroner  of  said  county  at  the 
time,  held  an  inquest  in  each  case,  the  expenses  of  which,  together  with 
the  costs  of  burial,  amount,  in  the  aggregate,  to  $91.15  ;  that  if  appel- 
lant was,  in  law,  liable  to  appellee,  upon  the  facts  stated,  for  the  above 
amount,  then  judgment  should  be  rendered  in  favor  of  appellee  there- 
for, and  if  not  so  liable,  then  judgment  should  be  for  appellant,  with 
the  right  to  either  part}'  to  appeal." 

In  1855,  the  General  Assembly  of  this  State  passed  an  Act  entitled 
"  An  Act  to  provide  for  the  burial  of  the  dead  occurring  on  railroads, 
and  in  or  b}'  vehicles  carrying  passengers,"  in  the  second  section  of 
which  Act  it  is  provided  tliat  "  ever}-  railroad  company  running  cars 
within  this  State  shall  be  liable  for  all  the  expense  of  the  coroner  and 
his  inquest,  and  the  burial  of  all  persons  who  may  die  on  the  cars,  or 
who  ma}'  be  killed  by  collision,  or  other  accident  occurring  to  such  cars, 
or  otherwise;  and  an}'  coroner,  city,  town,  or  person  who  shall  take 
charge  of  and  decently  inter  any  such  body  or  corpse,  or  cause  an  in- 
quest to  be  held  over  such  corpse,  shall  have  cause  of  action  against 
such  company,  before  any  court  having  competent  jurisdiction."  Sess. 
Laws,  1855,  p.  170;  Scates'  Comp.  423. 

It  is  insisted  by  appellant  that  this  statute  is  not  within  the  constitu- 
tional competency  of  the  General  Assembly  to  enact,  as  it  places  the 
burden  of  these  expenses  upon  the  railroad  companies,  which,  in  other 
cases  of  like  nature,  is  placed  upon  the  estate  of  the  deceased,  or  upon 
the  county  in  which  the  accident  may  occur.  This  is  the  general  law. 
R.  S.  1845,  ch.  99,  title,  "  Sheriffs  and  Coroners,"  sec.  23  ;  R.  S.  1874, 
sec.  21,  title,  *'  Coroners." 

It  may,  very  pertinently,  be  asked,  Why  this  distinction?  On  what 
principle  is  it  that  railroad  corporations,  without  any  fault  on  their  part, 
shall  be  compelled  to  pay  charges  which,  in  other  cases,  are  borne  by  the 
property  of  the  deceased,  or,  in  default  thereof,  by  the  county  in  which 
the  accident  occurred  ? 

An  examination  of  the  section  will  show  that  no  default,  or  negligence 
of  any  kind,  need  be  estabhshed  against  the  railroad  company,  but  they 
are  mulcted  in  heavy  charges  if,  notwithstanding  all  their  care  and  cau- 
tion, a  death  should  occur  on  one  of  their  cars,  no  matter  how  caused, 
even  if  by  the  party's  own  hand.  Running  of  trains  by  these  corpora- 
tions is  lawful,  and  of  great  public  benefit.  It  is  not  claimed  that  the 
liability  attaches  for  a  violation  of  any  law,  the  omission  of  any  duty, 
or  the  want  of  proper  care  and  skill  in  running  their  trains.  The  penalty 
is  not  aimed  at  anything  of  this  kind.  We  say  penalty,  for  it  is  in  the 
nature  of  a  penalty,  and  there  is  a  constitutional  inhibition  against  im- 
posing penalties  where  no  law  has  been  violated  or  duty  neglected. 
Neither  is  pretended  in  this  case,  nor  are  they  in  the  contemplation  of 


856  TOLEDO,    ETC.    RAILWAY    CO.    V.   JACKSONVILLE.        [cHAP.  V. 

the  statute.  A  passenger  on  the  train  dies  from  sickness.  He  is  a  man 
of  wealth.  Wliy  should  his  burial  expenses  be  charged  to  the  railroad 
company?  There  is  neither  reason  nor  justice  in  it ;  and  if  he  be  poor, 
having  not  the  means  for  a  decent  burial,  the  general  law  makes  ample 
provision  for  such  cases.  As  argued  by  the  counsel  for  appellant,  the 
law  attempts  to  place  what  is  properly  a  public  burden  upon  these  cor- 
porations, which  should  be  borne  by  all  alike,  and  discharged  out  of 
public  funds  raised  b}-  equal  and  uniform  taxation. 

This  may  be  considered  in  the  light  of  a  special  tax,  for  which  there 
is  no  sanction  in  the  Constitution.  We  have  not  been  furnished  with 
any  brief,  points,  or  argument  for  the  appellee.  The  views  presented 
by  appellant  satisfy  us  the  law  in  question  cannot  be  sustained  as  a 
constitutional  enactment. 

In  1874,  the  General  Assembly  repealed  this  statute,  by  chap.  131, 
title,  "Statutes,"  R.  S.  1022,  but,  at  the  same  session,  re-enacted  it 
substantially,  giving  the  power  to  sue,  not  to  the  coroner,  as  here,  but 
to  the  county.     lb.,  title,  "Coroners,"  283,  sec.  22. 

For  the  reasons  given,  the  judgment  is  reversed. 

Judgment  reversed. 


TOLEDO,    ETC.   RAILWAY  COMPANY  v.  JACKSONVILLE. 
Supreme  Court  of  Illinois.     1873. 

[67  ///.  37.] 

Appeal  from  the  Circuit  Court  of  Morgan  County ;  the  Hon.  Charles 
D.  Hodges,  Judge,  presiding. 

This  was  a  suit  brought  b}'  the  cit}'  of  Jacksonville  against  the 
Toledo,  Wabash,  and  Western  Raihx)ad  Compan}',  before  a  justice  of 
the  peace,  to  recover  a  penalty  for  a  violation  of  the  ordinance  of  the 
citv  referred  to  in  the  opinion  of  the  court.  The  cause  was  taken  to  the 
Circuit  Court  by  appeal,  where  a  trial  was  had  before  court,  without  a 
jur}'.  The  court  found  the  defendant  guilt}',  and  rendered  judgment  in 
favor  of  the  plaintiff  for  S50.  The  defendant  appealed.  Mr.  William 
H.  Barnes,  for  the  appellant.     Mr.  Edward  Dunn,  for  the  appellee. 

Mr.  Justice  Scott  delivered  the  opinion  of  the  court: 

This  action  was  brought  to  recover  a  penalty  for  a  failure  to  comply 
with  an  ordinance  of  the  cit}'  which  required  the  railroad  compan}-  to 
keep  a  flagman  b}'  day  and  a  red  lantern  b}'  night  at  the  point  where  its 
track  crosses  the  street  or  State  road  just  west  of  the  bridge  known  as 
'•  Rock  Bridge." 

It  is  stipulated  that  the  company  did  not  keep  a  flagman  at  the  cross- 
ing indicated  ;  that  it  is  within  the  bounds  of  the  cit}' ;  that  it  is  an 
important  crossing,  and  much  used  ;  that  it  has  been  so  used  by  the 
railroad  and  the  inhabitants  for  the  last  twenty-five  years,  and  that,  by 
resolution  of  the  city  council,  the  company  is  not  required,  at  this  point, 


CHAP,  v.]        TOLEDO,    ETC.    RAILWAY    CO.    V.    JACKSONVILLE.  857 

to  run  its  trains  at  a  rate  of  speed  not  greater  than  eight  miles  per  hour, 
as  required  by  general  ordinance. 

The  charter  of  the  city  contains  the  usual  grants  of  power  to  pass 
such  ordinances  as  may  be  deemed  necessary  for  the  good  government 
of  the  city,  to  control  streets  and  alleys,  to  declare  what  shall  be  deemed 
a  nuisance  and  abate  the  same,  and  to  control  the  laying  of  railroad 
tracks  in  the  streets  and  alleys.  It  contains  no  express  grant  of  power 
to  pass  the  ordinance  in  question.  The  right  to  do  so  is  claimed  under 
the  police  power  of  the  municipality. 

Waiving  the  question  of  the  power  of  the  city  to  pass  the  ordnianc^ 
without  being  expressly  authorized  by  the  General  Assembly,  we  sIk.. 
treat  the  case  as  though  the  city  had  the  right,  by  the  grants  m  its 
charter,  to  exercise  all  the  power  in  the  regulation  of  its  domestic  affairs 
that  the  State  could  do  for  the  general  welfare  of  the  people. 

There  can  be  no  question  that  railway  corporations  are  subject  to 
police  regulations  as  well  as  private  citizens.  The  General  Assembly, 
when  the  public  exigencies  require  it,  has  power  to  regulate  corporations 
in  their  franchises  so  as  to  provide  for  the  public  safety.  The  exercise 
of  this  right  in  no  manner  interferes  with  or  impairs  the  powers  con- 
ferred by  their  Acts  of  Incorporation.  The  G.  and  C.  U.  E.  R.  Co^ 
V.  Loomis,  13  111.  548;    Thorpe  v.  Rutland  and  Burlington  Ji.  R.,27 

Ver.  140. 

Under  this  power,  it  has  been  held  that  the  legislature  may  require 
railroad  corporations,  notwithstanding  no  such  right  has  been  reserved 
in  the  charters,  to  fence  their  tracks,  to  put  in  cattle  guards,  to  place 
upon  their  engines  a  bell,  and  to  do  many  other  things  for  the  protection 
of  life  and  property.  This  ix>wer  is  inherent  in  the  State,  and  it  can- 
not part  irrevocably  with  its  control  over  that  which  is  for  the  health, 
safety,  and  welfare  of  society. 

But  such  regulations  must  be  what  they  piirport  to  be,  police  regula- 
tions, and  must  be  reasonable  when  applied  to  corporations  or  indi- 
viduals. What  are  reasonable  regulations,  and  what  are  subjects  of 
police  powers,  must  necessarily  be  judicial  questions.  The  law-making 
power  is  the  sole  judge  when  the  necessity  exists,  and  when,  if  at  all,  it 
will  exercise  the  right  to  enact  such  laws. 

Like  other  powers  of  government,  there  are  constitutional  limitations 
to  its  exercise.  It  is  not  within  the  power  of  the  General  Assembly, 
under  the  pretence  of  exercising  the  police  power  of  the  State,  to  enact 
laws  not  necessary  to  the  preservation  of  the  health  and  safety  of  the 
community  that  will  be  oppressive  and  burdensome  upon  the  citizen.  If 
it  should  prohibit  that  which  is  harmless  in  itself,  or  command  that  to 
be  done  which  does  not  tend  to  promote  the  health,  safety,  or  welfare 
of  society,  it  would  be  an  unauthorized  exercise  of  power,  and  it  would 
be  the  duty  of  the  courts  to  declare  such  legislation  void. 

It  seems  to  us  that  the  ordinance  in  this  case  imposes  an  unreasonable 
burden  upon  the  railroad  company.  There  is  but  a  single  track,  so  f;ir 
as  the  record  discloses,  at  the  point  where  it  requires  the  services  of  u 


858  TOLEDO,    ETC.    RAILWAY    CO.    V.    JACKSONVILLE.        [cHAP.  V. 

flagman,  and  only  the  usual  trains  of  the  company  pass  over  it  It  is 
totally  unlike  a  place  where  a  number  of  tracks  cross  a  public  street 
upon  which  there  is  a  great  amount  of  travel,  where  trains  are  made 
up,  and  where  the  trains  and  locomotives  doing  the  work  pass  and  repass 
each  other  at  short  intervals.  The  frequency  with  which  trains  pass 
and  repass  at  such  places  renders  the  dangers  to  be  apprehended  con- 
stantly imminent,  and  the  legislature  may  so  declare  and  make  it  obli- 
gatory on  the  company  to  adopt  measures  to  secure  the  public  safety. 
The  rights  of  the  company  and  the  public  to  the  use  of  the  crossing  are 
mutual,  but  it  is  the  duty  of  the  company  to  provide  the  proper  safe- 
guards, and  tiie  degree  of  diligence  must  be  in  i)roportion  to  the  haz- 
ard. A  regulation  that  would  require  the  company  to  place  a  flagman 
at  such  a  i)lace,  or  at  any  place  where  danger  to  the  pubhc  safety,  in 
the  judgment  of  prudent  persons,  might  be  apprehended  at  any  time, 
would  be  a  reasonable  one,  and  could,  unquestionably,  be  enforced. 
There  can  be  no  necessity,  however,  for  the  services  of  a  flagman  at  a 
crossing  of  a  public  highway  in  the  country,  where  there  is  but  little 
travel.  There,  it  will  be  a  sufficient  protection  if  the  company  shall  be 
required  to  erect  signs  that  will  notify  persons  that  they  are  approaching 
a  railroad  crossing,  and  to  give  the  usual  signals.  It  is  then  the  duty 
of  the  citizen  to  exercise  a  reasonable  precaution  for  the  safety  of  him- 
self and  his  property. 

It  would  hardly  be  insisted  a  regulation  that  would  compel  a  railway 
company  to  maintain  a  flagman  at  every  crossing  of  a  public  road  or 
street  on  its  entire  line  would  be  demanded  by  the  public  exigencies,  or 
be  within  the  constitutional  exercise  of  the  police  power  of  the  Stale. 
It  is  a  matter  of  which  we  ma}-  take  judicial  notice,  tliere  does  not  now 
exist  a  necessity  to  enforce  in  this  State  many  of  those  rigid  regulations 
that  have  been  adopted  on  some  of  the  English  railways,  and  in  some 
of  the  densely  po[)ulated  countries  on  the  continent  of  Europe.  Doubt- 
less, as  the  population  increases  and  the  dangers  multiply,  it  will  be- 
come necessary-,  in  this  countr}-,  to  increase  precautionary  measures  for 
the  public  safet\',  and  the  companies  will  be  compelled  to  bear  the  ad- 
ditional burden  made  necessary  by  the  hazardous  business  in  which 
they  are  engaged.  It  is  their  work  that  renders  public  crossings  danger- 
ous, and  hence  it  is  they  may  be  compelled  to  bear  the  expenses  of  such 
measures  as  may  be  adopted  to  secure  the  lives  and  property  of  those 
who  have  an  equal  right  with  them  to  the  use  of  the  crossing  on  the 
highwa}-. 

There  is  nothing  at  the  crossing  where  the  company  is  requiied,  b}- 
the  provisions  of  the  ordinance  in  the  case  at  bar,  to  keep  a  flagman, 
that  makes  it  unusually  dangerous.  So  far  as  we  know,  it  is  an  ordinary 
crossing.  There  is  but  a  single  track,  on  which  only  the  usual  trains 
l^ass  at  regular  and  irregular  intervals  and  distance  apart.  The  city 
has  not  even  deemed  it  advisable  to  require  the  company  to  slacken  the 
speed  of  its  trains  when  passing  this  point,  as  it  is  compelled  to  do  by 
ordinance  when  crossing  other  streets  in  the  city.     If  the  company  can 


CHAP,  v.]  EX   PARTE   HODGES.  859 

be  compelled  to  maintain  a  flagman  at  this  point,  there  is  no  reason  vvliy 
it  could  not  be  compelled  to  keep  one  at  every  road  and  street  crossing 
on  its  entire  line.  Thut  there  are  places  where  the  danger  to  be  ai)pre- 
hended  is  so  constant  and  imminent,  by  reason  of  the  construction  of 
the  passage-way  over  the  track,  the  company  may  be  required  to  employ 
a  flao-man°to  warn  persons  of  the  danger  and  conduct  them  across,  we 
entertain  no  doubt,  but  the  point  designated  in  this  ordinance  is  not 
such  a  one,  at  least  it  does  not  appear  to  be  so  from  the  ordinance  it- 
self, or  from  anything  in  the  record. 

The  conclusion  that  we  have  reached  is,  that  the  ordinance  under 
which  it  was  sought  to  compel  the  railroad  company  to  maintain  a  flag- 
man at  the  point  designated  is  not  a  reasonable  requirement,  and  is 
therefore  within  the  constitutional   limitations  on  the  exercise  of  the 

police.  „  ..     . 

The  judgment  of  the  court  below  finding  appellant  guilty  is  contrary 

to  law,  and  must  be  reversed. 

Judgment  reversed. 


EX  PARTE   HODGES. 
Supreme  Court  of  California.     1890. 

[87  Cal.  162.] 

Application  to  the  Supreme  Court  for  a  discharge  on  a  writ  of  habeas 
corpus.     The  facts  are  stated  in  the  opinion  of  the  court. 

Latimer  &  Brown,  for  petitioner.      W.  S.  Tinning,  for  respondent. 

Works,  J.  This  is  an  application  for  a  writ  of  habeas  corpus.  The 
Board  of  Supervisors  of  Contra  Costa  County  enacted  in  the  following 
ordinance.     [It  is  found  below  in  the  note.^] 

The  petitioner  was  convicted  of  a  violation  of  this  ordinance,  sen 
tenced  to  pay  a  fine,  and  in  default  of  payment,   was  committed   to 
the  county  jail.     He  now  prosecutes  this  proceeding,  and  asks  that  he 
be  discharged. 

The  question  as  to  the  constitutionality  of  the  ordinance  is  gravely 

1  "An  ordinance  to  provide  for  the  extermination  and  destruction  of  ground-squir- 
rels in  the  countv  of  Contra  Costa. 

"The  Board  of  Supervisors  of  the  county  of  Contra  Costa  do  ordain  as  follows:  — 

"  Sec.  1.  Ground-squirrels  infesting  lands  in  the  county  of  Contra  Costa  are  hereby 
declared  to  be  a  public  nuisance. 

"  Sec.  2.  All  owners  and  occupants  of  lands  within  the  county  of  Contra  Costa  are 
hereby  required,  within  ninety  days  after  the  taking  effect  of  this  ordinance,  to  exter 
niinate  and  destroy  the  ground-squirrels  on  their  respective  lands,  and  thereafter  to 
keep  said  lands  free  and  clear  therefrom. 

"  Sec.  3.  Any  person  violating  any  of  the  provisions  of  this  ordinance  shall  be 
deemed  guilty  of  a  misdemeanor.  .    ,    , 

"  Sec.  4.  This  ordinance  shall  take  effect  and  be  in  force  on  the  thirtieth  day  of 
November,  1889." 


860  EX  PARTE  HODGES.  [CHAP,  V. 

and  learnedly  discussed  by  counsel  on  both  sides,  and  Cooley  s  Con- 
stitutional Limitations,  Potter's  Dwarris  on  Construction  of  Statutes, 
Sedgwick  on  Constitutional  Law,  and  other  constitutional  authorities, 
and  decided  cases  innumerable,  are  cited  in  aid  of  and  against  its  valid- 
ity. It  is  certainly  a  most  effective  means  of  abating  a  nuisance,  viz., 
the  squirrels,  and  bringing  about  a  very  desirable  end.  We  legret 
exceedingly  that  we  cannot  see  our  way  clear  to  uphold  and  enforce 
such  an  important  and  original  piece  of  legislation.  Indeed,  it  would 
give  us  great  pleasure  to  see  the  power  here  assumed  applied  to  snakes, 
tarantulas,  ants,  flies,  fleas,  and  other  reptiles,  insects,  and  pests,  which 
tend  to  make  man's  life  a  burden,  and  to  have  it  exercised  and  en- 
forced in  every  count}'  in  the  State.  But  we  are  unable  to  see  by  what 
right  or  authority  of  law  a  board  of  supervisors  can  impose  upon  a 
land-owner  the  burden  and  expense  of  exterminating  animals  Jerce  na- 
tune  on  his  own  land,  or  elsewhere.  It  is  true,  the  County  Government 
Act,  section  25,  subdivision  28,  gives  boards  of  supervisors  power  to 
"  provide  for  the  destruction  of  gophers,  squirrels,  other  wild  animals, 
noxious  weeds,  and  insects  injurious  to  fruit-trees  or  vines,  or  vege- 
table or  plant  life,"  and  this  is  a  power  that  should  be  upheld  in  all 
cases,  where  the  means  employed  are  reasonable  and  not  otherwise 
objectionable.  But  certainly  this  authorit}'  cannot  be  so  far  extended 
as  to  require  a  land-owner,  under  a  penaltj',  to  exterminate  wild  ani- 
mals of  which  he  is  not  the  owner,  and  over  which  he  cannot,  in  tlie 
nature  of  things,  have  any  control  or  dominion.  From  our  limited 
knowledge  of  the  nature  of  the  squirrel-tribe  in  this  State,  such  a  task 
would  seem  to  us  to  be  almost,  if  not  quite,  impossible. 

The  ordinance  requires  that  all  occupants  of  lands,  within  ninety  days, 
exterminate  and  destro}'  the  ground-squirrels  on  their  respective  lands, 
and  thereafter  keep  said  lands  free  and  clear  therefrom.  This  might 
be  successfull}"  done  bj-  the  free  and  judicious  use  of  poison,  and  per- 
haps b}'  some  other  means,  on  very  small  tracts  of  land,  but  on  large 
tracts  it  would  certainly  require  eternal  vigilance,  if  it  could  be  accom- 
plished at  all,  and  if,  after  the  extermination  of  the  intruders  on  his 
own  lands,  one,  only  one,  should  come  over  from  the  land  of  his  neigh- 
bor, the  ordinance  would  be  violated.  The  occupant  of  lands  border- 
ing on  another  county,  where  no  such  regulation  prevailed,  and  the 
pesky  squirrel  was  allowed  to  propagate  and  grow  unmolested,  would 
be  in  a  most  unfortunate  condition.  Such  an  ordinance  differs  mate- 
rially from  laws  requiring  an  occupant  of  lands  to  keep  them  free  from 
noxious  weeds,  or  such  as  make  it  the  duty  of  an  owner  of  diseased 
domestic  animals  to  kill  them,  in  order  to  prevent  the  spread  of  the  dis- 
ease. These  are  matters  over  which  the  property-owner  has  control,  and 
the  requirements  are  reasonable  and  just. 

The  respondent  attempts  to  sustain  the  ordinance  by  and  under  sec- 
tion 11  of  article  XI.  of  the  Constitution  of  this  State,  which  provides 
that  "  any  county,  cit^',  town,  or  township  may  make  and  enforce, 
within  its  limits,  all  such  local,  police,  sanitary,  and  other  regulations 


CHAP,  v.]  IN    RE   LEE   SING    ET   AL.  861 

as  are  not  in  conflict  with  the  general  laws."  But  the  ordinance  is  not 
intended  to  preserve  the  peace  and  quiet  of  the  county,  or  to  prevent 
the  use  of  one's  property  to  the  injury  of  another,  or  for  the  protection 
of  tiie  lives,  limbs,  or  comfort  of  all  persons,  or  to  prevent  the  propaga- 
tion or  spread  of  disease,  nor  is  it  in  any  proper  sense  a  police  or 
sanitary  regulation.  What  is  meant  b}'  "other  regulations,"  in  the 
section  cited,  may  be  a  question,  but  it  must  certainly  be  limited  to 
o'tjects  similar  to  those  denominated  police  and  sanitary.  If  the  Board 
of  Supervisors  had  no  authority  to  pass  such  an  ordinance,  then  no 
offence  was  committed  b}'  the  petitioner,  the  act  or  omission  on  his  part 
was  not  a  crime,  the  court  had  no  jurisdiction  to  try  or  convict  him,  and 
he  is  entitled  to  his  discharge. 

We  know  of  no  law  which  can  be  held  to  authorize  a  board  of  super- 
visors to  enact  such  an  ordinance,  and  we  are  quite  clear  that  it  cannot 
be  enforced,  for  the  reason  that  it  is  unreasonable  and  burdensome  in  the 
extreme.     Let  the  petitioner  be  discharged. 

Fox,  J.,  Sharpstein,  J,,  and  Thornton,  .J.,  concurred.  Paterson, 
J.^  and  McFabland,  J.,  concurred  in  the  judgment. 


In  re  lee   sing  et  al. 
Circuit  Court  of  the  United  States,  N.  D.  California.     1890. 

[43  Fed.  Rep.  359] 

At  Law. 

The  ordinance   under  which   the   arrest  was   made   is   as    follows 
[See  the  note.^] 

Thos.  J).  Hiordan,  for  petitioners.  John  I.  Humphreys^  for  the 
<^ity. 

Sawyer,  J.     The  petitioners  are  under  arrest  for  the  violation  of  Or- 

1  "  Order  No.  2190  designating  the  location  and  the  district  in  which  Chinese  shall 
reside  and  carry  on  business  in  this  city  and  county. 

"  The  people  of  tlie  city  and  county  of  San  Francisco  do  hereby  ordain  as  follows  : 

"Section  1.  It  is  hereby  declared  to  be  unlawful  for  any  Chinese  to  locate,  reside, 
or  carry  on  business  within  the  limits  of  the  city  and  county  of  San  Francisco,  except 
in  that  district  of  said  city  and  county  hereinafter  prescribed  for  their  location. 

"  Sec.  2.  [This  section  defines  the  limits  of  the  district  appropriated  to  the  resi- 
dence of  the  Chinese.] 

"  Sec.  3.  Within  sixty  days  after  the  passage  of  this  ordinance  all  Chinese  now 
located,  residing  in  or  carrying  on  business  within  the  limits  of  said  city  and  county 
of  San  Francisco  shall  either  remove  without  the  limits  of  said  city  and  county  of  San 
Francisco  or  remove  and  locate  within  the  district  of  said  city  and  county  of  San 
Francisco  herein  provided  for  their  location. 

"  Sec.  4.  Any  Chinese,  residing,  locating,  or  carrying  on  business  witliin  the  limits 
of  the  city  and  county  of  San  Francisco  contrary  to  the  provisions  of  this  order  shall 
be  deemed  guilty  ftf  a  misdemeanor,  and  upon  conviction  thereof  shall  be  punished  by 
imprisonment  in  the  county  jail  for  a  term  not  exceeding  six  months. 

"  Sec.  5.  It  is  hereby  made  the  duty  of  the  chief  of  police  and  of  every  member  of 


862  IN    KE   LEE   SING   ET   AL.  [CHAP.  V. 

der  No.  2190,  commonly  called  the  "  Bingham  Ordinance,"  requiring  all 
Chinese  inhabitants  to  remove  from  the  portion  of  the  city  heretofore 
occupied  by  them,  outside  the  city  and  count}-,  or  to  another  designated 
part  of  the  cit}-  and  county.  .  .  .  [Then  follows  section  1  of  the  Four- 
teenth AmendiJient.] 

Article  6  of  the  Burlingame  Treat}-  with  China,  provides,  that  "  Chi- 
nese subjects,  visiting  or  residing  in  the  United  States,  shall  enjoy  tlie 
same  privileges,  immunities,  and  exemptions,  in  respect  to  travel  or 
residence,  as  may  there  be  enjoyed  by  the  citizens  or  subjects  of  the 
most  favored  nation."     16  St.  740. 

Section  1977  of  the  Revised  Statutes  of  the  United  States  provides  as 
follows :  — 

"  All  persons  within  the  jurisdiction  of  the  United  States  shall  have 
the  same  right  in  every  State  and  Territory  to  make  and  enforce  con- 
tracts, to  sue,  be  parties,  give  evidence,  and  to  the  full  and  equal 
benefit  of  all  laws  and  proceedings  for  the  securit}-  of  persons  and 
property  as  is  enjoyed  by  white  citizens,  and  shall  be  subject  to  like 
punishment,  pains,  penalties,  taxes,  licenses,  and  exactions  of  every 
kind,  and  to  no  other."  .  .  .  [Then  follows  Art.  6,  cl.  2,  of  the  Consti- 
tution of  the  United  States.] 

The  discrimination  against  Chinese,  and  the  gross  inequality  of  the 
operation  of  this  ordinance  upon  Chinese,  as  compared  with  others,  in 
violation  of  the  constitutional,  treat}',  and  statutory  provisions  cited, 
are  so  manifest  upon  its  face,  that  I  am  unable  to  comprehend  how  this 
discrimination  and  inequality  of  operation,  and  the  consequent  violation 
of  the  express  provisions  of  the  Constitution,  treaties,  and  statutes  of 
the  United  States,  can  fail  to  be  apparent  to  the  mind  of  every  intelligent 
person,  be  he  lawyer  or  layman. 

The  ordinance  is  not  aimed  at  any  particular  vice,  or  any  particular 
unwholesome  or  immoral  occupation,  or  practice,  but  it  declares  it  "to 
be  unlawful  for  an}'  Chinese  to  locate,  reside,  or  carry  on  business 
within  the  limits  of  the  city  and  county  of  San  Francisco,  except  in 
that  district  of  said  city  and  county  hereinafter  provided  for  their 
location." 

It  further  provides  that  "  within  sixty  days  after  the  passage  of  this 
ordinance  all  Chinese  now  located,  residing  or  carrying  on  business 
within  the  limits  of  said  city  and  county  of  San  Francisco,  shall  either 
remove  without  the  limits  of  said  city  and  county  of  San  Francisco,  or 
remove  and  locate  within  the  district  of  the  cit}'  and  county  of  San 
Francisco,  herein  provided  for  their  location."  And  again,  section  4 
provides  that  "any  Chinese  residing,  locating,  or  carrying  on  business 

the  police  department  of  said  city  and  county  of  San  Francisco  to  strictly  enforce  the 
provisions  of  tliis  order. 

"  And  the  clerk  is  hereby  directed  to  advertise  this  order  as  required  by  law- 

"  In  Board  of  Supervisors,  San  Francisco,  February  1 7,  1 890 

"Passed  for  printing  by  the  following  vote  .  Ayes  —  Supervisors  Bingham,  Wright, 
Boyd,  Pescia,  Bush.  Ellert,  Wheelan,  Becker,  Pilster,  Kingwell,  Barry,  Noble." 


CHAP,  v.]  IN    KE    LEE   SING   ET   AL.  863 

within  tlie  limits  of  the  city  and  county,  contrary  to  the  provisions  of 
this  order,  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof,  shall  be  punished  by  imprisonment  in  the  county  jail  lor  a 
term  not  exceeding  six  months.  Upon  what  other  people  are  these 
requirements,  disabilities,  and  punishments  imposed?     Upon  none. 

The  obvious  purpose  of  this  order,  is,  to  forcibly  drive  out  a  whole 
community  of  twenty-odd  thousand  people,  old  and  young,  male  and 
female,  citizens  of  the  United  States,  born  on  the  soil,  and  foreigners  o 
the  Chinese  race,  moral  and  immoral,  good,  bad,  and  inditferent,  and 
without  respect  to  circumstances  or  conditions,  from  a  whole  section  ot 
the  city  which  they  have  inhabited,  and  in  which  they  have  carried  on 
all  kinds  of  business  appropriate  to  a  city,  mercantile,  manutacturing, 
and  otherwise,  for  more  than  forty  years.    Many  of  them  were  born  there 
in  their  own  houses,  and  are  citizens  of  the  United  States,  entitled  to  all 
the  ri-hts  and  privileges  under  the  Constitution  and  laws  of  the  United 
States,  that  are  lawfully  enjoyed  by  any  other  citizen  of  the  United 
States.     They  all,  without  distinction  or  exception,  are  to  leave  their 
homes  and  property,  occupied  for  nearly  half  a  century,  and  go,  either 
out  of  the  city  and  county,  or  to  a  section  with  prescribed  limils,  within 
the  city  and  county,  not  owned  by  them,  or  by  the  city.     This,  besides 
being  discriminating,  against  the  Chinese,  and  unequal  in  its  operation 
as  between  them  and  all  others,  is  simply  an  arbitrary  conliscation  of 
their  homes  and  property,  a  depriving  them  of  it,  without  due  process 
or  any  process  of  law.     And  what  little  there  would  be  left  after  aban- 
doning their  homes,  and  various  places  of  business  would  again  be  con- 
fiscatecl   in   compulsorily  buying  lands  in  the  only  place  assigned  to 
them,  and  which  they  do  not  own,  upon  such  exorbitant  terms  as  the 
present  owners  with  the  advantage  given  them  would  certainly  impose. 
Jt  must  be  that  or  nothing.     There  would  be  no  room  for  freedom  of 
action,  in  buying  again.      They  would  be  compelled  to  take  any  lands, 
upon  any  terms,  arbitrarily  imposed,  or  get  outside  the  city  and  county 
of  San  Francisco. 

That  this  ordinance  is  a  direct  violation  of  not  only  the  express  pro- 
visions of  the  Constitution  of  the  United  States,  in  several  particulars, 
but  also  of  the  express  provisions  of  our  several  treaties  with  China,  and 
of  the  statutes  of  the  United  States,  is  so  obvious,  that  I  shall  not  waste 
more  time,  or  words  in  discussing  the  matter.  To  any  reasonably  intel- 
ligent and  well-balanced  mind,  discussion  or  argument  would  be  wholly 
unnecessary  and  superfluous.  To  those  minds,  which  are  so  constituted, 
that  the  invalidity  of  tiiis  ordinance  is  not  apparent  ui)on  inspection, 
and  comparison  with  the  provisions  of  the  Constitution,  treaties,  and 
laws  cited,  discussion  or  argument  would  be  useless.  The  authority  to 
pass  this  order  is  not  within  any  legitimate  police  power  of  the  State. 
See  la  re  Tie  Loy,  11  Sawy.  472,  26  Fed.  Rep.  611  ;  In  re  Ah  Fong, 
3  Sawy.  144;  Chy  Luug  \.  Freeman,  92  U.  S.  275;  In  re  Qnong 
Woo,  7  Savvy.  531,  13  Fed.  Rep.  229  ;  Yiclc  Wo  v.  Hopkins,  118  U.  S. 
356,  6  Sup.  Ct.  Rep.  1064  ;  Ho  Ah  Kow  v.  JSTuman,  5  Sawy.  552. 


864  MAYOK,   ETC.   OF   BALTIMORE   V.   RADECKE.  [CHAP.  V. 

Let  the  order  be  adjudged  to  be  void,  as  being  in  direct  conflict  with 
the  Constitution,  treaties,  and  statutes,  of  the  United  States,  and  let  the 
petitioners  be  discharged.^ 


MAYOR,  ETC.,  OF  BALTIMORE  v.  RADECKE. 
Maryland  Court  of  Appeals.     1878. 

[49  Md.  217.] 

Appeal  from  the  Circuit  Court  of  Baltimore  Cit}'.  The  case  is  stated 
in  the  opinion  of  the  court. 

The  cause  was  argued  before  Bartol,  C.  J.,  Bowie,  Miller,  and 
Alvey,  J  J.  Thomas  W.  Hall  and  James  L.  McLaiie,  for  the  appel- 
lant.    E.  Daffy  and  S.  Teackle  Wallis,  for  the  appellee. 

Miller,  J.,  delivered  the  opinion  of  the  court.  The  appellee  is  ten- 
ant and  occupant  of  certain  premises  situated  on  McClellan's  Alley,  in 
a  central  business  locality'  in  the  city  of  Baltimore,  where  he  and  his 
father  before  him  had  carried  on  the  business  of  carpentering  and  box- 
making  since  the  year  1853.  In  1866  he  applied  to  the  Ma3-or  and 
City  Council  for  permission,  which  was  granted,  to  erect  and  use  on 
these  premises  and  in  the  carrying  on  of  his  business,  a  steam-engine. 
The  resolution  granting  this  permit  contained  a  provision,  in  conformity' 
to  a  citv  ordinance  on  the  subject,  that  the  engine  was  "  to  be  removed 
after  six  months'  notice  to  that  effect  from  the  Mayor."  Upon  the  pas- 
sage of  this  resolution  he  erected  and  has  ever  since  used  a  steam- 
engine  in  his  said  business,  but  some  lime  in  the  year  1873  the  Mayor 
gave  him  notice  to  remove  it,  which  he  refused  to  do.  The  city,  then, 
after  the  expiration  of  the  six  months  instituted  a  suit  before  a  justice 
of  the  peace,  for  the  penalty  of  non-removal  provided  in  the  ordinance, 
and  the  appellee  thereupon  filed  the  bill  in  this  case  for  an  injunction  to 
restrain  the  prosecution  of  that  action  and  others  which  tlie  city  tiireat- 
^led  to  bring  from  day  to  day  in  order  to  enforce  the  removal  of  this 
engine.  The  court  below  on  final  hearing  ordered  the  injunction  to  be 
issued  as  prayed  and  made  it  perpetual.  From  this  order  the  Mayor 
and  City  Council  have  appealed. 

The  city  legislation  on  the  subject,  in  force  at  the  time  this  permit 
was  granted  to  the  appellee,  was  Jirst',  the  56th  section  of  Ordinance 
No.  33,  approved  June  5,  1858,  by  which  it  was  provided  under  pre- 
scribed penalties  that  no  person  should  "erect,  build,  or  have  put  up 
an}'  steam  saw-mill  or  macliinerv,  or  any  steam-engine  for  any  purpose 
whatever,  or  planing  machine,  or  machinery  within  the  limits  of  the 
city,  without  first  obtaining  the  sanction  of  the  Mayor  and  City  Coun- 
cil," and  secondly,  part  of  the  5th  section  of  Ordinance  No.  78.  approved 
Jane  9,  1864,  which  provided  that  "  all  permits  granted  for  steam- 

1  Compare  Ex  parte  Sing  Lee,  96  Cal.  354  (1892).  —  Ed. 


865 


CHAP,  v.]  MAYOR,   ETC.   OF   BALTIMORE   V.    RADECKE. 

boilers  and  steam  engines  and  boilers  may  be  revoked,  and  the  same 
shlll  be  removed,  after  six  months'  notice  from  the  Mayor,  and  any  one 

c  Ivlng  such  n;tice,  who  shall  refuse  or  neglect  to  conform  to  the  re- 
quirements  of  the  same  shall  pay  a  fine  not  exceedmg  one  hundred 
dolhrs  and  a  further  fine  not  exceeding  fifty  dollars,  for  every  daj 
such  r;fusal  or  neglect  shall  continue  after  the  first."  It  .s  tins  ast 
provision  which  the  present  case  requires  us  more  especially    o  con- 

ider,  not  only  because  the  bill  assails  its  legality  and  validity,  but 
because  the  in  unction  complained  of  restrains  the  prosecution  of  suits 
for  the  penalties  which  it  imposes  for  non-compliance  with  the  notice 
liKl  onler  to  remove  given  by  the  Mayor.  Uis  obvious  that  those_whp 
,„,,trd_lhis  pvnvi.ion  did  not  suppose  it  waj_an_exercise  of  the  p_ow^i 
'-rgt^tand  r^^^         ninsam^^  ---f-^ 

-r^^-^^^:;:^:^^^  of 

T^I^^^^Ti^rTnuisance,  to  pass  an  ordi^^owing  a  nuisance  tore^ 

kin  for  SIX  montriragOnilfSgT:^^ 

!^ore  any  steps  coukTbTIaken  to  enfoi^its._rgmoyaL     But  furthei 

erected  and  used  in  the  midst  of  a  populous  city,  unless  i    interfei-es 
>vith  the  safety  or  convenience  of  the  public  in  the  use  of  the  streets 
There  is  no  proof  in  this  record  of  any  such  interference,  or  even  that 
this  was  the  ground  of  the  Mayor's  action  in  giving  the  notice.     Nor 
was  this  engine  used  in  connection  with  any  trade  or  occupation  which 
the  law  pronounces  offensive  or  noxious.    The  business  of  carpentering 
and  box-making  is  neither  offensive  to  the  senses  nor  deleterious  to 
health.     In  frtct.the  only  complaints  made_^againsLthe  engine  are^jls 
liability,  i-^T^j^n  with  all  other  steWl>oilersao  exi^bde^JUMllhiLt 
TnrglfTTTn^T;;^"^^^  J"  ^^^^^^  combu7tiljle,maimala^am-n£i^^aaiil^' 
brou-ht  in  dangerous  proximity  to  the  fire^ofjls  boiler,  and  it  therefore, 
s^°cts  buikbngs  Alld  metolTanmseijnhaLxii^^ 
IvH^TTTrerrid^^^TEe-pre^^ 
fears  of  neicThbomg'^^^iiiSi]lg--^^^^^g^^^ 

crty  but  nciriieT^Ji^^EEiililL^''^^^^^^'^""!^^^"^^^  combined,  makejtj, 
nuis'ance.     UK^^d^T^ DiwbarVhl  VeMU.  State  Rep.  274. 
'    R.it  thejegislature  hiLS^granted^ample-po^a^r  of  legislation  upon  the 
cubk£l^Mi°^  oroptmn  nnd  nsR  of  steara-engines  witbin  th^ilyJimita^ 
tTtheMayor  and  City  Council_o^Baltimoreu]if^epeiKlent_otyie^^ 
cTin  prevent  and  remo^^  nuisances^^l^JDieji-am-iaQth^ 
ti;  nnss;  oiTlinance^_iiibr-LkLpr£Y£DJi£m_  and  ext,inguis,lim£aLoLfircs^ 
for  "  securing  persons  and  property  from  danger  or  destruction,  and 
for  promoting  the  great  interests  and  insuring  the  good  government  o 
the  city,"  and  "to  pass  all  ordinances  necessary  to  give  effect  and 
operation  to  all  the  powers  vested  in  the  corporation  of  the  city.       it 
has  been  well  said  in  reference  to  such  general  grants  of  power  that  as 
to  the  decree  of  necessity  for  municipal  legislation  on  the  subjects  ihns 
committed  to  their  charge,  the  Mayor  and  City  Council  are  tbe  exclusive 
judges,  while  the  selection  of  the  means  and  manner  (contributoi)  to 
VOL.  I.  — 55 


866  MAYOR,   ETC.    OF    BALTIMORE    V.    RADECKE.  [CHAP.  V. 

the  end)  of  exercising  the  powers  wliich  they  may  deem  requisite  to  the 
accomplishment  of  the  ol)jects  OT  \vmch_diej[[are~made  the  guardians,  is 
committed  to  tiieif  sound  discretion.  IJarrison  v.  Mayor,  &c.,  1  Gill, 
'2Wi.  This  aiscr6tlon  is  yen*  broad,  but  it  is  not  absolutel^and  in  all  cases 
beyond  judicial  control.  Modern  decisions  in  other  States  have  in  some 
instances  extended  the  control  of  the  courts  over  municipal  ordinances 
upon  the  ground  of  their  unreasonableness,  further  perhaps  than  the  ad- 
judications in  this  State  would  justify  us  in  going.  The  cases  on  this  sub- 
jt'c-t  and  the  conclusions  to  be  drawn  from  them  are  well  stated  by  Judge 
Dillon  in  his  admirable  work  on  Municipal  Corporations,  in  sections 
"253  to  260.  They  will  also  be  found  collected  in  Wood  on  Nuisances, 
774,  note  1.  While  we  may  not  be  willing  to  adopt  and  follow  many  of 
those  cases,  and  while  we  hold  that  this  power  of  control  by  the  courts 
is  one  to  be  most  cautiously  exercised,  we  are  yet  of  opinion  tliere 
may  "be  a  casein  which  an  ordinance  passed  jinder  grants  of  power  like 
Itlose^w'^eTiave  cited,Ts  so  cleaiTy  unreasonable^^  so  arbitrary,  oppressive 
orpartial;  asto  raise  the  presumption  that  the  legislature  never  intended^ 
to  confer  the  power  to  pass  it,  and  to  justify  the  courts  in  interfering  and 
smelting  it  aside  as  aTpIaTiTabuse  of  authority.  In  applying  the  doctrine 
of  judicial  control  to  this'extent,  we  contravene  no  decisions  in  our  own 
State  and  impose  no  unnecessaiy  restraints  upon  the  action  of  muni- 
cipal bodies.  The  inquiry  then  arises  is  the  ordinance  in  question  such 
as  we  have  described  ?  To  answer  this  question  it  is  necessary  to  con- 
sider briefly  upon  what  it  operates  and  what  mischiefs  or  wrongs  it  is 
capable  of  inflicting.  It  is  matter  of  common  knowledge  as  well  as 
ofproof  in  this  cart?,  thnt  thf  iisf  o^  cf^t^m.pnginpg  ic  i^bsolutely  neces- 
sary  for  the  successful  prosecution  of  nearly  all  the  various  manufactur- 
i"^^22"^"^frrif^'i  ^"^l"^^'''^1j  n'^l  hnsinpss  pntprprisoi?  wiijch  are  essential 
to  the  prosperity  of  large  cities.  Great  numbers  of  them  are  in  constant 
use  in  the  city  of  Baltimore  for  purposes  so  varied  and  numerous  as  to 
embarrass  description,  and  they  are  to  be  found  in  every  business  localit}- 
and  in  all  sections  of  the  town.  In  fact,  it  may  be  safely  affirmed 
that  their  use  could  not  be  prohibited  or  discontinued  without  the  most 
serious  impairment,  if  not  destruction,  of  the  prosperity  and  growth  of 
the  city.  Now  it  is  with  these  powerful  and  dangerous  but  most  im- 
portant and  valuable  aids  to  human  industry,  that  this  ordinance  deals, 
and  what  does  it  do  ?  It  does  not  profess  to  prescribe  regulations  for 
their  construction,  location,  or  use,  nor  require  such  precautions  and 
safeguards  to  be  provided  by  those  who  own  and  use  them  as  are  best 
calculated  to  render  them  less  dangerous  to  life  and  property,  nor  does 
it  restrain  their  use  in  box-factories  and  other  similar  establishments 
within  certain  defined  limits,  nor  in  any  other  way  attempt  to  promote 
their  safety  and  security  without  destroying  their  usefulness.  But  \t_ 
commits  to  t.hp  nnrestrn.ined  will  of  a  single  public  officer  the  power  to 
notify  every  person  who  now  employs  a  steam-ejigine  in  the  pjT)secution 
of  anv  business  in  the  city  of  Baltimore  to  cease, to  do  so,  and  by  pro- 
viding compulsory  fines  for  every  day's  disobedience  of  such  notice  and 


CHAP,  v.]     MAYOR,  ETC.  OF  BALTIMORE  V.    RADECKE.  867 

order  of  removal,  renders  his  power  over  tlie  use  of  steam  in  that  city 
practicality  absolute,  so  that  he  may  prohibit  its  use  altogether.  But  if 
he  should  njot  choose^to  do  this,  but  only  to  act  in  particular  cases, 
there  is  nothingjn  the  ordjiinncp.  f,o  gmVlp  or  control  his  action.  It  lays 
down  no  rules  b}-  which  its  impartial  execution  can  be  secured  or  par- 
tiality and  oppression  prevented.  It  is  clear  that  giving  and  enforcing 
these  notices  may,  and  quite  likely  will,  bring  ruin  to  the  business  of 
those  against  whom  they  are  directed,  while  others  from  whom  they  are 
withheld  may  be  actually  benefited  b}-  what  is  thus  done  to  their  neigh- 
bors, and  when  we  remember  that  this  action  or  non-action  may  proceed 
from  enmit}'  or  prejudice,  from  partisan  zeal  or  animosity,  from  favor- 
itism and  other  improper  influences  and  motives,  easy  of  concealment 
and  difficult  to  be  detected  and  exposed,  it  becomes  unnecessary  to 
suggest  or  to  comment  upon  the  injustice  capable  of  being  wrought 
under  cover  of  such  a  power,  for  that  becomes  apparei^to  every  one 
who  gives  to  the  subject  a  moment's  consideration.  In  factlan  ordinance 
yi^)iich  r'lofhfg  ^  gjnglp  individiiql  with  <^noh  pnwpi-  ImrdlyYalls  withrn 
thpjjomain  of  law,  and  we  are_con strained  to  pronounce  it  inoperative 
and  void.^  Resting  our  decisioii_a&-talhe  invaliclii,v  of  this  ordinance  on 
this  groirfid,  we  shall  not  consider  the  questionwhether  it  is  also  void 
as  an  unauthorized  delegation  of  a  public  power  or  trust.  In  the  view 
we  have  taken  of  the  case,  it  becomes  unnecessary  to  express  any  opin- 
ion upon  that  question.  It  must  also  be  observed  that  what  we  have 
declared  void  is  only  that  part  of  the  ordinance  of  1864,  which  gives  to 
the  Mayor  the  power  to  revoke  permits  for  steam  engines  and  boilers, 
and  we  are  not  to  be  understood  as  expressing  any  disapproval  of  the 
section  of  the  ordinance  of  1858,  which  requires  a  permit  from  the 
Mayor  and  City  Council  for  the  erection  of  all  such  engines  within 
the  city  limits.  The  Act  of  1872,  ch.  153,  which  was  referred  to  b}' 
the  appellant's  counsel  as  containing  a  ratification  and  approval  by  the 
legislature  of  both  these  ordinances,  contains  no  reference  to  the  ordi- 
nance of  1864.  The  section  of  that  Act  which  is  relied  on  for  this  rati- 
fication and  approval  simply  provides  that  "  nothing  in  this  Act  shall 
conflict  with  the  ordinance  of  the  Mayor  and  City  Council  of  Baltimore, 
which  requires  their  permission  for  the  erection  of  steam-boilers  in  that 
city."  This  in  plain  terms  refers  exclusively  to  the  ordinance  of  1858, 
and  we  by  no  means  affirm  that  it  constitutes  a  legislative  ratification 
and  approval  even  of  that  ordinance. 

As  to  the  question  of  jurisdiction  we  have  no  doubt.  ...  It  follows 
that  the  decree  appealed  from  must  be  affirmed. 

Decree  affirmed.^ 

J  See  note  at  pp.  672-673. 

In  State  v.  Yopp,  97  N.  C.  477,481  (1887),  the  court  (Merrimon,  J.)  said  :  "In  the 
case  before  us,  the  statute  (Pr.  Acts,  1885,  ch.  14)  forbids  every  person  'to  use  upon 
the  road  of  said  company  a  bicycle,  or  tricycle,  or  other  non-horse  vehicle,  without  the 
express  permission  of  the  superintendent  of  said  road,'  &c.  The  purpose  of  this  statu- 
tory provision  is  not  to  destroy  the  defendant's  property,  —  his  bicycle,  —  or  to  deprive 


868  MAYOR,    ETC.    OF   BALTIMORE   V.   RADECKE.  [ciIAP.  V. 

him  of  the  use  of  it,  in  a  way  not  injurious  to  others,  but  to  prevent  him  from  using  it 
on  a  particular  road  —  that  mentioned  —  at  a  particular  time  or  season,  wheu  it  would, 
by  reason  of  its  peculiar  sliape,  and  the  unusual  manner  of  using  it  as  a  means  of 
locomotion,  prove  injurious  to  others,  —  particularly  women  and  children,  constantly 
passing  and  repassing  in  great  numbers  over  the  particular  road  mentioned,  in  carriages 
and  other  ordinary  vehicles  drawn  by  horses.  The  evidence  tended  strongly  to  show, 
that  the  use  of  the  bicycle  on  the  road  materially  interfered  with  the  exercise  of  the 
rights  and  safety  of  others  in  the  lawful  use  of  their  carriages  and  horses  in  passing 
over  the  road.  In  repeated  instances  the  horses  became  frightened  at  them,  and  car- 
riages were  thrown  into  the  ditches  along  the  side  of  the  road.  It  was  not  uncommon 
for  horses  to  become  frightened  at  them,  and  become  unruly,  if  the  evidence  is  to  be 
believed. 

"  The  statute  did  not  deprive  the  defendant  of  the  use  of  his  property, —  he  might 
have  gone  another  way,  —  he  might  have  gone  at  an  opportune  time,  with  the  express 
permission  of  the  superintendent  of  the  road.  In  any  case,  he  had  no  right  to  go,  using 
his  bicycle,  at  the  peril  of  other  people,  he  giving  rise  to  such  peril.  The  statute  did 
not,  therefore,  in  any  just  sense,  destroy  his  property,  as  contended,  or  deprive  liim  of 
the  proper  and  reasonable  use  of  it ;  nor  was  such  its  purpose.  Its  purpose  was_1awfiil, 
and  in  our  iudgment,  it  does  not  provide  an  unreasonable  police  regulation,  —  certainly 
not  one  so  unreasonable  as  to  warrant  us  in  declaring  it  void.  Such  statutes  are  valid, 
ivnTpgg  thp  pnrpnfj^,  ^.y  |^pf.ppnniiy  f^ffp  ft  i"/!!"!'  t"  r"j;"^i^''"  *'^f^  iisc  fif  property,  but  to 
destroy_it.  .  .  . 

"  It  is  farther  objected,  that  t^^^  .t^tatnte  leaves  it  to  the  arbitrary  discretion  of  the 
superintendent  of  the  road  named  to  allow  or  disallow  persons  to  use  '  a  bicycle,  nr  tri- 
cycle,  or  other_non-horse  vehicle  '--on  it.  This  is  a  misapprehension  of  the  true  import 
of  the  provision  cited.  Xbg^iscretion  vested-iaJJlfLSUTiPrintendent  is  not  arl)itrary. 
He  is  made  the  agent  of  the  law,  as  well  as  superintendent,_and  he_i^JjouDd  to  exercise 
the  discretion  vested  in  him  honestly,  fairly,  reasonably,  and  without  prejudice  or  par- 
tiality, for  the_just  purpose  "f  "ffoctnatinfr  the  iiitantion  of  the  statute.  If  there  be 
fimes,  or  seasons,  or  occasions,  when  persons  wishing  to  use  bicycles  or  other  like  vehi- 
cles embraced  by  the  prohibitory  clause  of  the  statute  in  question,  it  is  his  plain  duty  to 
allow  them  to  do  so  at  such  times  The  authority  is  not  his ;  he  is  simply  made  the 
agent  of  the  law  for  a  lawful  purpose,  and  he  is  amenable  as  such  for  any  prostitution 
of  the  power  so  vested  in  him,  and  the  creation  of  the  discretion  implies  that  there  may 
be  occasions,  or  times,  or  seasons,  when  bicycles  may  be  u.sed  on  the  road. 

"  '  It  not  infrequently  happens,  that  statutes  require  particular  things  to  be  done,  or 
not  to  be  done,  that  must  be  made  to  depend  upon  tlie  judgment  —  discretion  —  of  a 
designated  agent  or  commissioner,  or  oflficer,  and  the  discretion  in  such  cases  is  not 
arbitrary,  —  it  is  lawful,  and  must  be  lawfully  exercised.'  .  .  . 

"  The  learned  counsel  for  the  appellant  directed  our  attention  to  the  case  of  Yick 
Wo  v.  Hopkins,  118  U.  S.  356.  That  case,  in  our  judgment,  has  no  application  liere. 
The  court  declared  a  city  wdinance  void,  upon  the  ground  that  its  manifest  purpose 
was  not  a  just  and  reasonable  regulation,  but  unlawful,  and  the  discretionary  powers 
conferred  upon  certain  authorities  of  the  city  were  purely  arbitrary  —  intentionally  so 
—  and  therefore  unlawful  and  void.  And  the  same  may  be  said  of  Maijor  nnd  V.  of 
Baltimore  v.  Eadecke,  49  Md.  217,  cited  in  the  case  above  mentioned.  In  our  case,  the 
purpose  of  the  statute  is  obviously  a  lawful  one, — a  proper  regulation  ot  the  u.s£_al 
property,  —  and  the  designation  ot  the  agent,  and  the  discretionary  power  conferred 
irpon  him,  is  for  the  lawful  purpose  of  effectuating  the  just  mtent  of  the  statute,  and 
he  IS  amenanie,  as  we  have  indicated  above."  Compare  Twilley  v.  Ferkms,  26  Atl. 
Kep  286  (Md.  1893).  — Ed. 


CHAP.  V.J  STATE   V.   BERING.  869 


STATE  V.   BERING. 
Supreme  Court  of  Wisconsin.     1893. 

[84   Wis.  585.] 

Certiorari  to  a  court  commissioner  of  Columbia  Countj'. 

This  is  a  proceeding  by  certiorari  to  review  the  decision  of  C.  L. 
Bering,  court  commissioner  of  Cohnnbia  County,  in  the  matter  of  his 
refusal  to  discharge  the  petitioner,  Joseph  Garrabad,  from  custody,  and 
remanding  him  to  the  imprisonment  of  which  he  complains.  It  appears 
from  the  return  of  the  sheriff  of  Columbia  County  to  the  writ  of  habeas 
corjyus  issued  by  the  commissioner,  that  on  the  27th  day  of  Februar}-, 
1893,  the  petitioner  was  placed  in  his  custody,  and  was  held  therein, 
under  and  by  virtue  of  an  execution  or  so-called  "  commitment,"  issued 
by  V.  Helman,  a  justice  of  the  peace  of  the  city  of  Portage  in  said 
county,  reciting  that  the  city  of  Portage  had  recovered  a  judgment  be- 
fore said  justice  against  the  petitioner  for  the  sum  of  $5,  together  with 
$13.85  costs  of  suit,  for  the  violation  of  an  ordinance  of  said  cit}',  to 
wit,  No.  124,  entitled  "An  Ordinance  to  regulate  Street  Parades  and 
insure  Public  Safety,"  and  commanding  the  sheriff  or  an}'  constable  of 
the  county  to  lev}'  the  same  on  the  goods  and  chattels  of  the  said  peti- 
tioner except  such  as  the  law  exempts,  and  in  default  thereof  to  take 
his  bod}'  and  him  convey  and  deliver  to  the  keeper  of  the  common  jail  of 
Columbia  County,  to  be  there  kept  in  custody  for  the  term  of  twenty 
days,  unless  said  judgment  with  costs  was  sooner  paid  or  he  should  be 
discharged  by  due  course  of  law. 

The  ordinance  in  question  provides  that  "  it  shall  be  unlawful  for  any 
person  or  persons,  society,  association,  or  organization,  under  whatso- 
ever name,  to  march  or  parade  over  or  upon  "  certain  streets  (therein 
named)  in  the  city  of  Portage,  "shouting,  singing,  or  beating  drums  or 
tambourines,  or  playing  upon  any  other  musical  instrument  or  instru- 
ments, for  the  purpose  of  advertising  or  attracting  the  attention  of  the 
public,  or  to  the  disturbance  of  the  public  peace  or  quiet,  without  first 
having  obtained  a  permission  to  so  march  or  parade,  signed  by  the 
mayor  of  said  city.  In  case  of  illness  or  absence  of  the  mayor  or  other 
officer  hereby  designated  of  the  city,  such  permission  may  be  granted 
and  signed  by  the  president  of  the  council,  city  clerk,  or  marshal,  in  the 
order  named  :  provided,  that  this  section  shall  not  apply  to  funerals,  fire 
companies,  nor  regularly  organized  companies  of  the  State  militia  :  and 
provided,  further,  that  permission  to  march  or  parade  shall  at  no  time 
be  refused  to  any  political  party  having  a  regular  vState  organization. 
Any  person  violating  any  of  the  provisions  of  this  ordinance  shall,  upon 
conviction  thereof,  be  fined  in  a  sum  not  less  than  two  dollars  or  more 
than  ten  dollars."  The  second  section  provided  that  the  marshal  should 
accompany  such  person  or  persons  receiving  permission  while  upon  the 
portion  of  the  streets  described,  to  preserve  order,  warn  the  owners  of 


870        -  STATE    V.    BERING.  [CHAP.  V. 

horses  upon  said  portions  of  said  streets,  and  to  carefully  preserve  the 
public  safety  ;  and  when  such  permission  is  given  by  any  officer  other 
than  the  marshal,  that  he  should  forthwith  notify  the  marshal  of  the 
granting  of  the  same. 

The  sheriff  further  returned  that  "  the  central  part  of  the  business 
portion  of  the  city  of  Portage  is  contained  within  the  limits  defined  in 
the  ordinance,  and  the  streets  therein  referred  to  were  narrow,  and  cross 
and  enter  each  other  at  various  angles,  and  there  was  a  great  deal  of 
traffic  over  the  same,  and  that  the  petitioner  had  been  duly  and  lawfully 
convicted  of  a  wilful  violation  of  said  ordinance  upon  trial  duly  and 
legally  had." 

The  petitioner  demurred  to  the  return,  and  the  commissioner  over- 
ruled the  demuner  and  ordered  that  he  be  remanded  to  the  custody  of 
the  sheriff,  to  be  confined  in  the  county  jail  of  said  county  according  to 
the  terms  of  said  execution. 

For  the  relator  there  was  a  brief  b}'  Rogers  &  Hall,  and  oral  argu- 
ment b3'  F.  W.  Hall 

W.  S.  Stroud,  for  the  respondent. 

PiNNEY,  J.  ...  It  is  olijected  that  the  ordinance  is  void  on  its  face, 
by  reason  of  its  operating  unequally  and  creating  an  unjust  and  illegal 
discrimination,  not  only  (1)  by  the  express  terms  of  the  ordinance  it- 
self, but  (2)  it  is  so  framed  as  to  punish  the  petitioner  for  what  is  per- 
mitted to  others  as  lawful,  without  any  distinction  of  circumstances, 
whereby  an  unjust  and  illegal  discrimination  occurs  in  its  execution,  and 
which,  though  not  made  by  the  ordinance  in  express  terms,  is  made 
possible  by  it ;  (3)  in  that  it  vests  in  the  mayor,  or  othei-  officers  of  the 
city  named  in  it,  power  to  arbitrarily  deny  persons  and  other  societies 
or  organizations  the  right  secured  by  it  to  others  to  march  and  parade 
on  the  streets  named.  The  general  subject  and  scope  of  the  ordinance 
is  marching  or  parading  b}'  "  an}'  person  or  persons,  societ}',  associa- 
tion, or  organization"  over  the  streets  named,  "shouting,  singing,  or 
beating  drums  or  tambourines,  or  playing  upon  any  musical  instrument 
or  instruments,  for  the  purpose  of  advertising  or  attracting  the  attention 
of  the  public,  or  to  the  disturbance  of  the  public  peace  or  quiet,"  with- 
out having  obtained  permission  as  prescribed  in  the  ordinance.  It  pro- 
vides, among  other  things,  that  the  ordinance  shall  not  apply  to  fire 
companies,  nor  to  regularly  organized  companies  of  the  State  militia,  and 
that  permission  to  march  or  parade  shall  at  no  time  be  refused  to  an}- 
political  party  having  a  regular  State  organization.  The  permission,  it 
will  be  seen,  is  required  absolutely  to  be  granted  to  political  parties 
having  a  regular  State  organization,  so  they  are  practically  excepted 
out  of  the  ordinance.  "\Yliether  ppvmissjon  shall  be  gi'anted  to  any 
other  society,  civic,  religious,  or  otherwise,  depends  not  upon  the  char- 
acter of  the   gi-gnr]J7.fltinn,  ffl-   npnn  thp  pqvli/^plQr   f irpnmst.nnnes  r)f  thp 

case,  but  ution  the  arbitrary  discretion  of  thp  mayoi-  or  other  officers^ 
named  in  the  ordinance,  acting  in  -h'°  oKoonc^      It  is  therefore  argued 
that,  as  between  different  persons,  societies,  associations,  or  organiza- 


CHAP,  v.]  STATE   V.    BERING.  871 

tions,  the  ordinance  operates  unequally  and  creates  unjust  and  illegal 
discriminations  by  its  express  terms,  and  makes  such  discriminations 
not  only  possible  but  necessary  in  its  administration,  and  therefore  that 
the  ordinance  is  void  upon  common-law  principles,  as  heretofore  recog- 
nized and  administered  in  the  courts  of  the  country. 

The  rights  of  persons,  societies,  and  organizations  to  parade  and  have 
processions  on  the  streets  with  music,  banners,  songs,  and  slioutiug,  is 
a  well-established  right,  and,  indeed,  the  ordinance  upon  its  face  recog- 
nizes to  a  certain  extent  the  legality  of  such  processions  and  parades, 
and  provides  for  permitting  them,  in  the  discretion  of  the  mayor,  in  all 
cases  except  those  named,  and  as  to  those  the  right  is  practically  se- 
cured. The  ordinance,  as  fiamed,  and  as  it  is  to  be  executed  under  the 
arbitrary  discretion  of  the  ma3or  or  other  officer,  is  clearly  an  abridg- 
ment of  the  rigiits  of  the  people  ;  and  in  many  cases  it  practically  pre- 
vents those  public  demonstrations  that  are  the  most  natural  product  of 
common  aims  and  kindred  purposes.  "  It  discourages  united  effort  to 
attract  public  attention  and  challenge  public  examination  and  criticism 
of  the  associated  purposes."  Anderson  \.  Wellington,  40  Kan.  173, 
contains  a  careful  discussion  and  examination  of  a  similar  ordinance, 
which  was  there  held  to  be  void  as  contravening  common  right.  In  In 
re  Frazee,  63  Mich.  396,  after  a  full  discussion  by  Campbell,  C.  J.,  a 
similar  ordinance  was  also  held  void,  and  that  it  is  not  in  the  power  of 
the  legislature  to  deprive  any  of  the  people  of  the  enjoyment  of  equal 
privileges  under  the  law,  or  to  give  cities  any  tyrannical  powers  ;  that 
charters,  laws,  and  regulations,  to  be  valid,  must  be  capable  of  con- 
struction, and  must  be  construed,  in  conformity  to  constitutional  prin- 
ciples and  in  harmony  with  the  general  laws  of  the  land  ;  and  that  any 
b3'-law  which  violates  any  of  the  recognized  principles  of  lawful  and 
equal  rights  is  necessarily  void  so  far  as  it  does  so,  and  void  entirely  if 
it  cannot  be  reasonably  applied  according  to  its  terms  :  and  no  grant  of 
absolute  discretion  to  suppress  lawful  action  can  be  sustained  at  all  ; 
that  it  is  a  fundamental  condition  of  all  liberty,  and  necessary  to  civil 
societ}',  that  men  must  exercise  their  rights  in  harmony  with  and  yield 
to  such  restrictions  as  are  necessary  to  produce  peace  and  good  order ; 
and  it  is  not  competent  to  make  an}'  exceptions  for  or  against  the  so- 
called  "  Salvation  Army  "  because  of  its  theories  concerning  practical 
work  ;  that  in  law  it  has  the  same  right,  and  is  subject  to  the  same  re- 
strictions, in  its  public  demonstrations,  as  any  secular  body  or  society 
which  uses  similar  means  for  drawing  attention  or  creating  interest. 
Hence  the  by-law  there  in  question,  because  it  suppressed  what  was  in 
general  perfectly  lawful,  and  left  the  power  of  permitting  or  restraining 
processions  and  their  courses  to  an  unlawful  official  discretion,  was  held 
void ;  and  that  any  regulation,  to  be  valid,  must  be  by  permanent  legal 
provisions,  operating  generall}'  and  impartiall}'. 

The  return  of  the  sheriff  utterly  fails  to  show  of  what  specific  offence 
the  petitioner  was  convicted  ;  that  is  to  say,  in  what  particular  respect 
he  violated  the  ordinance.     We  may  infer,  however,  for  the  purpose  of 


872  STATE   V.    DERING.  [CHAP.  V. 

argument  and  illustration,  from  the  fact  that  the  petition  for  the  writ 
addressed  to  this  court  states  that  the  petitioner  is  a  member  of  the 
Salvation  Arm}-,  that  he  was  convicted  of  parading  the  streets  in  that 
capacity.  It  cannot  be  maintained  that  any  person  or  persona  or  soci- 
ety have  any  right  for  religious  purposes  or  as  religious  bodies  to  use 
the  streets  for  purposes  of  public  parade  because  the  purpose  in  view  is 
purely  religious  and  not  secular,  but  the}'  certainly  have  the  same  right 
to  equal  protection  of  the  laws  as  secular  organizations.  The  objections 
urged  against  this  ordinance  are,  we  think,  fatal  to  any  conviction  which 
might  take  place  under  it,  by  reason  af  its  nm-oASonable  and_mnust 
discriminations  and  of  the  arbitrary  power  conferred  upon  the  ma^or  or 
other  officer  of  the  city  to  make  others  in  its  administration  and  execu- 
tion ;  so  that  it  is  iin[)ossible  tr>  sustain  t.hp  nnnvictjon  in  any  aspect  in 
which  the  questionmar  be  viewed.^ 

A  careful  examination  of  the  decisions  in  various  States,  and  the  con- 
siderations upon  which  they  are  founded,  is  not  material  to  the  determi- 
nation of  the  case,  for  the  whole  subject  is  governed  and  controlled  by 
the  provisions  of  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States,  already  referred  to.  In  construing  and  applying  Ibis 
amendment,  the  Supreme  Court  of  the  United  States  have  said  in  Bar- 
bier  V.  Gonnolhj,  113  U.  S.  27,  that  it  "undoubtedly  intended  not  only 
that  there  should  be  no  arbitrary  deprivation  of  life  or  liberty,  or  arbi- 
trary spoliation  of  propert}',  but  that  equal  protection  and  security- 
should  be  given  to  all  under  like  circumstances  in  the  enjoyment  of  their 
personal  and  civil  rights ;  that  all  persons  should  be  equally  entitled  to 
pursue  their  happiness,  and  acquire  and  enjo}'  property ;  that  they 
should  have  like  access  to  the  courts  of  the  country  for  the  protection 
of  their  persons  and  propert}',  the  prevention  and  redress  of  wrongs, 
and  the  enforcement  of  contracts ;  that  no  impediment  should  be  inter- 
posed to  the  pursuits  of  any  one  except  as  applied  to  the  same  pursuits 
by  others  under  like  circumstances  ;  that  no  greater  burdens  should  be 
laid  upon  one  than  are  laid  upon  others  in  the  same  calling  and  condi- 
tion. .  .  .  Class  legislation  discriminating  against  some  and  favoring 
others  is  prohibited,  but  legislation  which,  in  carrying  out  a  public  pur- 
pose, is  limited  in  its  application,  if  within  the  sphere  of  its  operation 
it  aiTects  alike  all  persons  similarly  situated,  is  not  within  the  amend- 
ment." The  entire  subject  underwent  careful  examination  in  the  case 
of  Tick  Wo  V.  HojyJcins,  118  U.  S.  356,  where  the  subject  of  city  ordi- 
nances and  the  principles  regulating  their  validity  were  considered. 
The  objections  to  the  validity  of  the  ordinances  in  that  case  were,  in 
substance,  the  same  that  are  urged  in  this,  and  the  ordinances  in  ques- 
tion were  held  void.  The  objections  urged  in  the  case  of  Baltimore  v. 
Radecke,  49  Md.  217,  were  also  in  substance  the  same,  for  the  ordinance 
in  that  case  upon  its  face  committed  to  the  unrestrained  will  of  a  single 
public  officer  the  power  to  determine  the  rights  of  parties  under  it,  when 
there  was  nothing  in  the  ordinance  to  guide  or  control  his  action,  and 
iit  was  held  void  because  "it  lays  down  no  rules  by  which  its  impartial 


CHAP,  v.]  STATE   V.    DERING.  873 

execution  can  be  secured,  or  partiality  and  oppression  prevented,"  and 
that  "  when  we  remember  tliut  action  or  non-action  may  proceed  from 
enmity  or  prejudice,  from  partisan  zeal  or  animosity,  from  favoritism 
and  other  improper  influences  and  motives  easy  of  concealment  and  dif- 
ficult to  be  detected  and  exposed,  it  becomes  unnecessary  to  suggest  or 
to  comment  upon  the  injustice  capable  of  being  wrought  under  cover  of 
such  a  power,  for  that  becomes  apparent  to  every  one  who  gives  to  the 
subject  a  moment's  consideration.  In  fact,  an  ordinance  which  clothes 
a  single  individual  with  such  power  hardly  falls  within  the  domain  of 
law,  and  we  are  constrained  to  pronounce  it  inoperative  and  void." 
The  doctrine  of  this  case  was  approved  in  Yick  Wo  w  Hojiki/is,  118 
U.  S.  356.  .   .   . 

Nearly  all  the  processions,  parades,  etc.,  that  ordinarily  occur  are 
excepted  from  the  ordinance  in  question,  followed  by  a  provision  that 
permission  to  march  or  parade  shall  at  no  time  "  be  refused  to  any  po- 
litical party  having  a  regular  State  organization."  It  is  difficult  to  see 
how  this  can  be  considered  municipal  legislation,  dictated  by  a  fair  and 
equal  mind,  which  takes  care  to  protect  and  pi-ovide  for  tlie  parades  and 
processions  with  trumpets,  drums,  banners,  and  all  the  accompaniments 
of  political  turn-outs  and  processions,  and  at  the  same  time  provides,  in 
effect,  that  the  Salvation  Arm}',  or  a  Sunday-school,  or  a  temperance 
organization  with  music,  banners,  and  devices,  or  a  lodge  of  Odd  Fel- 
lows or  Masons,  shall  not  in  like  manner  parade  or  march  in  procession 
on  the  streets  named  without  getting  permission  of  the  mayor,  and  tliat 
it  shall  rest  within  the  arbitrarj',  uncontrolled  discretion  of  this  officer 
whether  they  shall  have  it  at  all.  Tiie  ordinance  resembles  more  nearl}' 
the  means  and  instrumentalities  frequently  resorted  to  in  practising 
against  and  upon  persons,  societies,  and  organizations  a  petty  tyranny, 
the  result  of  prejudice,  bigotry,  and  intolerance,  than  any  fair  or  legiti- 
mate provision  in  the  exercise  of  the  police  power  of  the  State  to  protect 
the  public  peace  and  safety.  It  is  entirely  un-American  and  in  conflict 
with  the  principles  of  our  institutions  and  all  modern  ideas  of  civil  lib- 
erty. It  is  susceptible  of  being  applied  to  offensive  and  improper  uses, 
made  siiln^ersive  of  the  rights  of  private  citizensTancnrtnterferes-wtttr 
and  abridges  tUeir  privileges  and  immunities,  and  denies  them  the  equal 
protection  of  the  jaws  in  tho  pvpr^-isp  and  enjovment'of  their  un'Vfubted 
ijghts  In  the  exercise  of  the  police  power  the  common  council  may, 
in  its  discretion,  regulate  the  exercise  of  such  rights  in  a  reasonable 
manner,  but  cannot  suppress  them,  directly  or  indirectly,  by  attempting 
to  commit  the  power  of  doing  so  to  the  mayor  or  any  other  ofl^cer.  X^^ 
discretion  with  which  the  council  is  vested  is  a  legal  discretion  ,to_bfi„ 
exerciseT^ithin  the  limits  of  tlip  l.-iw,  and  not  a  discretion  to  transcend 
it  or  to  confer  upon  any  city  officer  an  arbitrary  authority,  making  hixQ. 
in  its  exnroisn  n.  ppfi.y  tyvnnf.  g!nf»h  ordinances  or  regulations,  to  be 
valid,  must  have  an  equal  and  uniform  application  to  all  persons,  soci- 
eties, or  organizations  similarl}-  circumstanced,  and  not  be  susceptible 
of  unjust  discriminations,  which  may  be  arbitrarily  practised  to  the  hurt, 


874  SINGER  V.    MARYLAND.  [CHAP.  V. 

prejudice,  or  annoyance  of  an}-.     An  ordlnaB^e-wliich  cxprcssl^^^ecures 

streeT  parades  and  processions,  with_aULtheir  usual  accompaniments, 
aiid  denies  it  tojbbe  societies  and  other  like  organizations  alreadyimeiLL 
tioned,  except  b}-  permission  of  tliejuayor.  who  may  arbitrarily  refuse 
It,  is  not  valid,  and  offends  against  all  well-established  ideasjofciyiTanSr 
religious  liberty.  The  people"  do  not  hold  rights  as  important  and  well 
"settled  as  the  right  to  assemble  and  have  public  parades  and  processions 
with  music  and  banners  and  shouting  and  songs,  in  support  of  any  laud- 
able or  lawful  cause,  subject  to  the  power  of  any  public  officer  to  inter- 
dict or  prevent  them.  Our  government  is  "a  government  of  laws  and 
not  of  men,"  and  these  principles,  well  established  by  the  courts,  by  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United  States,  have 
become  a  part  of  the  supreme  law  of  the  land,  so  that  no  officer,  body, 
or  lawful  authority,  can  "deny  to  any  person  the  equal  protection  of  the 
laws."  It  is  plain  that  the  ordinance  in  question  is  illegal  and  void, 
and  for  this  reason  the  order  of  the  commissioner  must  be  reversed. 

By  the  Court.  —  The  order  of  the  court  commissioner  is  reversed, 
and  the  petitioner  ordered  discharged.^ 


SINGER  V.  MARYLAND. 
Maryland  Court  of  Appeals.     1890. 

[72  Md.  464.] 

Appeal  as  upon  writ  of  error  from  the  Criminal  Court  of  Baltimore. 
The  case  is  stated  in  the  opinion  of  the  court. 

The  cause  was  argued  before  Alvey,  C.  J.,  Miller,  Robinson, 
Bryan,  Fowler,  McSherry,  and  Briscoe,  JJ.  David  Stewart,  for 
the  appellant ;  Edgar  H.  Gans  and  William  Pinkney  Wliyte,  Attorne}-- 
General,  for  the  appellee. 

Robinson,  J.,  delivered  the  opinion  of  the  court. 

The  traverser  is  a  plumber  by  trade,  and  was  indicted  for  refusing  to 
comply  with  the  requirements  of  the  Act  of  1886,  c.  439,  which  pro- 
vides that  no  person  shall  engage  in  the  business  of  plumbing  in  the 
city  of  Baltimore  unless  such  person  shall  have  received  from  the  State 
Board  of  Commissioners  of  Practical  Plumbing  a  certificate  as  to  bis 
competency  and  qualification.  This  Act  the  traverser  contends  is  in 
violation  of  his  constitutional  rights  under  the  Fourteenth  Amendment 
of  the  Constitution  of  the  United  States  and  of  the  Constitution  of  this 
State,  both  of  which  declare  that  no  person  shall  be  deprived  of  his  life, 
libert}',  or  property  without  due  process  of  law.  These  constitutional 
safeguards  have  been  so  fully  considered  and  discussed  by  the  Supreme 

^  See  Youngblood  v.  Birin.  Co.,  95  Ala.  521 ;  see  also  ante,  p.  673,  note.  —  Ed. 


CHAP,  v.]  SINGER   V.    MARYLAND.  873 

Court,  especially  since  the  adoption  of  the  Fourteenth  Amendment,  by 
which  the  restraint  upon  the  power  of  the  States  to  pass  laws  affecting 
personal  and  private  rights  was  made  a  part  of  the  Federal  Constitution, 
that  it  can  only  be  necessary  to  refer  to  the  conclusions  reached  by  that 
court  as  affecting  the  question  before  us.  Dent  v.  West  Virginia,  129 
U.  S.  114  ;  Barbier  v.  Connollij,  113  U.  S.  27  ;  Mugler  v.  Kansas,  123 
U.  S.  623  ;  Soon  Hing  v.  Crowletj,  113  U.  S.  703  ;  Powell  v.  Pennsyl- 
vania, 127  U.  S.  678.  No  one  questions  the  right  of  every  person  in 
this  country  to  follow  any  legitimate  business  or  occupation  he  may  see 
fit.  This  is  a  privilege  open  alike  to  every  one.  His  own  labor,  and 
the  right  to  use  it  as  a  means  of  livelihood,  is  a  right  as  sacred  and  as 
fully  protected  by  the  law  as  any  other  personal  or  private  right.  But 
broad  and  comprehensive  as  this  right  may  be,  it  is  subject  to  the  para- 
mount right,  inherent  in  every  government,  to  impose  such  restraint 
and  to  provide  such  regulations  in  regard  to  the  pursuits  of  life  as  the 
public  welfare  may  require.  This  paramount  I'ight  rests  upon  the  well- 
recognized  maxim,  Salus  populi  est  suprema  lex;  and,  whatever 
difficulty  there  may  be  in  defining  the  precise  limits  and  boundaries  by 
which  the  exercise  of  this  power  is  to  be  governed,  all  agree  that  laws 
and  regulations  necessary  for  the  protection  of  the  health,  morals,  and 
safety  of  society  are  strictly  within  the  legitimate  exercise  of  the  police 
power.  Powell  v.  Peimsyhianla,  127  U.  S.  678  ;  Mugler  v.  Kansas,  123 
U.  S.  623;  Railway  Co.  v.  Beckwith,  129  U.  S.  26.  As  to  the  com- 
mon and  ordinary  occupations  of  life,  little  or  no  regulation  may  be 
necessary  ;  but  if  the  occupation  or  calling  be  of  such  a  character  as  to 
require  a  special  course  of  stud}'  or  training  or  experience  to  qualify  one 
to  pursue  such  occupation  or  calling  with  safety'  to  the  public  interests, 
no  one  questions  the  power  of  the  legislature  to  impose  such  restraints, 
and  prescribe  such  requirements,  as  it  may  deem  proper  for  the  protec- 
tion of  the  public  against  the  evils  resulting  from  incapacity  and  igno- 
rance ;  and  neither  section  one  of  the  Fourteenth  Amendment  of  the 
Federal  Constitution,  nor  article  23  of  the  Bill  of  Rights  of  the  Constitu- 
tion of  this  State,  was  designed  to  limit  or  restrain  the  exercise  of  this 
power.  It  is  in  the  exercise  of  this  power  that  no  one  is  allowed  to 
practise  law  or  medicine  or  engage  in  tlie  business  of  a  druggist  unless 
he  shall  have  been  found  competent,  and  qualified  in  the  mode  and  in 
the  manner  prescribed  by  the  statute  ;  and,  although  the  business  and 
trade  of  a  plumber  may  not  require  the  same  training  and  experience 
as  some  other  pursuits  in  life,  3'et  a  certain  degree  of  training  is  abso- 
lutely necessar}-  to  qualify  one  as  a  competent  and  skilful  workman. 
We  all  know  that  in  a  large  city  like  Baltimore,  with  its  extensive  sys- 
tem of  drainage  and  sewerage,  the  public  health  largely  depends  upon 
the  proper  and  efficient  manner  in  which  the  plumbing  work  is  executed, 
and,  this  being  so,  the  legislature  not  only  has  the  power,  but  it  is 
eminently  wise  and  proper  that  it  should,  provide  some  mode  by 
which  the  qualifications  of  persons  engaged  in  that  business  shall  be 
determined. 


876  TRAGESER  V.    GRAY.  [cHAP.  V. 

In  considering  the  power  of  the  legislature  to  impose  restraints  upon 
all  persons  engaged  in  certain  pursuits,  the  Supreme  Court  sa}- :  "  The 
nature  and  extent  of  the  qualifications  required  must  depend  primarily 
upon  the  judgment  of  the  State  as  to  their  necessit}-.  If  they  are  ap- 
propriate to  the  calling  or  profession,  and  attainable  b^-  reasonable 
application,  no  objection  to  their  validity  can  be  raised."  Dent  v.  West 
Virginia^  129  U.  S.  114.  The  Act  of  1886  now  before  us  provides  in 
the  first  place  that  no  one  shall  engage  in  the  business  of  plumbing 
except  those  quahfied  to  work  as  registered  plumbers  ;  and,  further, 
that  no  one  shall  be  qualified  to  work  as  a  registered  plumber  unless  he 
shall  have  made  application  to  and  received  from  the  State  Board  of 
Practical  Plumbers  appointed  by  the  government  a  certificate  as  to  his 
competency.  These  requirements  are  appropriate,  and  relate  to  the  busi- 
ness of  plumbing,  and  are  such  as  the  legislature  deemed  necessaiy  and 
proper  for  the  protection  of  the  health  of  the  people  of  Baltimore  against 
the  consequences  resulting  from  the  work  of  incompetent  and  inexperi- 
enced plumbers.  The}-  are  in  themselves  fair  and  reasonable,  and 
impose  no  restraint  or  qualification  which  may  not  be  complied  with  by 
reasonable  training  and  experience.  Such  an  Act  is  but  the  ordinary' 
exercise  of  the  police  power  of  the  State,  and  does  not  violate  in  an}' 
sense  the  constitutional  rights  of  the  traverser. 

Judgment  affirmed.^ 

1  And  so  State  v.  Heinemann,  80  Wis.  253,  as  to  pharmacists  ;  and  People  v.  P/iip- 
pin,  70  Mich.  6  (1888),  as  to  medical  men  and  surgeons,  CvJirBELL  and  Morse,  JJ., 
dissenting.  Compare  State  v.  Pennoijer,  65  X.  H.  113  (1889),  wliich  holds  unconstitu- 
tional, as  beibg  unequaintn  exemiition  finm  the  requirements  of  such  a  statute  in 
favor~of  medical  men  who  have  resiiU  il  ami  practised  their-professionJa  tlie-4!la£fi_of. 
their  present  residence  for  the  la^t_foijj^ea.r>;  A  ^niilur  clause  was  sustained  in 
People  wPhljtyTn.  uhi  supra,  the  court  (LoxG,  J.,  at  p.  24)  saying:  "This  Act  .  .  . 
makes  a  medical  qualification  the  test  of  the  right  to  practise.  The  real  test  of  the 
right  to  practise  is  that  he  shall  be  a  'graduate  of  any  legally  authorized  medical  col- 
lege in  this  State,  or  in  any  one  of  the  United  States,  or  in  an}'  other  country.'  And 
in  this  tiiere  is  no  discrimination.  Now,  the  legislature  saw^fitJU-e^txiblishiiif;  this  tPSit, — 
to  excpj^i:  fi-om  I'tip  provisions  a  certain  class  of  physicians  anrl  'inrg<^"ns._  In  so  doing 
^it  in  effect  declared  that  the  physician  or  snrgptin  who  had  ar-tnally  prnrt.i>;pd  piPiliciiiA- 
continuouslv  for  at  least  five  years  in  this  State,  and  who  is, pracliaiuS-^Mhen  fhi'i  Act 
shall  take  effect,  was  as  well  qualified,  i"  Its  jlldgmp"*:,  >•"  ^nntinnp  t.hp  priffion  nf  his 
profession  as  the  student  coming  fresE-from  tho  halls  of  collae:e_with  hisL,dip]oma  was 
to  commence  it7\  The  reasons  which  induced  the  legislature  to  insert  the  exception 
may  have  beeniis  varied  as  the  different  minds  of  its  members.  It  certainly  had  power 
to  insert  it,  and  whether  the  power  was  reasonably  or  unreasonably  exercised,  or 
whether  it  was  expedient  to  enact  the  law,  are  questions  exclusively  within  the  prov- 
ince of  the  legislative  branch  of  the  State  government,  and  their  judgment  must  neces- 
sarilv  be  decisive  upon  these  questions.  State  v.  Dent,  25  W.  Va.  1 ;  Ex  parte  Sptnney, 
10  Nev.  328  ;    Wert  v.  Clutter,  37  Ohio  St.  347." 

In  Trnqeser  v.  Graif,  73  Maryland,  250  (1890),  anon-naturalized  Prussian  applied 
for  a  writ  of  mandatnus  to  compel  certain  commissioners  to  issue  to  him  a  license  for 
the  sale  of  intoxicating  liquors.  His  petition  was  dismissed:  and  by  a  proceeding  in 
the  nature  of  a  writ  of  error,  he  now  raised  the  question  whether  the  Maryland  statute 
of  1890,  c.  343,  for  regulating  the  sale  of  intoxicating  liquors,  was  valid.  The  court  / 
(Brv.\n,  J  )  in  affirming  the  order  of  the  court  below,  said  "  In  the  Jaw  wJiidusie--^ 
are  now  considering,  the  legislature  hedged  around  this  traffic  with  such  safeguards 


CHAP,  v.]  TRAGESER  V.   GRAY.  877 

as  were  deemefl  advisable  for  the  pjirpose  Q£4)rotectiiigLJ;he4iul>lic  interest/  It  was  an 
effort  td^festrict  the  licenses  to  such  persons  as  would  not  abuse  the  privilege  con- 
ferred; to  this  end  the  applicant  was  recjuired  to  establisli  his  fitness  for  tiie  privilege 
by  abundant  testimony,  and  to  promise,  under  oath,  tliat  lie  would  not  permit  on  his 
premises  certain  violations  of  the  law,  which  liave  frequently  been  associated  with  the 
traffic,  and  which  have  caused  great  scandal,  immorality,  and  disorder.  And  by  section 
653  /.  it  was  enacted  that  the  license  should  he  refused  in  all  cases,  whenever,  in  the 
opinion  of  the  said  board,  such  license  is  net  necessary  for  the  accommodation  of  the 
public,  or  the  petitioner  or  petitioners  is  or  are  not  fit  persons  to  whom  such  license 
sKouId  be  granted ;  and  if  sufficient  cause  shall  at  any  time  be  shown^  or  proof  be  made 
to  the  said  board,  that  the  party  licensed  was  guilty  of  any  fraud  in  procuring  such 
license,  or  has  violated  any  law  of  the  State  relating  to  the  sales  of  intoxicating 
liquor,  the  said  board  shall,  after  giving  notice  to  the  person  so  licensed,  revoke  said 
license;  and  the  criminal  court  of  the  city  may  in  like  manner  revoke  said  license, 
if  the  party  should  be  convicted  before  it,  of  any  such  violation.  It  was  tiiought 
proper  to  conjiiieJi"^  Hr'pusp  t-.o  cUi^ns  of  the  United  States,  of  temperate  haiiits  and 
good  monUcharactgjv'i'he  privilege  is  very  liaide  to  be  abused,  and  abuses  would 
produce  great  publicdetrmTBTrt:--4t-th£refQre  seemed  wise  to  tlie  legislaiurejto  coiifef 
it  only  on  thoge  who,  being  natives_of  the- country,  might  reasoiiabl_^lie_suppoHPd  to 
have  a  regard  for  its  welfare ;  or  wlio^ot  being  natives,  luul,  as  leguiied  by  the  natu- 
ralization law,  proven  by  credible  testiinouy  before  a  c<nirt_uf  jus^tice,  that  they  vvere 
attached  to  the  principles  of  the  Constitution  of  _tlie-  UuitfiiLStatesJ  and  wer^jvelLdiS; 
posed  to  their  good  ordftr  nnd  hnppiiipss  It  was  certainly  the  function  of  the  law- 
making department  to  exercise  its  judgment  on  this  (luestion,  and  this  court  has  no 
right  to  criticise  its  conclusion.  We  do  not  think  that  this  law  is,  in  any  manner,  in 
conflict  with  the  Constitution  of  this  State. 

"We  regard  it  as  included  'in  tliat  immense  mass  of  legislation  which  embraces 
everytliing  within  the  territory  of  a  St^Xe,  not  surrendered  to  tlie  general  goverinnent.' 
Gibb  ms  V.  Ogden,  9  Wheaton,  203.  lit  has  been  unrformlv  held  in  all  courts  that  no 
clause  in  the  FefipTJ^I  Constitution  intftferes  with  thepower  of  the  States  to  promote 
and  protect  the  public  health,  peace,  morals,  and  good.  oriler_within  their  respective 
limits.*?  ■  .  It  is.  however,  maintained  by  the  appellant  that  although  tliis  statute  was 
passed  Tipparently  for  the  purpose  of  exercising  this  power,  yet  it  is  in  conflict  with  the 
Fourteenth  Amendment,  because  it  denies  to  persons  not  citizens  of  the  United  States 
the  right  to  obtain  licenses  to  retail  liquor,  and  thereby  makes  an  unconstitutional  dis- 
crimination against  them.  The  section  of  the  amendment  supposed  to  be  involved  is 
in  these  words:  'No  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States ;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property  without  due  process  of  law;  nor  deny  to  any 
person  within  its  jurisriiction  the  equal  protection  of  th-^  laws'     It  cannot  be  said  that 

any  man,  alien  or  citizen,  has  a  natural  right  to  retail  intnxifjiting  liquor. Accordiog. 

to  Bartemei/er  v.  loiva.  18  Wallape  1  ^Q  it-,  ig  nnt  nnc  of  the  privileges  and  immunities 
ofciti/ens  of  the  United  Stat|Pa  In  Mngler  v.  Kansas,  123  U.  S.  623,  it  was  said  that 
'such  a  right  did  not  inhere  in  citizen.ship,"  and  that  it  could  not  be  said  that  govern- 
ment interfered  with  or  impaired  any  one's  constitutional  rights  of  liberty  or  property, 
when  it  prohibited  the  manufacture  and  sale  of  intoxicating  drinl<s.  And  it  was  held 
that  this  prohibition  might  be  made  although  it  would  destroy  or  greatly  diminish  the 
value  of  manufactories,  which  had  been  erected  when  it  was  lawful  to  engage  in  such 
business.  In  Kidd  v.  Pearson,  128  U.  S.  1,  a  statute  of  Iowa  prohibited  the  mnnufac- 
ture  or  sale  of  intoxicating  liquors  except  for  mechanical,  medicinal,  culinary,  and 
sacramental  purposes;  Iiut  any  citizen  of  the  State  was  permitted  to  mannfiicture  or 
buy  and  sell  for  these  purposes,  except  hotel-keepers,  keepers  of  saloons  eating-houses, 
grocery-keepers,  and  confectioners.  The  Supreme  Court  decided  that  the  statute  did 
not  in  any  way  contravene  any  provision  of  the  Fourteenth  Amendment.  We  see  that 
the  privilege  granted  was  confined  to  citizens  of  the  State,  and  that  there  was  a  dis- 
crimination against  five  classes  of  the.se  citizens.  Rut  in  truth,  tlie  valid  exercise  of  the 
police  power  does  not  depend  on  any  question  of  discrimination  for  cr_agali 


878  TRAGESER   V.    GRAY.  [CHAP.  V. 

lar  persons  or  classes  of  persons.  It  is  confided  to  the  wisdom  of  the  legislature  to 
makesuch  application  of  it  as  the  pnhlic  wBlfarfijaaxj-e^uire.  In  the  case  of  occupa- 
tions which  may  become  injurious  to  the  community,  they  may  prohibit  them  alto- 
gether, or  they  may  permit  them  only  in  certain  localities  and  on  certain  terms  and 
under  certain  restrictions,  or  t.Hpjr,  mny  frranf  th^  privilege  of  pursuing  them  to  some 
persons  and  deny  it  to  others.  [Individual  interests  are  not  all  considered  in  the  exer- 
cise of  this  power Thpy  vn\\f.t  yield  when  they  are  in  opposition  to  the  public  good. 

And  the  Ippfislaturp.  i.s  t,o  dftprmiiift  what,  measures  will  best  promote  the  public  good 
in  dealiufy  wit.h  these  mattersTI  In  Mualer  v.  Kansas  it  was  said" that  it  was  not  to  he 
supposed  that  the  Fourteenth  Amendment  was  intended  to  impose  restraints  on  the 
exercise  of  the  police  power  by  the  States.  It  was  also  said  that  a  State  could  not  by 
any  contract  limit  its  exercise  of  this  power  where  the  public  health  and  the  public  morals 
would  be  prejudiced;  and  a  case  was  cited  with  approval  {Stone  v.  Mississippi,  101 
U.  S.  814),  where  a  charter  to  conduct  a  lottery  had  been  granted  to  a  private  corpora- 
tion for  a  large  moneyed  consideration,  and  was  afterwards  repealed,  and  the  repeal  was 
sustained  as  within  the  police  power  of  the  State.  And  in  the  same  case  the  court 
stated  with  great  emphasis  the  necessity  of  upholding  State  police  regulations  which 
were  enacted  in  good  faith  and  which  had  appropriate  and  direct  connection  with  that 
protection  to  life,  health,  and  property  which  each  State  owes  to  its  citizens.  And  in 
this  case,  and  subsequently  in  Powell  v.  Pennsi/lvania,  127  U.  S.  684,  it  was  shown  that 
a  statute  enacted  in  good  faith  for  the  exercise  of  the  police  power  could  not  be  re- 
garded as  repugnant  to  the  Fourteenth  Amendment,  unless  it  had  no  real  or  substan- 
tial relation  to  the  objects  of  such  power.  In  the  Slancjhter-Honse  Cases  (16  Wallace, 
86),  it  was  held  that  in  the  exercise  of  the  police  power  the  State  of  Louisiana  could 
lawfully  grant  to  a  single  corporation,  for  twenty  five  years,  the  exclusive  privilege  of 
maintaining  slaughter-houses  in  a  district  of  country  containing  more  than  eleven  hun- 
dred square  miles,  and  including  the  city  of  New  Orleans  The  trade  of  a  butcher, 
though  of  great  utility'  and  necessity,  is  liable  under  some  circumstances  to  injure  the 
public  health,  and  was,  therefore,  liable  to  this  sort  of  legislation. 

"  There  are  ca.«es,  unquestionably,  in  which  discriminations  against  particular  persons 
or  classes  of  persons  would  be  unlawful.  They  are  indicated  in  Powell  v.  Pennsylvania 
and  in  many  other  cases,  especially  in  the  cases  affecting  tlie  legislation  of  California  on 
the  subject  of  the  Chinese.  It  is  held  that  every  one  has  a  right  to  pursue  an  ordinary 
calling  on  terms  of  equality  with  all  other  persons  in  similar  circumstances;  that  is,  a 
calling  not  in  any  way  injurious  to  the  community,  or  likely  to  become  so.  The  court 
did  not.  in  Powell  v.  Pennsiflvania,  regard  the  making  of  oleomargarine  as  an  ordinary 
business  ;  nor  in  McGahei)  v.  Virginia,  135  U.  S.  712,  was  the  traffic  in  ardent  spirits  so 
regarded.  In  the  Chinese  Cases,  Re  Par  rot  f,  6  Sawyer,  349;  Re  Ah  Chomj,  6  Sawyer, 
451,  and  Yirh  Wo.  v.  fliphins,  118  U.  S.  356,  the  legislation  in  question  was  directed 
against  the  Chinese,  and  was  intended  to  prevent  them  from  earning  a  livelihood  by 
their  own  labor;  or,  at  least,  to  impede  and  eml)arrass  them  as  much  as  possible  in 
their  efforts  to  do  so.  This  was  most  clearly  evident,  not  only  from  the  statutes  and 
ordinances  themselves,  but  from  the  article  in  the  Constitution  of  California,  under 
which  they  were  framed.  This  article  (19th)  was  entitled  '  Chinese,'  and  it  provided 
that  no  corporation  should  employ,  directly  or  indirectly,  in  any  capacity,  any  Chinese 
or  Mongolian  ;  that  no  Chinese  should  be  employed  on  any  State,  county,  municipal  or 
other  work,  except  in  punishment  for  crime ;  it  declared  that  the  presence  of  foreign- 
ers ineligible  to  become  citizens  (meaning  the  Chinese)  was  dangerous  to  the  well- 
being  of  the  State;  and  the  legislature  were  directed  to  discourage  their  immigration 
by  all  means  within  their  power,  and  M-ere  also  directed  to  delegate  all  necessary  power 
to  the  incorporated  cities  and  towns  of  the  State  for  the  removal  of  Chinese  beyond 
their  limits,  or  for  their  location  within  prescribed  portions  of  those  limits;  and  were 
also  directed  to  provide  the  necessary  legislation  to  prohibit  the  introduction  of  Chi- 
nese into  the  State.  One  of  the  judges  in  Parrolt's  Case  said  of  this  article,  '  It  is  in 
open  and  seemingly  contemptuous  violation  of  the  provisions  of  the  treaty  which  give 
to  the  Chinese  the  right  to  reside  here  with  all  the  privileges,  immunities  and  exemp- 
tions of  the  most  favored  nation.     It  is,  in  fact,  but  one  and  the  latest  of  a  series  of 


CHAP,  v.]  TRAGESER  V.    GRAY.  879 

enactments  designed  to  accomplish  the  same  end.'  6  Sawyer,  365.  It  was  apparent 
to  the  courts  which  decided  these  cases  that,  altliough  the  statutes  and  ordinances  in 
question  were  in  the  form  and  fashion  of  police  regulations,  yet  in  reality,  iu  substance 
and  in  effect,  they  were  enactments  to  take  away  from  the  Chinese  the  right  to  labor 
for  a  living. 

"  They  struck  at  those  inalienable  rights  which  belong  to  human  beings  at  all  times 
and  in  all  places.  They  denied  them  the  etjual  protection  of  tlie  laws  iu  particulars  essen- 
tial to  their  moans  of  existence.  Their  evident  effect  and  purpose  were  to  accomplish  an 
unconstitutional  result,  and  therefore  they  were  necessarily  declared  to  he  void.  The  stat- 
ute now  before  us  oppresses  no  one,  and  was  intended  to  oppress  no  one.  lt_does  not  t;il^ 
from  any  man  a  solitary  right,  privilege  or  imniimity-  It,  snlijpcrs  no  one  to  penalties  lor 
its  violations  which  are  not  imposed  e(|ually  on  all  offenders.  It  does  not,  it  is  true,  mjvkf, 
an  equal  partition  of  the  privilege  of  lii|uor  sdlinLr  amonn-  all  classes  nf  persons.  VaV 
there  is  no  warrant  for  snppnging  that  lpgif<bi.tivc  coutrul  over  this  tratiic  must  conform 
to  any  such  standard.  It  is  not  (^rippled  [)v  any  such  rcstruint.  It  u\crri(les  all  jm- 
vate  interests  and  embraces  all  means  whi<li  arc  necessary  and  proper  to  protect  t|ie_ 
public  from  evils  connected  wjth  the  subject.  Assuredly  the  Suprenie  Court  did  not 
consider  this  control  as  limited  by  the  necessity  of  milking  an  equal  distribution  of 
favors,  wnen  it  saul  \n  speaking  of  the  trade  in  lii[Uor  and  its  consequences  :  '  The  police 
power  which  is  exclusively  iu  the  States  is  alone  competent  to  the  correction  of  these 
great  evils,  and  all  measures  of  restraint  or  prohibition  necessary  to  effect  the  purpose 
are  within  the  scope  of  that  authority.'  Mitgfer  v.  Kansas,  123  U.  S.  659.  Nor  is  any 
such  limitation  consistent  with  the  decisions  in  Stone  v.  ,}fississippi\  101  United  States, 
814  ;  Beer  Co.  v.  jifassarhusetfs,  97  United  States,  25  ;  and  Fertilizing  Com/Kwij  v.  Hijile 
Park,  97  United  States,  659.  In  one  of  these  cases  a  franchise  which  had  been  pur- 
chased from  the  State  was  taken  away  from  the  purchaser  without  compensation  to 
him,  because  it  was  considered  by  the  legislature  to  be  hurtful  to  the  public  morals. 
In  the  other  two  cases,  by  tlie  exertion  of  the  police  power,  property  of  vast  amount 
was  rendered  valueless,  although  it  had  been  acquired  under  the  express  sanction  of 
the  legislature.  It  is  needless  to  refer  again  to  the  Shufjhter- House  Cases,  where  there 
was  a  severe  discrimination  in  favor  of  a  single  corporation  and  against  every  one  else, 
solely  because  the  protection  of  the  public  health  was  involved. 

"  It  has  been  maintained  that  the  appellant  (Trageser)  has  rights  under  existing  trea- 
ties which  have  been  infringed  by  the  denial  of  licenses  to  aliens.  Our  opinion  on  tliis 
question  has  been  sufficiently  indicated.  But  a  few  words  more  may  be  added.  If  wft_ 
assume,  for  the  sake  of  argument,  that  Trageser  has  under  treaties  every  right  which 
a  citizen  could  have,  the  answer  is  that  no  citizen  el.the  United  States  caii_cainplaiill 
because  a  police  regulation  denies  Mm  the  privilege  of  semug^lLquor,  even  if^tlae-pjiui 
lege  is  granted  to  other  citizens.  l\Ve  are  unabiA  t.f>  f^iK^pU-A  that  any  nno  .•i>;7Pn  nr 
alien,  can  acquire  rights  which  c"<^i1d  in  any  way  control,  i mpair.J^m pod p^  limit  jrr 
diminish  the  police  power  of  a  State.  Siiclxpower  is_original,  inherent  and  exclu.sive^ 
it  has  never  been  surrendered^-to-tho  gonoral  ^overnq;ie&fe^^md  Bevec-carLhe  .aurreu; 
derea  witTiout  imperilling  the  existence_aL  civil  ^ociftty 

"  The  Act  of  Assembly  involved  in  this  controversy^eing  in  our  opinion  in  all  re- 
spects a  valid  law,  it  is  perhaps  unnecessary  to  say  anything  more ;  but  we  will  observe 
that,  even  if  the  clause  relating  to  aliens  were  nnconstitutional,  the  other  portions  of 
the  statute  would  not  be  affected.  Aliens  could  not  even,  in  that  event,  obtain  licenses 
to  sell  licpior  without  the  approval  of  the  Board  of  Commissioners. 

"  The  order  refusing  the  mandamus  must  be  affirmed.  Order  affirmed."^ 

Alvey,  C.  J.,  and  MoSherry,  J.,  concurred  in  the  affirmance  of  the  order  appealed 
from,  refusing  the  mandamtis,  but  for  reasons  different  from  those  assigned  in  the 
opinion  of  the  majority  of  the  court. 

1  Compare  Pe^ry  v.  City  Gov.,  7  Utah,  143.  —  Ed. 


880  RICE   ET   AL.   V.    PAKKMAN.  [CHAP.  V. 


RICE  ET  AL.   V.  PARKMAN. 
Supreme  Judicial  Court  of  Massachusetts.     1820. 

[16  il/ass.  326.]  1 

A  writ  of  entry.  The  demandants  claim  as  heirs  of  their  mother  (who 
died  in  1792),  and  entitled  to  the  possession  upon  the  death  of  their  father, 
in  1815,  tenant  by  the  curtesy.  The  tenant  set  up  title  through  one 
Homer,  to  whom  the  father  had  sold  the  demanded  premises  under  a 
legislative  resolve,  purporting  to  authorize  the  father,  on  giving  bond, 
to  sell  and  convey  and  to  invest  the  proceeds  for  the  use  of  the  said 
children.  The  demandants  reply,  protesting  that  there  was  no  such 
resolve  or  sale,  and  traversing  the  giving  of  the  bond.  Issue  was 
joined  upon  the  traverse,  and  a  verdict  returned,  that  the  bond  was 
given  according  to  the  directions  of  the  resolve. 

The  demandants  objected  at  the  trial,  that  no  authority  to  sell  the 
estate  could  be  legally  derived  from  the  said  resolve  ;  but  that  the  same 
was  wholly  void,  as  respected  them  ;  especiall}'  as  it  did  not  appear 
that  any  notice  was  given  before  the  license  was  granted.  This  objec- 
tion was  overruled  by  the  Chief  Justice,  before  whom  the  trial  was  had, 
November  Term,  1818.  A  new  trial  was  to  be  granted,  if,  in  the  opin- 
ion of  the  court,  the  said  resolve  did  not  give  authority  to  sell  as 
aforesaid. 

Ward^  for  the  demandants. 

Gallison,  for  the  tenant. 

Parker,  C.  J.,  delivered  the  opinion  of  the  court.  If  the  power,  by 
which  the  resolve,  authorizing  the  sale  in  this  case,  was  passed,  were  of 
a  judicial  nature,  it  would  be  very  clear,  that  it  could  not  have  been 
exercised  l)y  the  legislature,  without  violating  an  express  provision  of 
the  Constitution.  But  it  does  not  seem  to  us  to  be  of  this  description 
of  power ;  for  it  was  not  a  case  of  controversy'  between  party  and 
party ;  nor  is  there  any  decree  or  judgment,  affecting  the  title  to  prop- 
erty. The  only  object  of  the  authority  granted  by  the  legislature  was, 
to  transmute  real  into  personal  estate,  for  purposes  beneficial  to  all 
who  were  interested  therein. 

This  is  a  power  frequently  exercised  by  the  legislature  of  this  State, 
since  the  adoption  of  the  Constitution  ;  and  b}'  the  legislatures  of  the 
province,  and  of  the  colony,  while  under  the  sovereignty  of  Great 
Britain  ;  analogous  to  the  power  exercised  by  the  British  Parliament, 
on  similar  subjects,  time  out  of  mind.  Indeed  it  seems  absolutely 
necessary  for  the  interest  of  those,  who,  bv  the  general  rules  of  law, 
are  incapacitated  from_djsposing  of  their  property,  that  a  power  should 
ex'tit  somewhere,  to  convert  lands  into  money.  For  otherwise  many 
XPmors  might  suffer,  although  having  property ;  it  not  being  in  a  con- 

1  The  statement  of  facts  is  shortened.  —  Ed. 


CHAP,  v.]  RICE   ET   AL.    V.   PARKMAN.  881 

rlition  to  yield  an  income.     This  powei^must  restjn_t]ie  1p,«:is1.it.nrf^  in, 
thisTommonwealtli ;   t.liat^bodjMjeinu  alone  orMlilX'trnt  to  act  ;is  Mip 
<'-eneral  oiiardian  and  protector  of  thoae  wlio  are  disabled  to  act  for 
themselves. 

It  was  undoubtedly  wise  to  delegate  this  authority  to  other  bodies, 
whose  sessions  are  regular  and  constant,  and  whose  structure  may 
enable  them  more  easily  to  understand  the  merits  of  the  particular 
applications  brought  before  them.  But  it  does  not  follow  J^at^^cause 
the  power  has  been  delegated  by  tite-le^Ldalure-tujuourts  of  lav»',__LLJg 
judicial  in  its_djaracterr  For  aught  we  see,  tlie  same  authority  might 
have  beengiven^to  th^Ssi^lectmen  of  each  town,  or  to  the  clerks  or 
registers  of  the  counties ;  i\being  a  mere  ministerial  act,  certainly 
requiring  discretion,  and  sometimes  knowledge  of  law,  tor  its  clueTx- 
ercise  ;  but  still  partaking  in  no  degree  of  the  characteristics  of  iudicial 
power. 

It  is  doubtless  included  in  the  general  authority,  granted  by  the 
people  to  the  legislature  in  the  Constitution.  For  full  power  and 
authority  is  given,  from  time  to  time,  to  make,  ordain,  and  establish  all 
manner  of  wholesome  and  reasonable  orders,  laws,  statutes  and  ordi- 
nances, directions  and  instructions  (so  as  the  same  be  not  repugnant  or 
contrary  to  the  Constitution),  as  they  shall  judge  to  be  for  the  good  and 
welfare  of  the  Commonwealth,  and  of  the  subjects  thereof. 

No  one  imagines  that,  under  this  general  authority,  the  legislature 
could  deprive  a  citizen  of  his  estate,  or  impair  any  valuable  contract  in 
which  he  might  be  interested.  But  there  seems  to  be  no  reason  to 
doubt  that,  upon  his  application,  or  the  applicajion  of  those  who  properiy 
represent  him,  if  disabled  from  acting  himself,  a  beneficial  chang.e  .of 
his  estate,  ov  a  sale  of  it  for  purposes  necessary  and  co!iYenierU  for  tlie 
lawful  owner,  is  a  just  and  proper  subject  foiittie^^xercise  of  that  autlim-- 
ity.  It  is,  in  fact,  protecting  him  in  bis  property,  which  the  legislature 
js  bound  to  do ;  and  enabling  him  to  derive  subsistence,  comfort,  aiid_ 
education  from  property,  which  miofht  otherwise  b€LJ^^holly  usele&s  dur- 
i n (y  that  period  of  life,  when  it  might  be  most  beneficially  employed. 
'""If  this  be  not  true,  then  the  general  laws,  under  which  so  many  estates 
of  minors,  persons  no)i  compos  mentis,  and  others,  have  been  sold  and 
converted  into  money,  are  unauthorized  by  the  Constitution,  and  void. 
For  the  courts  derive  their  authority  from  the  legislature,  and  it  not 
being  of  a  judicial  nature,  if  the  legislature  had  it  not,  they  could  not 
communicate  it  to  any  other  body.  Tims,  if  there  were  no  power  to 
relieve  those  from  actual  distress,  who  had  unproductive  property,  and 
were  disabled  from  conveying  it  themselves,  it  would  seem  that  one  of 
tiie  most  essential  objects  of  government,  that  of  providing  for  the 
welfare  of  the  citizens,  would  be  lost. 

But  the  argument,  which  has  most  weight  on  the  part  of  the  demand- 
ants, is  that  the  legislature  has  exercised  its  power  over  this  subject, 
in  the  only  constitutional  way,  by  establishing  a  general  provision  ;  and 
that,  having  done  this,  tlieir  authority  has  ceased,  they  having  no  right 
VOL.  I.  —  56 


882  BREVOORT   V.   GRACE    ET   AL.  [CHAP.  V. 

to  interfere  in  particular  cases.  And  if  tlie  question  were  one  of  ex- 
pediency only,  we  should  perhaps  be  convinced  by  the  argument,  that 
it  would  be  better  for  all  such  applications  to  be  made  to  the  courts 
empowered  to  sustain  them. 

But  as  a  question  of  right,  we  think  the  argument  fails.  The  con- 
stituent, when  he  has  delegated  an  authority  without  an  interest,  may 
do  the  act  himself,  which  he  has  authorized  another  to  do ;  and  espe- 
cially when  that  constituent  is  the  legislature,  and  is  not  prohibited  by 
the  Constitution  from  exercising  the  authority.  Indeed  the  whole 
authority  might  be  revoked,  and  the  legislature  resume  the  burden  of 
this  business  to  itself,  if  in  its  wisdom  it  should  determine  that  the 
common  welfare  required  it. 

]t  is  not  legislation,  which  must  be  b}*  general  acts  and  rules,  but 
the  use  of  a  parental  or  tutorial  power,  for  purposes  orktndhess,  with- 
out interfering  with,  or  prejudice  toThe  rights  of  an}",  but  those  who 
apply  for  specific  relief  The  title  of  strangers  is  not  in  any  degree 
affected  b}'  such  an  interposition. 

In  the  case  before  us,  the  object  sought  for  could  not  have  been 
obtained  in  the  ordinary  wa}-  of  a  license  from  a  court  of  law ;  for  by 
that  nothing  could  have  been  sold  but  the  reversion  belonging  to  the 
heirs  ;  and  the  proceeds  of  that  alone  would  have  been  put  at  uiterest ; 
whereas,  by  a  sale  of  the  whole,  as  was  authorized  by  the  legislature, 
there  is  no  doubt  a  better  price  was  obtained,  and  the  proceeds  finally 
coming  to  the  heirs  were  greater  than  they  would  otherwise  have  been. 
It  is  true,  that  the  same  purpose  might  have  been  effected  substan- 
tially bj'  a  license  to  sell  the  reversion,  and  a  sale  of  the  estate  for 
life  without  license  b}'  the  tenant  of  the  freehold.  But  still  the  pro- 
ceeds would  not  have  been  vested  so  beneficially,  as  they  were  under 
the  actual  sale. 

We  do  not  consider  notice  to  have  been  essential,  if  the  fact  be  that 
none  was  given.  The  father  acted  as  guardian,  and  he  had  no  interest 
adverse  to  that  of  his  children.  Notice  is  not  required  by  law  to  be 
given,  upon  applications  for  the  sale  of  the  estates  of  minors.^ 

Judgment  for  the  tenant  on  the  verdict. 

In  Brevoort  v.  Grace  et  al,  53  N.  Y.  245,  250  (1873),  the  Court 
of  Appeals  (G rover,  J.)  said:  "The  real  question  in  the  case  is 
whether  the  legislature  has  the  power,  by  special  Act,  to  authorize 

'  In  HoJden  v.  James,  11  Mass.  397,  the  court  decided  that  the  legislature  could  not 
suspend  the  operation  of  a  general  law  to  give  a  remedy  in  favor  of  an  individual, 
although  the  Constitution  provides  that  the  power  of  suspending  the  laws,  or  the  exe- 
cution of  the  laws,  may  be  exercised  by  the  legislature,  or  by  authority  derived  from 
the  legislature,  to  be  e.xercised  in  such  particular  cases  only  as  the  legislature  sliall 
expressly  provide  for;  and  although  the  practice,  ever  since  the  adoption  of  the  Con- 
stitution, had  been  to  enact  remedial  laws  in  like  cases  But  tiie  soundness  of  this 
decision  has  I)een  questioned.  —  Ed.  [of  11  Mass.  Rep] 

See  Davison  v.  Jolionnof,  7  Met.  388  ;  Sohier  v.  Mass.  Gen.  Hospital,  3  Cush.  483; 
Sohier  V.  Trin.  Ch.,  109  Mass.  1.  — Ed. 


CHAP,  v.]  BREVOORT   V.   GRACE    ET   AL.  883 

and  provide  for  the  sale  of  the  interest  of  known  parties  who  have 
attained  their  majority  and  who  are  competent  to  act  for  themselves  in 
real  estate,  and  convert  the  same  into  personal,  and  provide  for  the  in- 
vestment and  management  of  the  proceeds  without  their  consent,  upon 
the  ground  that  sucli  sale  would,  in  their  judgment,  promote  the  interest 
of  such  patties  and  others  who  are  iiifants  or  who  are  not  in  being,  and 
cairnot,  therefore,  provide  for  the  management  of  the  property,  li'  the 
legislature  possesses  this  power,  the  Act  in  question  is  valid  in  all  re- 
spects,not  only  for  the  reason  that  in  the  present  case  it  clearly  appears 
tliat  tlie  life  tenants  would  be  greatly  benefited  by  a  sale,  but  also  made 
highly  probable  tliat  the  interests  of  those  in  remainder  would  be  pro- 
moted. It  thus  appears  that  if  such  power  is  possessed,  this  is  a  proper 
case  for  its  exercise.  But  if^the  legislature  possesses  the  power,  it  also 
has  the  power  to  determine  whether  the  case  presented  is  one  proper  for 
its  exercise,  and  its  determination  is  conclusive,  as  also  of  the  mode 
and  safeguards  under  which  it  shall  be  exercised.  Henry  Brevoort  has, 
under  the  will,  the  remainder  in  fee  in  case  he  shall  survive  his  mother, 
subject  to  open  and  let  in  any  other  children  of  Mrs.  Brevoort  who  may 
hereafter  be  born,  who  shall  survive  her.  We  have  seen  that  his  title 
would  pass  under  the  deed  of  the  referee,  for  the  reason  that  he  united 
in  the  petition  and  thereby  assented  to  the  proceedings  under  which  the 
sale  was  made. 

"  Special  Acts  of  the  Legislature,  authorizing  the  sale  of  the  real  estate 
of  infants  and  others  incapable  of  acting  for  themselves,  have  been  held 
valid  in  this  State,  and  that  a  valid  title  as  to  such  persons  is  acquired 
under  sales  pursuant  to  such  Acts.  Clarke  v.  Van  Surlay,  15  Wend. 
436.  The  same  case  was  before  the  Court  of  Errors  in  the  name  of 
Cochrane  and  Wife  v.  Van  Surlay^  20  Wend.  365,  when  the  same  rule 
was  held,  based  upon  the  same  reason,  that  it  was  the  legitimate  exer- 
cise of  that  paternal  power  over  the  persons  and  propert}-  of  infants, 
which  under  the  common  law  was  an  inherent  right  of  sovereign  power, 
which  might  be  exercised  under  general  laws  or  under  peculiar  circum- 
stances by  special  legislation.  But  in  his  opinion  in  tiiis  case,  Ver- 
planck.  Senator,  says,  speaking  of  clauses  in  the  Constitution  of  1822 
which  are  also  contained  in  the  present  Constitution  :  '  Further  protec- 
tion is  given  to  property  by  adding  a  prohibition  against  the  taking  of 
private  property  for  public  use  without  just  compensation,  and  also  an- 
other against  the  depriving  any  one  of  life  or  propertj'  without  due 
process  of  law  and  by  mere  arbitrary  legislation,  under  whatever  pre- 
text of  public  or  private  good.' 

"  In  Williamson  v.  Berry,  8  How.  495,  and  in  a  subsequent  case,  the 
Supreme  Court  of  the  United  States  determined  different!}'  upon  the 
same  title,  but  the  difference  between  that  and  the  courts  of  this  State 
was  not  as  to  the  power  of  the  legislature  to  authorize  the  sale,  but  as 
to  whether  the  consent  of  the  Chancellor,  etc.,  which  was  required  by 
the  Act,  had  been  properly  given,  so  as  to  give  validit}-  to  the  sale. 

*'  In  Suydam  v.   Williaynson^  24  How.  427,  the  United  States  Supreme 


884  BREVOORT   V.   GRACE   ET  AL.  [CUAr.  V. 

Court  abandoned  the  decision  made  in  Williamson  v.  Herri/,  supra,  and 
adopted  and  followed  the  decisions  of  the  courts  of  this  State,  under  the 
salutary  rule  that  when  any  principle  of  law  establishing  a  rule  of  real 
property  has  been  settled  b}'  the  courts  of  a  State,  that  rule  will  be 
applied  by  the  Federal  courts  in  cases  where  the  latter  acquire  jurisdic- 
tion of  cases  Avithin  the  State  by  reason  of  the  character  or  residence 
of  the  parties. 

"  In  Towle  v.  Forney^  4  Duer,  164,  the  doctrine  of  Cochranex.  Surlny 
was  reaffirmed  b}'  this  court.  Other  cases,  to  the  same  effect,  might  be 
cited,  but  from  those,  supra,  it  is  clear  that  a  special  Act  of  the  Legis- 
lature, authorizing  the  sale  of  the  lands  of  infants,  etc.,  is  within  the 
constitutional  power  of  the  legislature. 

"  Doubts  were  expressed  in  some  of  the  cases,  supra,  whether  this 
power  extended  to  those  not  in  being,  who  might  thereafter  be  entitled 
to  some  estate  in  the  premises.  The  reasons  upon  which  the  rule  is 
based  as  to  the  former,  apply  with  equal  force  as  to  the  latter.  In  both 
there  is  a  want  of  capacity  to  manage  and  preserve  the  property,  so  as 
to  protect  the  interest  of  those  who  are  or  may  become  entitled  thereto, 
and  hence  the  necessity  of  devolving  this  duty  upon  the  sovereign.  For 
this  purpose  the  legislature,  under  our  system,  represents  and  possesses 
the  powers  of  the  sovereign  authority,  and  may  discharge  the  dut}^ 
either  by  general  or  special  laws,  as  will  best  protect  the  rights  of  those 
interested,  although  it  is  obvious  that  the  former  should  be  preferred  in 
all  cases  where  practicable. 

"  Meadx.  Mitchell,  17  N.  Y.  210,  was  a  case  of  partition,  in  which 
it  was  held  that  a  valid  sale  of  the  future  contingent  interests  of  those 
not  in  being  might  be  made  pursuant  to  the  judgment  in  the  action. 
Although  this  is  not  an  authority  precisely  in  point,  yet  the  judgment, 
as  well  as  the  opinions,  show  that  such  interests  were  equally  within  the 
control  of  the  legislature  as  those  of  infants,  etc. 

"  Hjudn"  ^'"''i^'^^  "^  ^^^"  por.olnci-nn  thi^f-  \\\c.  legislature  may^jrviljecial 
Act,  authorize  the  sale  of  the  lands  of  those  not  capable  of  ACtinPLJjQiL 
themselves,  and  also  the  contingent  rights  of  those  not  in  esse,  it  follojjES 
that  a  valid  title  would  have  passed  by  virtue  of  the  deed  of  theu'efere^, 
as  to  any  future  chi1d''P"  "f  ^Trs.  Erevoort.  or  anv  issue  of  Tlenrv  Bre- 
voort  hereafter  born.  This  w^ould  make  the  title  valid  as  against  every- 
body except  Mrs.  Lefferts,  the  widow  of  the  testator,  and  the  heirs  of 
the  children  of  his  brother  John.  No  point  is  made  as  to  the  right  of 
the  former ;  I  shall  therefore  assume  that  as  to  her  the  title  has  been 
made  satisfactory,  as  it  very  readily  might  be. 

"  The  question  then  is  as  to  the  rights  of  the  adult  heirs  of  the  children 
of  the  testator's  brother  John.  In  the  event  of  the  death  of  Mrs.  Bre- 
voort,  leaving  no  issue  surviving,  an  event  which  is  possible,  the  title  to 
the  premises  would  vest  in  part  in  these  adult  heirs  as  tenants  in  com- 
mon with  the  other  heirs,  who  are  now  infants,  unless  these  rights  are 
barred  by  the  sale  under  the  statute.  The  question  is  thus  presented, 
whether  the  legislature  can,  by  a  special  statute,  authorize  the  sale  of 


CHAP,  v.]  BKEVOORT   V.   GRACE   ET   AL.  885 

lands  to  which  adults,  competent  to  act  for  themselves,  have  a  contin- 
gent right,  and  thus  cut  off  such  contingent  interest  therein,  should  such 
events  occur  as  would  give  the  title  in  whole  or  part  to  those  having 
such  interest. 

"It  is  urged  by  the  counsel  for  the  appellants  that  such  interest  is  not 
barred,  for  the  reason  that  the  adult  heirs  were  not  parties  to  and  had 
no  notice  of  the  proceedings.  To  this  the  counsel  for  the  respondent 
answers,  that  it  was  not  necessary  to  make  them  parties  or  give  them 
notice,  as  their  interest  was  contingent,  and  represented  by  Henry  Bre- 
voort,  who  was  a  party,  and  who  had  a  prior  vested  remainder  in  fee, 
subject  to  be  defeated  by  his  death  during  the  life  of  his  mother,  Mrs. 
Brevoort,  and  cites  Clarke  y.  Cordis^  4  Allen,  466,  Nodinex.  Greenfield, 
7  Paige,  544,  and  Mead  v.  Mitchell,  17  N.  Y.  210,  in  support  of  the 
position.  In  regard  to  this,  I  think  that  if  the  legislature  possesses  the 
power  to  authorize  the  sale,  and  thus  cut  off  the  rights  of  parties,  the 
mode  and  manner  of  conducting  it  are  questions  for  its  determination. 
The  questions  whether  the  interest  of  all  parties  will  be  promoted  by  a 
sale,  and  whether  a  sale  shall  be  made,  when  and  how,  may  be  deter- 
mined in  the  statute  ;  or  power  to  hear  and  determine  all  or  any  of  them 
may  by  the  Act  be  conferred  upon  the  courts,  and  in  case  the  latter 
course  is  adopted,  the  Act  may-provide  as  to  who  shall  be  made  parlies, 
and  have  notice  of  the  proceedings,  as  the  legislature  shall  judge  neces- 
sary and  sufficient  for  the  protection  of  all  interests  to  be  affected  by 
the  sale. 

' '  The  real  question  is  whether  the  legislature  has  the  power,  by  a  sale 
tinder  a  special  Act,  to  extinguish  the  rights  of  those  of_legal  capjclty 
to  act  for  themselves  in  real  estate,  vested  or  contingent,  upon  the 
ground  that  in  its  judgment,  or  of  that  of  any  of  the  judicial  tribunals 
oftlie~8tatp,  thP  intprps^g  nt  all  would  be  pTomoted  thereby,  wi thout  the 
consent  of  such  parties.  This  precise  question  was  decided  in  the  neg- 
ative by  this  court  in  Poioers  v.  Bergen,  2  Selden,  3.58.  The  validity  of 
the  statute  was,  in  that  case,  attempted  to  be  upheld,  upon  the  ground 
that  a  sale  was  necessar}'  to  provide  for  the  payment  of  taxes  and  assess- 
ments ;  but  the  opinion  shows  that  neither  the  Act  nor  the  proceedings 
showed  any  such  foundation  therefor.  In  the  present  case  the  Act  and 
proceedings  show  that  the  premises  were  largel}'  incumbered  by  both  ; 
but  the  difficulty  is,  that  the  quantity  of  land  authorized  to  be  sold,  and 
which,  in  fact,  was  sold,  was  not  limited  to  the  quantity  necessary  for 
that  purpose.  The  Act  authorized  the  sale  of  the  entire  premises,  and, 
under  its  provisions,  all  have  been  sold,  in  the  aggregate,  for  about 
eight  hundred  thousand  dollars,  a  part  of  which  were  purchased  by  the 
appellants.  Surely  a  sale  of  land,  which  was  already  subdivided  into 
parcels  and  sold  in  that  manner,  cannot  be  upheld  on  the  ground  that  it 
was  necessary  for  the  payment  of  taxes  and  assessments  amounting 
only  to  a  small  part  of  that  sum.  The  Act  could  only  be  sustained 
upon  that  ground  by  limiting  the  sale  to  a  quar.tity  necessary  for  those 
purposes.     In  the  case  last  cited,  the  learned  judge  concedes  the  power 


886  BREVOORT   V.    GRACE    ET   AL.  [CHAP.  V. 

of  the  legislature,  in  acting  as  the  guardian  and  protector  of  those  in 
capable  of  acting  for  themselves  by  reason  of  infancy,  lunacy,  etc.,  to 
pass  general  or  special  laws  under  which  an  effectual  disposition  of  their 
lands  and  other  property  may  be  made  in  order  to  promote  their  inter- 
ests ;  and,  after  an  allusion  to  the  fact  that,  in  England,  private  Acts 
of  Parliament  are  a  mode  of  assurance,  proceeds  to  say  that  here  the 
sovereign  and  absolute  power  I'esides  in  the  people,  and  that  the  le^sla- 
ture  can  exercise  such  powers  onl}'  as  have  been  delegated  to  it.  \  The 
right  of  eminent  domain  or  inherent  sovereign  power  gives  theJeJlSLa.- 
tiire^ (control  Qf  private  property  for  public  uses,  and  only  for  such  use§  ; 
in  such  cases,  the  interest  of  the  public  is  deemed  paramount  to  that  of 
any  individual^nd  ye_Ueven  here,  the  Constitution  of  the  United  States 
and  the  Conatftution  of  this  State  have  imposed  a  salntaiA' jcJie,ck  upon 
the  exercise  of  legislative  power  for  that  purpose,  by  providing  that 
privatgLprnpeiity  shall  not  be  taken  for  public  use  without  just  compen^ 
satkui^^^It  follows  that  if  the  legislature  should  pass  an  Act  to  take 
|^)nvate  property  for  a  [jurp.ose'not  Of  a  puTjIic^^a^tTre,  OT  tf  itrsfaouW 
provide,  throuo-h  certain  forms  to  be  obsei'vedf^to^take  the  propeilji^ 
one  and  give  it  or  sell  it,  which  is  the  same  thing  in  principle,  to  an- 
otlier;  or,  if  it  should  vncntp  ^  ayAwt  of  property  under  the  |)retext  of 

crm^^p  pnl^H/^  nco     sUfll   '^^c^S   W"\l1d   hft  grOSS    ffbuSPS  Of   th^    di^/^'VPtinii  j^ 

the  legislature  and  fraudulent  attacks  on  private  rights,  and  the  law 
would  be  clearlv  unconstitutional  and  void.  ,2  Kent's  Com.  340.  If  the 
power  exists  to  take  the  property  of  one  without  his  consent  and  transfer 
it  to  another,  it  may  as  well  be  exercised  without  making  compensation 
as  with  it,  for  there  is  no  provision  in  the  Constitution  that  just  com- 
pensation shall  be  made  to  the  owner  when  his  property  shall  be  taken  for 
private  use.  The  power  of  making  contracts  for  the  sale  and  disposition 
of  private  property  for  individual  owners  has  not  been  delegated  to  the 
legislature,  or  to  others,  through  or  by  any  agency  conferred  on  Ihera 
for  such  purpose  by  it ;  and  if  the  title  of  A.  to  the  property  can,  with- 
out his  fault,  be  transferred  to  B.,  it  may  as  well  be  effected  without  as 
with  a  consideration.  After  citing  and  commenting  upon  some  author- 
ities, the  judge  concludes  by  holding  the  Act  void,  and  that  a  good  title 
was  not  acquired  by  a  deed  given  pursuant  to  a  sale  made  under  its 
provisions.  The  court  unanimously  concurred  in  this  conclusion.  The 
only  ditference  between  that  and  the  present  case  is,  that  in  that  the  ex- 
isting children  of  the  testator's  daughter  Eliza,  to  whom  the  fee  was 
given  in  case  their  mother  died  in  their  lifetime,  were  not  required  to 
be  and  were  not  made  i)arties  to  the  proceeding,  while  in  the  present, 
Henry  Brevoort,  the  only  cliild  of  Mrs.  Brevoort,  was  so  required  by 
the  Act,  and  was  a  party.  This  difference  will  be  hereafter  considered. 
"  The  counsel  for  the  respondents  insists  that  the  principle  upon  which 
Powers  v.  Bergen  was  decided  was  modified  or  restricted  by  the  same 
court  in  Leggett  v.  Hunter,  19  N.  Y.  446.  In  the  latter  the  court  held, 
first,  that  the  trustee  had  power,  under  the  will,  to  sell  and  convey  the 
lands  in  question  in  the  absence  of  any  Act  of  the  Legislature  conferring 


CHAP,  v.]  BREVOORT   V.    GRACE   ET   AL.  887 

authority  for  that  purpose  upon  hira,  and  also  that  the  Act  by  which 
such  authorit}'  was  conferred  was  constitutional  and  valid.  It  appears, 
from  the  report,  that  all  the  members  of  the  court  concurred  in  the  re- 
sult, and  that  the  necessar}'  number  to  decide  concurred  upon  both 
points.  The  report  shows  that  it  was  not  designed  in  the  latter  to  over- 
rule the  former  upon  the  point  last  considered  in  the  opinion,  but  to  dis- 
tinguish the  case  then  under  consideration  from  that.  In  Leggett  v. 
Hunter^  it  appeared  that  Gerardus  Post  was  owner  in  fee  at  the  time  of 
his  death  ;  that  he  left  five  children,  three  sons  and  two  daugliters,  sur- 
viving;  that,  b}'  his  will,  he  devised  one-fifth  of  his  real  estate  to  each 
of  his  sons  in  fee,  and  two-fifths  thereof  to  trustees  during  the  lives  of 
his  two  daughters,  one  in  trust  for  each  daughter  during  her  life,  re- 
mainder in  fee  to  her  issue.  The  will  made  no  devise  over,  in  case  the 
daughter  died  leaving  no  issue.  It  appeared  that  the  daughter  who  was 
entitled  to  the  income  of  the  lands  in  question,  for  life,  liad  children  who 
were  infants  at  the  time  of  the  passage  of  the  Act  and  of  the  sale,  the 
validity  of  which  was  the  question  involved  in  the  questions  submitted. 
Clearl}'  as  to  these  infants  the  statute  and  sale  were  valid  by  all  the 
authorities,  and  valid,  as  we  have  seen,  as  to  an}'  after-born  children  of 
the  daugliter.  The  latter  point  is  discussed  in  the  opinion,  and  the  con- 
clusion adopted  that  the  sale  under  the  Act  would  be  valid  as  to  such 
children.  But  nothing  is  said  in  the  opinion  as  to  the  rights  of  the  adult 
heirs  of  the  testator  in  case  the  daughter  died  without  issue.  This  re- 
mainder was  undisposed  of  b}-  the  will,  and  descended  to  the  heirs  of 
the  testator.  The  case  is  entirely  silent  as  to  this  ;  and  whether  at  the 
time  these  heirs  or  any  of  them,  except  the  daughter,  were  adults,  does 
not  appear.  In  the  opinion  the  judge  says:  'The  court  decided,  in 
Powers  v.  Bergen^  that  the  legislature  (except  in  cases  of  necessit}' 
arising  from  infancy,  insanity,  or  other  incompetency  of  those  in  whose 
behalf  it  acts)  has  no  power  to  authorize  b}'  special  Act  the  sale  of 
private  property  for  other  than  public  uses  without  the  consent  of  tlie 
owner.'  This  is  a  correct  statement  of  the  point  decided.  He  then 
proceeds  to  state  that  in  that  case  no  reason  appeared,  and  then,  as  I 
think,  losing  sight  of  the  only  reasons  upon  which  such  legislation  can 
be  sustained,  proceeds  to  distinguish  that  case  from  that  he  was  consider- 
ing, by  showing  the  probably  great  pecuniary  benefits  to  be  derived  from 
a  sale  in  the  one  then  in  judgment.  The  power  cannot  be  based  upon 
such  considerations.  The  great  confusion  of  titles  that  would  ensue  by 
holding  the  sale  valid  if  advantageous  to  the  parties  interested,  but  if 
otherwise  invalid,  must  have  escaped  the  attention  of  the  learned  judge. 
As  already  remarked,  when  power  is  given  to  the  legislature  to  do  an 
act,  it  includes  the  power  of  determining  conclusively  whether  its  exer- 
cise is  expedient  in  the  particular  case.  Leggett  v.  Hunter  did  not 
assume  to  determine  that  the  legislature  had  power  to  authorize  the  sale 
of  the  private  property  of  adults  without  the  consent  of  the  owner, 
other  than  for  public  use,  however  advantageous  it  might  be. 

"  In  the  Matter  of  the  Petition  of  the  Trustees  P.  E.  School,  dc. 


8SS  BKEVO  ;kt  v.  grack  et  al.  [chap.  v. 

31  N.  Y.  574,  it  was  held  that  the  legislature  had  power  to  authorize  the 
sale  of  land  for  the  payment  of  taxes  and  assessments  thereon,  and 
Foicers  v.  Bergen  was  referred  to  as  correctly  decided  ;  referring  to  that 
case,  Dcnio,  C.  J.,  says :  It  has  been  decided  b3-  this  court  that  the 
legislature  has  no  constitutional  power  to  cause  land  to  be  sold  for  the 
purpose  of  disentangling  an  estate,  where  the  parties  entitled  to  future 
estates  are  under  no  disabilit}'  to  act  for  themselves,  though  it  is  fully 
admitted  that  it  may  be  done  when  the  rights  of  infants,  lunatics,  etc., 
are  concerned.  Tliis  must  be  regarded  as  the  settled  law  of  the  State, 
although  in  conflict  with  Sohier  v.  Mass.  General  Hospital.^  3  Gushing, 
483. 

"The  cases  cited,  holding  that  the  legislature  have  power  to  change 
existing  joint  tenancies  into  tenancies  in  common,  and  thereby  destroy 
the  right  of  survivorship,  have  no  bearing  upon  the  question  under  con- 
sideration. Bomhaugh  v.  Bombaugh,  11  Sergeant  &  Rawle,  191  ; 
Miller  v.  Miller,  16  Mass.  61  ;  Holhrook  v.  Finney.,  4  Id.  586.  Jacob- 
son  v.  Babcock,  16  N.  Y.  246,  holds  the  Act  (chap.  327,  Laws  of  1855), 
providing  for  the  sale  of  land  for  the  payment  of  taxes,  etc.,  constitu- 
tional and  valid.  Rockwell  v.  Neai'ing,  35  N.  Y.  302,  Campbell  v. 
Fuans,  45  N.  Y.  356,  and  Hap-py  v.  3Iosher,  relate  to  other  questions, 
and  afford  no  light  upon  the  present  case.  Striker  v.  Mott^  28  N.  Y. 
82,  is  cited  by  counsel  to  show  that  the  heirs  of  the  children  of  the 
testator's  brother,  John,  have  no  such  interest  in  the  lands  as  can  be 
alienated  hy  them.  That  case  arose  upon  a  will  which  took  effect  in 
1819,  before  the  passage  of  the  Revised  Statutes;  sections  9,  10,  13, 
14,  16,  25,  and  other  sections  of  article  1,  1  Stat,  at  Large,  670,  show 
that  these  heirs  had  an  estate  in  expectancy,  contingent  upon  the  death 
of  Mrs.  Brevoort  without  issue  surviving ;  section  35  makes  such  estate 
descendible,  devisable,  and  alienable,  in  the  same  manner  as  estates  in 
possession. 

"  It  is  insisted  by  the  counsel  for  the  respondent  that  the  Act  in  ques- 
tion should  be  sustained,  for  the  reason  that  some  of  the  heirs  are 
infants,  and  that  the  legislature  has  the  power  to  authorize  the  sale  of 
the  interests  of  these  infants.  But  this  does  not  confer  the  power  to 
authorize  a  sale  of  the  interests  of  the  adults  without  their  consent. 

"  It  is  further  insisted  that  although  the  legislature  may  not  have  the 
power  to  authorize  the  sale  of  an  estate  in  possession,  or  a  vested  estate 
in  expectancy*  of  an  adult  witliout  his  consent,  yet  it  can  authorize  the 
sale  of  a  contingent  estate  in  expectanc}-.  I  can  see  no  reason  for  the 
distinction.  An  owner  suijitris  is  equallj'  competent  to  determine  and 
manage  for  himself  in  the  one  case  as  in  the  other.  The  foundation  of 
thepowerof  the;  legislature  to  act  in  behalf  of  any  owner  isThejwanFof" 
capacity  to  act  for  himself,  and  this  reason  no  moj:e^extends_to  the  case 
of  a  contingent  than  to  a  vested  expectant  estate.  The  question  as  to 
whether  the  interests  are  vested  or  contingent  is  not  material  and  will 
not  be  discussed. 
.* '  It  is  obvious  that  the  fact  that  Henry  Brevoort  being  a  party  can 


CHAP,  v.]  STARR   V.    PEASE.  889 

have  no  bearing  upon  the  power  of  the  legislature  to  sell  without  their 
consent  the  interest  of  the  heirs  of  the  testator's  brother  John.  For  this 
purpose  he  no  more  represents,  and  has  no  more  power  to  affect  their 
rights  than  a  stranger  to  tlie  title.  He  may  bind  liis  own  rights  by  his 
acts  but  not  those  of  others.  My  conclusion  is  that  the  deed  tendered 
would  not  have  conveyed  to  the  appellants  an  indefeasible  title  in  fee 
to  the  premises  purchased  by  them,      y 

"  The  judgment  must  therefore  be  reversed  and  judgment  given  for 
the  defendants  upon  the  demurrer  to  the  complaint." 

All  concur. 

Rapallo,  J.,  expresses  no  opinion  as  to  power  of  legislature  to  cut 
ol^  contingent  remainder-men  or  persons  not  in  being. 

Judgment  accordingly.^ 


STARR  V.   PEASE. 
Connecticut  Supreme  Court  of  Errors.     1831. 

[8  Conn.  540.] 

This  was  an  action  of  ejectment;  to  which  the  general  issue  wa3 
pleaded. 

The  case  was  as  follows.  In  the  year  1799,  the  plaintiff  became  the 
wife  of  John  L.  Lewis.  In  1820,  George  Starr,  the  fatlier  of  the  plain- 
tiff, died,  seised  of  the  demanded  premises ;  and  immediately  there- 
after, the  fee  thereof  was  vested  in  the  plaintiff,  as  his  heir,  and  the 
right  of  possession  in  Lewis,  her  husband.  In  1826,  the  premises 
were  taken  by  execution,  in.  favor  of  Pease,  one  of  the  defendants, 
against  Lewis  ;  and  his  right  therein  became  vested  in  Pease,  who,  with 
the  other  defendants,  on  the  14th  of  May,  1820,  ousted  the  plaintiff, 
and  took  possession.  Lewis-  never  had  any  child  by  this  marriage,  and 
is  still  living. 

In  May,  1827,  the  plaintiff  preferred  her  i>etition  to  the  General 
Assembly,  for  a  divorce,  which  was  granted  ;  and  the  following  Act  or 
decree  was  passed:  "Upon  the  petition  of  Martha  M.  Lewis,  repre- 
senting to  this  Assembly  that  she  was  lawfully  married  to  John  L. 
Lewisron  the  23rd  day  of  September,  1799  ;  and  that,  on  or  about  the 
15th  day  of  January,  1826,  the  said  John  L.  Lewis  indulged  such 
criminal  intimacies  with  one  Nancy  B.  Jones  as  amounted  to  adultery, 
as  nearly  as  could  be,  without  the  actual  perpetration  of  the  crime  ;  and 
praying  for  a  divorce  ;  as  per  petition  on  file :  And  the  said  allega- 
tion, after  hearing  of  the  petitioner  and  said  John  L.  Lewis,  with  their 
witnesses  and  counsel,  being  found  true  : 

"  Resolved  by  this  Assembly,  that  the  said  Martha  L.  Lewis  be,  and 

1  See  Cooley,  Const.  Lim.  (6th  ed.)  115-128.  As  to  express  prohibitions  in  some 
constitutions,  lb.,  116,  note  1.  —  Ed. 


890  STAKE   V.    PEASE.  [CHAP.  V. 

she  hereb}'  is,  divorced  from  her  said  husband,  the  said  John  L.  Lewis  ; 
and  is  hereby  released  and  absolved  from  all  obligations,  by  virtue  of 
said  marriage." 

The  case  was  reserved  for  the  advice  of  this  court,  upon  the  question, 
whether  the  plaintiff  was  entitled  to  a  recovery ;  and  if  so,  to  what 
period  the  rents  and  profits  should  be  computed,  in  the  assessment  of 
damages. 

Shermcm  and  Barnes,  for  the  plaintiff. 

N.  Smith  and  /Storrs,  for  the  defendant. 

Daggett,  J.  ...  It  is  said,  however,  that  if  a  State  legislature  were 
authorized  to  make  a  law  giving  power  to  some  tril)unal  to  grant 
divorces,  still  they  cannot,  by  a  sovereign  Act,  dissolve  this  contract. 
This,  I  apprehend,  applies  only  to  the  fitness  of  the  exercise  of  the 
power  in  question,  and  not  to  the  constitutional  right.  It  will  be 
exceedingly  diffii-nit  to  establi'ih  thf^t  Act  to  be  a  violation  of  the  Con- 
stitution  of  the  United  States,  when  done  by  the  legislature  itself, 
w-hich  would  nor, Tie  j^q,  if  done  by  a  (^ourt,  in  obt;dience  to  law^  Tii  the 
case  of  Calder  &  ux.  v.  Bull  &  ux.,  3  Dall.  386,  the  Supreme  Court  of 
the  United  States  decided,  that  a  resolution  or  law  of  the  Legislature 
of  Connecticut  establishing  a  will,  was  not  a  violation  of  the  Constitu- 
tion of  the  United  States. 

A  further  objection  is  urged  against  this  Act,  viz.,  that  by  the  new 
Constitution  of  1818,  tliere  is  an  entire  separation  of  the  legislative  and 
judicial  departments,  and  that  the  legislature  can  now  pass  no  Act  or 
resolution,  not  clearh'  warranted  by  that  Constitution  ;  that  the  Con- 
stitution is  a  grant  of  power,  and  not  a  limitation  of  powers  alreadj' 
possessed  ;  and  in  short,  that  there  is  no  reserved  power  in  the  legis- 
lature since  the  adoption  of  this  Constitution.  Precisely  the  opposite 
of  this  isH;rue.  From  the  settlement  of  tlie  State  there  have  been  cer- 
tain fundamental  rules,  by  which  power  has  been  exercised.  These 
rules  were  embodied  in  an  instrument,  called,  bj-  some,  a  constitution, 
—  bj'  others,  a  charter.  All  agree,  that  it  was  the  first  Constitution 
ever  made  in  Connecticut,  and  made  too,  b}'  the  people  themselves.^  It 
gave  very  extensive  powers  to  th?  legislature,  and  left  too  much  (for 
it  left  everything  almost)  to  their  will.  The  Constitution  of  1B18  pi'n- 
fessed  to,  and,  in  fact,  did,  limit  that  wjj)-  It  nrloptorl  pei'tain  general 
£rinciples,  b}'  a  preamble,  called  a  declaration  of  rights  ;  provided  for 
^e  election  and  appointment  of  certain  organs  of  the  government,  such 
as  the  legislative,  executive,  aiid  iucljfinl  depf^rtments :  nnrl  impospd 

and  inde- 
necessary 

for  the  good  of  the  people,  not  forbidden  by  the  Constitution  of  the 
United  States,  nor  opposed  to  the  sound  maxims  of  legislation  ;  and  it 


as  tne  legislative,  executive,  aiia  luciifini  Mepf^nmenrs  ;  nnn 
upon  them  certain  restraints.   IIt_found  the  State  sovereign 
pendent,  with  a  legislative  powe^capable  of  making  all  laws 


^  There  appears  to  be  a  confusing  double  reference  here,  —  to  the  "Fundamental 
Orders  "  of  1638-1639  (1  Poore's  Charters,  249),  and  to  the  Charter  of  Charles  II.  (lb. 
252).— Ed. 


CHAP,  v.]  STARR  V.   PEASE.  891 

left  them   in  jbe  same  condition,  except  so  far-ii&  limitaliQiia_JEere 
provided. ^^ 

There  is  now,  and  has  been,  a  law  in  force,  jon  the  subject  o( 
divorces.  This  law  was  passed  one  hundred  and  tliirty  years  ago.  It 
provides  for  divorces^a  j'i'ncj/jp  matrimonii^  in  four  cases,  viz.^  adul- 
tery,  fraudulent  contract,  wilful_ desertion,  and  seven  years'  n])soncp^ 
unheard  of  The  law  has  remained  in  substance  the  same  as  it  was, 
when  enacted,  in  1667.  During  all  this  period,  the  legislatuie  has  in- 
terfered, like  the  Parliament  of  Great  Britain,  and  passed  special  Acts 
of  divorce  a  vi?iculo  matrimonii ;  and,  at  almost  every  session  since  the 
Constitution  of  the  United  States  went  into  operation,  now  forty-two 
years,  and  for  tlie  thirteen  years  of  the  existence  of  the  Constitution  of 
Connecticut,  such  Acts  have  been,  in  multiplied  cases,  passed,  and  sanc- 
tioned, by  the  constituted  authorities  of  our  State. 

We  are  not  at  liberty  to  inquire  into  the  wisdom  of  our  existing  law 
on  this  subject ;  nor  into  the  expediency  of  such  frequent  interference 
bj'  the  legislature.  We  can  only  inquire  into  the  constitutionality  of 
the  Act  under  consideration.  The  power  is  not  prohibited,  either  113' 
the  Constitution  of  the  United  States,  or  1)3'  that  of  this  State.  In  view 
of  the  appalling  consequences  of  declaring  the  general  law  of  the  State, 
or  the  repeated  Acts  of  our  Legislature,  unconstitutional  and  void,  — 
consequences  easily  conceived,  but  not  easil3'  expressed,  —  such  as  bas- 
tardizing the  issue  and  subjecting  the  parties  to  punishment  for  adul- 
ter3',  —  tiie  court  should  come  to  the  result  onl3-  on  a  solemn  conviction 
that  their  oaths  of  office  and  these  Constitutions  imperiously  demand 
it.  Feeling  myself  no  such  conviction,  I  cannot  pronounce  the  Act 
void. 

Another  question  was  reserved,  that  is,  shall  damages  be  recovered 
to  tlie  date  of  the  writ,  or  to  the  rendition  of  the  judgment?  It  is  under- 
stood, that  different  rules  have  prevailed  on  this  point.  I  think  it  most 
consonant  to  principle,  that  damages  should  be  given  only  to  the  date 
of  the  writ. 

I  would  therefore  advise  the  Superior  Court,  that  judgment  be  entered 
up  for  the  plaintiff,  with  damages  to  the  date  of  the  writ. 

HosMER,  Ch.  J.,  and  Bissell,  J.,  were  of  the  same  opinion. 

Peters,  J.,  said  he  could  not  give  an  unqualified  concurrence.  Upon 
general  principles,  he  had  no  doubt,  that  the  Act  of  Divorce  in  this  case, 
was  repugnant  to  the  Constitution  of  the  United  States,  as  impairing 
the  obligation  of  a  contract ;  and  that  it  was  void,  under  the  Constitu- 
tion of  this  State,  as  an  assumption  of  judicial  power  by  the  legislature. 
But  in  view  of  the  decisions  in  analogous  cases  and  of  the  appalling  con- 
sequences of  nullifying  all  legislative  Acts  of  Divorce,  he  should  acquiesce 
in  the  opinion  of  the  court.  On  the  point  of  damages  he  concurred  with- 
out hesitation. 

^  See  Pratt  v.  Allen,  13  Conn.  124,  where  Williams,  J.,  quotes  and  sanctions  these 
doctrines ;  and  see  Trustees  of  Bishops'  Fund  v.  Rider,  13  Conn.  87,  for  the  general  sub- 
ject of  laws  impairing  contracts. 


892  WILKINS   V.   JEWETT.  [CHAP.  V. 

Williams,  J.,  having  been  retained  as  counsel  for  Lewis,  on  the 
plaintiff's  application  for  the  Act  of  Divorce,  declined  giving  anj 
opinion  as  to  the  validity  of  that  Act.  He  concurred  as  to  the 
damages.  Judgment  to  be  given  for  the  plaintiff .^ 


WILKINS   V.   JEWETT. 
Supreme  Judicial  Court  of  Massachusetts.     1885. 

[139  Mass.  29.] 

Morton,  C.  J.  This  is  an  action  to  recover  one  half  the  cost  of  a 
part}'  wall.  In  1873,  the  plaintiff  made  an  agreement  with  one  Mat- 
thews, who  was  then  the  owner  of  the  equity  of  redemption  of  the 
defendant's  land,  that  the  plaintiff  might  place  one  half  of  the  division 
wall  of  his  house  on  the  defendant's  lot ;  and  that  Matthews  would  pay 
one  half  of  the  cost  of  the  wall  when  he  made  use  of  it. 

The  defendant's  title  is  under  the  foreclosure  of  a  mortgage  exist- 
ing at  the  time  this  agreement  was  made.  The  mortgagee  was  not  a 
party  to  the  agreement,  and  it  is  not  contended  that  the  defendant  is 
hound  by  it.  But  the  plaintiff  contends  that  the  defendant  is  liable  by 
virtue  of  the  Prov.  St.  of  1G92-93  (5  W.  &  M.)  c.  13,  entitled,  "  An  Act 
for  building  with  stone  or  brick  in  the  town  of  Boston,  and  preventing 
fire."  1  Prov.  Laws  (Stale  ed.)  42.  This  statute  provided,  in  §  2,  that 
*'  every  person  building  as  aforesaid  with  brick  or  stone  shall  have 
liberty  to  set  half  his  partition  wall  in  his  neighbor's  ground,  so  that  he 
leave  toothing  in  the  corners  of  such  walls  for  his  neighbor  to  adjoin 
unto,  who,  when  he  shall  build,  such  neighbor  adjoining  shall  pay  for 
one  half  of  the  said  partition  wall,  so  far  as  it  shall  be  built  against. 
And  in  case  of  any  difference  arising,  the  selectmen  shall  have 
power  to  appoint  meet  persons  to  value  the  same  or  lay  out  the  line 
between  such  neighbors." 

We  are  of  opinion  that  this  provision  of  the  Provincial  Statutes  was 
never  in  force  in  the  Commonwealth  of  INIassachusetts.  The  Constitu- 
tion continued  in  force  all  laws  adopted,  used,  and  approved  in  the 
Province,  Colony,  or  State  of  Massachusetts  Bay,  and  usually  practised 
on  in  the  courts  of  law,  until  altered  or  repealed  by  the  legislature, 
"  such  parts  only  excepted  as  are  repugnant  to  the  rights  and  liberties 
contained  in  this  Constitution."     Const.  Mass.  c.  6,  art.  6. 

The  provision  in  question  undertakesJo_  deal  with  private_propertv, 
an^~To'""authorize  one  man  to  appropriate  and  use  the  property^  oj 
another  withouthis  consent     It  assumes  to  take  private__propertv  with- 

1  See  1  Bish.  Mar.  &  Div.  (6th  ed.)  ss.  68.5,  686  ;  Cooley,  Const.  Lim.  (6tli  ed.)  128- 
133.  The  topic  here  considered  is  covered  in  several  States  by  express  constitutional 
provisions.  —  Ed. 


CHAP.  V.J  TURNER   V.   NYE.  893 

out  dueprocess  of  law,  and  without  compensation.  It  is  repugnanL-ta 
the  fundamental  principles  declared  in  the  Declaration  of  Rights,  that 
the  property"  of  the  subject  shall  not  be  appropriated,  even  for  public 
use,  without  paying  him  a  reasonable  compensation  therefor,  and  that 
he  shall  not  be  deprived  of  his  property  but  b}-  the  judgment  of  his 
peers,  or  the  law  of  the  land  ;  and  that,  in  all  controversies  concerning 
propert}',  he  shall  have  a  right  to  trial  by  jury.  Declaration  of  Rights, 
arts.  10.  12,  15.  Morse  v.  Stocker,  1  Allen,  150.  Forster  v.  Forster, 
129  Mass.  559. 

Undoubtedly,  the  authority  of  the  legislnt.nre,  in  the,  exercjse  of  tlie 
police  power,  is  \ev[_hvoa^.  This  power  is  founded  upon  the  princi- 
ple that  any  man  may-tJe  reasonabl}'  restrained  in  the  use  of  his  prop- 
erty so  as  not  to  injure  others.  Watertown  v.  Mayo,  109  Mass.  315, 
318.  Bi^it'do£S-JiQtJiis.tiiX-authorizing  oue_,man  to  apjjropjiate^and 
use  the  property  of  another  without  his  consent  and  without_a,dequate 
compensation. 

It  is  a  significant  fact,  that,  since  the  adoption  of  the  Constitution, 
no  trace  can  be  found  of  an^'  legislative  or  judicial  sanction  of  the  pro- 
visions of  the  Provincial  statute  upon  which  the  plaintiff  relies.  We 
think  it  has  been  regarded  as  repugnant  to  the  principles  of  the  Consti- 
tution, and  as  of  no  force.  It  follows  that  the  plaintiff  cannot  maintain 
this  action.  Excejitions  overruled. 

J.  D.  Thomson,  for  the  plaintiff,  cited  Quinn  v.  Morse,  130  Mass. 
317,  321. 

£,.  D.  Smith  and  G.  W.  Estabrook.,  for  the  defejidaut. 


TURNER  V.   NYE. 
Supreme  Judicial  Court  of  Massachusetts.     1891. 

[154  Mass.  579.] 

Bill  in  equity,  filed  in  the  Superior  Court  on  September  5,  1889,  to 
prevent  the  defendant  from  maintaining  a  dam  across  a  creek  flowing 
into  Cataumet  Harbor  in  Falmouth,  in  the  county  of  Barnstable,  and 
from  flowing  the  plaintiffs'  land.  Hearing  before  Mason,  J.,  who 
ordered  the  bill  to  be  dismissed,  and,  after  an  appeal  had  been  taken 
by  the  plaintiffs  to  this  court,  made  the  following  report  of  the  facts. 

The  plaintiffs  were  the  owners  of  about  three  fourths  of  an  acre  of 
marsh  land  adjoining  the  creek  above  referred  to ;  and  the  defendant 
had  built  the  dam  across  the  creek  in  question,  under  the  provision  of 
the  St.  of  1889,  c.  383,^  and  by  the  license  of  the  Board  of  Harbor  and 

*  This  statute,  entitled  "  An  Act  to  authorize  the  Flowage  of  Land  for  the  Purposes 
of  Fish  Culture,"  was  approved  on  May  28,  1889,  and  is  as  follows-  "  Any  owner  or 
lessee  of  lands  or  flats  situated  in  the  county  of  Barnstable,  appropriated  or  which 
he  desires  to  appropriate  to  the  culture  of  useful  fishes,  may  erect  aud  maiutaiu  a  dam 


894  TURNER   V.   NYE.  [CHAP.  V. 

Land  Commissioners,  so  as  to  flow  about  sixty  acres  of  his  own  land 
and  that  of  the  plaintiffs,  so  that  they  were  deprived  of  the  use  of  it. 
The  dam  was  partially  constructed,  and  the  plaintiffs'  land  appreciably 
flowed,  but  no  substantial  damage  was  done  before  the  passage  of  that 
statute. 

This  dam  was  erected  and  is  maintained  for  the  purpose  of  creating 
and  raising  a  pond  for  the  culture  of  useful  fishes,  and  the  pond  raised 
b}'  the  dam  is  well  stocked  with  trout.  The  immediate  purpose  or  in- 
tention of  the  defendant  and  those  interested  with  him  was  not  to  per- 
form a  public  service,  but  to  engage  in  the  culture  of  useful  fishes  for 
their  own  personal  pleasure  and  profit,  and  the  pleasure  and  profit  of 
particular  persons  to  whom  they  should  sell  rights  to  fish  in  the  pond. 
It  was  not  their  purpose  to  supply  the  market  with  such  fishes,  nor  to 
supply*  them  to  the  public  by  an}'  means,  direct  or  indirect.  The  land 
of  the  plaintiflTs  had  small  market  value  for  an}'  use  to  which  it  could 
be  applied  other  than  that  for  which  it  is  now  used  by  means  of  the 
defendant's  dam.  There  was  at  the  time  of  the  passage  of  the  Act, 
and  is  now,  much  land  in  Barnstable  County  similarly  situated,  having 
small  market  value  for  any  purpose  to  which  it  can  be  applied  by  its 
separate  owners,  which  would  be  enhanced  in  value  if  it  were  shown  by 
successful  experiment  that  such  land  could  be  profitably  used  for  the 
cultivation  of  useful  fishes  under  the  powers  conferred  by  the  Act. 

The  case  was  argued  at  the  bar  in  March,  1891,  and  afterwards,  in 
September,  was  submitted  on  the  briefs  to  all  the  judges. 

A.  M.  Goodspeed,  for  the  plaintiffs. 

J.  M.  Hall,  for  the  defendant. 

Morton,  J.  The  plaintiflTs  do  not  rel}'  upon  the  fact  that  the  dam 
was  partially  constructed  by  the  defendant  before  the  passage  of  the  St. 
of  1889,  c.  383.  The  plaintiffs  could  not  avail  themselves  of  that  fact 
in  this  suit.  If  the  dam  is  maintainable  under  that  statute,  the  plain- 
tiffs would  not  be  entitled  to  its  abatement  although  it  was  partly 
erected  without  right.  Ware  v.  Regenfs  Canal  Co.,S  DeG.  &  J.  212. 
And  if  they  are  entitled  to  damages  for  the  technical  violation  of  their 
rights,  their  remed}'  is  at  law.  Washburn  v.  Miller,  117  Mass.  376. 
Nor  do  the}'  rely  upon  the  point  suggested  by  the  defendant,  that  the 
operation  of  the  Act  is  confined,  as  it  clearly  may  be,  to  Barnstable 
County.     Cooley,  Const.  Lim.  390. 

The  plaintiffs  contend  that  the  St.  of  1889,  c.  383,  under  which  the 
court  found  that  the  dam  was  completed  and  is  maintained  by  the  de- 
fendant, is  unconstitutional,  because,  ^st,  it  purports  to  authorize  the 

across  any  stream  for  the  purpose  of  creating  or  raising  a  pond  for  such  fish  culture, 
upon  the  terms  and  conditions  and  subject  to  the  retrulations  contained  in  chapter  one 
hundred  aud  ninety  of  the  Public  Statutes,  so  far  as  the  same  are  properly  applicable 
in  such  cases,  provided,  however,  that  nothing  herein  contained  shall  authorize  the 
erection  or  maintenance  of  a  dam  across  any  navigable  stream  within  said  county  with- 
out a  license  obtained  therefor  from  the  Board  of  Harbor  and  Land  Commissioners,  in 
accordance  with  and  subject  to  the  provisions  of  chapter  nineteen  of  the  Public 
Statutes," 


CHAP,  v.]  TURNER  V.    NYE.  895 

taking  of  private  property  for  a  use  which  is  not  public  in  its  nature, 
and  secondly,  if  the  statute  is  constitutional,  the  defendant  has  not 
brought  himself  within  it. 

But  in  regard  to  the  first  point  we  think  the  plaintiffs  misapprehend 
the  constitutional  provision  which  applies  to  the  Act  in  question.  The, 
statute  yyfiii  not  an  exercise  on  the  part  of  the  legislature  of  the  right 
of  eminent  domain,  but  was  enacted  under  the  provision  wliicrh  gives 
iT"uower  tO  '•'•  make,  orciani,  ana  establishT^U  nianjisj'  of  wholpsoine 
and  reasonable  oixiers,  laws,  statutes,  and  ordinniUf^f'Pj  g^^  f>g  th*^ 

same  be  not  repugnant  or  contrary  to  this  Constiitntif>ii,  a"  *^'"^y  "^''^-^ 

judge  to  be  for   the   good   and    welf^J-ff   pf  ♦^^''^    rnmmnnwpnlth.  nnd-J'or  _ 

tjie  government  and  ordering  thpvpnf^  inri  rtf  thp  ynl>jf>r»fB  of  tiip 
same."  Const.  Mass.,  Part  2,  c.  1,  art.  4.  It  is  upon  this  provision 
that  the  Mill  Acts  have  been  placed  finally  in  this  State,  after  what 
appear  at  times  to  have  been  somewhat  conflicting  views.  Boston  & 
Roxhury  31111  Co.  v.  Newman,  12  Pick.  467 ;  Murdoch  v.  Stickney^  8 
Cush.  113;  Hazen  v.  Essex  Co.^  12  Cush.  475;  Talbot  v.  Hudson,  16 
Gray,  417;  Lowell  v.  Boston,  111  Mass.  454.  It  may  be  doubted 
whether,  as  new  legislation,  the}-  could  be  sustained  as  an  exercise  of 
the  right  of  eminent  domain.  Munlock  v.  Stlcknei/,  8  Cush.  113; 
Lowell  V.  Boston,  111  Mass.  454;  Cooley,  Const.  Lim.  534;  Jordan 
V.  Woodward.,  40  Maine,  317. 

Upon  this  provision  also  stand  the  Cranberry  Act,  so  called  (St. 
1866,  c.  206)  ;  the  Acfin  regard  to  draining  meadows,  swamps,  marshes, 
beaches,  and  low  lands,  with  its  authority  to  commissioners  to  open  the 
floodgates  of  a  mill,  or  to  erect  a  temporary  dam  on  the  lands  of 
another  person,  and  assess  the  damages  upon  the  proprietors  (Pub.  Sts. 
c.  189  ;  see  Warts  v.  Hoayland,  114  U.  S.  606)  ;  the  Act  in  regard  to 
proprietors  of  wharves,  general  fields,  and  lands  lying  in  common,  with 
the  control  which  it  gives  to  a  certain  proportion  in  number  and 
interest  over  the  property  of  the  rest  (Pub.  Sts.  c.  Ill)  ;  and  the  Act 
in  regard  to  partition,  by  which  one  co-tenant  may  be  compelled  to  take 
money  instead  of  land,  or  to  give  up  for  a  time  the  occupation  and 
enjoyment  to  another.  Pub.  Sts.  c.  178.  The  Mill  Acts,  and  these  and 
otherlike  statutes  (of  which  variousillustrations  might  be  given),  rest 
upon  the  principle  that  property  may  be  so  situated  or  of  such  a  char- 
acter that  the  absolute  right  of  the  individual  owner  to  a  certain  extent 
must  yield  to  or  be  modified  by  corresponding  rights  on  the  part  'of 
other  owners,  or  by  what  is  deemed  on  the  whole  to  be  for  the  public 
welfare.  See  Commonwealth  v.  Teivksbury.,  11  Met.  55  ;  Common  wealth 
V.  Alfjer,  7  Cush.  53  ;  Denham  v.  County  Commissioners,  108  Mass. 
202  ;    Wurts  v.  Hoayland,  114  U.  S.  606. 

The  proxis''^"  flhnvf>  gnnted  does  not  authorize  the  legislature  to 
take  property  from  one  person  aiid  give  ri._to  f>M^th£r,jToiMx)  take  pri- 
vateji-npfr^y  for  pnbb'n  uses  without  compensation,  nor  wanton_ly_tQ 
interfere  w'^'^  privntc  Hglifa  These  are  always  to  be  carefully  guarded 
and  protected.     But  of  necessity  cases  will  arise  where  there  will  or 


896  TURNER  V.   NYE.  [CHAP.  V. 

may  be  a  conflict  of  interests  in  the  use  or  disposition  of  property,  and 
questions  va?iy  and  will  come  up  affecting  the  public  welfare  in  regard 
to  the  use  which  shall  or  shall  not  be  permitted  of  certain  propert}'. 

It  is  for  the  legislature  in  such  instances,  under  the  power  thus  con- 
ferred upon  it,  and  with  due  regard  to  private  rights,  to  enact  the  ne- 
cessary laws.  It  is  for  the  public  good  that  swamps  and  waste  lands 
should  be  reclaimed  and  made  productive.  It__is_also  for  tbej)ublic 
good  that  streams  should  be  used  to  operate  mills,  to  raise  cranberries, 
and  to  cultivate  useful  fishes.  If  priyatejjghts  appear  to  some  extent 
to  be  Invaded,  thatjsjnse^^nrnblf'  f'om  f^^h^jiaturejof  tbejise  authorized, 
without  which  th^  strpfims  '^•r>nlri  nnf  bp  advautagcouslv  or  profitably 
used,  and  compensation  is  provided  for  any  injury  that— may-be-^otte»— 
Xhp  -^hft^nftfnr  nf  f.hp;  [nx>p4H4A'  and  the  roGLUtmg--general  good__axe 
deemed  sufficient  to  justify  the  action  of  the   legislature. 

It  is  doubtful,  however,  whether  any  propert}'  of  the  plaintiff  is  taken 
or  an}'  of  his  rights  are  invaded.  The  statute  in  question  authorizes 
the  erection  and  maintenance  of  a  dam  across  any  stream  for  the  pur- 
pose of  creating  or  raising  a  pond  for  the  culture  of  useful  fishes.  It 
is  to  be  erected  "  upon  the  terms  and  conditions  and  subject  to  the 
regulations  contained  in  chapter  one  hundred  and  ninety  of  the  Public 
Statutes  so  far  as  the  same  are  properly  applicable  in  such  cases."  The 
chapter  referred  to  is  what  is  known  as  the  Mill  Act.  Under  that  it  has 
been  held  that  the  right  to  erect  and  maintain  a  dam  to  raise  water  for 
working  a  mill  does  not  give  to  the  mill  owner  anj-  right  in  the  land 
flowed,  or  take  away  any  right  from  the  land-owner.  The  latter  maj' 
embank  his  land  and  thus  stop  any  flowage  of  it,  or,  if  he  chooses,  he 
ma}'  collect  of  the  mill  owner  damages  in  gross  or  annualh*  for  the 
flowage.  Until  the  land-owner  manifests  his  election  to  claim  damages, 
he  cannot  be  compelled  by  the  mill-owner  to  submit  his  land  to  be 
flowed,  and  until  then  the  only  right  which  the  mill-owner  has  as  be- 
tween himself  and  the  land-owner  is  to  maintain  his  dam  without  liability 
to  the  land-owner  for  damages  in  an  action  at  law.  While  the  land- 
owner ma}'  protect  his  land  from  flowage,  he  cannot,  of  course, 
wantonly  interfere  with  the  right  which  the  statute  gives  to  the 
mill-owner  to  maintain  his  dam.  Williams  v,  Nelson,  23  Pick.  141 ; 
Murdoch  V.  Stickneij^S  Cush.  113;  Sfo)-77i  v.  Mdnchaug  Co.,  13  Allen, 
10;  Paine  v.  Woods,  108  Mass.  160;  Lowell  v.  Boston,  111  Mass. 
454;  Head  v.  Amoskeag  Mannf.  Co.,  113  U.  S.  9. 

There  would  seem  to  be  nothing  in  the  purpose  for  which  the  right  is 
given  to  erect  and  maintain  a  dam  to  create  a  pond  for  the  culture  of  use- 
ful fishes  that  sliouldgive  to  the  party  erecting  or  maintnining^ueh^^darn 
any  greater  rights  over  thejands  flowed  by  it  than  a  mill-owner  would 
have  over  lands  flowed  by.  the  dam  mnintnined  by  him.  "Without  any- 
thing more,  we  should  be  slow  to  jnfpf  from  n  pnwpr  to  maintain  a  dam 
to  create  a  pond  for  the  culture jjf  usefnl_fiphes  r^ny  grpntpr  rightg  nv^pr 
lands  flowed  than  trom  a  pntypr  to  mnintain  n  dam  \q  raise  water  for 
working  a  mill. 


CHAP,  v.]  TUKNKR   V.   NYE.  897 

It  gpppai-gJVnrn_t.1iP  ^^o^^  fniind  in  t.lip  prospnt.  case  that  Iho  defeijd- 
ant's  dam  flows  about  s\\ty  acres,  all  of  which,  with  the  exception  of 
aliout  three- foil iths  of  an  acre  belon<^int^  to  the  plaintiffs,  is  owned  by 
the  defendant.  (  It  is  also  found  that  tlieY^ind  of  the  plaintiffs  was__of. 
s  1  n all  market  value  for  any  other  use  to  wliich  it  co nld  he  nppliod/^d 
ITIat  there  is  '%iuch  land  in  Barnstable  County  similarly  situated,  having 
small  market  value  for  an\-  purpose  to  which  it  can  be  a}jplicd  byiJts 
separate  owners,  which  would  be  enhanced  in  valueif  it  were  shown  by 
successful  experiment  that  such  land  could  be  profitably  used  for  the 
cuTtivation  of  useful  fishes  under  the  powersj^onfei'rcd  by_i'_tli£„Act  in^ 
Questiou.  in  view  of  these  facts,  and  for  the  reasons  above  stated,  we 
tliink  that  the  claim  of  thi^  plf^'ntiffs  that  tlin  Act  4& -unconstitutional 

_Cflnnot  be  maintained.  We  come  to  tliis  conclusion  tlie  _ more  readib' , 
because  a  contrar}'  result  would  oblige  us,  we  fear,  to  hold,  if  the 
question  were  directly  presented  to  us,  thaftlie  CrauEerr^ jVct,.  u.n(lcr_ 

'which  a  large  and  profitable  indu^itry  hns  grown  np^  wns  nl^o  nnnon^ti- 


tutional^  Although  several  cases  under  that  Act  have  been  before  lliis 
court,  no  doubt  as  to  its  constitutionality  seems  to  have  been  suggested. 
Dearse  v.  Perry,  117  Mass.  211  ;  Hinckley  v.  Nickerson,  117  Mass. 
213;  JSlackwell  v.  Phtnnei/,  12G  Mass.  458;  Hoioes  v.  Grus/i,  131 
Mass.  207. 

The  plaintiffs  further  contend,  that,  if  the  Act  is  constitutional,  the 
defendant  has  not  brought  himself  within  its  scope,  because  it  does 
not  appear  that  an}'  direct  or  positive  benefit  will  be  derived  by  the 
public  from  the  defendant's  acts,  and  because  the  dam  has  been  erected 
and  will  be  maintained  by  him  wholh*  for  his  own  personal  pleasure, 
profit  and  advantage.  But  the  'lonrt  '^'^''  ^'^""d  fhnt.  '■'■  tlip  dam  was 
erected  and-  i^  mninttiii-ipd  for  |,he  pur|)ose  of  creating  and  raising  !\ 
pond  for  the  culture  of  useful  fishes,  and  the  pond  raised  by  the  dam 
is  well  stocked  with  trout."  This  finding  brings  the  case  within  jLJiJi 
exact  word''  ^f  thp  Rf.ntuig.  It  is  not  necessary  that  it  should  also 
appear  that  the  object  of  the  defendant  was  to  benefit  the  public.  The 
legislature  deemed  the  culture  of  useful  fishes  for  any  purpose  beneficial, 
and  passed  this  statute,  as  it  did  the  Mill  Acts,  for  the  purpose  of  en- 
abling a  lessee  or  owner  of  lands  or  flats  to  raise  a  dam  across  a 
stream  so  as  to  engage  in  that  occupation  and  use  the  stream  without 
the  liabilit}'  to  constant  lawsuits  from  persons  whose  lands  might 
be  flowed.  No  doubt  the  defendant's  object  is  his  own  personal 
pleasure,  profit  and  advantage.  But  if  the  enterprise  is  successful, 
the  public  will  be  benefited  by  the  introduction  and  building  up  of  a 
new  and  profitable  industry,  and  lands  now  of  little  value  and  not 
available  for  any  other  use  will  be  made  valuable.  We  think  this  con- 
tention must  also  be  overruled. 

The  result  is  that,  in   the  opinion  of  a  majority'  of  'he  court,  the 
decree  appealed  from  must  be  Affirmed, 

Field,  C.  J.      M}'  objections  to  the  constitutionalitj"  of  the  St  of 
VOL.  I.  —  57 


898  TURNER   V.    NYE.  [cHAP.  V. 

1889,  c.  383,  briefly  stated,  are  as  follows.  The  purpose  of  the 
statute  is  not  public.  Cultivating  fish  for  one's  privMtp  nsp  nn  mpro 
concerns  ihe  puulic  thiui  c:ulL[VaLuio~cornor_other  articles  of  food.     T|tP 

cTnTTvn  '^"  jnsTitl'^'l  fvsnjT^^jeiirise  f>f  lliv  li^lil  of  i-ntfurnt  domain. 
^N'otwithstanding  what  has  been  said  in  some  of  our  decisions,  over- 
flowing a  person's  land  without  his  consent  is  a  taking  of  pi'operty 
wliile  the  overflow  continues,  and  is  a  tort  which  would  be  enjoined  un- 
less the  statutes  authorized  it.  The  Mill  Acts  were  originall}-  sustained 
on  the  ground  that  the  erection  of  water-mills  was  for  the  public  bene- 
fit, and  this  was  strictl}'  true  of  grist-mills  and  saw-mills,  if  the  public 
had  the  right  to  have  tlieir  grain  ground  and  their  logs  sawed  at  the 
mills.  The  Acts,  however,  extended  to  mills  of  all  kinds,  in  most  of 
which  the  interests  of  the  public  were  less  direct ;  still,  the  erection  of 
water-mills,  when  water  was  the  only  available  source  of  power,  was 
always  of  public  concern  sufficient  to  justify  the  damming  of  streams, 
if  compensation  were  paid  to  the  persons  whose  lands  were  overflowed. 
Mill  Acts  were  in  force  long  before  the  adoption  of  the  Constitution, 
and  it  could  not  properly  be  held  that  it  was  tlie  intention  of  that  in- 
strument to  render  them  void.  But  the  damming  of  the  waters  of  a 
running  stream,  so  that  the  lands  of  the  upper  proprietors  are  over- 
flowed, is  something  more  than  the  reasonable  use  of  the  water,  which 
every  proprietor  is  entitled  to  make,  as  it  runs  through  his  land,  without 
paying  an}'  compensation  to  the  upper  or  lower  proprietors.  It  has 
never  been  supposed  that  the  Mill  Acts  would  be  sustained  if  the^-  con- 
tained no  provision  for  compensation  to  the  persons  whose  lands  were 
flowed.  As  was  said  in  Isele  v.  ArUngtoyi  Five  Cents  Savings  J^ank, 
135  Mass.  142,  144,  "The  right  to  flow  water  back  upon  the  land  of 
another  is  not  the  less  an  easement  in  its  nature  because  such  other 
ma}'  lawfuU}'  wall  or  dike  against  it.  Such  right  on  his  part  diminishes 
the  extent  of  the  easement,  but  does  not  alter  its  character."  Venison 
V.  Arlington,  144  Mass.  456. 

The  statute  in  question  cannot  be  sustaiu£d,QiL_tllg_^''ound  that  it 
authorizes  the  improvement  of  jiropefty  of  different  owners  for  tlie 
common  benefit  of  the  owners  or  for  tlie—pnhlia  benefit,  or  on__tJ2f. 
ground  that  it  authorizes  the  improvement  of  property  which  otherwise 
-would  be  practically  useless.  It  is  not  confined  to  useless  or  swnmpy 
lands,  or  to  lands  of  any  particular  description. _  The  .constitutionality 
of  the  statute  must  be  determined  by J.ts  meaning,  and-not  by  the 
special  facts  of  tHe  present  case.  It  is  possible  under  the  statute  that 
any  owner  or  lessee  of  lands  or  flats  situated  in  Barnstable  County  for 
the  purpose  of  making  a  fish-pond  for  his  own  private  use  and  pleasure, 
may  overflow  the  greater  part  of  the  arable  land  in  the  county,  with 
the  buildings  upon  it.  None  of  the  precedents  cited  seem  to  me  to  go 
as  far  as  the  opinion  of  the  court  in  this  case,  and  I  am  compelled  to 
think  tJie  statute  unconstitutional. 


CHAP,  v.]  COMMONWEALTH   V.    GILBERT. 


899 


COMMONWEALTH   v.  GILBERT. 
Supreme  Judicial  Court  of  Massachusetts.    1893. 

[160  Afass.  157.] 

Report  from  Superior  Court,  Plymouth  County  ;  Edgar  J.  Sherman, 

Walter  L  Gilbert  was  convicted  of  unlawfully  selling  a  trout,  and 
the  case  was  reported  for  the  determination  of  the  Supreme  Judicial 
Court.     Verdict  ordered  to  stand. 

The  indictment  charged  that  defendant,  on  the  29th  day  of  March  m 
the  year  1893,  did  have  in  his  possession,  and  did  offer  and  expose  for 
sale,  and  did  sell,  one  trout,  said  trout  having  been  taken  in  this  Com- 
monwealth, and  not  then  and  there  being  alive.     To  this  indictment 
defendant  pleaded  not  guilty.     It  was  admitted,  however,  that  the  de- 
fendant did,  on  the  day  charged  in  the  complaint,  sell  one  dead  trout, 
as  therein   alleged.     The  defendant  claimed  that  said  trout  was  one 
which  had  been" artificially  raised,  propagated,  and  maintained  by  him, 
and  offered  to  prove  the  facts  as  to  the  method  of  hatching,  raising, 
and  maintaining  said  trout,  which  also  applied  to  all  other  trout  owned 
by  him,  claiming  that,  if  he  did  prove  these  facts  to  the  satisfaction  of 
the  jury,  he  was  entitled  to  an  acquittal,  on  the  ground  that  the  statute 
acrainst  selling  trout  between  certain  dates  applied  only  to  wild  trout, 
or  trout  that  are  hatched  and  grow  in  a  state  of  nature,  without  artifi- 
cial aid  in  propagating  and   maintaining  them.     The  Commonwealth 
aid  not  contest  the  truth  of  the  facts  offered  to  be  proved  by  the  de- 
fendant,  but   claimed  that  such  evidence   would  furnish   no   defence 
ao-ainst  the  indictment,  and  was  inadmissible   for  that  purpose.     The 
presidincr  jn.lo-e  so  ruled,  and  excluded  the  evidence.     The  defendant 
also  asked  the  court  to  rule  that  the  statutes  of  this  Commonwealth 
provide  no  penalty  against  a  person  for  having  in  his  possession  ana 
offerincr  and  exposing  for  sale  and  selling  dead  brook  trout  artificially 
cnltivated,  propagated,  and  maintained  by  him  in  this  Commonwealth. 
If    the   statutes   of  this   Commonwealth    impose    any   penalty    upon 
the  defendant  for  having  in  his  possession  and  offering  and  exposing 
for  sale  and  selling  dead  brook  trout  which  were  kept  and  confined  in 
artificial  ponds  upon  his  own  premises,  and  which  were  artificially  cul- 
tivated,  propagated,   and  maintained   in   the   manner  the   defendant 
offered  to  prove  that  his  were  confined,  cultivated,  propagated,   and 
maintained,  then  the  statute,  so  far  as  it  applies  or  relates  to  such 
trout,  is  unconstitutional.     The  court  refused  to  give  the  rulings  as 

'^Stt  O.  Harris,  for  the  Commonwealth.     T.    E.    Graver,  for 

defendant.  ,        ,    4.u  - 

Allen,  J.     There  are  two  questions  in  this  case,  namely,  whether 

the  defendant's  act  was  within  the  true  meaning  of  the  statute  forbid- 

ding  the  sale  of  trout;  and,  if  so,  whether  the  statute  is  constitutional. 


900  COMMONWEALTH   V.    GILBERT.  [CHAP.  V. 

1.  The  defendant  contends  that  the  penalty  imposed  by  Pub.  St.  c. 
91,  §  53,  for  selling  trout,  does  not  extend  to  the  sale  of  trout  which 
have  been  artificially  propagated  and  maintained.  Whatever  force 
this  contention  might  have  if  section  53  stood  alone,  a  reference  to 
other  sections  of  the  same  chapter,  and  to  the  history  of  this  legislation, 
makes  it  clear  that  such  trout  are  not  exempted.  .  .  .  The  ol)ject  of  all 
these  statutes  was  to  protect  and  preserveJLlie  trout.  The  same  statute 
which  fii'st  forbade  their  sale  also  contained  the  provisions  upon  which 
the  present  statute  is  founded,  to  encourage  their  artificial  propagation 
and  maintenance.  In  order  to  make  the  protection  of  the  trout  more 
effectual,  it  was  deemed  necessary  by  the  legislature  to  punish  the  sale, 
durin^the  close  sej,son,  of  all,  trout  except  those  wliich  are  alive. 
This  was  probably  on  account  of  the  difficulty  in  distinguishing  between 
trout  which  had  been  artificiallj'  propagated  or  maintained  and  other 
trout.  On  the  construction  contended  for  by  the  defendant,  the  law 
could  not  be  so  well  enforcEd.  In  view  of  the  provisions  of  section  2G, 
it  seems  to  us  plain  that  the  penalty  imposed  by  section  53  extends  to 
artificially  propagated  trout. 

2.  Nor  have  we  an}-  doubt  that  the  statute  is  constitutional.  The 
importance  of  preserving  from  extinction  or  undue  depletion  the  trout 
anTT other  useful  fislTes"  in  the  waters  of  the  Commonwealth  llas'been 
recognized  ana  iifuftrated  in  rnanyTamiliar  statutes  and  decistoTre^froTn 
an  early  time.  Such  protection  has  always  been  deemed  to  be  for 
"  the  good  and  welfare  of  this  Commonwealth,"  and  the  legislature  ma}' 
pass  reasonable  laws  to  promote  it.  Such  laws  are  not  to  be  held  un- 
reasonable  because  owners  of  property'^may  thereby  to  some  extent  T)e 
rpgt.ijpf.pd  in  if.s  nsft-  It -lias^xiften  been  declared  that  all  property  is 
acquired  and  held  under  the  tacit  condition  that  it  shall  not  be  so  used 

<  as  to  destroy  or  greatly  impair  the  public  rights  and  Interests  of  tlie 
community.  Many  illustrations  might  be  cited  where  such  restrictions 
on  the  use  of  property  have  been  held  valid.  But  the  cases  are  familiar. 
ThcJimltatioD-is-lhal  the  restrictions^  must  jiot  be  unreasonable.  The 
legislature  may  "  make,  ordain  and  establish  all  manner  of  wholesome 
and  reasonable  orders,  laws,  statutes,  and  ordinances,  directions  and 
instructions,  either  with  penalties  or  without ;  so  as  the  same  be  not 
repugnant  to  this  Constitution,  as  they  shall  judge  to  be  for  the  good 
and  welfare  of  this  Commonwealth."  Const,  c.  1,  §  1 ,  art.  4.  The  lei^s- 
lature  may  forbid  the  catching  or  selling  of  useful  fishes  during  reason- 
able  close  seasons  established_for  them  ;  and  to  extend  the  prohibition  so 
as  to  include  sucli  as  have  been  artificially  proj^agated  or  maintaineiLis 
not  different  in  pn'iciple'Ti-om  legislatioji  foii)JMiPg4iersons  from  catck- 
ing  fish  in  streams  running  through  their  own  lands-  The  statute 
under  consiuerHtiorrfans"withirrtTiis  power.  Com.  v.  Look,  108  Mass. 
452  ;  Com.  v.  Alrjer,  7  Cush.  53,  84,  85  ;  Com.  v.  Tewkslmry,  11  Mete. 
(Mass.)  55,  57;  Cole  v.  Easfham,  133  Mass.  65;  Rkleout  v.  Kvnx,  148 
Mass.  368,  19  N.  E.  390;  Blair  v.  Forehand,  100  Mass.  136;  Phe^^s 
V.  Bacpy,  60  N.  Y.  10. 
Verdict  to  stand. 


X 


CHAP.  V.f  OPINION    OF   THE   JUSTICES.  901 


OPINION  OF  THE  JUSTICES 
Of  the  Supreme  Judicial  Court  of  Massachusetts.     1890. 

[130  Muss.  592.] 

The  following  order  was  adopted  by  the  House  of  Representatives 
on  May  22,  1890,  and  thereupon  transmitted  to  the  Justices  of  the 
Supreme  Judicial  Court,  who,  on  May  27,  1890,  returned  the  opinion 
which  is  subjoined. 

Ordered,  That  tlie  opinion  of  the  Justices  of  the  Supreme  Judicial 
Court  be  required  upon  the  following  important  questions  of  law  : — 

First.  Is  it  within  the  constitutional  power  of  the  legislature  to 
enact  a  law  conferring  upon  cities  and  towns  within  this  Commonwealth 
the  power  to  manufacture  gas  or  electric  light  for  use  in  the  public 
streets  and  buildings  of  such  cities  and  towns? 

Second.  Is  it  within  the  constitutional  power  of  the  legislature  to 
enact  a  law  conferring  upon  a  city  or  town  within  this  Commonwealth 
the  power  to  manufacture  gas  or  electric  light  for  the  purpose  of  selling 
the  same  to  its  own  citizens? 

And  be  it  further  ordered,  That  the  Justices  of  the  Supreme  Judicial 
Court  be  informed  that  the  foregoing  questions  are  propounded  with  a 
view  to  further  legislation  upon  the  subjects  therein  referred  to,  and 
that,  for  their  more  particular  information,  a  copy  of  House  Document 
No.  436,  being  a  bill  now  pending  before  this  House,  and  upon  the  sub- 
ject-matter of  which  the  foregoing  questions  are  propounded,  be  trans- 
mitted to  the  justices. 

To  the  Honorable  House  of  Representatives  of  the  Commonwealth  of 
Massachusetts  : 

We  received  on  May  24,  1890,  your  order  of  May  22,  1890,  a  copy 
of  which  is  annexed,  and  we  respectfully  submit  the  following  opinion. 

In  considering  the  questions  asked,  we  assume  that  the  power  to  be 
conferred  is  not  merely  a  power  to  receive  and  use  property  given  in 
trust  for  the  purposes  named,  but  is  a  power  to  raise  money  by  tax- 
ation, and  by  means  of  it  to  construct  and  maintain  works  for  the 
manufacture  and  distribution  of  gas  or  electricity,  to  be  used  by  the 
municipalities  for  lighting  the  public  streets  and  buildings,  and  by 
the  inhabitants  for  lighting  the  land  and  buildings  which  are  their  pri- 
vate property. 

We  also  assume  that  the  gas  or  electricity  to  be  furnished  to  the  in- 
habitants for  their  private  use  is  to  be  paid  for  by  them  at  rates  to  be 
established,  which  shall  be  deemed  sufficient  to  reimburse  to  the  cities 
and  towns  the  reasonable  cost  of  what  is  furnished,  and  that  all  the 
inhabitants  of  a  city  or  town  are  to  have  the  same  or  similar  rights  to 
be  supplied  with  gas  or  electricity,  so  far  as  is  reasonably  practicable, 
and  the  capacity  and  extent  of  the  works,  which  it  is  deemed  expedient 


902  OPINION    OF   THE   JUSTICES.  [CHAP.  V. 

to  maintain,  will  permit.  Whether  cities  and  towns  can  be  authorized 
to  give  gas  or  electricity  to  their  inhabitants,  or  to  sell  either  to  them, 
at  varying  and  disproportionate  prices,  selecting  their  customers,  selling 
to  some  and  arbitrarily  refusing  to  sell  to  others,  are  questions  which  it 
is  not  necessary'  to  consider. 

B}'  the  Constitution,  full  power  and  authority  are  given  to  the  Gen- 
eral Court  to  make  "  all  manner  of  wholesome  and  reasonable  orders, 
laws,  statutes,  and  ordinances,"  not  repugnant  to  the  Constitution, 
which  "  the}'  shall  judge  to  be  for  the  good  and  welfare  of  this  Com- 
monwealth," etc.,  and  "to  impose  and  levy  proportional  and  reason- 
able assessments,  rates,  and  taxes  upon  all  the  inhabitants  of  and 
persons  resident,  and  estates  lying  within  the  said  Commonwealth, 
.  .  .  for  the  public  service,  in  the  nec-essary  defence  and  support  of  the 
government  of  the  said  Commonwealth,  and  the  protection  and  preser- 
vation of  the  subjects  thereof,"  etc.  Const.  Mass.,  Part  II.  chap.  i. 
sect.  i.  art.  iv. 

The  extent  of  the  I'ight  of  taxation  is  not  necessarily  to  be  measured 
b}'  that  of  the  right  of  eminent  domain,  but  the  rights  are  analogous. 
Private  property  can  be  taken  without  the  consent  of  the  owner  onl}' 
for  public  uses,  and  the  owner  must  be  paid  full  compensation  therefor  ; 
otherwise,  he  would  contribute  more  than  his  proportional  share  toward 
the  public  expenses.  By  taxation  the  inhabitants  are  compelled  to 
part  with  their  property,  but  the  taxation  must  be  proportional  and 
reasonable,  and  for  public  purposes.  Taxes  may  be  imposed  upon  all 
the  inhabitants  of  the  State  for  general  public  purposes,  or  upon  the 
inhabitants  of  defined  localities  for  local  purposes,  and  when  distinct 
private  benefits  are  received  from  public  works  special  assessments  ma}' 
be  laid  upon  individuals. 

"We  have  no  doubt  that,  if  the  furnishing  of  gas  and  electricity  for 
illuminating  purposes  is  a  ^ilic  service,  the  performance  of  this  ser- 
vice can  be  delegated  by  the  legislature  to  cities  and  towns  for  the 
benefit  of  themselves  and  their  Inhabitants,  and  that  such  cities  and 
towns  can  be  authorized  to  impose  taxes  for  this  purpose  upon  their 
inhabitants,  and  to  establish  reasonable  rates  which  the  inhabitants 
who  use  the  gas  or  electricity  can  be  compelled  to  pa}-.  The  funda- 
mental question  is  whether  the  manufacture  and  distribution  of  gas  or 
electricity  to  be  used  by  cities  and  towns  for  illuminating  purposes  is  a 
public  service. 

The  maintenance  of  public  streets  and  buildings  is  a  public  service, 
and  it  may  be  reasonably  necessary  to  light  them  in  order  that  the 
greatest  public  benefit  may  be  obtained  from  using  them.  To  say  noth- 
ing of  the  usefulness  of  lighting  streets  as  a  means  of  promoting  order 
and  of  affording  protection  to  persons  and  property,  the  common  con- 
venience of  the  inhabitants  may  require  that  they  be  lighted.  Cities 
and  thickly  settled  towns  have  for  a  long  time  been  accustomed  to  light 
their  public  buildings  and  some  of  their  streets  at  the  public  expense. 
If  the  streets  and  public  buildings  are  to  be  lighted,  the  means  is  a 


CHAP,  v.]  OPINION   OF  THE  JUSTICES.  903 

matter  of  expediency.  If  the  legislature  can  authorize  cities  and  towns 
to  Tight  their  streets  and  public  buildings,  it  can  authorize  them  to  do 
this  by  any  appropriate  means  which  it  may  think  expedient.  As  a 
question  of  constitutional  power,  we  cannot  distinguish  the  right  to 
authorize  cities  and  towns  to  buy  gas  or  electricity  for  their  use,  from 
the  right  to  authorize  them  to  manufacture  it  for  their  use.  We  there- 
fore answer  the  first  question  in  the  affirmative. 

The  second  question  is  one  of  more  difficulty.  It  is  impossible  to 
define  with  entire  accuracy  all  the  characteristics  which  distinguish  a 
public  service  and  a  public  use  f]-om  services  and  uses  which  are  private. 
The  subject  has  been  considered  man}*  times  in  the  opinions  of  the 
court  of  which  we  are  now  the  justices,  and  Lowell  v.  Boston,  111 
Mass.  454,  is  a  leading  case.  It  is  there  said  that  "an  appropriation 
of  money  raised  by  taxation,  or  of  property  taken  by  right  of  eminent 
domain,  by  way  of  gift  to  an  individual  for  his  own  private  uses  ex- 
clusivel}',  would  clearly  be  an  excess  of  legislative  power;  "  that  "•  the 
promotion  of  the  interests  of  individuals,  either  in  respect  of  property 
or  business,  although  it  may  result  incidentally  in  the  advancement  of 
the  public  welfare,  is,  in  its  essential  character,  a  private  and  not  a  pub- 
lic object ;  "  and  that  the  appropriation  of  property'  for  turnpikes  and 
railroads  "can  only  be  justified  by  the  public  service  thereby  secured 
in  the  increased  facilities  for  transportation  of  freight  and  passengers, 
of  which  the  whole  communit^^  ma}'  rightfully  avail  itself."  It  is  said 
that  the  essential  point  is  that  a  public  service  or  use  atfects  the  inhab- 
itants "  as  a  communit}',  and  not  merely  as  individuals." 

It  was  early  decided  that  "  the  prevention  of  damage  by  fire  is  one 
of  those  objects  affecting  the  interest  of  the  inhabitants  generally,  and 
clearly  within  the  scope  of  municipal  authority."  Allen  v.  Taunton, 
19  Pick.  485.  Although  the  property  to  be  protected  is  private  prop- 
erty, the  need  of  protection  is  felt  by  every  owner  in  the  cit}-  or  town  ; 
the  property  of  one  may  be  endangered  by  the  burning  of  that  of 
another ;  efficient  means  of  protecting  his  property  cannot  well  be  fur- 
nished by  every  inhabitant ;  and  there  is  a  necessity  of  common  action 
which  makes  the  expenditure  of  money  for  the  purpose  properly  a 
municipal  expense. 

The  maintenance  of  sewers  and  drains  is  a  public  service.  One  ob- 
ject is  the  preservation  of  the  public  health  ;  but  apart  from  this  they 
are  of  great  convenience  to  the  inhabitants  whose  estates  can  be 
drained  by  them.  It  is  impracticable  for  ever^'  owner  of  land  in  cities 
and  towns  to  construct  and  maintain  sewers  and  drains  exclusively  on 
his  own  account ;  they  cannot  ordinaril}'  be  constructed  over  any  con- 
siderable territor}'  without  using  the  public  ways,  or  exercising  the 
right  of  eminent  domain  ;  they  are  therefore  regarded  as  of  common 
convenience,  and  are  constructed  at  the  public  expense. 

The  furnishing  of  water  for  cities  and  towns  for  domestic  use  afllVn-ds 
perhaps  the  nearest  analogy  to  the  subject  we  are  considering.  It  was 
long  ago  declared  that  "  the  supply  of  a  large  number  of  inhabitants 


904  OPINION   OF   THE  JUSTICES.  [CHAP.  V 

with  pure  water  is  a  public  purpose."  Lumhard  v.  Stearns,  4  Cush. 
60.  The  statutes  are  well  known  which  autliorize  cities  and  towns  to 
maintain  water-works  for  supplying  their  inhabitants  with  water,  and 
the  constitutionality  of  these  statutes  has  not  been  doubted.  Water 
cannot  ordinarily  be  supplied  to  a  large  cit^-  or  town  fiom  ponds  or 
streams  without  the  exercise  of  the  right  of  eminent  domain  and  the  use 
of  the  public  ways  ;  every  inhabitant  needs  water,  and  often  the  only 
practicable  method  of  obtaining  it  is  by  the  agency  of  corporations  or  of 
the  municipality.  The  land  for  the  public  ways  having  been  taken  for 
a  pubhc  use,  it  may  be  subjected  to  other  public  uses,  but  it  cannot  be 
subjected  to  strictly  private  uses  without  the  consent  of  the  owners  of 
the  fee  when  the  fee  remains  in  the  abutters.  There  is  therefore  often 
a  necessity  of  having  water,  common  to  the  inhabitants  of  a  commu- 
nity, which  cannot  well  be  met  except  by  the  exercise  of  public  rights, 
and  therefore  the  furnishing  of  water  has  been  considered  a  public 
service. 

In  the  case  of  water,  as  in  that  of  sewers  and  drains,  a  portion  of  the 
service  is  exclusively  public,  and  the  benefit  to  individuals  cannot  be 
separately  estimated  from  that  of  the  community  ;  but  a  part  of  the  ser- 
vice is  rendered  to  individuals,  and  the  benefit  of  this  can  be  separately 
estimated.  The  inhabitants  are  therefore  required  to  pay  for  the  water 
furnished  for  their  private  use,  and  special  assessments  for  the  use  of 
sewers  and  drains  are  laid  upon  estates  specially  benefited  ;  and  for  the 
same  reasons,  while  in  laying  out  highways  the  expense  is  public, 
betterment  assessments  may  be  laid  upon  the  owners  of  lauds  specially 
benefited. 

Artificial  light  is  not,  perhaps,  so  absolutely  necessarj-  as  water,  but 
it  is  necessary  for  the  comfortable  living  of  eveiy  person.  Although 
artificial  light  can  be  supplied  in  other  ways  than  b^-  the  use  of  gas  or 
electricity,  yet  the  use  of  one  or  both  for  lighting  cities  and  thickly  set- 
tled towns  is  common,  and  has  been  found  to  be  of  great  convenience, 
and  it  is  practically  impossible  for  ever}-  individual  to  manufacture  gas 
or  electricit}'  for  himself.  If  gas  or  electricit}'  is  to  be  generally  used 
in  a  cit}'  or  town,  it  must  be  furnished  b}'  private  companies  or  by  the 
municipality,  and  it  cannot  be  distributed  without  the  use  of  the  public 
streets,  or  the  exercise  of  the  right  of  eminent  domain. 

It  is  not  necessarilv  an  objection  to  a  public  work  maintained  b}-  a 
city  or  town,  that  it  incidentall}'  benefits  some  individuals  more  than 
others,  or  that  from  the  place  of  residence  or  for  other  reasons  every 
inhabitant  of  the  cit}'  or  town  cannot  use  it,  if  every  inhabitant  who  is 
so  situated  that  he  can  use  it  has  the  same  right  to  use  it  as  the  other 
inhabitants.  It  must  often  be  a  question  of  kind  and  degree  whether 
the  promotion  of  the  interests  of  man}'  individuals  in  the  same  commu- 
nity constitutes  a  public  service  or  not.  But  in  general  it  may  be  said 
that  matters  which  concern  the  welfare  and  convenience  of  all  the  in- 
habitants of  a  city  or  town,  and  cannot  be  successfully  dealt  v\iih  with- 
out the  aid  of  powers  derived  from  the  legislature,  may  be  subjected  to 


CHAP,  v.]  OPINION   OF  THE   JUSTICES.  905 

municipal  control  when  the  benefits  received  are  such  that  each  inhab- 
itant needs  them  and  may  participate  in  them,  and  it  is  for  the  interest 
of  each  inhabitant  that  others  as  well  as  himself  should  possess  and 
enjoy  them. 

If  the  legislature  is  of  opinion  that  the  common  convenience  and  wel- 
fare of  the  inhabitants  of  cities  or  towns  will  be  promoted  by  confiTrring 
upon  the  municipalities  tlie  power  of  manufacturing  and  distributing 
gas  or  electricit}'  for  the  purpose  of  furnishing  light  to  their  inhabitants 
we  think  that  the  legislature  can  confer  the  power.  We  therefore 
answer  the  second  question  in  the  affirmative. 

We  notice  that  the  bill/  a  cop}'  of  which  was  enclosed  with  your 
order,  relates  to  the  manufacture  and  distribution  of  gas  or  electricity, 
not  onl}'  for  furnishing  light,  but  also  for  furnishing  heat  and  power. 
We  have  not  considered  whether  the  furnishing  of  gas  or  electricity  for 
supplying  either  heat  or  power  can  be  regarded  as  a  public  service. 
We  have  confined  our  opinion  to  the  questions  asked,  which,  as  we 
understand  them,  relate  to  the  manufacture  and  distribution  of  gas  or 
electricity  solely  for  the  purpose  of  furnishing  light. 

Marcus  Morton. 

Walbridgk  a.  Field.  , 

Charles  Devens. 

WiLLL\M  Allen. 

Charles  Allen. 

Oliver  Wendell  Holmes,  Jr. 

Marcus  P.  Knowlton. 
Boston,  May  27,  1890. 


OPINIONS   OF  THE  JUSTICES 
Of  the  Supreme  Judicial  Court  of  Massachusetts.     1892. 

[155  Mass.  598.] 

The  following  order  was  adopted  b}'  the  House  of  Representatives 
on  April  12,  1892,  and  thereupon  transmitted  to  the  Justices  of  the 
Supreme  Judicial  Court,  who,  on  May  7,  1892,  returned  the  opinions 
which  are  subjoined. 

Ordered,  That  the  opinion  of  the  Justices  of  the  Supreme  Judicial 
Court  be  required  upon  the  following  important  questions  :  — 

First.  Is  it  within  the  constitutional  power  of  the  legislature  to  enact 
a  law  conferring  upon  a  citv  or  town  within  this  Commonwealth  the 
power  to  purchase  coal  and  wood  as  fuel,  in  excess  of  its  ordinary 
requirements,  for  the  purpose  of  selling  such  excess,  so  purchased,  to 
its  own  citizens? 

1  This  bill  waa  passed  by  the  House,  but  was  referred  by  the  Senate  to  the  next 
General  Court. 


906  OPINIONS   OF  THE  JUSTICES.  [CHAP.  V. 

Second.  Is  it  within  the  constitutional  power  of  tlie  legislature  to 
enact  a  law  conferring  upon  a  city  or  town  within  this  Comn^onwealth 
the  [)ower  to  purchase,  for  the  purpose  of  sale,  and  to  sell  to  its  own 
citizens,  coal  and  wood  as  fuel? 

Third.  Is  it  within  the  constitutional  power  of  the  legislature  to 
enact  a  law  conferiing  upon  cities  and  towns  within  this  Commonwealth 
authority  to  establisli  and  maintain  municipal  fuel  or  coal  yards  for  the 
purpose  of  selling  coal,  wood,  or  other  fuel  to  the  inhabitants  of  such 
cities  and  towns? 

And  be  it  further  ordered,  That  the  Justices  of  the  Supreme  Judicial 
Court  be  informed  that  the  foregoing  questions  are  propounded  with  a 
view  to  further  legislation  upon  the  subjects  therein  referred  to,  and  that 
for  their  more  particular  information  a  copy  of  House  Document  No. 
395,  being  a  bill  now  pending  before  this  House,  and  upon  the  subject- 
matter  of  which  the  foregoing  questions  are  propounded,  be  transmitted 
to  the  justices. 

The  House  Document  referred  to  in  the  above  order,  and  transmitted 
therewith  to  the  justices,  contained  the  following  bill,  entitled  "An  Act 
to  enable  Cities  and  Towns  to  purchase,  sell,  and  distribute  Fuel."  [An 
abstract  of  the  bill  is  given  in  a  note.*] 

To  the  Honorable  the  House  of  Representatives  of  the  Commomcealth 
of  Massachusetts. 

We,  five  of  the  Justices  of  the  Supreme  Judicial  Court,  in  reply  to 
your  order,  respectfully  submit  the  following  opinion  :  — 

Whether  the  legislature  can  authorize  a  city  or  town  to  buy  coal  and 
wood,  and  to  sell  them  to  its  inhabitants  for  fuel,  must  be  determined 
by  considering  whether  the  carrying  on  of  such  a  business  for  the  benefit 
of  the  inhabitants  can  be  regarded  as  a  public  service.  This  inquiry 
underlies  all  the  questions  on  which  our  opinion  is  required.  If  such  a 
business  is  to  be  carried  on,  it  must  be  with  money  raised  by  taxation. 
It  is  settled  that  the  legislature  can  authorize  a  city  or  town  to  tax  its 
inhabitants  only  for  public  purposes.  This  is  not  only  the  law  of  this 
Commonwealth,  but  of  the  States  generally  and  of  the  United  States. 
The  following  are  some  of  the  decisions  or  opinions  on  the  subject : 
Lowell  V.  Boston,  111  Mass.  454;  Mead  v.  Acton,  139  Mass.  341; 
Opinion  of  the  Justices,  150  Mass.  592  ;  Kingman  v.  BrocMon,  153 
Mass.  255  ;   Loan  Association  v.  Topeka,  20  Wall.  655  ;   Ottawa  v. 

1  The  substance  of  the  bill  is  as  follows  •  It  authorizes  (s.  1 )  any  city  and  town  to 
establish  one  or  more  fuel  yards  to  supply  the  municipality  with  fuel  and  to  sell  and 
distribute  the  same  to  inhabitants  who  may  buy  it.  It  provides  (s.  2)  that  cities  must 
first  have  authority  by  a  two-thirds  vote  of  each  branch  of  tlie  city  council,  and  the  appro- 
val of  the  mayor  and  of  a  majority  of  the  voters  at  an  annual  municipal  election ;  that 
towns  (s.  3)  must  have  a  two-thirds  vote  at  two  town  meetings  called  for  the  purpose,  — 
the  later  of  the  two  at  an  interval  of  from  two  to  thirteen  months  after  the  former. 
Section  4  provides  for  issuing  bonds  to  pay  for  establisiiing  the  wood-yard  and  for  other 
financial  details.  Sections  5  and  6  deal  with  enlargements  of  the  yards,  &c.,  and  with 
providing  regulations  of  management.  —  Ed. 


CHAP,  v.]  OPINIONS   OF   THE   JUSTICES.  907 

Carey,  108  U.  S.  110  ;  Cole  v.  La  Grange,  113  U.  S.  1 ;  Allen  v.  Jay, 
60  Maine,  124;  Opinion  of  the  Justices,  58  Maine,  590;  Attorney- 
General  V.  Eau  Claire,  37  Wis.  400  ;  State  v.  Eau  Claire,  40  Wis.  533  ; 
State  V.  Osaickee,  14  Kans.  418  ;  Mather  v.  Ottawa,  114  111.  659. 

It  is  not  easy  to  determine  in  every  case  whether  a  benefit  conferred 
upon  many  individuals  in  a  community  can  be  called  a  public  service 
•within  the  meaning  of  the  rule  that  taxes  can  be  laid  only  for  public 
I)urposes.  In  general,  however,  it  may  be  said  that  the  promotion  by 
taxation  of  tlie  private  interests  of  many  individuals  is  not  a  public 
service  within  the  meaning  of  the  Constitution.  The  preamble  of  the 
Constitution  declares  that  "The  end  of  the  institution,  maintenance, 
and  administration  of  government  is  to  secure  the  existence  of  the  body 
politic,  to  protect  it,  and  to  furnish  the  individuals  who  compose  it  with 
the  power  of  enjoying  in  safety  and  tranquillity  their  natural  rights  and 
the  blessings  of  life."  It  is  declared  in  Fart  I.,  Art.  I. :  "All  men  are 
born  free  and  equal,  and  have  certain  natural,  essential,  and  unalienable 
rights  ;  among  which  may  be  reckoned  the  right  of  enjoying  and  defend- 
ing their  lives  and  liberties  ;  that  of  acquiring,  possessing,  and  protect- 
ing property  ;  in  fine,  that  of  seeking  and  obtaining  their  safety  and 
happiness." 

Constitutional  questions  concerning  the  power  of  taxation  necessarily 
are  largely  historical  questions.  The  Constitution  must  be  interpreted 
as  any  other  instrument  with  reference  to  the  circumstances  under  which 
it  was  framed  and  adopted.  It  is  not  necessary  to  show  that  the  men 
who  framed  it  or  who  adopted  it  had  in  mind  everything  which  by  con- 
struction may  be  found  in  it,  but  some  regard  must  be  had  to  the  modes 
of  thought  and  action  on  political  subjects  then  prevailing,  to  the  dis- 
cussions upon  the  nature  of  the  government  to  be  established,  to  the 
meaning  of  the  language  used  as  then  understood,  and  to  the  grounds 
on  which  the  adoption  or  rejection  of  the  Constitution  was  advocated 
before  the  people.  We  know  of  nothing  in  the  history  of  the  adoption 
of  the  Constitution  that  gives  any  countenance  to  the  theory  that  the 
buying  and  selling  of  such  articles  as  coal  and  wood  for  the  use  of  the 
inhabitants  was  regarded  at  that  time  as  one  of  the  ordinary  functions 
of  the  government  which  was  to  be  established.  There  are  nowhere  in 
the  Constitution  any  provisions  which  tend  to  show  that  the  government 
was  established  for  the  purpose  of  carrying  on  the  buying  and  selling  of 
such  merchandise  as  at  the  time  when  the  Constitution  was  adopted  was 
usually  bought  and  sold  by  individuals,  and  with  which  individuals  were 
able  to  supply  the  community,  no  matter  how  essential  the  business 
might  be  to  the  welfare  of  the  inhabitants.  The  object  of  the  Constitu- 
tion was  to  protect  individuals  in  their  rights  to  carry  on  the  customary 
business  of  life,  rather  than  to  authorize  the  Commonwealth  or  the 
"towns,  parishes,  precincts,  and  other  bodies  politic"  to  undertake  what 
had  usually  been  left  to  the  private  enterprise  of  individuals. 

In  the  opinion  in  Loan  Association  v.  Topeka,  20  Wall.  655,  664, 
the  Supreme  Court  of  the  United  States  say:  "It  is  undoubtedly  the 


908  0P1NI0^■S   OF  THE  JUSTICES.  [CHAP.  V. 

duty  of  the  legislature  which  imposes  or  authorizes  municipalities  to 
impose  a  tax  to  see  that  it  is  not  to  be  used  for  purposes  of  private 
interest  instead  of  a  public  use,  and  the  courts  can  only  be  justified  in 
interposing  when  a  violation  of  this  principle  is  clear  and  the  reason  for 
interference  cogent.  And  in  deciding  whether,  in  the  given  case,  the 
object  for  which  the  taxes  are  assessed  falls  upon  the  one  side  or  the 
other  of  this  line,  the}'  must  be  governed  mainly  by  the  course  and 
usage  of  the  government,  the  objects  for  which  taxes  have  been  cus- 
tomarily and  b}-  long  course  of  legislation  levied,  what  objects  or  pur- 
poses have  been  considered  necessary  to  the  support  and  for  the  proper 
use  of  the  government,  whether  State  or  municipal." 

The  early  usages  of  towns  undoubtedly  did  not  exhaust  the  authority 
which  the  legislature  can  confer  upon  municipalities  to  lev}-  taxes. 
Cities  and  towns,  since  the  adoption  of  the  Constitution,  have  been 
authorized  to  lev}'  taxes  for  many  other  purposes  than  those  for  which 
taxes  were  then  levied.  Up  to  the  present  time,  however,  none  of  the 
purposes  for  which  cities  and  towns  have  been  authorized  to  raise  money 
has  included  anything  in  the  nature  of  what  is  commonl}"  called  trade 
or  commercial  business.  Instances  can  be  found  of  some  very  curious 
legislation  by  towns  in  the  colonial  and  provincial  times,  some  of  which 
would  certainly  now  be  thought  to  be  beyond  the  powers  of  towns  under 
the  Constitution.  Whatever  the  theory  was,  towns  in  fact  under  the 
Colony  Charter,  and  for  some  time  under  the  Province  Charter,  often 
acted  as  if  their  powers  were  limited  only  by  the  opinion  of  the  nihabi- 
tants  as  to  what  was  best  to  be  done.  This  was  the  result  of  their 
peculiar  situation  and  condition,  and  the  powers  of  towns  or  of  the 
General  Court  were  not  much  considered.  The  exercise  of  these 
extraordinary  powers,  however,  gradually  died  out. 

The  purposes  for  which,  by  the  Province  laws,  towns  were  authorized 
to  raise  money  were  for  the  maintenance  of  highways,  the  support  of 
the  ministry,  schools,  and  the  poor,  and  for  the  defraying  of  other 
necessary  charges  arising  within  the  town.  The  words  "necessary 
charges"  (Pub.  Sts.  c.  27,  §  10,  ad  Jin.)  are  still  retained  in  the  stat- 
utes, but  they  have  been  strictly  construed  by  the  courts.  We  do 
not  find  cither  in  the  Colony  or  the  Province  laws  any  legislation 
relating  to  the  buying  and  selling  of  coal  or  wood  by  towns  for  the 
use  of  the  inhabitants,  or  any  legislation  on  any  similar  subject.  It 
is  possible  that  there  may  be  found  in  the  records  of  some  town  a 
vote  or  votes  showing  that  the  town  in  an  emergency  was  authorized 
to  buy  wood  or  coal  for  the  purpose  of  supplying  its  inhabitants 
with  fuel,  but  we  have  not  found  any.  Certainly  it  was  not  usual 
for  towns  to  supply  their  inhabitants  with  fuel,  unless  they  were  pau- 
pers. Neither  was  it  usual  for  towns  to  supply  their  inhabitants  with 
grain  or  other  commodities.  We  know  of  no  instance  of  this  being 
done,  except  by  the  town  of  Boston.  In  the  fall  of  1713  there  was  a 
scarcity  of  grain,  and  the  General  Court  prohibited  the  exportation  of 
it.     1  Prov.  Laws  (State  ed.)  724.     The  town  of  Boston  in  March, 


CHAP,  v.]  OPINIONS   OF   THE   JUSTICES.  909 

1 713-14,  voted  to  lay  in  a  stock  of  grain  to  the  amount  of  five  thousand 
bushels  of  corn,  and  to  store  it  in  some  convenient  place,  and  it  was 
left  to  the  selectmen  to  dispose  of  it  as  they  saw  fit.  8  Record  Com- 
missioner's Reports,  101,  1U4.  After  that,  as  shown  by  the  records, 
the  town  regularly  bought  and  stored  grain  and  sold  it  to  the  inhabi- 
tants as  late  as  1775,  and  perhaps  later,  and  it  established  two  grana- 
ries, one  of  whicli,  in  the  Common,  remained  in  use  probably  as  long  as 
the  town  bought  and  sold  grain.  Whether,  after  the  Revolution,  the 
town  continued  to  buy  grain  we  are  not  informed,  as  the  records  have 
not  been  printed.  The  amount  which  could  be  sold  to  any  one  person 
was  often  limited  to  a  few  bushels  at  a  time.  The  report  of  a  commit- 
tee in  1774  shows  that  from  March,  1769,  to  March,  1774,  the  quantity 
of  corn  and  r3e  purchased  was  5,836  bushels,  and  that  the  stock  on 
hand  was  376  bushels.  It  is  apparent  that  the  original  purpose  was  to 
provide  against  a  famine,  and  that  it  was  not  the  intention  of  the  town 
to  assume  the  business  of  buying  and  selling  all  the  grain  which  the 
inhabitants  needed,  but  of  keeping  such  an  amount  in  store  as  was 
necessary  in  order  that  small  quantities  might  l)e  obtained,  particularly 
by  the  poorer  inhabitants,  at  what  the  selectmen,  or  a  committee  of  the 
town,  or  the  town  itself,  deemed  reasonable  prices.  On  Ma}-  25,  1795, 
the  town  voted  to  sell  the  granary.  This  action  of  the  town  of  Boston 
was  an  exception  to  the  usages  of  towns,  and  it  appears  from  the  reports 
of  committees  that  before  the  Revolution  it  had  come  to  be  considered 
as  of  doubtful  expedienc}',  and  during  the  Revolution,  or  not  long  after, 
it  was  discontinued. 

The  nearest  analogy  under  the  Constitution  to  the  subject  we  are  con- 
sidering is  the  authority  given  b}'  the  recent  statute  (St.  1891,  c.  370) 
whereby  cities  and  towns  are  empowered  to  maintain  works  for  the 
manufacture  and  distribution  of  gas  or  electricity  for  furnishing  liglit 
to  the  municipalities  and  their  inhabitants.  In  the  opinion  given  to 
the  House  of  Representatives  on  May  27,  1890,  which  is  printed  in  150 
Mass.  592,  the  justices  advised  that  the  manufacture  and  distribution 
of  gas  or  electricity  for  furnishing  light  to  the  inhabitants  of  cities  iind 
towns  might  properly  be  regarded  as  constituting  a  public  service.  It 
was  there  said  :  "  It  must  often  be  a  question  of  kind  and  degree  whether 
the  promotion  of  the  interests  of  many  individuals  in  the  same  com- 
munit}'  constitutes  a  public  service  or  not."  Gas  or  electricity  for  fur- 
nishing light  has  in  recent  times  become  a  most  convenient  means  of 
lighting  both  public  and  private  buildings,  streets,  and  grounds.  It  is 
impracticable  that  each  individual  should  manufacture  gas  or  electricity 
for  himself,  but  this  can  best  be  done  by  some  company  or  the  munici- 
pality for  a  considerable  territory-,  and  for  the  use  of  both  the  munici- 
pality itself  and  the  inhabitants.  Everyliody  who  chooses  within  that 
territory  cannot  be  permitted  to  manufacture  and  distribute  gas  or 
electricity  for  the  public  use  or  the  use  of  other  persons,  as  it  is  dis- 
tributed by  means  of  pipes  or  wires,  and  the  number  who  properly  can 
be  permitted  to  lay  pipes  or  wires  in  a  given  territory  must  be  limited 


910  OPINIONS   OF   THE  JUSTICES.  [CHAP.  V. 

to  one,  or  at  most  to  a  few  persons  or  corporations.  The  pipes  or  wires 
must  be  laid  in  or  over  the  public  wa}  s,  or  in  or  over  land  taken  for  the 
purpose,  which  may  require  the  exercise  of  the  right  of  eminent  domain. 
These  were  some  of  the  reasons  why  the  subject  seemed  to  the  justices 
a  proper  one  for  municipal  regulation  and  control,  and  to  constitute  a 
service  which  a  municipality  could  be  authorized  to  perform  for  itself 
and  its  inhabitants. 

But  when  the  Constitution  was  adopted  the  buying  and  selling  of  wood 
and  coal  for  fuel  was  a  well-known  form  of  private  business,  which  was 
generally  carried  on  as  other  kinds  of  business  were  carried  on  ;  and  is 
now  carried  on  in  much  the  same  manner  as  it  was  then.  It  was  and 
is  a  kind  of  business  which  in  its  relations  to  the  community  did  not  and 
does  not  differ  essentially  from  the  business  of  buying  and  selling  any 
other  of  the  necessaries  of  life.  Although  all  kinds  of  business  may  be 
regulated  b}-  the  legislature,  yet  to  buy  and  sell  coal  and  wood  for  fuel 
requires  no  authorit}-  from  the  legislature,  and  requires  the  exercise  of 
no  powers  derived  from  the  legislature,  and  every  person  who  chooses 
can  engage  in  it  in  the  same  manner  as  in  the  buying  and  selling  of 
other  merchandise.  We  are  not  aware  of  any  necessity  why  cities  and 
towns  should  undertake  this  form  of  business  any  more  than  many  others 
which  have  always  been  conducted  by  private  enterprise,  and  we  are  not 
called  upon  to  consider  what  extraordinary  powers  the  Commonwealth 
may  exercise,  or  may  authorize  cities  and  towns  to  exercise,  in  extraordi- 
nary exigencies  for  the  safety  of  the  State  or  the  welfare  of  the  inhab- 
itants. If  there  be  any  advantage  to  the  inhabitants  in  buying  and 
selling  coal  and  wood  for  fuel  at  the  risk  of  the  community  on  a  large 
scale,  and  on  what  has  been  called  the  co-operative  plan,  we  are  of  the 
opinion  that  the  Constitution  does  not  contemplate  this  as  one  of  the 
ends  for  which  the  government  was  established,  or  as  a  public  service 
for  which  cities  and  towns  may  be  authorized  to  tax  their  inhabitants. 
"We  therefore  answer  the  questions  in  the  negative. 

Walbridge  a.  Field. 
Charles  Allen. 
Marcus  P.  Knowlton. 
James  M.  Morton. 
John  Lathrop. 
Mat  7,  1892. 

To  the  Honorable  the  Home  of  Representatives  of  the  Commonwealth 
of  3fassachusetts. 

I  am  of  opinion  that  when  money  is  taken  to  enable  a  public  body  to 
offer  to  the  public  without  discrimination  an  article  of  general  necessity, 
the  purpose  is  no  less  public  when  that  article  is  wood  or  coal  than  when 
it  is  water,  or  gas,  or  electricity,  or  education,  to  say  nothing  of  cases 
like  the  support  of  paupers  or  the  taking  of  land  for  railroads  or  public 
markets. 

I  see  no  ground  for  denying  the  power  of  the  legislature  to  enact  the 


CHAP,  v.]  OPINIONS   OF   THE   JUSTICES.  ^H 

laws  mentioned  in  the  questions  proposed.     The  need  or  expediency  of 
such  legislation  is  not  for  us  to  consider. 

Oliver  Wendell  Holmes,  Jr. 

To  the  Honorable  the  House  of  Eepresentatives  of  the  Commonwealth 
of  Massachusetts. 

In  reply  to  the  questions  submitted  by  your  order  of  April  12,  1892, 
for  the  opinion  of  the  Justices  of  the  Supreme  Judicial  Court,  I  h:ne 
to  say  that  under  our  Constitution  "The  end  of  the  institution,  main- 
tenance, and  administration  of  government  is  to  secure  the  existence  ot 
the  body  politic,  to  protect  it,  and  to  furnish  the  individuals  who  com- 
pose it  with  the  power  of  enjoying  in  safety  and  tranquillity  their  natural 
rights  and  the  blessings  of  life."  Without  artificial  heat,  ver}'  few  of  our 
inhabitants  would  have  the  power  of  enjoying  these  rights  and  blessings. 
So  far,  and  so  far  only,  as  it  is  a  necessity  of  society  as  now  organized, 
for  the  government  to  supply  fuel  in  order  to  afford  an  environment 
which  shall  give  this  power,  it  is  competent  for  the  government  to  fur- 
nish or  to  provide  for  a  supply.  Hut  it  is  not  within  its  constitutional 
power  to  engage  in  trade  or  manufacture  merely  for  the  purpose  of 
having  any  branch  of  business  conducted  upon  a  convenient  or  economi- 
cal plan.  Fuel  is  now  legitimately  furnished  to  paupers  by  towns  and 
cities  at  the  public  expense.  If  there  is  an  emergency,  local  or  general, 
which  cannot  be  adequately  met  by  ordinary  private  agency,  it  is  within 
the  constitutional  power  of  the  government  to  supply  the  needs  of  the 
people  in  this  respect,  either  through  the  towns  and  cities,  or  through 
other  agencies.  The  question  of  the  exigenc}-,  in  the  first  instance,  is 
for  the  legislature.  If  there  is  no  adequate  source  of  supply  of  fuel 
except  through  the  establishment  of  governmental  agencies,  they  may 
be  lawfully  inaugurated.  If,  on  the  other  hand,  there  is  no  want  of 
adequate  service,  the  legislature  has  no  constitutional  right  to  create 
agencies  for  the  purpose.  It  has  no  right  to  authorize  towns  and  cities 
to  engage  in  trade  merely  to  try  an  experiment  in  practical  economics, 
or  to  put  in  practice  a  theory. 

My  answer  to  the  questions  propounded  is,  therefore,  "Yes,  if  the 
necessities  of  society,  as  now  organized,  can  be  met  only  by  the  adop- 
tion of  such  measures,"  and  "No,  if  there  is  no  such  necessity,  but 
merely  an  expediency  for  the  trial  of  an  experiment."  ^ 

James  M.  Barker. 

1  The  non-judicial  character  of  such  opinions  should  be  remembered  See  ante, 
156,  175.  —Ed. 


S12  STATE   V.    CITY   OF  TOLEDO.  [CHAP.  V. 


STATE  V.   CITY  OF  TOLEDO. 
Supreme  Court  of  Ohio.     1891. 

[48  Ohio  St.  112.] 

Quo  warranto. 

On  the  22(1  day  of  January,  1889,  the  General  Assembly  passed  an 
Act  which  reads  as  follows :  "  An  Act  to  authorize  cities  of  the  third 
grade  of  the  first  class  to  borrow  mone}'  and  issue  bonds  therefor  for 
tlie  purpose  of  procuring  territory-  and  right  of  wa}-,  sinking  wells  for 
natural  gas,  purchasing  wells  and  natural  gas  works,  purchasing  and 
laying  pipes,  and  supplying  such  cities  with  natural  gas  for  public  and 
private  use  and  consumption."  .  .  .  [The  city  of  Toledo  under  this  Act 
'issued  bonds  and  applied  the  proceeds  to  the  purposes  named  above.] 
This  proceeding  in  quo  warranto  is  instituted  in  this  court  to  oust  and 
exclude  the  city  of  Toledo  from  an}'  and  all  authority  to  have,  use,  and 
enjoy  the  liberty,  privilege,  and  franchise  of  issuing  and  selling  said 
bonds  and  devoting  the  proceeds  towards  the  prosecution  of  said  enter- 
prise of  supplying  natural  gas,  on  the  alleged  ground  —  fully  set  forth 
in  the  opinion  of  the  court  —  that  the  said  Act  of  January  22,  1889,  is 
in  conflict  with  the  Constitution  of  this  State,  and  therefore  invalid  and 
void  in  law. 

D.  K.  Watson.,  Attorne3--General,  Doyle.,  Scott,  &  Leioh,  Thomas 
W.  Sanderson,  F.  E.  Hatrhins,  Frank  11.  Hard,  and  E.  I).  Potter, 
Jr.,  for  relator.  W.  H.  A.  Read,  City  Solicitor,  Barton  Smith,  and 
Clarence  Brown,  for  defendant. 

DiCKMAN,  J.  .  .  .  We  are  brought  now  to  the  question  whether 
the  authority  given  to  Toledo  and  other  cities  to  issue  natural  gas 
bonds,  and  levy  taxes  to  pay  them,  was  for  a  purpose  of  so  public  and 
general  a  nature  as  not  to  transcend  the  legislative  power  vested  in  the 
General  Assembly.  In  holding  that  there  can  be  no  lawful  tax  which 
is  not  imposed  for  a  public  purpose,  the  line  of  demarcation  is  by  no 
means  clear  and  distinct  and  well  defined  between  what  is  for  public 
and  what  for  private  purposes.  It  would  be  exceedingly  difficult  to 
lay  down  any  general  principle,  or  construct  any  formula,  by  which 
each  case  as  it  arises  may  be  assigned  to  the  one  or  the  other  side  of 
the  line.  There  are,  however,  certain  objects,  the  promotion  of  which, 
by  reason  of  their  being  treated  as  of  general  necessity,  has  been  de- 
cided to  be  a  public  use  or  purpose.  Thus  it  is  now  the  well-settled 
doctrine  throughout  the  several  States  that  the  business  of  public  high- 
ways, turnpikes,  bridges,  canals,  and  other  public  means  for  t.'avel  and 
for  the  transportation  of  goods  are  a  public  use  within  the  Constitution. 
The  objects  and  business  of  aqueduct  and  water-works  companies  for 
the  supply  of  cities  and  their  inhabitants  with  water  are  a  public  use. 
Rpfhhill  X.  Bryan,  14  Md.  444  ;  Burden  v.  Stein,  27  Ala.  104  ;  Luin- 
^rns,  4  Cush.  60 ;  Mayor,  etc.  v.  Bailey,  2  Denio, 


CHAP,  v.]  STATE   V.    CITV   OF   TOLEDO.  913 

per  Oardiner,  P.  The  sewerage  of  a  citj'  is  also  held  to  be  a  public 
use.  H'ddreth  v.  Lowell,  11  Gray,  3-15.  Land  taken  in  a  city  for 
public  parks  and  squares,  by  authority  of  law,  whether  advantageous 
to  the  public  for  recreation,  health,  or  business,  is  deemed  to  be  taken 
for  a  public  use.  In  re  Conimisslouers  of  Central  Park,  63  Barb. 
282.  And  in  Bloonifield,  etc.  Natural  Gas  Lhjlit  Co.  v.  Richardson, 
63  Barb.  437,  the  corporation  undertook  to  conduct  the  natural  gas 
flowing  from  a  gas  spring  or  well  to  the  city  of  Rochester,  a  distance 
of  about  30  miles.  The  case,  it  is  true,  involved  the  right  of  eminent 
domain,  and  not  taxation,  but  in  a  proceeding  to  acquire  the  right  of 
way  for  its  mains  through  the  lands  of  private  owners,  and  to  appoint 
commissioners  of  appraisal,  it  was  held  that  the  purposes,  object,  and 
business  of  the  corporation  were  a  public  use  within  the  meaning  of  the 
Constitution. 

In  the  present  controversy  the  object  proposed  is  to  supplj'  the  city 
and  the  citizens  of  Toledo  with  natural  gas  "  for  public  and  private  use 
and  consumption."  The  terms  employed  to  define  the  object  are  com- 
prehensive. Whether  for  fuel  or  as  an  illuminant,  the  design  is  to 
furnish  gas  for  all  public  buildings,  and  for  the  private  consumption  of 
the  community  at  large.  The  expense  of  the  undertaking  is  not  to  be 
incurred  in  behalf  of  a  favored  class  of  citizens,  or  to  foster  certain 
branches  of  industry',  but  for  the  benefit  of  all  the  inhabitants  of  the 
city.  If  natural  gas  is  thereby  made  cheap,  or  cheaper  than  before, 
to  consumers,  such  an  advantage  will  inure  to  any  and  all  who  may 
avail  themselves  of  the  privilege  of  using  it  Nor  does  their  use  of  it 
necessarily  impl^-  taxation  for  the  payment  of  the  principal  and  interest 
of  the  bonds  issued  b}-  the  municipality,  as  the  income  derived  from  the 
consumption  of  natural  gas  might  prove  fully  adequate  to  such  pay- 
ment. Water,  light,  and  heat  are  objects  of  prime  necessity.  Tlieir 
use  is  general  and  univ^ersal.  It  is  now  well  settled  that  the  legislature, 
in  the  exercise  of  its  constitutional  power,  ma}'  authorize  cities  to 
appropriate  real  estate  for  water-works  ;  and  lev}'  and  assess  upon  the 
general  tax-list  an  assessment  on  all  taxable  real  and  personal  propert}' 
in  the  corporation  for  the  payment  of  the  cost  and  repair  of  such 
water-works ;  and  for  the  purpose  of  paying  the  expenses  of  conduct- 
ing and  managing  the  works  a  water-rent  may  be  assessed  upon  all 
tenements  and  premises  supplied  with  water.  And  3'et,  in  cities  and 
towns  w!)ere  there  are  public  water-works,  there  are  often  large  num- 
bers of  the  inhabitants  who  do  not  connect  their  dwellings  or  business 
establishments  with  the  water-pipes  laid  in  the  streets,  and  who  rely 
for  their  suppl}-  of  water  upon  the  ordinar}'  methods  and  sources. 
They  are  taxed,  nevertheless,  for  the  construction  of  works  of  which 
they  may  have  no  immediate  need  to  avail  themselves  ;  but  such  works 
meet  the  wants  of  the  rest  of  the  community.  And  as  a  protection 
from  fire,  as  a  means  for  the  preservation  of  health,  to  supply  an  article 
of  convenience  and  necessity  to  the  great  body  of  the  citizens,  for 
lomestic  uses,  for  operating  manufacturing  establishments,  for  heating 
VOL.  I.  —  58 


914  STATE   V.    CITY   OF   TOLEDO.  [CIIAP.  V. 

Louses,  for  generating  steam  in  all  its  varied  applications,  municipal- 
ities incur  debts  and  lev}'  taxes  for  constructing  and  maintaining 
expensive  water-works.  The  benefits  and  conveniences  offered  may 
not  be  embraced  by  all,  but  they  are,  notwithstanding,  designed  for  the 
general  advantage,  and  subserve  what  is  recognized  as  a  public  pur- 
pose. The  city  in  its  corporate  capacity  does  that  for  the  citizen 
which  he  could  never  accomplish  by  his  individual  effort,  and  leaves 
it  to  his  option  to  accept  or  dispense  with  the  privilege  offered. 

What  we  have  said  in  reference  to  water-works  is,  for  the  most  part, 
applicable  to  the  erecting  and  maintaining  of  natural  or  artificial  gas 
works.  In  State  v.  Clti/  of  Hamilton,  47  Ohio  8t.  52,  the  cit}'  issued 
its  bonds  for  the  purpose  of  erecting  artificial  gas-works,  and  furnish- 
ing the  public  lighting  for  the  cit}'.  This  court  held  in  that  case  that 
the  cit}-  was  empowered  to  erect  its  own  gas-works  at  the  expense  of 
the  corporation.  It  did  not  become  necessary  to  decide  whether,  by 
virtue  of  the  sections  of  the  Revised  Statutes  then  under  consideration, 
the  city  would  be  authorized  to  construct  its  own  gas-works,  and  fur- 
nish gas  to  the  inhabitants  for  private  consumption.  That  question 
has  been  argued  in  the  case  at  bar  by  relator's  counsel  in  State  \.  City 
of  Hamilton,  now  pending  in  this  court,  on  brief  filed  in  the  last-en- 
titled case.  But,  as  throwing  light  upon  the  present  investigation, 
and  as  an  authority  entitled  to  the  highest  respect  we  must  acknowl- 
edge the  force  of  the  language  used  in  Opinion  of  the  Justices  of 
the  Supreme  Court  to  the  House  of  Representatives,  150  Mass.  592, 
597.  In  rendering  the  opinion  that  the  legislature  has  the  power  under 
the  Constitution  to  authorize  the  cities  and  towns  within  the  Common- 
wealth to  manufacture  and  distribute  gas  or  electric  light  for  use  in 
their  public  streets  and  buildings,  and  for  sale  to  their  inhabitants,  it 
is  said  :  "  If  gas  or  electricity  is  to  be  generally  used  in  a  city  or  town 
it  must  be  furnished  by  private  companies  or  b}-  the  municipality,  and 
it  cannot  be  distril)uted  without  the  use  of  the  public  streets,  or  the 
exercise  of  the  right  of  eminent  domain.  ...  If  tlie  legislature  is  of 
opinion  that  the  common  convenience  and  welfare  of  the  inhabitants  of 
cities  or  towns  will  be  promoted  by  conferring  upon  the  municipalities 
the  power  of  manufacturing  and  distributing  gas  or  electricit}-  for  the 
purpose  of  furnishing  light  to  their  inhabitants,  we  think  that  the  legis- 
lature can  confer  the  power." 

Heat  being  an  agent  or  principle  indispensable  to  the  health,  com- 
fort, and  convenience  of  ever}'  inhabitant  of  our  cities,  we  do  not  see 
why,  through  the  medium  of  natural  gas,  it  ma}'  not  be  as  much  a 
public  service  to  furnish  it  to  the  citizens  as  to  furnish  water.  It  is 
inquired,  why  do  not  municipalities  also  purchase  coal  mines,  and  issue 
their  bonds  therefor,  and  embark  in  the  business  of  mining  and  selling 
coal  to  private  consumers?  An  obvious  reply  is  that  coal  and  other 
fuel  may  be  carried  to  the  consumer  by  the  ordinary  channels  of  trans- 
portation, and  at  comparatively  moderate  expense,  while,  in  conveying 
natural  gas,  streets  must  be  opened,  pipes  laid,  works  erected,  fixtures 


CHAP,  v.]  STATE   V.    CITY   OF   TOLEDO.  915 

and  machinery  purchased,  and  other  expenses  incurred,  beyond  the 
enterprise  and  capital  of  an  individual.  The  objection  that  a  work  or 
undertaking  prosecuted  by  a  city  at  tlie  pubHc  expense  does  not  benefit 
some  individuals  will  not  deprive  it  of  the  character  of  a  public  service, 
or  of  ail  object  for  public  purposes.  Some  individuals,  as  we  have 
before  suggested,  may  be  incidentally  benefited  more  than  others ;  and 
some,  from  their  place  of  residence  in  a  cit}',  may  not  use  the  work  at 
all.  It  is  sufficient  •■'  if  every  inhabitant  who  is  so  situated  that  he  can 
use  it  has  the  same  right  to  use  it  as  the  other  inhabitants." 

The  source  of  supply  of  natural  gas  to  the  people  of  Toledo,  it  is 
said,  is  beyond  the  corporate  limits ;  but  the  right  of  a  city  to  aid  in 
the  construction  of  public  works  is  not  necessarily  confined  to  those 
works  which  are  within  the  localit\"  whose  people  are  to  be  taxed  for 
them.  It  is  the  corporate  interest  of  the  city  which  determines  the  right 
to  tax  her  people,  and  not  the  location  of  the  public  improvement. 
Sharpless  v.  Mayor^  etc.,  21  Pa.  St.  147. 

It  is  conceded  that  if  the  Act  of  January  22,  1889,  had  authorized 
cities  to  procure  natural  gas  soleh'  for  their  own  use  and  consumption 
—  or  for  use  onl}-  in  public  buildings  and  places  —  it  would  not  be  open 
to  constitutional  objection  ;  but,  as  the  Act  provides  for  supplying  cities 
and  the  citizens  thereof  with  natural  gas  for  public  and  private  use  and 
consumption,  it  is  urged  that  the  manifest  design  of  the  Act  is  to  enable 
the  city  to  furnish  fuel  to  individual  consumers  for  private  use  at  a 
cheaper  rate  than  they  could  obtain  it  from  other  sources ;  and  that, 
such  being  its  main  object,  the  cit}'  cannot  exercise  the  taxing  power 
in  promoting  a  purpose  that  is  essentially  private,  as  distinguished  from 
one  that  is  public.  We  do  not  so  read  the  Act.  In  our  view,  it  may 
as  well  be  urged  that  to  supply  the  city  and  public  buildings  with 
natural  gas  was  the  primary  object  of  the  Act,  and  the  furnishing  of  it 
to  citizens  merely  incidental  thereto,  as  that  to  supply  individuals  was 
the  primary  object,  and  the  supplying  of  the  city  and  public  buildings 
only  incidental.  But,  granting  that  it  entered  into  the  design  of  the 
legislature  to  cheapen  the  price  of  natural  gas,  it  was  to  cheapen  it  for 
all  the  inhabitants  of  the  city,  and  that  fact  would  become  significant  as 
rendering  the  public  purpose  of  the  Act  more  useful  and  effective. 

There  is  a  class  of  cases  to  which  our  attention  has  been  called,  in 
which  are  considered  the  legislative  authority  under  the  Constitution  to 
pass  laws  enabling  cities  to  assist  individuals  or  corporations  to  estab- 
lish or  carry  on  manufacturing  of  various  kinds  within  or  without  the 
corporate  limits  ;  but  those  cases  bear  but  a  slight  analogy  to  the  one 
before  us.  Among  them,  and  of  a  cognate  character,  is  that  of  Ass^o- 
ciation  v.  Topeka,  20  Wall.  655.  In  that  case  the  Citizens'  Savings' 
&  Loan  Association  of  Cleveland  brought  their  action  in  the  court 
below  against  the  city  of  Topeka  on  coupons  for  interest  attached  to 
bonds  of  that  city.  The  bonds,  on  their  face,  purported  to  l)e  payable 
to  the  King  Wrought-Iron  Bridge  Manufacturing  &  Iron  Works  Com- 
pany of  Topeka,  to  aid  and  encourage  that  company  in  establishing  and 


916  STATE   V.    CITY    OF   TOLEDO.  [CHAP.  V. 

operating  bridge  shops  in  the  city  of  Topeka.  The  city  issued  100 
of  those  bonds  for  $1,000  each  as  a  donation,  to  encourage  that  com- 
pan}-  in  its  design  of  establishing  a  manufactorj'  of  ii'on  bridges  in  that 
cit}'.  It  was  properly  held  that  there  was  no  power  in  the  legislature 
to  pass  a  statute  authorizing  the  lev}'  of  taxes  in  aid  of  such  a  purpose. 
The  avowed  object  in  issuing  the  bonds  was  to  aid  a  private  enterprise, 
to  promote  the  interests  of  a  private  company  designated  by  name, 
and  singled  out  from  all  others.  When  the  legislature  authorized  the 
city  to  contract  the  debt,  the  authority  was  implied  to  levy  such  taxes 
as  were  necessaiy  to  pay  the  debt.  The  authority-  was  thus  given, 
under  the  guise  of  taxation  to  pay  the  bonds,  to  reach  the  property  of 
the  citizens,  and  use  it  in  aid  of  a  private  manufacturing  compan}-. 
The  benefit  accruing  to  the  public,  if  an}-,  was  at  most  incidental,  and 
might  prove  to  be  remote  and  speculative.  The  proprietors  of  the  iron- 
works were  under  no  legal  obligations  to  render  any  dut}-  or  service 
whatever  to  the  municipality  or  State,  Nor  could  the  State  or  city  com- 
pel them  to  complete  or  operate  the  works  or  prevent  their  removal  at 
pleasure  to  some  other  locality. 

The  natural  gas  works  for  which  Toledo  has  issued  its  bonds,  are 
owned  and  controlled  by  the  municipality,  and  not  by  individuals ;  but 
every  citizen,  as  a  member  of  the  community,  has  an  interest  in  their 
construction,  management,  and  maintenance.  The  advantage  resulting 
from  them  is  tendered  on  equal  terms  to  every  inhabitant  of  the  cit}', 
and  the  terms  and  conditions  upon  which  the  benefits  are  to  be  en- 
joyed by  the  whole  people  are  dependent  largely  upon  the  action  of  the 
people  themselves.  In  our  judgment,  the  taxation  authorized  by  the 
General  Assembly  for  the  payment  of  the  bonds  issued  was  in  no  wise 
to  subserve  a  private  purpose,  when  used  as  language  of  constitutional 
limitation.  The  establishment  of  natural  gas  works  by  municipal  cor- 
porations, with  the  imposition  of  taxes  to  pay  the  cost- thereof ,  may  be 
a  new  object  of  municipal  policy.  But  in  deciding  whether  in  a  given 
case  the  object  for  which  taxes  are  assessed  is  a  public  or  private  pur- 
pose we  cannot  leave  out  of  view  the  progress  of  societ\',  the  change 
of  manners  and  customs,  and  the  development  and  growth  of  new 
wants,  natural  and  artificial,  which  may  from  time  to  time  call  for  a 
new  exercise  of  legislative  power.  And  in  deciding  whether  such  taxes 
shall  be  levied  for  the  new  purposes  that  have  arisen  we  should  not, 
we  think,  be  bound  l)y  an  inexorable  rule  that  would  embrace  only 
those  objects  for  which  taxes  have  been  customarily  and  by  long  course 
of  legislation  levied.  .  .  . 

Judgment  for  defendant^  and  petition  dismissed.^ 

1  Compare  Cooley,  Princ.  Const.  Law,  2d  ed.  57;  701/60/  v.  Hudson,  16  Gray,  417, 
ante,  p.  156  ;  5  Harv.  Law  Kev.  30.  —  Ed. 


CHAP,  v.]  COMMONWEALTH   V.   HAMILTON   MANUF.   CO.  917 


COMMONWEALTH   v.  HAMILTON   MANUFACTURING 
COMPANY. 

Supreme  Judicial  Court  of  Massachusetts.     1876. 

[120  Mass.  383.] 

Complaint  under  the  St.  of  1874,  c.  221,  to  the  Police  Court  of  Lowell 
against  a  cotton  and  woollen  manufacturing  company,  for  employing  an 
unmarried  woman  named  Mary  Shirley,  who  was  over  twenty -one  years 
of  age,  to  work  in  the  defendant's  manufacturing  establishment  in  the 
manufacture  of  cotton  goods  for  sixty-four  hours  per  week.  The  defend- 
ant demurred  to  the  complaint  upon  the  following  grounds :  "1.  That 
the  St.  of  1874,  c.  221,  is  unconstitutional  and  void.  2.  That  the 
defendant,  having  been  incoiporated  under  a  charter  prior  to  the  pas- 
sage of  the  statute  under  which  the  complaint  was  made,  the  statute 
was,  as  applied  to  the  defendant,  in  violation  of  the  obligation  of  the 
Commonwealth  to  the  defendant  assumed  in  the  charter,  and  was 
therefore  void  and  of  no  force  and  effect  against  the  defendant."  The 
demurrer  was  overruled ;  the  defendant  was  found  guilty ;  and  ap- 
pealed to  the  Superior  Court,  where  the  demurrer  was  overruled  and 
the  judgment  of  the  Police  Court  affirmed ;  and  the  defendant  ap- 
pealed to  this  court. 

C.  B.  Goodrich  and  F.  T.  Greenhalge,  for  the  defendant. 

C,  R.  Train,  Attorney-General,  and  W.  C.  Loring,  Assistant 
Attornej'-General,  for  the  Commonwealth. 

Lord,  J.  The  defendant  contends  that  the  St.  of  1874,  c.  221,  under 
which  the  complaint  in  this  case  is  made,  is  unconstitutional  and  void. 
The  provision,  which  it  is  alleged  is  without  authority  under  the  Con- 
stitution, is,  that  "no  minor,  under  the  age  of  eighteen  years,  and  no 
woman  over  that  age,  shall  be  employed  in  laboring  by  any  person, 
firm  or  corporation  in  any  manufacturing  establishment  in  this  Com- 
monwealth more  than  ten  hours  in  any  one  day,"  except  in  certain 
cases,  and  that  "  in  no  case  shall  the  hours  of  labor  exceed  sixt}'  per 
week." 

The  learned  counsel  for  the  defendant  in  his  argument  did  not  refer 
to  any  particular  clause  of  the  Constitution  to  which  this  provision  is 
repugnant.  His  general  proposition  was,  that  the  defendant's  Act  of 
Incorporation,  St.  1824,  c.  44,  is  a  contract  with  the  Commonwealth, 
and  that  this  Act  impairs  that  contract.  The  contract,  it  is  claimed, 
is  an  implied  one ;  that  is,  an  Act  of  Incorporation  to  manufacture 
cotton  and  woollen  goods  by  necessary  implication  confers  upon  the 
corporation  the  legal  capacity  to  contract  for  all  the  labor  needful 
for  this  woi'k.  If  this  is  conceded  to  the  fullost  extent,  it  is  onl^-  a 
contract  with  the  corporation  that  it  may  contract  for  all  lawful  labor. 
There  is  no  contract  implied  that  such  labor  as  was  then  forbidden  by 


918  COMMONWEALTH  V.    PERUY.  [CHAP.  V. 

law  might  be  employed  by  the  defendant ;  or  that  the  General  Court 
would  not  perform  its  constitutional  duty  of  making  such  wholesome 
laws  thereafter  as  the  pubUc  welfare  should  demand.  The  law,  there- 
fore, violates  no  contract  with  the  defendant ;  and  the  only  other  question 
is,  whether  it  is  in  violation  of  any  right  reserved  under  the  Constitu- 
tion to  the  individual  citizen.  Upon  this  question,  there  seems  to  be 
no  room  for  debate.  It  does  not  forbid  any  person,  firm  or  corpora- 
tion from  employing  as  many  persons  or  as  much  labor  as  such  person, 
firm  or  corporation  may  desire  ;  nor  does  it  forbid  any  person  to  work 
as  many  hours  a  day  or  a  week  as  be  chooses.  It  merely  provides 
that  in  an  employment,  which  the  legislature  has  evidently  deemed 
to  some  extent  dangerous  to  health,  no  person  shall  be  engaged  in 
labor  more  than  ten  hours  a  day  or  sixty  hours  a  week.  There  can 
be  no  doubt  that  such  legislation  may  be  maintained  either  as  a  health 
or  police  regulation,  if  it  were  necessary  to  resort  to  either  of  those 
sources  for  power.  This  principle  has  been  so  frequently  recognized 
in  this  Commonwealth  that  reference  to  the  decisions  is  unnecessary. 

It  is  also  said  that  the  law  violates  the  riglit  of  Mary  Shirley  to 
labor  in  accordance  with  her  own  judgment  as  to  the  number  of  hours 
she  shall  work.  The  obvious  and  conclusive  reply  to  this  is,  that  the  law 
does  not  limit  her  right  to  labor  as  many  hours  per  day  or  per  w^eek  as 
she  may  desire ;  it  does  not  in  terms  forbid  her  laboring  in  an}"  par- 
ticular business  or  occupation  as  many  hours  per  day  or  per  week,  as  she 
ma}'  desire ;  it  merely  prohibits  her  being  employed  continuously  in 
the  same  service  more  than  a  certain  number  of  hours  per  day  or  week, 
which  is  so  clearly  within  the  power  of  the  legislature,  that  it  be- 
comes unnecessar}-  to  inquire  whether  it  is  a  matter  of  grievance  of 
which  this  defendant  has  the  right  to  complain. 

Judgment  affirmed. 


COMMONWEALTH  v.      PERRY. 
Supreme  Judicial  Court  of  Massachusetts.     1891. 

[155  Mass.  U7.] 

Indictment,  on  the  St.  of  1891,  c.  125,  in  two  counts,  alleging  in  the 
first  count  that  the  defendant  on  Jul}'  13,  1891,  did  "  impose  and 
exact  a  fine,  to  wit,  a  fine  of  forty  cents,"  upon  one  Plelding,  then 
employed  by  him  in  his  factory  in  Dudley  in  weaving  woollen  cloth, 
"  for  imperfections  that  had  arisen  during  the  process  of  weaving 
in  the  cloth  and  material  woven  by  the  said  "  Fielding,  while  he  was 
so  employed  and  engaged  at  weaving ;  and  in  the  second  count  that 
the  defendant  at  the  same  time  and  place  did  "  withhold  a  certain  part 
of  the  wages  of  said"  Fielding  while  so  employed  and  engaged,  '"to 
wit,  the  sum  of  forty  cents  for  and  on  account  of  imperfections  "  in 
the  weaving  of  Fielding,  as  set  out  in  the  first  count. 


CHAP,  v.]  COMMONWEALTH   V.   PERRY.*  919 

In  the  Superior  Court,  before  the  jury  were  impanelled,  the  defend- 
ant moved  to  quash  the  indictment  for  the  following  reasons.  .  .  . 
[These  are  omitted  here,  as  not  material  to  the  opinion  of  the  court.] 

Thompson,  J.,  overruled  this  motion. 

At  the  trial  the  following  facts  were  agreed.  The  defendant  is  a 
woollen  manufacturer  in  the  town  of  Dudle}',  and  employed  among  other 
operatives  about  forty  weavers.  On  May  18,  1891,  the  defendant  en- 
tered into  an  agreement  in  writing  under  seal  with  such  weavers,  whereby 
in  consideration  of  the  defendant's  employing  them  and  paying  them  their 
wages  monthly  at  certain  fixed  rates,  they  agreed  among  other  things  to 
accept  his  employment  and  serve  him  faithfully  during  such  employment 
ami  to  accept  as  wages  "  for  all  imperfect  weaving  work  such  reduced 
rates  and  prices,  and  at  such  rates  and  prices  less  than  those  paid  for 
perfect  work,  as  the  said  Perry  shall  deem  reasonable  and  proper  com- 
pensation for  imperfections  in  weaving,  or  imperfect  work,  and  a  fair 
compensation  for  the  work  actually  done,"  and  "  to  pay  to  said  Perry 
monthly,  from  the  wages  earned  in  his  employ  in  weaving,  the  amount 
of  such  deductions  for  imperfect  work  and  imperfections  as  said  Perry 
on  inspection  shall  find  and  judge  due  him  for  the  damage,  loss,  and 
injury  caused  by  such  imperfect  weaving,  or  imperfections,  —  whether 
such  deductions  be  called  '  fines,'  '  deductions,'  or  be  called  by  any 
other  name,  —  which  damage,  fines,  or  deductions  for  such  imperfect 
weaving  and  imperfections  are  herebj^  assumed,  and  covenanted  and 
promised  to  be  paid  to  said  Perry  from  wages  earned  in  said  employ- 
ment, as  compensation  for  the  loss  and  injury  caused  to  said  Perry 
thereb}'."  Among  the  weavers  signing  this  agreement  with  the  defend- 
ant was  the  Fielding  referred  to  in  the  indictment,  and  he  had  re- 
mained in  the  defendant's  employ  continuously  since  the  date  of  the 
agreement.  The  wages  earned  by  Fielding  in  June,  1891,  would  have 
amounted  to  $21.53,  if  the  cloth  woven  by  him  had  been  free  from  im- 
perfections, but  by  reason  of  such  imperfections,  which  arose  during 
the  process  of  weaving  and  which  injured  its  merchantable  value,  the 
defendant  deducted  therefrom  and  withheld  from  him  the  sum  of  fif- 
teen cents  and  paid  him  for  his  work  the  balance  of  $21.38.  This 
balance  was  a  reasonable  compensation  for  the  work  actuall}-  done  by 
Fielding  during  that  month,  and  the  fifteen  cents  so  deducted  did  not 
represent  the  actual  damage  done  to  the  defendant  b}'  the  imperfect 
work  done  by  him. 

The  defendant  requested  the  judge  to  rule,  among  other  things,  as 
follows  :  "  Chapter  125  of  the  Acts  of  the  Legislature  of  the  3'ear  1891, 
under  the  provisions  of  which  the  defendant  was  indicted,  is  uncon- 
stitutional and  void,  especiall}'  because  it  is  in  violation  of  the  pro- 
visions thereof  against  granting  special  advantages  to  a  class  of  the 
people  as  distinguished  or  distinct  from  the  communit}',  and  because 
also  it  is  repugnant  to  other  fundamental  principles  thereof." 

The  judge  refused  so  to  rule,  and  instructed  the  jury,  as  matter  of 
law,  that,  upon  the  agreed  facts,  the  jury  would  be  authorized  to  find 
the  defendant  guilty,   and  submitted   the  case  to  them. 


920  *     COMMONWEALTH    V.    rKRKY.  [CHAP.  V. 

The  jury  returned  a  verdict  of  guilt}- ;  and  the  defendant  alleged 
exceptions. 

A.  J.  Bartholomew^  for  the  defendant. 

A.  E.  Pillsbtiry,  Attorney-General,  for  the  Commonwealth. 

Knowlton,  J.  This  is  an  indictment  under  the  St.  of  1891,  c.  125, 
the  first  section  of  whicli  is  as  follows:  "No  employer  shall  impose 
a  fine  upon  or  withhold  the  wages  or  any  part  of  the  wages  of  an 
employee  engaged  at  weaving  for  imperfections  that  ma}-  arise  during 
the  process  of  weaving."  Section  2  provides  a  punishment  for  a  viola- 
tion of  the  provisions  of  the  statute  by  the  imposition  of  a  fine  of  not 
exceeding  one  hundred  dollars  for  the  first  offence,  and  not  exceeding 
three  hundred  dollars  for  the  second  or  an}'  subsequent  offence. 

The  Act  recognizes  the  fact  that  imperfections  may  arise  in  weaving 
cloth,  and  it  is  evident  that  a  common  cause  of  such  imperfections  may 
be  the  negligence  or  want  of  skill  of  the  weaver.  When  an  employer 
has  contracted  with  his  employee  for  the  exercise  of  skill  and  care  in 
tending  looms,  it  forbids  the  withholding  of  any  part  of  the  contract 
price  for  non-performance  of  the  contract,  and  seeks  to  compel  the 
payment  of  the  same  price  for  work  which  in  quality  falls  far  short  of 
the  requirements  of  the  contract  as  for  that  which  is  properly  done. 
It  does  not  purport  to  preclude  the  employer  from  bringing  a  suit  for 
damages  against  the  employee  for  a  breach  of  the  contract,  but  he 
must  pay  in  the  first  instance  the  wages  to  which  the  employee  would 
have  been  entitled  if  he  had  done  such  work  as  the  contract  called  for. 
It  is  obvious  that  a  suit  for  damages  against  an  employee  for  failure  to 
do  good  work  would  be  in  most  cases  of  no  practical  value  to  the  em- 
plover,  and  a  theoretical  remedy  of  this  sort  does  not  justify  a  require- 
ment that  a  party  to  such  a  contract  shall  pay  the  consideration  for 
performance  of  it  when  it  has  not  been  performed.  The  defendant 
contends  that  the  statute  is  unconstitutional,  and  it  becomes  necessary 
to  consider  the  question  thus  presented. 

The  employer  is  forbidden  either  to  impose  a  fine  or  to  witlihold  the 
wages  or  any  part  of  them.  If  the  Act  went  no  further  than  to  forbid 
the  imposition  of  a  fine  by  an  employer  for  imperfect  work,  it  might  be 
sustained  as  within  the  legislative  power  conferred  by  the  Constitution 
of  this  Commonwealth,  in  chap.  1,  sect.  1,  art.  4,  which  authorizes  the 
General  Court  "  to  make,  ordain,  and  establish  all  manner  of  wholesome 
and  reasonable  orders,  laws,  statutes,  and  ordinances,  directions  and 
instructions,  either  with  penalties  or  without,  so  as  the  same  be  not  re- 
pugnant or  contrary  to  this  Constitution,  as  they  shall  judge  to  be  for 
the  good  and  welfare  of  this  Commonwealth,  and  for  the  government 
and  ordering  thereof,  and  of  the  subjects  of  the  same."  It  might  well 
be  held  that,  if  the  legislature  should  determine  it  to  be  for  the  best 
interests  of  the  people  that  a  certain  class  of  employees  should  not  be 
permitted  to  subject  themselves  to  an  arbitrary  imposition  of  a  fine 
or  penalty  by  their  employer,  it  might  pass  a  law  to  that  eflfect.  But 
when  the  attempt  is  to  compel  payment  under  a  contract  of  the  price 


CHAP,  v.]  COMMONWEALTH   V.    PERRY.  '921 

for  good  work  when  only  inferior  work  is  done,  a  different  question  is 
presented. 

There  are  certain  fundamental  rights  of  ever}'  citizen  which  are  rec- 
ognized in  the  organic  law  of  all  our  free  American  States.  A  statute 
which  violates  an}'  of  these  rights  is  unconstitutional  and  void,  even 
though  the  enactment  of  it  is  not  expressly  forbidden.  Article  1  of  the 
Declaration  of  Rigiits  in  the  Constitution  of  Massachusetts  enumerates 
among  the  natural,  inalienal)le  rights  of  men  the  right  "of  acquiring, 
possessing,  and  protecting  property."  Article  1,  §  10,  of  the  Con- 
stitution of  the  United  States  provides,  among  other  things,  that  no 
State  shall  pass  any  "  law  impairing  the  obligation  of  contracts." 
The  right  to  acquire,  possess,  and  protect  property  includes  the  right 
to  make  reasonable  contracts,  which  shall  be  under  the  protection  of 
the  law. 

The  manufacture  of  cloth  is  an  important  industry,  essential  to  the 
welfare  of  the  community.  There  is  no  reason  why  men  should  not  be 
permitted  to  engage  in  it.  Indeed,  the  statute  before  us  recognizes  it 
as  a  legitimate  business,  into  which  anybody  may  freely  enter.  Tlie 
right  to  employ  weavei-s,  and  to  make  proper  contracts  with  them,  is 
therefore  protected  by  our  Constitution  ;  and  a  statute  which  forbids 
the  making  of  such  co-ntracts,  or  attempts  to  nullify  them,  or  impair  the 
obligation  of  them,  violates  fundamental  principles  of  right  which  are 
expressly  recognized  in  our  Constitution.  If  the  statute  is  held  to  per- 
mit a  manufacturer  to  hire  weavers,  and  agree  to  pay  them  a  certain 
price  per  }mrd  for  weaving-  cloth  with  proper  skill  and  care,  it  renders 
the  contract  of  no  effect  when,  it  requires  him,  under  a  penalty,  to  pay 
the  contract  price  if  the  employee  does  his  work  negligently  and  fails  to 
perform  his  contract.  For  it  is  an^  essential  element  of  such  a  contract 
that  full  payment  is  to  be  made  only  when  the  contract  is  performed.  If 
it  be  held  to  forbid  the  making  of  such  contracts,  and  to  permit  the  hir- 
ing of  weavers  only  upon  terms  that  prompt  payment  shall  be  made  of 
the  price  for  good  work,  however  badly  their  work  may  be  done,  and 
that  the  remedy  of  the  employer  for  their  derelictions  shall  be  only  by 
suits  against  them  for  damages,  it  is  an  interference  with  the  right  to 
make  reasonable  and  proper  contracts  in  conducting  a  legitimate  busi- 
ness, which  the  Constitution  guarantees  to  every  one  when  it  declares 
that  he  has  a  "natural,  essential,  and  nnalienable  "  right  of  "acquiring, 
possessing,  and  ^n-otecting  property."  Whichever  interpretation  be 
given  to  this  part  of  the  Act,  we  are  of  opinion  that  it  is  unconstitu- 
tional ;  and  inasmuch  as  the  instructions  of  the  judge  permitted  the  jury 
to  find  the  defendant  guilty  on  the  second  count,  a  new  trial  must  be 
granted. 

"We  do  not  deem  it  important  to  consider  the  other  exceptions  taken 
b}'  the  defendant,  further  than  to  say  that  we  are  of  opinion  that  the 
motion  to  quash  was  rightly  overruled. 

For  cases  supporting  the  view  we  have  taken,  and  for  a  further  dis- 
cussion of  the  principles  involved  in  the  decision,  see  Godcharles  \. 


922  COMMONWEALTH   V.    PERRY.  [cHAP.  V. 

Wigeman,  113  Penn.  St.  431  ;  State  v.  Goodwill,  33  W.  Va.  179  ;  In 
re  Jacobs,  98  N.  Y.  98  ;  People  v.  3farx,  99  N.  Y.  377  ;  PeojAe  v. 
Gillson,  109  N.  Y.  389  ;  Millett  v.  People,  117  111.  294. 

Exceptions  sustained. 

Holmes,  J.  I  have  the  misfortune  to  disagree  with  m3'  brethren.  I 
have  submitted  ni}-  views  to  them  at  length,  and,  considering  the  im- 
portance of  the  question,  feel  bound  to  make  public  a  brief  statement, 
notwithstanding  the  respect  and  deference  I  feel  for  the  judgment  of 
those  with  whom  I  disagree. 

In  the  first  place,  if  the  statute  is  unconstitutional,  as  construed  by 
the  majoiit}-,  I  think  it  should  be  construed  more  narrowly  and  literally, 
so  as  to  save  it.  Taking  it  literally,  it  is  not  infringed,  and  there  is  no 
withholding  of  wages,  when  the  employer  only  promises  to  pay  a  rea- 
sonable price  for  imperfect  work,  or  a  price  less  than  the  price  paid  for 
perfect  work,  and  does  pay  that  price  in  fact.  But  I  agree  that  the  Act 
should  be  construed  more  broadh,  and  should  be  taken  to  prohibit  pal- 
pable evasions,  because  I  am  of  opinion  that  even  so  construed  it  is 
constitutional,  so  far  as  an}'  argument  goes  which  I  have  heard.  The 
prohibition,  if  any,  must  be  found  in  the  words  of  the  Constitution, 
either  expressed  or  imi)lied  upon  a  fair  and  historical  construction. 
What  words  of  the  United  States  or  State  Constitution  are  relied  on  ? 
The  statute  cannot  be  said  to  impair  the  obligation  of  contracts  made 
after  it  went  into  effect.  Ze/iir/h  Water  Co.  v.  Easton,  121  U.  S.  388, 
391.  So  far  as  has  been  pointed  out  to  me,  I  do  not  see  tliat  it  inter- 
feres with  the  right  of  acquiring,  possessing,  and  protecting  property 
any  more  than  the  laws  against  usury  or  gaming.  In  truth,  I  do  not 
think  that  that  clause  of  the  Bill  of  Rights  has  an}-  application.  It 
might  be  urged,  perhaps,  that  the  power  to  make  reasonable  laws  im- 
pliedl}'  prohibits  the  making  of  unreasonable  ones,  and  that  this  law  is 
unreasonable.  If  I  assume  that  this  construction  of  the  Constitution  is 
correct,  and  that,  speaking  as  a  political  economist,  I  should  agree  in 
condemning  the  law,  still  I  should  not  be  willing  or  think  m3'self  author- 
ized to  overturn  legislation  on  that  ground,  unless  I  thought  that  an 
honest  difference  of  opinion  was  impossible,  or  prett}'  nearly  so. 

But  if  the  statute  did  no  more  than  to  abolish  in  certain  cases  con- 
tracts for  a  quantum  meruit,  and  recoupment  for  defective  quality  not 
amounting  to  a  failure  of  consideration,  I  suppose  that  it  only  would 
put  an  end  to  what  are,  relatively  speaking,  innovations  in  the  common 
law,  and  I  know  of  nothing  to  hinder  it.  This,  however,  is  not  all.  I 
do  not  confine  mj-self  to  technical  considerations.  I  suppose  that  this 
Act  was  passed  because  the  operatives,  or  some  of  them,  thought  that 
they  were  often  cheated  out  of  a  part  of  their  wages  under  a  false  pre- 
tence that  the  work  done  by  them  was  imperfect,  and  persuaded  the 
legislature  that  their  view  was  true.  If  their  view  was  true,  I  cannot 
doubt  that  the  legislature  had  the  right  to  deprive  the  employers  of  an 
honest  tool  which  the}*  were  using  for  a  dishonest  purpose,  and  I  cannot 


CHAP,  v.]  BRACEVILLE   COAL   CO.   V.   THE   PEOPLE,  923 

pronounce  the  legislation  void,  as  based  on  a  false  assumption,  since 
I  know  nothing  about  the  matter  one  way  or  the  other.  The  statute, 
however  construed,  leaves  the  employers  their  remedy  for  imperfect 
work  by  action.  I  doubt  if  we  are  at  liberty  to  consider  the  objection 
that  this  remed}'  is  practicallv  worthless  ;  but  if  we  are,  then  the  same 
objection  is  equally  true,  although  for  different  reasons,  if  the  workmen 
are  left  to  their  reraed}'  against  their  employers  for  wages  wrongfully 
withheld.  My  view  seems  to  me  to  be  favored  b}*  Hancock  v.  Yaden, 
121  Ind.  366,  and  Slaughter- House  Cases,  16  Wall.  36,  80,  81.* 


BRACEVILLE   COAL   CO.   v.   THE  PEOPLE. 
Supreme  Court  of  Illinois.     1893. 

[147  ///.  66.] 

Appeal  from  the  Count}'  Court  of  Grinidy  County ;  the  Hon.  A.  R. 
Jordan,  Judge,  presiding.  ^ 

The  appellant  was  tried  before  a  justice  of  the  peace,  and  found  guilty 
of  violating  an  Act  of  the  Legislature  entitled  "  An  Act  to  provide  for 
the  Weekly  Pa3'ment  of  Wages  b}-  Corporations,"  approved  April  23, 
1891,  and  the  penalty  of  lift}'  dollars  imposed,  for  which  and  costs  judg- 
ment was  rendered  accordingly.  The  case  was  taken  by  appeal  to  the 
County  Court  of  Grund}"  County,  where  a  trial  was  held  by  the  court,  a 
jury  having  been  waived,  and  appellant  again  found  guilty,  and  the  pen- 
alty of  fifty  dollars  imposed,  and  judgment  entered  for  that  amount  and 
costs  ;  and  the  case  is  brought  here  by  further  appeal. 

The  Act  of  the  Legislature  above  referred  to  provides  "  that  every 
manufacturing,  mining,  quarrying,  lumbering,  mercantile,  street,  elec- 
tric and  elevated  railway,  steamboat,  telegraph,  telephone,  and  municipal 
corporation  and  every  incorporated  express  company  and  water  com- 
pany, shall  pa}'  weekly  each  and  every  employee  engaged  in  its  business 
the  wages  earned  by  such  employee  to  within  six  days  of  the  date  of 
such  payment ;  provided,  however,  that  if  at  an}-  time  of  payment  any 
employee  shall  be  absent  from  his  regular  place  of  labor  he  shall  be  en- 
titled to  said  payment  at  any  time  thereafter  upon  demand."  And, 
after  providing  a  penalty  of  not  less  than  ten  dollars  nor  more  than  fifty 
dollars  for  each  violation,  that  such  action  be  commenced  within  thirt}' 
daj'S  after  the  violation,  notice  to  the  corporation  that  an  action  will  be 
brought,  defences  that  may  not  be  set  up.  etc.,  proceeds  :  "  No  assign- 
ment of  future  wages  paj'able  weekly  under  the  provisions  of  this  Act 
shall  be  valid  if  made  to  the  corporation  from  whom  such  wages  are  to 
become  due,  or  to  any  person  on  behalf  of  such  corporation  or  if  made 
or  procured  to  be  made  to  any  person  for  the  purpose  of  relieving  such 
corporation  from  the  obligations  to  pay  weekly  under  the  provisions  of 

1  See  Archer  v.  James  et  al,  2  Best  &  Sm.  61  (1862).  — Ed. 


924  BRACEVILLE   COAL    CO.    V.    THE    PEOPLE.  [CHAP.  V. 

this  Act.  Nor  shall  any  of  said  corporations  require  any  agreement 
from  an  employee  to  accept  wages  at  other  periods  than  as  provided  in 
section  1  of  this  Act,  as  a  condition  of  employment." 

Appellant  became  a  corporation  under  the  general  incorporation  law, 
in  force  July  1,  1872,  and  for  several  years  past  has  been  engaged  in 
the  business  of  coal-mining,  witii  its  principal  office  at  Braceville, 
Grund3-  Count3',  this  State.  A  certain  contract  is  provided  by  appel- 
lant, which  all  persons  desiring  employment  in  its  service  are  required 
to  sign  as  a  condition  precedent  to  such  employment.  The  complain- 
ing witness,  Thomas  McGuire,  in  November,  1891,  applied  to  the  super- 
intendent of  appellant's  mines  for  work,  and  was  required  to  sign  one  of 
its  contracts,  which  was  done,  in  duplicate,  each  part}'  retaining  a  copy. 
Certain  rules  and  regulations  of  the  compan}'  on  the  back  of  its  con- 
tracts are,  b}'  the  terms  of  each  contract,  made  a  part  of  the  same. 
The  contract  of  witness  McGuire,  after  stipulating,  among  other  things, 
the  wages  to  be  paid,  etc.,  provides:  "All  payments,  hereunder  to  be 
made  on  regular  pay-da}',  and  in  compliance  with  the  rules  and  regula- 
tions above  named ;  and  pay-day  is  hereby  fixed  for  and  on  the  first 
Saturday  after  the  10th  of  each  month,  when  and  at  which  time  all 
wages  or  moneys  that  may  have  been  earned  during  and  in  the  calen- 
dar month  next  prior  to  such  pay-day  shall  be  paid,  less  all  moneys 
owing  said  party  of  the  first  part  on  any  account  whatever."  By  the 
seventh  rule,  printed  on  the  back  of  said  contract,  and  made  part 
thereof,  it  is  provided :  "  Every  employee  will  be  paid  once  a  month  at 
regular  pay-day  all  wages  or  moneys  he  may  have  earned  during  and  in 
the  calendar  month  next  prior  to  such  pay-day,  after  deducting  any  indebt- 
edness which  such  employee  may  owe  to  the  company,  or  which  the  com- 
pany, with  the  consent  of  such  employee,  may  have  assumed  to  pay  to 
any  other  person."  McGuire  entered  upon  the  employment  under  the 
contract  Novembers,  1891,  and  quit  November  13,  1891,  and  demanded 
his  wages.  The  company  refused  to  pay  him  before  the  next  pay-day, 
when  he  gave  the  notice  under  the  statute,  and  caused  this  suit  to  be 
brought. 

George  S.  House,  for  appellant. 

3l7\  S.  C.  Stouffh  and  Mr.  William  Mooney,  for  the  People. 

Mr.  Justice  Shope  delivered  the  opinion  of  the  court :  The  principles 
that  must  control  the  decisions  of  this  case  were  announced  in  Frorerx. 
People,  141  111.  171.  Unless  we  are  prepared  to  recede  from  the 
doctrine  of  that  case,  and  the  subsequent  case  o^ Ramsey  v.  People,  142 
111.  380,  the  Act  under  consideration  must  be  likewise  held  unconstitu- 
tional and  void.  Section  2  of  art.  2,  of  the  Constitution  of  this  State 
guarantees  that  no  person  shall  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law.  We  said  in  the  Frorer  Case,  the  words 
"  due  process  of  law  "  "  are  to  be  held  synonymous  with  '  the  law  of  the 
land,'"  and,  quoting  from  Millett  v.  People,  117  111.  294,  said:  "And 
this  means  general  public  law,  binding  upon  all  the  members  of  the  com- 
munity under  all  circumstances,  and  not  partial  or  private  laws,  affect- 


CHAP,  v.]  BRACEVILLE   COAL   CO.   V.   THE   PEOPLE.  925 

ing  the  rights  of  private  individuals  or  classes  of  individuals."  There 
can  be  no  liberty,  protected  by  government,  that  is  not  regulated  by  such 
laws,  as  will  preserve  the  right  of  each  citizen  to  pursue  his  own  ad- 
vancement and  happiness  in  his  own  way,  subject  to  the  restraints  neces- 
sary to  secure  the  same  right  to  all  others.  The  fundamental  principle 
upon  which  liberty  is  based  in  free  and  enlightened  government  is 
equality  under  the  law  of  the  land.  It  has  accordingly  been  everywhere 
held  that  liberty,  as  tiiat  term  is  used  in  the  Constitution,  means  not 
only  freedom  of  the  citizen  from  servitude  and  restraint,  but  is  deemed 
to  embrace  the  riglit  of  every  man  to  be  free  in  tlie  use  of  his  powers 
and  faculties,  and  to  adopt  and  pursue  such  avocation  or  calling  as  he 
ma}'  choose,  subject  only  to  the  restraints  necessary  to  secure  the  com- 
mon welfare.  Frorer  v.  People,  supra ;  Com.  v.  Perry,  155  Mass. 
117;  People  v.  Gillson,  109  N.  Y.  389;  Live-Stock,  etc.  Ass'n  v. 
Crescent  City,  etc.  Co.,  1  Abb.  (U.  S.)  388  ;  Slauyhter-House  Cases,  16 
Wall.  3G  ;  Godcharles  v.  Wigeman,  113  Pa.  St.  431  ;  State  v.  Goodwill, 
33  W.  Va.  179.  Property,  in  its  broader  sense,  is  not  the  physical 
thing  which  may  be  the  subject  of  ownership,  but  is  the  right  of  domin- 
ion, possession,  and  power  of  disposition  which  may  be  acquired 
over  it.  And  the  right  of  property  preserved  hy  the  Constitution  is  the 
right  not  only  to  possess  and  enjoy  it,  but  also  to  acquire  it  in  any  law- 
ful mode,  or  by  following  any  lawful  industrial  pursuit  which  the  citi- 
zen, in  the  exercise  of  the  liberty  guaranteed,  ma}'  choose  to  adopt. 
Labor  is  the  primary  foundation  of  all  wealth.  The  property  which 
each  one  has  in  his  own  labor  is  the  common  heritage.  And,  as  an  in- 
cident to  the  right  to  acquire  other  property,  the  liberty  to  enter  into 
contracts  b}-  which  labor  may  be  employed  in  such  way  as  the  laborer 
shall  deem  most  beneficial,  and  of  others  to  employ  such  labor,  is  ne- 
cessarily included  in  the  constitutional  guarantee.  In  the  Frorer  Case, 
we  said  :  "  The  privilege  of  contracting  is  both  a  liberty  and  a  property 
right,  and  if  A.  is  denied  the  right  to  contr.act,  and  acquire  property  in 
the  manner  which  he  has  hitherto  enjoyed  under  the  law,  and  which  B., 
C,  and  D.  are  still  allowed  bv  the  law  to  enjo}',  it  is  clear  that  he  is 
deprived  of  both  liberty  and  property',  to  the  extent  that  he  is  thus  de- 
nied the  right  to  contract ;  "  and  quoted  with  approval :  "  The  man  or 
the  class  forbidden  the  acquisition  or  enjoyment  of  the  property-  in  the 
manner  permitted  the  community  at  large  would  be  deprived  of  liberty 
in  particulars  of  primary  importance  to  his  or  their  pursuit  of  happi- 
ness."    Cooley,  Const.  Lim.  393. 

It  is  undoubtedly  true  that  the  people  in  their  representative  capacity'' 
may,  by  general  law,  render  that  unlawful,  in  many  cases,  which  had 
hitherto  been  lawful.  But  laws  depriving  particular  persons  or  classes 
of  persons  of  rights  enjoyed  by  the  community  at  large,  to  be  valid, 
must  be  based  upon  some  existing  distinction  or  reason,  not  applicable 
to  others,  not  included  within  its  provisions.  Id.  391.  And  it  is  only 
when  such  distinctions  exist  that  differentiate  in  important  particulars, 
persons,  or  classes  of  persons  from  the  body  of  the  people,  that  laws 


926  BRACEVILLE   COAL   CO.    V.   THE   PEOPLE.  [CHAP.  V. 

having  operation  only  upon  such  particular  persons  or  classes  of  per- 
sons have  been  held  to  be  valid  enactments.  In  the  Millett  Case  we 
held  that  it  was  not  competent,  under  the  Constitution,  for  the  legisla- 
ture to  single  out  operators  of  coal  mines  and  impose  restrictions  in 
making  contracts  for  the  employment  of  labor  which  were  not  required 
to  be  borne  by  other  employers.  And  in  the  Frorer  Case,  a  law  sin- 
gling out  persons,  corporations,  or  associations  engaged  in  mining  and 
manufacturing,  and  depriving  them  of  the  right  to  contract  as  persons, 
corporations,  and  associations  engaged  in  other  business  or  vocation 
might  lawfully  do,  was  in  violation  of  the  Constitution,  and  void.  So 
in  Eamsei/  v.  Peojjle,  142  111.  380,  "An  Act  to  provide  for  the  Weigh- 
ing in  Gross  of  Coal  hoisted  from  Mines,"  approved  June  10,  1891,  was 
held  unconstitutional  and  void  for  the  same  reason. 

The  Act  under  consideration  applies  not  to  all  corporations  existing 
within  the  State,  or  to  all  that  have  been  or  may  be  organized  for  pecu- 
niary profit  under  the  general  incorporation  laws  of  the  State.  There  is 
no  attempt  to  make  a  distinction  between  corporations  and  individuals 
who  ma}'  emplo}'  labor.  The  slightest  consideration  of  the  Act  will 
demonstrate  that  man}'  corporations  that  may  be  and  are  organized  and 
doing  business  under  the  laws  are  not  included  within  the  designated 
corporations.  Ko  reason  can  be  found  that  would  require  weekly  pa}'- 
ments  to  the  employees  of  an  electric  railway  that  would  not  require  like 
payment  by  an  electric  light  or  gas  company  ;  to  a  corporation  engaged 
in  quarrying  or  lumbering  that  would  not  be  equall}'  applicable  to  a  cor- 
poration engaged  in  erecting,  repairing,  or  removing  buildings  or  other 
structures  ;  to  mining  that  would  not  exist  in  respect  of  corporations 
engaged  in  making  excavations  and  embankments  for  roads,  canals,  or 
other  public  or  private  improvements  of  like  character  :  that  will  apply 
to  a  street  or  elevated  railway  that  will  not  make  it  equally  important 
in  other  modes  of  transportation  of  freight  and  passengers.  The  public 
records  of  the  State  will  show,  and  it  is  a  matter  of  common  knowledge, 
that  very  many  corporations  have  been  organized  and  are  doing  busi- 
ness in  the  State  which  necessarily  employ  large  numbers  of  men  that 
are  not  included  within  the  Act  under  consideration. 

The  restriction  of  the  right  to  contract  affects  not  only  the  corpora- 
tion, and  restricts  its  right  to  contract,  but  that  of  the  employee  as  well. 
We  need  not  repeat  the  argument  of  the  Frorer  Case  upon  this  point. 
An  illustration  of  the  manner  in  which  it  affects  the  emplo3'ee,  out  of 
many  that  might  be  given,  may  be  found  in  the  conditions  arising  from 
the  late  unsettled  financial  affairs  of  the  country.  It  is  a  matter  of 
common  knowledge  that  a  large  number  of  manufactories  were  shut 
down  because  of  the  stringency  in  the  money  market.  Employers  of  labor 
were  unable  to  continue  production  for  the  reason  that  no  sale  could  be 
found  for  the  product.  It  was  suggested  in  the  interest  of  employers,  as 
well  as  in  the  public  interest,  that  employees  consent  to  accept  onl}'  so 
much  of  their  wages  as  was  actually  necessary  to  their  sustenance,  re- 
serving payment  of  the  balance  until  business  should  revive,  and  thus 


CHAP,  v.]  BRACEVILLE   COAL   CO.    V.    THE   PEOPLE.  927 

enable  the  factories  or  workshops  to  be  open  and  operated  with  less 
present  expenditures  of  money.  Public  economists  and  leaders  in  the 
interest  of  labor  suggested  and  advised  tliis  course.  In  this  State,  and 
under  this  law,  no  such  contract  could  be  n)ade.  The  employee  who 
sought  to  work  for  one  of  tlie  corporations  enumerated  in  the  Act  would 
find  himself  incapable  of  contracting  as  all  other  laborers  in  the  State 
miglit  do.  The  corporations  would  be  prohibited  entering  into  such  a 
contract,  and,  if  they  did  so,  the  contract  would  be  voidable  at  the  will 
of  the  employee,  and  the  employer  subject  to  a  penalty  for  making  it. 
The  employee  would,  tiierefore,  be  restricted  from  making  such  a  con- 
tract as  would  insure  to  him  support  during  the  unsettled  condition  of 
affairs,  and  the  residue  of  his  wages  when  the  product  of  his  labor  could 
be  sold.  They  would,  by  the  Act,  be  practically  under  guardianship  ; 
their  contracts  voidable,  as  if  they  were  minors  ;  their  right  to  freel}' 
contract  for  and  to  receive  the  benefit  of  their  labor,  as  others  might 
do,  denied  them. 

But,  treating  the  restrictions  as  affecting  the  corporations  onl}',  it  is 
insisted  that  the  reservation  of  authority  b}'  the  General  Assemlily  in 
section  9  of  the  General  Incorporation  Act  (chapter  32,  Rev.  St.)  au- 
thorized the  passage  of  the  Act  in  question.  That  section  provides : 
''The  General  Assembl}'  shall  at  all  times  have  power  to  prescribe  such 
regulations  and  provisions  as  it  ma}'  deem  advisable,  which  regulations 
and  provisions  shall  be  binding  on  any  and  all  corporations  forn)ed 
under  this  Act."  It  is  said  this  section  entered  into  and  formed  a  part 
of  the  contract  under  which  the  grant  of  the  corporate  franchise  was 
conferred  upon  appellant  compan}',  it  having  been  organized  under 
the  general  law.  It  was  expressly  held  that  the  reservation  of  the  right 
to  alter,  amend,  or  repeal  the  charter  entered  into  and  formed  a  part  of 
the  contract  between  the  State  and  the  corporation  chartered  under  the 
Constitution  of  1848,  and  that  the  power  reserved  might  be  constitu- 
tionally exercised.  Butler  v.  Walker,  80  111.  345.  And  undoubtedly 
the  same  construction  should  be  placed  upon  the  reservation  of  power 
in  the  section  quoted.  But  by  section  1,  art.  11,  of  the  Constitution  it 
is  provided  :  "  No  cori)oration  shall  be  created  by  special  laws,  or  its 
charter  extended,  changed  or  amended,  .  .  .  but  the  General  Assem- 
bly shall  provide  by  general  laws  for  the  organization  of  all  Corpora- 
tions hereafter  to  be  created."  The  manifest  intention  of  this  provision 
of  the  Constitution  was  to  require  not  only  the  creation  of  corporations, 
but  amendments  to  charters  of  those  existing,  to  be  made  by  general 
laws,  applicable  alike  to  all  occupying  like  circumstances  and  existing 
under  the  same  conditions  ;  and  it  necessarily  follows  that  special  Acts, 
applying  to  particular  corporations  only,  and  not  to  the  general  body  of 
corporations  created  under  the  Act,  would  fall  within  the  prohibition  of 
this  section. 

By  the  general  incorporation  law  appellant  company  was  granted  the 
right  to  contract  as  a  corporation  in  and  about  the  business  for  which  it 
was  organized.     A  restriction  of  its  right  to  thus  contract  is  necessarily 


928  BRACEVILLE   COAL   CO.   V.   THE   PEOPLE.  [cHAP.  V. 

an  amendment  or  change  of  its  corporate  powers  and  functions  of  its 
charter.  If,  therefore,  the  restriction  is  held  to  fall  within  the  power 
reserved  in  section  9  of  the  Act,  it  must,  in  view  of  the  constitutional 
provision,  be  construed  as  reserving  the  power  to  prescribe  such  regu- 
lations and  provisions  as  the  legislatiu'e  ma}'  deem  advisable  by  general 
law.  The  Act  under  consideration,  not  being  a  general  law,  is  there- 
fore not  a  warranted  exercise  of  power. 

We  need  not  extend  this  opinion  by  further  discussion.  The  right  to 
contract  necessarily  includes  the  right  to  fix  the  price  at  which  labor 
will  be  performed,  and  the  mode  and  time  of  payment.  Each  are  essen- 
tial elements  of  the  right  to  contract,  and  whosoever  is  restricted  in 
either  as  the  same  is  enjoyed  b}-  the  community  at  large  is  deprived  of 
libert}'  and  propert}".  The  enactment  being  unconstitutional,  there  is 
no  law  authorizing  the  judgment  of  the  County-  Court,  and  it  will  accord- 
ingly be  reversed.^ 

1  And  so  Leep  v.  St.  Louis,  ,$c.  Rij.  Co.,  25  S.  W.  Rep.  75  (Ark.  Feb.  1894).  but 
allowing  such  legislation  as  against  corporations. 

In  Ramsey  v.  The  People,  142  111.  380,  Bailev,  C.  J.,  for  the  court,  said-  "In 
the  recent  case  of  Frorer  v.  People  (111.  Sup.),  31  N.  E.  Kep.  395,  we  had  occasion  to 
consider  another  statute  passed  by  the  same  legislature,  and  involving,  in  the  main, 
the  same  constitutional  principles  as  the  one  now  before  us,  and  reached  the  conclusion 
that  the  statute  in  question  in  that  case  is  unconstitutional  and  void.  That  statute 
made  it  unlawful  for  any  person,  company,  corporation,  or  association  engaged  in  any 
mining  or  manufacturing  business  to  engage  in,  or  be  interested,  either  directly  or  in- 
directly,  in  the  keeping  of  a  truck  store,  or  the  controlling  of  any  store,  shop,  or 
scheme  for  the  furnishing  of  supplies,  tools,  clothing,  provisions,  or  groceries  to  his, 
its,  or  their  employees,  while  engaged  in  mining  or  manufacturing.  We  held  that  .'said 
statute  was  a  prohibition,  not  only  upon  the  employer  engaged  in  mining  or  manufac- 
turing, but  also  upou  his  employees,  and  took  from  both  the  right  and  liberty  belonging 
to  all  other  members  of  the  community  to  enter  into  such  contracts,  not  contrary  to 
public  policy,  as  they  may  see  fit;  that  the  legislature  had  no  power  to  deprive  one 
class  of  persons  of  privileges  allowed  to  otiier  persons  under  like  conditions;  that  the 
privilege  of  contracting  is  both  a  liberty  and  a  property  right,  protected  b}'  that  \ivo- 
vision  of  the  Constitution  which  guarantees  that  no  person  shall  be  deprived  of  his 
liberty  or  property  without  due  pi-ocess  of  law;  and  that  if  one  person  is  denied  the 
right  to  contract  and  acquire  property  in  the  maimer  which  he  has  hitherto  enjoyed 
under  the  law,  and  which  is  still  allowed  to  otlier  members  of  the  community,  he  is 
deprived  of  both  liberty  and  property,  to  the  extent  that  he  is  thus  deprived  of  the 
right  of  contract.  We  are  of  the  opinion  that  the  same  rule,  in  substance,  laid  down 
in  the  Frorer  Case  applies  here,  and  we  need  therefore  do  little  more  thau  refer  to  what 
is  said  in  the  opinion  in  that  case.  The  statute  now  before  us,  in  like  manner  witli  the 
one  under  consideration  there,  attempts  to  take  from  both  employer  and  employee,  en- 
gaged in  the  mining  business,  the  right  and  power  of  fixing  by  contract  the  manner  in 
which  such  wages  are  to  be  ascertained.  The  statute  makes  it  imperative,  where  the 
miner  is  paid  on  the  basis  of  the  amount  of  coal  mined,  whatever  may  be  the  wishes 
or  interests  of  the  parties,  that  the  coal  shall  be  weighed  on  the  pit  cars  before  being 
screened,  and  that  the  compensation  shall  be  computed  upon  the  weight  of  the  un- 
screened coal.  In  all  other  kinds  of  business  involving  the  employment  of  labor,  the 
employer  and  employee  are  left  free  to  fix  by  contract  the  amount  of  wages  to  lie  paid, 
and  the  mode  in  which  such  wages  shall  be  ascertained  and  computed.  This  is  justly 
regarded  as  a  very  important  right,  vitally  affecting  the  interests  of  both  parties.  To 
the  extent  to  which  it  is  abridged,  a  property  right  is  taken  away.  There  is  nothing  in 
tliC  business  of  coal-mining  which  renders  either  the  employer  or  employee  less  capable 


CHAP.  V.l  STATE   V.   LOOMIS.  929 

STATE  V.   LOOMIS. 
Supreme  Court  of  Missouri.     1893. 

[115  Mo.  307.]  1 

Dysart  &  Mitchell  and  Zee,  McKeighan,  Ellis^  and  Priest^  for  ap- 
pellants. 

Black,  C.  J.  This  is  an  information  in  two  counts,  filed  b}-  the  prose- 
cuting attorney  of  Macon  County  against  the  throe  defendants,  engaged 
in  carrying  on  the  business  of  raining  coal  in  that  count}-.  The  first  count 
avers  that  the  defendants  did  unlawfull}'  issue  and  circulate  in  payment 
of  wages  a  certain  order,  check,  etc.,  payable  to  P.  Daniels  otherwise 
than  in  mone}',  without  being  payable,  at  the  option  of  the  holder,  in 
merchandise  or  money.  The  second  count  states,  in  substance,  that 
defendants  unlawfuU}^  failed  to  redeem  a  certain  order,  check,  etc., 
issued  to  P.  Daniels  in  pa^-ment  for  wages,  the  same  having  been  pre- 
sented for  payment  thirty  days  from  the  date  of  the  deliveiy  thereof. 
The  information  is  based  upon  sections  7058,  7060,  of  the  Revised 
Statutes  of  1889.     [These  sections  are  given  in  the  note.^] 

of  contracting  in  respect  to  wages  than  in  any  of  the  other  numerous  branches  of  busi- 
ness in  which  laborers  are  employed  under  analogous  conditions.  There  is  no  differ- 
ence, at  least  in  kind,  so  far  as  this  matter  is  concerned,  between  coal-mining,  on  the  one 
hand,  and  other  varieties  of  mining,  quarrying  stone,  grading  and  constructing  rail- 
roads, and  their  operation  when  constructed,  manufacturing  in  all  its  departments,  the 
construction  of  buildings,  agriculture,  commerce,  domestic  service,  and  an  almost  infi- 
nite variety  of  other  avocations  requiring  the  employment  of  laborers,  on  the  other 
hand.  Upon  what  principle,  then,  can  those  engaged  in  coal-mining  be  singled  out, 
and  subjected  to  restrictions  of  their  power  to  contract  as  to  wages,  while  those  engaged 
in  all  these  other  classes  of  business  are  left  entirely  free  to  contract  as  they  see  fit  ? 
We  think  the  attempt  of  the  legislature  to  impose  such  restrictions  is  clearly  repug- 
nant to  the  constitutional  limitation  above  referred  to,  and  therefore  void."  —  Ei>. 

1  In  Banc,  reversing  a  decision  of  the  same  court.  Division  No.  1,  in  the  same  case, 
in  October,  1892,  22  S.  W.  Rep.  332.  See  the  elaborate  opinion  of  Thomas,  J.,  as 
there  reported.  —  Ed. 

2  The  first  of  these  sections  provides  :  "  It  shall  not  be  lawful  for  any  corporation, 
person,  or  firm  engaged  in  manufacturing  or  mining  in  this  State  to  issue,  pay  out, 
or  circulate  for  payment  of  the  wages  of  labor,  any  order,  check,  memorandum,  token, 
or  evidence  of  indebtedness,  payable,  in  whole  or  in  part,  otherwise  than  in  lawful 
money  of  the  United  States,  unless  the  same  is  negotiable  and  redeemable  at  its  face 
value,  without  discount,  in  cash  or  in  goods,  wares,  or  merchandise  or  supplies,  at  the 
option  of  the  holder,  at  the  store  or  other  place  of  business  of  such  firm,  person,  or  cor- 
poration ;  .  .  .  and  the  person  who,  or  corporation,  firm,  or  company  which,  may  issue 
any  such  order,  check,  memorandum,  token,  or  other  evidence  of  indebtedness,  shall, 
upon  presentation  and  demand  within  thirty  days  from  date  or  delivery  thereof,  redeem 
the  s.ame  in  goods,  wares,  merchandise,  or  supplies  at  the  current  cash  market  price  for 
like  goods,  wares,  merchandise,  or  supplies,  or  in  lawful  money  of  the  United  States, 
as  nftay  be  demanded  by  the  holder  of  any  such  order,  memorandum,  token,  or  other 
evidence  of  indebtedness :  provided,"  etc.  Section  7060  makes  it  a  misdemeanor  for 
any  person,  firm,  or  company  engaged  in  mining  or  manufacturing  to  issue  or  circu- 
late, in  payment  of  wages,  any  order,  check,  etc.,  payable  otherwise  than  as  provided 
in  section  7058 ;  or  to  fail  to  redeem  any  such  order,  check,  etc.,  in  money  when 
presented  for  payment. 

VOL.  I.  —  59 


&30  STATE   V.    LOOMIS.  [CHAP.  V. 

The  Circuit  Court,  sitting  as  a  jury,  found  the  defendants  guilty  as 
charged  in  the  first  count  of  the  information,  and  assessed  their  pun'sh- 
ment  at  a  fine  of  SlO,  and  they  appealed. 

The  evidence  discloses  the  following  facts  :  The  defendants,  compos- 
ing the  firm  of  Loomis  &  Snively,  were  the  owners  of  coal  mines,  and 
in  connection  with  that  business  carried  on  a  store.  Peter  Daniels 
worked  for  them  as  a  miner.  At  the  end  of  January,  1891,  he  owed 
them  Si3.20.  On  the  18th  of  the  following  February  he  had  earned,  as 
wages  during  that  month,  S5.50,  and  on  that  day  he  requested,  and 
the  defendants' clerk  gave  him  a  "credit  coupon  check-book"  upon 
their  store.  The  coupons  were  in  sums  of  five,  ten,  and  twenty-five 
cents,  and  aggregated  five  dollars.  It  is  stated  on  the  back  of  the 
book  that  "  the  coupons  in  this  book  are  not  good,  if  detached, 
and  are  payable  only  in  merchandise  when  presented  by  P.  Daniels." 
Each  coupon  saj'S :  "Good  for  merchandise  at  our  store.  Not  trans- 
ferable. Loomis  &  Snively."  Daniels  assigned  this  check-book  to 
Burge,  who  assigned  it  to  Hughes,  and  he  transferred  it  to  Mr.  Williams. 
The  latter  presented  it  to  the  defendants  for  payment  on  the  2d  of 
April,  1891,  and  they  then  refused  payment.  The  proof  shows  that 
defendants  had  monthly  pay-days.  On  these  days  they  gave  out  no 
orders  or  checks,  but  paid  the  miners  w^hat  was  due  them  in  cash.  At 
the  close  of  the  evidence,  the  defendants  asked  the  court  to  discharge 
them,  because  the  statute  upon  which  the  information  was  founded  was 
unconstitutional,  and  therefore  void,  which  request  the  court  refused. 
The  contention  is  that  the  two  sections  of  the  statute  before  mentioned 
are  in  conflict  with  several  clauses  of  the  Constitution  of  this  State,  and 
especially  the  following  :  — 

"1.  That  all  persons  have  a  natural  right  to  life,  liberty,  and  the 
enjoyment  of  the  gains  of  their  own  industry ; " 

"  2.  That  no  person  shall  be  deprived  of  life,  Uberty,  or  property', 
without  due  process  of  law  ;  " 

"3.  And  that  they  violate  that  part  of  the  Fourteenth  Amendment 
of  the  Constitution  of  the  United  States  which  declares :  '  Nor  shall 
any  State  deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law,  nor  deny  to  any  person  the  equal  protection  of  the 
laws.'  " 

The  words  "  due  process  of  law,"  as  used  in  these  clauses  of  both 
constitutions,  mean  the  same  as  "  the  law  of  the  land."  Story,  Const. 
(5th  ed.)  §  1943  ;  Cooley,  Const.  Lim.  (6th  ed.)  430.  It  was  said  in 
Railway  Co.  v.  Humes,  115  U.  S.  512  :  "In  England  the  requirement 
of  due  process  of  law,  in  cases  where  life,  liberty,  and  property  are 
affected,  was  originally  designed  to  secure  the  subject  against  the  arbi- 
trary actions  of  the  Crown,  and  to  place  him  under  the  protection  of  the 
law.  The  words  were  held  to  be  the  equivalent  of  '  law  of  the  land  ; '  and 
a  similar  purpose  must  be  ascribed  to  them  when  applied  to  a  legislative 
body  in  this  country."  It  is  now  axiomatic  that  "  everything  which  may 
pass  under  the  form  of  an  enactment  is  not,  therefore,  to  be  considered 


CHAP,  v.]  STATE   V.    LOOMIS.  931 

the  law  of  the  land."  Speaking  of  these  words,  Mr.  Justice  Johnson 
said  :  "  They  were  intended  to  secure  the  individual  from  the  arbitrary 
exercise  of  the  powers  of  the  government,  unrestrained  by  the  estab- 
lished principles  of  private  rights  and  distributive  justice."  Bank  v. 
Okehj^  4  Wheat.  235.  "  Law  of  the  land  "  is  said  to  mean  a  law 
binding  upon  ever}'  member  of  the  communit}-  under  similar  circum- 
stances. Walb/s  Heirs  v.  Kennedy,  2  Yerg.  554.  The  word  "liberty," 
as  used  in  these  constitutional  declarations,  means  more  than  freedom 
of  locomotion.  It  includes  and  comprehends,  among  other  things,  free- 
dom of  speech,  the  right  to  self-defence  against  unlawful  violence,  and 
the  right  to  freely  buy  and  sell  as  others  ma}'.  2  Story,  Const.  (5th  ed.) 
§  1950. 

From  the  foregoing  descriptions  and  definitions  of  "  due  process  of 
law,"  or  its  equivalent,  "  law  of  the  land,"  it  must  be  evident  that  this 
constitutional  safeguard  condemns  arbitrary,  unequal,  and  partial  legisla- 
tion ;  and  it  is  equally  clear  that  the  right  to  make  contracts,  and  have 
them  enforced,  as  others  may,  is  one  of  the  rights  so  secured  to  every 
citizen.  There  is  no  doubt  but  many  of  our  legislative  enactments 
operate  upon  classes  of  individuals  only,  and  they  are  not  invalid  be- 
cause they  so  operate,  so  long  as  the  classification  is  reasonable  and 
not  arbitrary.  Thus,  it  is  perfectly  competent  to  legislate  concerning 
married  women,  minors,  insane  persons,  bankers,  common  carriers,  and 
the  like  ;  and  the  power  of  the  legislature  to  prescribe  police  regulations 
applicable  to  localities  and  classes  is  very  great  because  such  laws  are 
designed  to  protect  property,  and  the  safety,  health,  and  morals  of  the 
citizen.  But  classification  for  legislative  purposes  must  have  some  rea- 
sonable basis  upon  which  to  stand.  It  must  be  evident  that  differences 
which  would  serve  for  a  classification  for  some  purposes  furnish  no 
reason  whatever  for  a  classification  for  legislative  purposes.  The  dif- 
ferences which  will  support  class  legislation  must  be  such  as,  in  the 
nature  of  things,  furnish  a  reasonable  basis  for  separate  laws  and 
regulations.  Thus  the  legislature  may  fix  the  age  at  which  persons 
shall  be  deemed  competent  to  contract  for  themselves,  but  no  one  will 
claim  that  competency  to  contract  can  be  made  to  depend  upon  stature, 
or  color  of  the  hair.  Such  a  classification,  for  such  a  purpose,  would  be 
arbitrary,  and  a  piece  of  legislative  despotism,  and  therefore  not  the 
law  of  the  land.  When  speaking  upon  this  sulyect,  Judge  Cooley  says  : 
"  The  doubt  might  also  arise  whether  a  regulation  made  for  any  one 
class  of  citizens,  entirely  arbitrary  in  its  character,  and  restricting  their 
rights,  privileges,  or  legal  capacity  in  a  manner  before  unknown  to  the 
law,  could  be  sustained,  notwithstanding  its  generality.  Distinctions  in 
these  respects  must  rest  upon  some  reason  upon  which  they  can  be  de- 
fended, like  the  want  of  capacity  in  infants  and  insane  persons;  and  if 
the  legislature  should  undertake  to  provide  that  persons  following  some 
specified  lawful  trade  or  employment  should  not  have  capacity  to  make 
contracts,  ^x  to  build  such  houses  as  others  were  allowed  to  erect,  or  in 
any  other  way  to  make  such  use  of  tlieir  property  as  was  permissible  to 


932  STATE   V.    LOOMIS.  [CHAP,  V. 

others,  it  can  scarcely  be  doubted  that  the  Act  would  transcend  the  due 
bounds  of  legislative  power,  even  though  no  express  constitutional  pnj- 
vision  could  be  pointed  out  with  which  it  would  come  in  conflict.  To 
forbid  an  individual  or  a  class  the  right  to  the  acquisition  and  enjo}- 
ment  of  property  in  such  manner  as  should  be  permitted  to  the  com- 
munity at  large  would  be  to  deprive  them  of  liberty'  in  particulars  of 
primary  importance  to  tlieir  pursuit  of  happiness  ;  and  those  who  shall 
claim  a  right  to  do  so  ought  to  be  able  to  show  specific  autliority  there- 
for, instead  of  calling  upon  others  to  show  how  and  where  the  authority 
is  negatived."     Coole}',  Const.  Lim.  (6th  ed.)  484. 

There  can  be  no  doubt  but  the  legislature  may  regulate  the  business 
of  mining  and  manufacturing  so  as  to  secure  the  health  and  safety  of 
the  employees  ;  but  that  is  not  the  scope  of  the  two  sections  of  the  stat- 
ute now  in  question.  They  single  out  those  persons  who  are  engaged 
in  carrying  on  the  pursuits  of  mining  and  manufacturing,  and  say  to 
such  persons :  "  You  cannot  contract  for  labor  payable  alone  in  goods, 
wares,  and  merchandise.  The  farmer,  the  merchant,  the  builder, 
and  the  numerous  contractors  employing  thousands  of  men  may  make 
such  contracts,  but  you  cannot."  Tliey  say  to  the  mining  and  manu- 
facturing employees  :  "  Though  of  full  age,  and  competent  to  contract, 
still  3-ou  shall  not  have  the  power  to  sell  your  labor  for  meat  and  cloth- 
ing alone,  as  others  ma}'."  It  will  not  do  to  sa}-  these  sections  simply 
regulate  payment  of  wages,  for  that  is  not  their  purpose.  They  under- 
take to  deny  to  the  persons  engaged  in  the  two  designated  pursuits  the 
right  to  make  and  enforce  the  most  ordinary,  every-da^'  contracts,  —  a 
right  accorded  to  all  other  persons.  This  denial  of  the  right  to  contract 
is  based  upon  a  classification  wliich  is  purely  arbitrary,  because  the 
ground  of  the  classification  has  no  relation  whatever  to  the  natural 
capacit3^  of  persons  to  contract. 

Now,  it  may  be  that  instances  of  oppression  have  occurred,  and  will 
occur,  on  the  part  of  some  mine  owners  and  manufacturers,  but  do  tlie}' 
not  occur  quite  as  frequently  in  other  fields  of  labor?  Conceding  that 
such  instances  may  and  do  occur,  still  that  furnishes  no  reasonable  basis 
for  depriving  all  persons  engaged  in  the  two  lawful  and  necessary  pur- 
suits of  the  right  to  make  and  enforce  every-day  contracts.  Libert^-,  as 
we  have  seen,  includes  the  right  to  contract  as  others  may,  and  to  take 
that  right  away  from  a  class  of  persons  following  lawful  pursuits  is  sim- 
ply depriving  such  persons  of  a  time-honored  right  which  the  Constitution 
undertakes  to  secure  to  every  citizen.  Applying  the  principle  of  con- 
stitutional law  before  stated,  we  can  come  to  no  other  conclusion  than 
this  :  That  these  sections  of  the  statute  are  utterly  void.  They  attempt 
to  strike  down  one  of  the  fundamental  principles  of  constitutional  gov- 
ernment. If  they  can  stand,  it  is  diflficult  to  see  an  end  to  such  legisla- 
tion, and  the  government  becomes  one  of  special  privileges,  instead  of 
a  compact  "  to  promote  the  general  welfare  of  the  people."  We  place 
our  conclusion  on  the  broad  ground  that  these  sections  of  the  statute 
are  not  "  due  process  of  law,"  within  the  meaning  of  the  Constitution. 


CHAP,  v.]  STATE   V.   LOOMIS.  933 

Statutes  like  or  analogous  to  the  one  in  hand  have  been  enacted  in  sev- 
eral of  the  States  of  this  Union,  and  they  have  been  the  subject  of  consid- 
eration of  several  courts  of  last  resort ;  and  it  is  well  to  examine  those 
cases  with  some  detail,  for  it  must  be  obvious  that  general  constitutional 
declarations  are  the  better  understood  when  seen  in  the  light  of  the 
facts  of  the  particular  cases  in  which  they  have  been  applied.  The 
Supreme  Judicial  Court  of  Massachusetts  had  under  consideration,  in 
Com.  V.  Perry  [155  Mass.  117],  28  N.  P..  Rep.  1126,  a  statute  which 
provides  that  "  no  employer  shall  impose  a  fine  upon,  or  withhold,  the 
wages,  or  any  part  of  the  wages,  of  an  employee  engaged  at  weaving, 
for  imperfections  that  may  arise  during  the  process  of  weaving."  It 
was  held  that,  if  the  Act  went  no  further  than  to  forbid  the  imposition 
of  a  fine  for  imperfect  work,  it  might  be  sustained,  but  that  the  attempt 
to  make  inferior  work  answer  a  contract  for  good  work  presented  a  dif- 
ferent question  ;  that  the  right  to  acquire,  possess,  and  i)rotect  property 
includes  the  right  to  make  reasonable  contracts,  which  shall  be  under 
the  protection  of  the  law.  Says  the  court:  "  If  it  [the  statute]  be  held 
to  forbid  the  making  of  such  contracts,  and  to  permit  the  hiring  of 
weavers  onl}'  upon  terms  that  prompt  payment  shall  be  made  of  the 
price  for  good  work,  however  badly  their  work  may  be  done,  and  that 
the  remedy  of  the  employer  for  their  derelictions  shall  be  only  by  suits 
against  them  for  damages,  it  is  an  interference  with  the  right  to  make 
reasonable  and  proper  contracts  in  conducting  a  legitimate  business, 
which  the  Constitution  guarantees  to  everv  one  when  it  declares  that  he 
has  a  '  natural,  inalienable  right '  of  '  acquiring,  possessing,  and  pro- 
tecting propert}'.' "  Godcharles  v.  Wiyeman,  113  Pa.  St.  431,  was  an 
action  brought  by  Wigeman  to  recover  wages  as  a  puddler.  Plea  of 
payment,  etc.  During  the  time  of  his  employment  the  plaintiff  asked 
for,  and  received,  orders  from  defendants  on  different  parties  for 
coal  and  other  articles,  which  orders  were  honored  b}'  the  parties  on 
whom  drawn,  and  the  defendants  paid  them.  It  seems  an  Act  of  the 
Legislature  made  all  orders  given  b}'  eraploj'ers  engaged  in  the  business 
of  manufacturing,  to  their  workmen,  payable  in  goods,  or  anything  but 
mone}^,  void.  Speaking  of  these  sections  of  the  Act  the  court  said  : 
"  The}'  are  utterly  unconstitutional  and  void,  inasmuch  as  by  them  an 
attempt  has  been  made  by  the  legislature  to  do  what,  in  this  countr}', 
cannot  be  done  ;  that  is,  prevent  persons  who  are  sui  juris  from  making 
their  own  contracts.  The  Act  is  an  infringement,  alike,  of  the  right  of 
the  employer  and  employee.  He  may  sell  his  labor  for  what  he  thinks 
best,  whether  money  or  goods,  just  as  his  employer  may  sell  his  iron  or 
coal ;  and  any  and  every  law  that  proposes  to  prevent  him  from  so 
doing  is  an  infringement  of  his  constitutional  privileges,  and  conse- 
quently vicious  and  void."  In  State  v.  Goodwill,  33  W.  Va.  179,  a 
statute  of  that  State  prohibited  persons  engaged  in  mining  and  manu- 
facturing from  issuing  orders  in  payment  of  labor,  except  such  as 
should  1)6  made  payable  in  mone}-.  It  made  a  violation  of  its  pro- 
visions a  misdemeanor.     The  Constitution  of  that  State  declares  that 


934  STATE   V.   LOOMIS.  [CUAP.  V. 

all  men  have  certain  inherent  rights;  tliat  is  to  sa}-,  "the  enjoyment 
of  life  and  liberty,  with  the  means  of  acquiiing  and  possessing  propert}', 
and  of  pursuing  and  obtaining  happiness  and  safety."  The  statute  was 
held  unconstitutional,  after  a  full  consideration.  Says  the  court :  "  The 
right  to  use,  buy,  and  sell  propert}',  and  contract  in  respect  thereto, 
including  contracts  for  labor,  which  is,  as  we  have  seen,  property,  is 
protected  by  the  Constitution."  Tlie  scope  of  the  opinion  is  well  sum- 
marized in  the  headnote  in  these  words  :  "  It  is  not  competent  for  the 
legislature,  under  the  Constitution,  to  single  out  owners  and  operators 
of  mines  and  manufacturers  of  ever3'  kind,  and  provide  that  they  shall 
bear  the  burdens  not  imposed  on  other  owners  of  property'  or  employers 
of  labor,  and  prohibit  them  from  making  contracts  which  it  is  competent 
for  other  owners  of  property  or  employers  of  labor  to  make."  And  this 
ruling  was  followed  and  approved  in  State  v.  I^ire  Creek  Coal  &  Coke 
Co.,  33  W.  Va.  188.  The  statute  brought  in  question  in  Millett  v. 
People,  117  111.  294,  required  all  coal  produced  in  the  State  to  be 
weighed  on  scales  to  be  furnished  by  the  mine-owners,  and  subjected 
the  mine-owner  to  a  fine  or  imprisonment  for  a  failure  to  comply  with 
its  provisions.  By  another  section  it  was  provided  "  that  all  contracts 
for  the  mining  of  coal,  m  which  the  weigliing  of  the  coal  as  provided 
for  in  this  Act  shall  be  dispensed  with,  shall  be  null  and  void."  It  was 
held  that  the  mine-owners  could  not  be  compelled  to  make  their  con- 
tracts for  mining  coal  so  as  to  be  regulated  b}*  weight ;  and  that  the}' 
could  not  be  compelled  to  keep  and  use  scales  for  such  purposes,  save 
when  they  saw  fit  to  make  contracts  for  mining  on  the  basis  of  weight. 
The  law  was  considered  repugnant  to  the  constitutional  provision  that 
"  no  person  shall  be  deprived  of  life,  liberty,  or  property-  without  due 
process  of  law ;  "  that  to  single  out  coal-mine  owners,  and  prohibit 
them  from  making  contracts  which  it  was  competent  for  other  employ- 
ers of  labor  to  make,  was  not  due  process  of  law.  And  for  like  reasons 
the  same  court  held  an  Act  void  which  denied  to  persons  and  corpo- 
rations engaged  in  mining  and  manufacturing  the  right  to  keep,  or  be 
interested  in,  a  truck  store  for  furnishing  supplies,  etc.  Frorer  v. 
People,  31  N.  E.  Rep.  395. 

Some  of  the  cases  just  cited  cannot  be  distinguished  from  this  one. 
In  others,  there  is  some  diflTerence  in  the  facts,  and  in  the  statutes  con- 
sidered, and  in  some  of  them  the  constitutional  provisions  use  different 
words  from  the  clauses  of  our  Constitution  before  set  out ;  but  the 
cases  just  cited  are  all,  in  point  of  principle,  like  the  one  in  hand.  The 
differences,  such  as  the}-  are,  strengthen,  rather  than  weaken,  the  con- 
clusion which  we  have,  before  expressed,  for  it  must  be  evident  that 
they  all  teach  this  doctrine :  that  constitutional  declarations  concerning 
the  liberty  of  the  citizen,  though  using  different  words,  are  not  to  be 
reduced  to  an  empty  sound.  Libert}-,  we  have  seen,  includes  the  right 
to  acquire  property,  and  that  means  and  includes  the  right  to  make  and 
enforce  contracts.  We  do  not  say  that  such  rights  cannot  be  regulated 
by  general  law,  but  we  do  say  that  the  legislature  cannot  single  out 


CHAP,  v.]  STATE   V.   LOOMIS.  93o 

one  class  of  persons,  who  are  competent  to  contract  and  deprive  them 
of  rights  in  that  respect  which  are  accorded  to  other  persons      ihe 
constitutional  declaration  that  "  no  person  shall  be  depnved  of     fe, 
liberty,  or  property  without  due  process  ot  law'    was  designed  to  p.o- 
ect  ad  presel-ve  their  existing  rights  against  arbitrary  legislation,  as 
well  as  against  arbitrary  executive  and  judicial  Acts.     The  sections  of 
Tn    St  tnte  in  question  deprive  a  class  of  persons  of  the  right  to  nuike 
and  enforce  ordinary  contracts,  and  they  introduce  a  «)-^«-  f  ^^^^^ 
paternalism  which  is  at  war  with   tlie   fundamental  principles  of  our 
government,  and,  as  we  have  before  said,  are  not  due  process  of  law. 
ft  cannot  b^  said  that  these  defendants,  in  operating  their  coa    mines 
are  pursuin-  a  public  business,  or  that  they  have  in  any  way,  shape  or 
?om' devoted  tieir  property  to  a  public  use;  and    t  .s  bemg  so     he 
cases  of  Mann  v.  Illinois,  94  U.  S.  113,  and  Buckle.  New  lo^, 
143  U.  S.  517,  are  not  in  conflict  with  what  we  have  said.     On  the  con- 
trary,  the  line  of  argument  pursued  in  those  cases  goes  far  to  show  that 
a  statute  like  the  one  in  hand  cannot  stand.     The  many  adjudications 
upholding  police  regulations   need   not  be   noticed,   for  it  cannot  be 
claimed  that  the  law  in  question  is  of  that  character.      The  case  of  Han- 
cock  V.   Yaden,  121  Ind.  366,  goes  far  to  support  and  uphold  this  law 
but  we  cannot  agree  to  the  doctrine  of  that  case.     Slow  as  we  are,  and 
should  be,  to  declare  legislative  enactment  void,  we  can  reach  no  other 
conclusion  than  that  before  expressed.  ^       a  n 

The  judgment  is  reversed,  and  the  defendants  discharged.  All  con- 
cur, except  Barclay,  J.,  who  dissents. 

Barclay,  J.  The  reasons  of  my  learned  associate.  Chief  Justice 
Black  for  holding  the  statute  unconstitutional,  seem  to  me  unsatisfac^ 
tory,  and  the  importance  of  the  case  warrants  a  statement  of  the  grounds 

of  dissent.  , ,.     -•         e 

1  There  is  no  issue  touching  the  impairment  of  obligation  ot  any 
contract  concluded  before  the  passage  of  the  Act.  The  transactions  in 
view  occurred  long  afterwards.  The  only  controversy  now  is  whether 
or  not  the  statute  violates  the  guarantees  of  "  liberty  "  and  "  property, 
and  of  "due  process  of  law,"  on  which  the  judgment  of  the  majority 
of  the  court  is  placed.  In  the  principal  opinion  it  is  conceded  that  the 
letrislature  has  power  to  restrict  freedom  of  contract  in  some  directions, 
and  in  respect  to  certain  parties;  for  example,  "infants  and  insane 
persons."  That  concession  may  be  taken  as  a  starting-point  for  the 
present  investigation  ;  for  when  it  is  granted  that  liberty  to  make  con- 
tracts  is  not  absolute  and  unlimited,  our  difference  is  narrowed  into  the 
inquiry,  what  is  the  peculiarity  of  the  subject-matter  of  the  statute 
under  review  which  exempts  it  from  regulation  by  the  law-making 

nower  ■> 

One  reason  <riven  for  condemning  the  law  before  us  is  that  the  sub- 
jection of  corporations,  and  other  persons  operating  mines  and  manu- 
facturing establishments,  to  such  regulation,  is  a  "purely  arbitrary 


936  STATE  V.    LOOMIS.  [CHAP.  V. 

classification  ;  therefore,  an  infringement  of  their  constitutional  libertj'. 
Although  that  proposition  seems  a  vital  one  to  support  tlie  conclusion 
ieached,  it  is  said  in  another  part  of  tiie  opinion  that  "  it  is  perfcctly 
competent  to  legislate  concerning  married  women,  minors,  insane  per- 
sons, bankers,  common  carriers,  and  the  like."  In  this  connection  the 
Supreme  Court  has  held  (in  a  case  which  furnishes  an  elaborate  list  of 
instances  of  such  legislation)  that  "class  legislation  is  not  necessarily 
obnoxious  to  the  Constitution.  It  is  a  settled  construction  of  similar 
constitutional  provisions  that  a  legislative  Act  which  applies  to  and 
embraces  all  persons  '  who  are  or  who  may  come  into  like  situations 
and  circumstances'  is  not  partial."  Humes  v.  Raihcay  Co.  (1S84),  82 
Mo.  231,  cited  recently  and  followed  in  an  opinion  by  the  present  Chief 
Justice  in  Perkins  v.  Railway  Co.  (1891),  103  Mo.  56.  To  the  same 
point,  see  Budd  v.  New  York,  143  U.  S.  517. 

The  law-maker  necessarily  deals  with  conditions  as  he  finds  them. 
If  he  observes,  and  wishes  to  abate,  some  fraudulent  practice  or  abuse 
of  power  prevailing  only  in  some  one  line  of  business,  the  fact  that,  in 
legislating  to  correct  it,  he  does  not  also  include  in  liis  remedy  all  other 
phases  of  human  affairs,  can  furnish  no  reason  for  stigmatizing  his 
remedy  as  no  law  at  all.  If  an  Act  reaching  only  mining  and  manu- 
facturing concerns  is,  on  that  account,  not  "  due  process  ol  law,"  what 
must  be  held  of  statutes  estabhshing  special  rules  of  liability,  or  business 
regulations,  applicable  to  railroads  only,  to  warehousemen,  pawnbrokers, 
auctioneers,  millers,  and  the  many  other  classes  of  persons  whose 
affairs  form  topics  of  treatment  in  separate  laws?  Are  all  such  statutes 
void,  because  each  relates  to  persons  engaged  onlv  in  the  particular 
class  of  business  named  in  it?  Probably  they  would  not  be  so  held. 
Some  of  them  are  acted  ou  and  enforced  almost  daily.  Yet  if  they 
are  valid,  what,  let  me  ask,  is  there  so  exceptional  about  the  truck 
system  that  precludes  legislation  applicable  to  those  lines  of  business 
in  which  it  prevails?  If  laws  regulating  the  contracts  of  bankers  (Re- 
vised Statutes  1889,  §  706),  common  carriers  (Id.  §  944),  mechanics 
(Id.  §  6705),  and  insurance  companies  (Id.  §  5856),  as  distinct  classes 
of  persons,  are  constitutional,  and  involve  no  invasion  of  their  rights 
to  "  liberty  or  property,"  how  can  the  position  be  maintained  that  such 
legislation,  touching  contracts  of  miners  and  manufacturers,  invades 
these  rights?  The  opinion  certainly  furnishes  no  reason,  founded  on 
any  language  of  the  Constitution,  for  nullif^-ing  the  latter,  while  approv- 
ing the  former,  statutes.  It  admits  that  "  the  legislature  may  regulate 
the  business  of  mining  and  manufacturing  so  as  to  secure  the  health 
and  safety  of  the  emploj-ees."  In  Durant  v.  Mining  Co.  (1889),  97 
Mo.  62,  the  same  learned  judge  gave  full  effect  to  a  statute  "  providing 
for  the  health  and  safety  of  persons  employed  in  coal  mines."  Session 
Acts,  1881,  p.  1G5. 

If  a  law  applicable  only  to  persons  engaged  in  mining  is  constitutional 
when  dealing  with  the  topic  of  their  health  and  safety,  it  is  obvious  that 
an  Act  designed  to  prevent  fraud  or  oppression  in  the  payment  of  wages 


CHAP,  v.]  STATE  V.   LOOMIS.  93T 

by  mining  and  manufacturing  enterprises  is  not  objectionable  on  the 
ground  of  the  selection  or  ''classification"  of  those  enterprises  as 
subjects  for  separate  legislation. 

Touching  this  particular  point,  the  Supreme  Court  of  the  United 
States  has  said  :  "■  Legislation  is  not  open  to  the  charge  of  depriving  one 
of  his  rights  without  due  process  of  law,  if  it  be  general  in  its  operation 
upon  the  subjects  to  which  it  relates."  Dent  \.Wesl  Yirc/inia  (1889), 
129  U.  S.  124.  The  same  court  has  held  Ihat  statutes  creating  a  differ- 
ent rule  of  liability,  as  applied  to  one  class  of  persons,  from  that  gen- 
erally in  force,  do  not  infringe  the  right  to  '•'•  due  process  of  law." 
Itailway  Co.  v.  Humes  (1885),  115  U.  S.  512  ;  Hailioay  Co.  v.  Mackey 
(1888},  127  U.  S.  205.  And  the  Supreme  Court  of  this  State  has 
determined  that  "  a  statute  which  relates  to  persons  or  things  as  a 
class  is  a  general  law,  while  a  statute  which  relates  to  particular  per- 
son or  things  of  a  class  is  special."  State  ex  rel.  Lionbergei'  v.  Tolle 
(1880),  71  Mo.  650.  If  the  Act  is  invalid,  it  cannot  be  because  it 
treats  of  mining  and  manufacturing  concerns  on\y.  In  re  Oberg  (1891), 
21  Or.  406;  Youngblood  y.  Trust  &  Sao.  Co.  (Ala.,  1892),  12  South. 
Rep.  579. 

2.  The  gist  of  the  opinion  is  to  be  found  in  the  ruling  that  the  con- 
stitutional guarantee  of  "  due  process"  condemns  "  arbitrary,  unequal, 
and  partial  legislation  ;  "  that  the  statute  in  question  is  of  that  nature, 
and  is  therefore  annulled  as  unconstitutional  and  void.  With  due 
respect  for  the  judgment  of  m}^  colleagues,  that  view  appears  to  me 
erroneous.  The  Act,  in  part,  was  passed  in  1881.  It  was  amended  in 
1885,  and  re-enacted  b}'  the  revision  of  1889.  It  has  thus  received  the 
sanction  of  the  31st,  33d,  and  35th  General  Assemblies  of  Missouri  and 
of  Governors  Crittenden,  Marmaduke,  and  Francis,  successively.  Its 
plain  purpose  is  to  put  some  restraint  upon  that  sort  of  freedom  which 
would  permit  the  employer  to  contract  for  labor,  payable  in  goods,  and 
then  place  his  own  prices  upon  the  goods  delivered  in  payment. 

Tiie  general  objects  of  such  a  law,  as  well  as  the  principle  upon  which 
it  rests,  have  been  full}'  stated  by  English  judges,  having  before  them 
a  British  law  of  similar  character,  commonl}-  called  the  "  Truck  Act." 
1  &  2  Wm.  IV.  (1831),  c.  37.  "In  passing  the  statute  referred  to, 
the  legislature  seems  to  have  considered  the  artificer  as  requiring  special 
protection  in  his  dealings  with  his  employers,  and  to  have  thought  it 
right,  therefore,  to  make  the  contracts  between  these  parties  one  of  the 
exceptions  to  the  general  rule  that  persons  should  be  allowed  to  make 
their  own  contracts,  in  their  own  way.  The  particular  evil  to  be  rem- 
edied (and  which,  notwithstanding  former  enactments,  still  prevailed) 
was  the  truck  system,  or  pa^yment  by  masters  of  their  men's  wages 
wholl}'  or  in  part  with  goods,  —  a  system  manifestly  to  the  disadvan- 
tage of  the  workman,  who  was  practically  forced  to  take  the  goods  at 
his  master's  valuation.  In  order  to  obviate  tliis,  the  statute  reciting 
'that  it  is  necessary  to  prohibit  the  payment,  in  certnin  trndos,  of 
wages  in  goods,  or  otherwise  than  in  the  current  coin  of  the  realm,'  by 


938  STvrE  V.  loomis.  [chap.  v. 

section  1  enacts  that  any  contract  by  which  the  whole  or  an}'  part  of  the 
wages  of  the  artificer  is  made  payable  in  an}'  other  manner  than  in  the 
current  coin  shall  be  null  and  void." — Keating,  J.,  in  Archer  v.  James 
(1862),  2  Best  &  S.  73. 

"  The  old  truck  enactments  are  very  numerous,  and  date  from  about 
the  year  1464  (4  Edw.  IV.).  They  were  applied  first  to  one  branch  of 
manufacture,  and  then  in  succession  to  others,  as  experience  and  the 
progress  of  manufactures  dictated,  till  they  embraced  the  whole,  or 
nearly  the  whole,  of  the  manufactures  of  England.  They  established  the 
obligation,  and  produced,  or  at  least  fortified,  the  custom,  of  uniformly 
paying  the  whole  wages  of  artificers  in  the  current  coin  of  the  realm. 
They  were  finally  collected  and  consolidated  into  one  Act  by  the  statute 
now  under  consideration.  1  &  2  Wm.  IV.  c.  37.  They  were,  in  truth, 
part  of  a  system  of  legislation  regulating  the  relation  of  master  and 
workman,  this  part  of  it  being  in  favor  of  the  workman,  who,  as  an 
individual,  was  deemed  weaker  than  his  master,  and  therefore  liable  to 
oppression.  .  .  .  The  Truck  Act,  when  passed,  was  a  practical  deduc- 
tion from  a  principle,  still  more  general,  pervading  more  or  less  all 
systems  of  law  founded  on  experience  ;  that  is  to  say,  that  where  two 
classes  of  persons  are  dealing  together,  and  one  class  is,  generally 
speaking,  weaker  than  the  other,  and  liable  to  oppression,  either  from 
natural  or  incidental  causes,  the  law  should,  as  far  as  possible,  redress 
the  inequality,  by  protecting  the  weak  against  the  strong.  On  this 
principle  rests  the  protection  thrown  around  infants  and  persons  of 
unsound  or  weak  mind,  the  protection  afforded  even  b}'  the  common 
law  to  the  victims  of  fraud,  and  by  the  Court  of  Chancery  at  this  day 
to  heirs,  expectants,  and  sellers  of  reversions  against  catching  and 
unconscionable  bargains,  though  entered  into  without  fraud,  and  by 
persons  of  full  age.  No  doubt  all  such  legislation  or  judicial  interpo- 
sition is  in  many  cases  ineflfectual.  .  .  .  The  efficacy  of  such  provisions 
must  not  be  estimated  by  the  abuses  actually  remedied,  so  much  as  by 
the  abuses  prevented  by  the  knowledge  that  such  is  the  law.  So  viewed, 
the  Truck  Act  must  have  been  deemed  by  the  legislature  which  [)assed 
it  a  hishly  remedial  statute,  and  is  therefore  now,  as  I  admit,  notwith- 
standing tiie  penal  clauses,  to  be  construed  liberally,  so  as  to  advance 
the  supposed  remedy,  and  suppress  the  supposed  mischief."  — Byles,  J., 
in  Archer  v.  James  (1862),  2  Best  &  S.  82.  Some  of  the  bargains 
referred  to  by  that  learned  judge,  as  well  as  a  great  variety  of  other 
agreements,  have  been  nullified  by  courts  in  this  country,  as  well  as  in 
England,  without  the  aid  of  statutes,  on  the  ground  that  they  were  con- 
trary to  public  policy  (Greenhood  on  Public  Policy),  while  judges 
possessing  equity  jurisdiction  have  for  ages  exercised,  unquestioned, 
the  power  to  declare  agreements  void  between  attorney  and  client,  or 
between  other  persons  occupying  confidential  relationships,  where  ad- 
vantage was  taken  of  the  confidence  to  secure  a  bargain  which  the 
court  considered  unduly  favorable  to  the  dominant  party  thereto.  In 
The  Juliana  (1822),  2  Dod.  504,  Lord  Stowell  refused  to  enforce  a 


?HAP.  v.]  STATE   V.   LOOMIS.  939 

covenant  between  a  mariner  and  his  employer  to  the  effect  that  the 
former  should  not  be  entitled  to  any  part  of  his  wages  unless  the  ship 
should  return  to  the  last  port  of  discharge.  The  decision  is  placed  on 
the  ground  that,  in  view  of  the  relative  situation  of  the  parties  and  the 
nature  of  the  agreement,  its  effect  was  oppressive,  and  not  enforceable 
in  a  court  governed  b}*  the  "  rules  of  natural  justice."  So  that  at  com- 
mon law,  in  equity  and  in  admiralty,  tlie  judiciary  exercise  the  riglit  to 
annul  certain  agreements  because  unfair  and  unconscionable  ;  the  prin- 
ciple of  such  rulings  being  that,  in  some  circumstances,  real  contrac- 
tual equality,  or  that  entire  freedom  of  action  essential  to  the  legal  idea 
of  a  contract,  is  wanting. 

It  seems  unreasonable  to  hold  that  the  courts  alone  may  determine 
what  the  public  policy  of  a  State  shall  be,  respecting  the  validity  of 
agreements  between  parties  situated  so  that  one  may  have  an  undue 
advantage  over  the  other.  Why  has  not  the  legislature  power,  by  gen- 
eral law,  operating  on  future  dealings,  to  declare  a  similar  public 
policy  ?  The  judgments  of  the  courts  above  mentioned  have  never  been 
considered  an  arbitrary  infringement  of  the  liberty  of  contract ;  nor 
should  a  statute,  aimed  at  a  system  affording  the  opportunity  for  op- 
pression described  by  the  EngHsh  judges  quoted,  be  so  considered. 

Liberty,  "on  its  positive  side,  denotes  the  fulness  of  individual 
existence  ;  on  its  negative  side  it  denotes  tlie  necessary  restraint  on  all 
which  is  needed  to  promote  the  greatest  possible  amount  of  liberty  for 
each."  Amos,  Science  of  Law,  p.  90.  Rational  freedom  is  not  a 
license  to  oppress.  "As  soon  as  any  part  of  a  person's  conduct  affects 
prejudicially  the  interests  of  others,  society  has  jurisdiction  over  it." 
Mill,  Liberty,  c.  4.  In  our  country  the  people  have  furnished  a  philo- 
sophic, as  well  as  noble,  manifestation  of  the  true  spirit  of  liberty,  in 
those  guarantees  of  individual  and  personal  rights  of  the  minority,  by 
which  the  majority  have  imposed  certain  constitutional  bounds  to  their 
own  public  action.  They  stand  as  barriers  to  encroachments  upon  the 
liberties  so  protected,  but  none  of  them  purports  to  confer  or  secure 
absolute  freedom  of  contract.  Neither  the  State  nor  Federal  Constitu- 
tion so  declares.  Laws  impairing  the  obligation  of  contracts  are  for- 
bidden;  but  the  interdiction  stops  at  that.  In  Railway  Co.  v.  Gebhard 
(1883),  109  U.  S.  527,  the  United  States  Supreme  Court  held  that  but 
for  the  protection  of  tlie  fundamental  law  the  obligation  of  contracts 
was  subject  to  legislative  control,  and  was  not  secured  by  any  general 
principles  of  jurisprudence  outside  the  constitutional  guarantee.  The 
right  to  regulate  conti-acts  so  as  to  mitigate  the  oppression  of  the  truck 
system,  without  impairing  the  obligation  of  any  existing  agreement,  is 
a  part  of  the  police  power,  "  which  is  but  another  name  for  that  author- 
ity which  resides  in  every  sovereignty  to  pass  all  laws  for  the  internal 
regulation  and  government  of  the  State,  necessary  for  the  public  wel- 
fare." People  V.  Budd  (1889),  117  N.  Y.  14;  the  License  Cases 
(1847),  5  How.  583. 

By  the  Constitution  of  Missouri  it  is  declared  that  "  the  exercise  of 


940  STATE  V.   LOOMIS.  [CHAP.  V. 

the  police  power  of  the  State  shall  never  be  abridged,  or  so  construed 
as  to  permit  corporations  to  conduct  their  business  in  such  manner  as 
to  infringe  the  equal  rights  of  individuals,  or  the  general  well-being  of 
the  State."     Article  12,  §  5,  Const.  1875. 

The  police  power  in  recent  years  has  been  applied  in  man}-  notable 
instances,  where  it  was  contended  that  the  liberty  of  making  contracts 
was  not  subject  to  limitation  by  the  legislative  power  ;  but  the  courts 
of  last  resort  have  ruled  against  that  contention  in  the  Granger  Cases 
{Munn  V.  Illinois  [1876],  94  U.  S.  113)  ;  in  the  Bread  Cases  {Mayor 
V.  Yuille  [1841J,  3  Ala.  137;  FeojAe  v.  Wagner  [1891],  8G  Mich. 
594)  ;  and  in  the  Elevator  Cases  {People  v.  Budd  [1889],  117  N.  Y. 
14  ;  Budd  V.  New  York  [1892],  143  U.  S.  517  ;  State  v.  Brass  [1892], 
2  N.  D.  482.  In  Water  Works  y.  Schottler  (1884),  110  U.  S.  347,  4 
Sup.  Ct.  Rep.  48,  it  was  said  that  government  had  power  to  regulate 
the  prices  at  which  water  should  be  sold  by  one  enjoying  a  virtual 
monopoly  of  the  sale. 

These  decisions  show  that  the  right  of  self-preservation,  which  exists 
in  the  Commonwealth  no  less  than  in  the  individual,  ma}-,  in  some  cir- 
cumstances, justify  limitations  upon  freedom  of  contract ;  and  that  when, 
for  any  reason  (for  instance,  the  existence  of  a  monopoly),  real  liberty 
of  action  is  wanting  on  the  side  of  one  of  the  parties,  in  dealings  form- 
ing part  of  the  activities  of  civilized  society,  a  reasonable  check  may 
justly  be  placed  by  law  upon  the  power  of  the  other  to  oppress  his  fel- 
low-citizen. Such  checks  upon  libert}'  of  contract  have  been  sustained 
b}'  the  highest  courts.  Others  involving  the  application  of  the  same 
police  power  (though  in  less  exigent  circumstances)  have  been  long  in 
force  in  Missouri  in  many  statutes,  among  which  are  especially  note- 
worth}'  the  laws  fixing  a  maximum  rate  of  interest  for  the  use  of  money 
(Revised  Statutes  1889,  §  5972),  giving  mechanics  a  lien  in  certain 
circumstances  {Henry  &  Coatsworth  Co.  v.  Evans  [1889],  97  Mo.  47), 
governing  the  liability  of  common  carriers  (Revised  Statutes  1889,  §  944), 
forbidding  contracts  to  limit  the  time  for  bringing  an}'  action  (Id. 
§  2394),  putting  into  insurance  contracts  statutory  terms,  and  nullify- 
ing "any  stipulation  in  the  policy  to  the  contrary"  (Id.  §  5856, 
enforced  by  the  United  States  Supreme  Court  in  Society  v.  demerits 
[1890],  140  U.  S.  226),  and  the  laws  establishing  standards  of  weights 
and  measures  (Revised  Statutes  1889,  c.  170).  The  enactment  before 
us  comes  very  near  to  the  class  last  named.  Examining  its  terms  (sec- 
tion 7058)  closely,  it  will  be  observed  that  it  merely  impresses  upon 
contracts  for  the  payment  of  wages  with  goods,  etc.,  certain  statutory 
conditions,  intended  to  give  the  employee  an  option  to  demand  payment 
in  cash  or  goods,  as  his  interest  may  appear  to  require.  As  the  em- 
ployer fixes  the  price  of  the  goods,  he  is  not  prejudiced  by  such  a  regu- 
lation. Its  effect  is  to  establish  a  just  standard  of  value  for  every 
dollar  due  for  wages.  It  does  not  differ  in  principle  from  governmental 
regulations  in  the  form  of  laws  by  which  a  person  who  has  contracted 
to  receive  a  yard  of  cloth  or  a  bushel  of  corn  is  protected  against  the 


CHAP,  v.]  STATE   V.    LOOMIS.  941 

necessity  of  accepting  such  a  short  yard  or  light  bushel  as  the  seller 
may  choose  to  impose  upon  him.  Statutes  designed  to  prevent  that 
sort  of  overreaching  have  been  universally'  regarded  as  proper  exertions 
of  the  police  power.  Charleston  v.  Hogers  (1823),  2  McCord,  495; 
Stokes  V.  City  of  New  York  {\Sdb),  14  Wend.  87;  Green  v.  3Ioffett 
(1856),  22  Mo.  529  ;  Yates  v.  Milwaukee  (1860),  12  Wis.  673;  Eaton 
V.  Kegan  (1874),  114  Mass.  433. 

In  view  of  the  onerous  bearing  of  the  truck  system  upon  some  of 
those  whom  it  affects,  in  compelling  them  to  accept  payment  for  labor 
in  articles  whose  value  is  determined  by  the  party  adversely  interested 
in  the  bargain,  this  statute  (which  seeks  to  relieve  against  that  hard- 
ship) should  be  held  (no  less  than  those  already  mentioned)  "due  pro- 
cess of  law."  Adam  Smith,  the  great  advocate  of  freedom  of  commerce, 
•  declared  such  legislation  "  perfecth'  just  and  equitable."  Wealth  of 
Nations,  bk.  1,  c.  10,  approvingly  quoted  b}'  Bramwell,  J.,  in  Archer 
V.  James  (1862),  2  Best  &  S.  89. 

Whether  or  not  that  view  is  sound  it  is  not  our  province  to  deter- 
mine, for  all  question  of  the  polic}',  wisdom,  or  expediency  of  the  law 
belongs  to  other  departments,  not  to  the  judiciary.  The  people,  in  the 
exercise  of  the  prerogative  of  self-government,  have  thought  proper  to 
establish  a  rule  of  conduct  on  the  subject  which  appeared  to  them  con- 
ducive towards  maintaining  the  equilibrium  of  right  and  dut}'  between 
citizens  whose  common  welfare  was  important  to  the  State.  No  ex- 
press command  of  the  Constitution  forbade  such  action,  and  in  my 
judgment  it  should  be  sustained. 

3.  In  his  opinion  the  learned  Chief  Justice  adopts  a  quotation  to  the 
effect  that  an  Act  of  the  Legislature  may  "transcend  the  due  bounds 
of  legislative  power,  even  though  no  express  constitutional  provision 
could  be  pointed  out  with  which  it  would  come  in  conflict."  That  view 
of  the  extent  of  the  revisory  power  of  the  Supreme  Court  over  Acts  of 
the  General  Assembly  has  not  previously  prevailed  in  Missouri.  It  is 
in  conflict  with  several  precedents.  In  County  Court  v.  Grisioold 
(1874),  58  Mo.  192,  it  was  declared  :  "  That  the  law  is  unjust,  or  im- 
politic, or  oppressive  will  not  authorize  a  court  to  declare  it  illegal, 
unless  it  violates  some  specific  provision  of  the  Constitution.  ...  A 
law  vasij  be  unjust  in  its  operation,  or  even  in  the  principles  upon  which 
it  was  founded,  but  that  would  not  justif}'  a  court  in  expanding  the  pro- 
hibitions of  the  Constitution  beyond  their  natural  and  original  meaning, 
in  order  to  remedy  an  evil  in  any  particular  case.  These  principles 
have  now  become  axiomatic."  To  the  same  purport  is  Hamilton  v. 
County  Court  (1851),  15  Mo.  3.  Each  of  these  decisions  was  given 
under  a  constitution  containing  language  the  same  as  that  now  in  force 
concerning  "  due  process."  Afterwards,  that  language  was  repeated 
in  the  present  Constitution ;  hence  that  construction  of  the  language, 
according  to  a  recognized  rule  of  interpretation,  should  be  taken  to 
have  been  adopted  with  it  when  the  new  Constitution  went  into  force, 
in  1875.     Qas  Co.  v.  Hiyhy  (1890),  134  111.  557;  People  v.  O'Brien 


942  STATE   V.   LOOMIS.  [CHAP.  V. 

(1892),  96  Cal.  171.  The  latter  instrument,  as  though  to  give  emphasis 
to  that  construction,  provides  that  the  legislative  power  is  vested  in  the 
General  Assembly,  "subject  to  the  limitations  herein  contained." 
Constitution  1875,  Article  4,  §  1.  See,  also,  the  later  case  of  Phillips 
V.  Railway  Co.  (1885),  86  Mo.  540.  The  spirit  and  intent  of  terms 
used  in  the  Constitution  are,  no  doubt,  as  much  a  part  of  it  as  its  letter, 
and  should  be  considered  in  its  interpretation.  But  that  is  a  rule  essen- 
tiall}'  different  from  the  proposition  that  a  statute  may  be  pronounced 
void  because  it  appears  to  some  court  to  be  in  conflict  with  the  sup- 
posed general  spirit  or  principles  of  free  government,  not  expressed  in 
any  particular  provision  of  the  Constitution.  To  that  proposition,  or 
any  approach  towards  declaring  it,  m}'  dissent  is  earnestly  entered. 

The  authority  of  the  court  is  drawn  from  the  organic  law,  which 
asserts  the  independence  of  the  three  departments  of  government 
(Const.  1875,  art.  3),  and  the  power  of  each  is  marked  by  the  terms  of 
that  instrument. 

It  has  heretofore  been  considered  settled  that  all  action  of  the  legis- 
lative department  comes  within  range  of  the  presumption  that  public 
officers  have  rightly  acted,  until  the  contrary  is  made  clearly  to  appear ; 
consequently',  that  "  a  party  who  wishes  us  to  pronounce  a  law  uncon- 
stitutional takes  upon  himself  the  burden  of  proving  beyond  doubt  that 
it  is  so."  State  v.  Acldington  (1882),  77  Mo.  110  ;  State  v.  Laughlin 
(1881),  75  Mo.  147.  But  now  a  majority  of  the"  court  sanctions  the 
idea  that  some  legislation  is  not  to  be  considered  as  prima  facie  consti- 
tutional, but  calls  for  a  showing  of  "  specific  authority"  to  sustain  it. 
Such  a  doctrine  (reversing  the  presumption  of  the  validity  of  statutes), 
coupled  with  the  other  proposition  already  discussed  in  this  paragraph, 
subjecting  ever}'  Act  of  the  General  Assembly  to  the  hazard  of  being 
declared  void,  "  though  no  express  constitutional  provision  could  be 
pointed  out  with  which  it  would  come  in  conflict,"  furnishes  a  very 
interesting  formula  to  determine  the  constitutionalit}'  of  legislation,  but 
one  quite  diflferent  from  that  defined  in  former  precedents  in  this  State. 
It  amounts,  in  substance,  to  a  declaration  that  statutes  which  seem  to 
the  court  unjust  or  unreasonable  are  not  "  due  process  of  law,"  though 
not  otherwise  distinctly'  forbidden  b}'  the  Constitution. 

To  catch  the  full  force  of  this  ruling,  it  will  be  well  to  recall  that  the 
guarantee  of  "  due  process"  is  now  a  part  of  the  Fourteenth  Amend- 
ment to  the  Federal  Constitution,  as  well  as  of  our  own  organic  law; 
so  that  the  test  of  the  validity  of  Missouri  legislation  is  to  be  whether 
or  not  it  conforms  to  the  standard  of  reasonableness  indicated  b}'  the 
Chief  Justice,  as  applied  by  the  Federal  courts,  as  well  as  b}'  our  own. 
It  would  greatl}'  prolong  this  opinion  to  point  out  the  far-reaching  con- 
sequences of  adopting  such  a  standard,  and  its  wide  divergence  from 
the  principles  of  republican  government  through  co-ordinate  depart- 
ments, as  established  bj-  our  written  constitutions.  It  is  enough  now 
to  assert  a  dissent  to  those  views  of  the  organic  law,  as  well  as  to  the 
judgment  in  this  case  to  which  they  have  led. 


CHAP,  v.]  STATE  V.    LOOMIS.  943 

4.  Some  decisions  elsewhere  have  been  cited  to  sustain  the  conclu- 
sion of  my  colleagues.  The  Pennsylvania  case  should  be  read  along 
with  the  later  one,  in  which  it  was  held  that  the  legislature  might, 
under  the  police  power,  interfere  with  freedom  of  contract  to  the  ex- 
tent of  forbidding  totally  the  sale  of  an  article  of  food,  even  though 
pure  and  wholesome.  Powell  v.  Com.  (1886),  114  Pa.  St.  265. 
Judge  Gordon,  who  wrote  the  former  decision,  dissented  from  the 
latter ;  but  it  was  affirmed  (1888)  by  the  United  States  Supreme  Court. 
127  U.  S.  678.  In  a  yet  later  unanimous  opinion  in  that  State,  a  stat- 
ute was  held  valid,  prohibiting  citizens  from  assigning  certain  claims 
against  others,  for  the  purpose  of  suit  in  another  State.  Sweeny  v. 
Hanter  (1891),  145  Pa.  St.  363.  The  West  Virginia  case  cited  by  the 
Chief  Justice  has  been  much  limited,  if  not  overruled,  by  State  v.  Coal 
Co.  (1892),  36  W.  Va.  802  ;  and  the  Massachusetts  decision  was  by  a 
divided  court.  The  cases  in  Illinois  are  placed  chiefly  on  the  ground 
that  it  is  unconstitutional  to  establish  rules  to  govern  mining  and  manu- 
facturing concerns  different  from  those  which  regulate  other  legitimate 
enterprises.  To  that  contention  the  remarks  in  the  first  paragraph 
above  are  intended  to  apply.  Moreover,  the  legislation  considered  in 
that  State  differs  in  important  particulars  from  that  here  in  view. 

On  the  other  side,  Hancock  v.  Yaden  (1890),  121  Ind.  366,  supports 
the  position  taken  in  this  opinion.  In  State  v.  Manufacturiitg  Co. 
(R.  I.,  1892),  17  L.  R.  A.  856  [25  Atl.  Rep.  246],  a  law  requiring  the 
payment  of  wages  weekly  was  held  valid  ;  and  the  principles  declared 
in  the  decisions  sustaining  statutes  prohibiting  the  manufacture  and  sale 
of  oleomargarine  are  wholly  inconsistent  with  the  judgment  of  the  ma- 
jority of  the  court  in  the  case  at  bar.  Slate  v.  Addington  (1882),  12 
Mo.  App.  214,  affirmed  (1882)  77  Mo.  110;  Powell  v.  Pennsylvania 
(1888),  127  U.  S.  678;  Butler  v.  Chambers  (1886),  36  Minn.  69. 

5,  It  has  been  suggested  in  the  main  opinion,  as  well  as  at  the  bar, 
that  the  statute  in  question  is  subject  to  criticism  as  being  an  exhibi- 
tion of  paternalism  in  government.  To  this  it  may  properly  be  an- 
swered that  that  consideration  affects  only  the  policy  of  the  statute, 
and  not  the  constitutional  power  of  the  legislature  to  enact  it.  Stu- 
dents of  juridical  history  are  aware  that  governmental  interferences  with 
liber t}'  of  contract  between  man  and  man  are  less  frequent  now  than  in 
earlier  epochs  of  the  English  law.  Spencer,  "  Justice,"  ch.  15,  sec.  70  ; 
Maine,  Ancient  Law,  3  Am.  ed.,  ch.  9,  p.  295.  But  the  power  to  inter- 
fere when  necessary  to  prevent  oppression  is  an  important  prerogative 
of  sovereignty,  and  resides  in  the  people  of  this  State,  subject  only  to 
the  limitations  expressed  in  their  constitutions.  The  cure  for  paternal 
legislation  is  not  to  be  found  in  an  assumption  b}'  the  courts  of  any 
part  of  the  power  of  self-government  belonging  to  the  people  or  their 
representatives.  To  borrow  the  words  of  Mr.  Justice  Harlan  in  the 
United  States  Supreme  Court,  referring  to  the  oleomargarine  law:  "If 
all  that  can  be  said  of  this  legislation  is  that  it  is  unwise,  or  unneces- 
sarily oppressive  to  those  manufacturing  or  selling  wholesome  oleomar 


944  STATE   V.   LOOMIS.  [CHAP.  V. 

garine  as  an  article  of  food,  their  appeal  must  be  to  the  legislature,  or 
to  the  ballot-box,  not  to  the  jutliciarj'.  The  latter  cannot  interfere 
without  usurping  powers  committed  to  another  department  of  govern- 
ment."    Fowell  V.  Pennsylvania  (1888),  127  U.  S.  686. 

When  the  present  case  was  in  the  second  division  of  the  court,  an 
able  opinion  was  rendered  by  Judge  Thomas  {State  v.  Loomis  [1892], 
20  8.  W.  Rep.  332),  attirnilng  the  judgment  of  Judge  Ellison  on  the 
circuit.     The  result  then  aiuiounced  appears  to  me  correct.^ 

1  Compare  Hewlett  v.  Allen,  [1892]  2  Q.  B.  662,  in  which  the  English  Truck  Acts 
were  applied.  By  a  recent  Act,  St.  50  &  51  Vict.  c.  46,  s.  6,  it  was  provided  tiiat  "  No 
employer  shall  directly  or  indirectly,  by  himself  or  his  agent,  impose  as  a  condition, 
express  or  implied,  in  or  for  the  employment  of  any  workman  any  terms  as  to  tlie 
place  at  which,  or  tiie  manner  in  wiiicli,  or  the  person  with  whom,  any  wages  or 
portion  of  wages  paid  to  the  workman  are  or  is  to  be  expended,  and  no  employer 
shall,  by  himself,  or  his  agent,  dismiss  any  workman  from  his  employment  for  or  on 
account  of  the  place  at  which,  or  tlie  manner  in  which,  or  the  person  with  whom,  any 
wages  or  portion  of  wages  paid  by  the  employer  to  such  workman  are  or  is  expended 
or  fail  to  be  expended."  —  Ed. 


PART    III. 

♦ — 

CHAPTER   VI. 

THE   RIGHT  OF  EMINENT  DOMAIN. 

If  we  examine  the  subject  critically,  we  shall  fiud  that  the  most  important  consid- 
eration in  the  case  of  eminent  domain  is  the  ;iecessity  of  accomplishing  some  public 
good  which  is  otherwise  impracticable;  and  we  shall  also  find  that  the  law  does  not  so 
much  regard  the  means  as  the  need.  The  power  is  much  nearer  akin  to  that  of  the 
puhlic  police  than  to  that  of  taxation  ;  it  goes  but  a  step  farther,  and  that  step  is  m  the 
same  direction.  ...  The  butcher  in  the  vicinity  of  whose  premises  a  village  has  grown 
up  finds  himself  compelled  to  remove  his  business  elsewhere,  because  his  right  to  make 
use  of  his  lot  as  a  place  for  the  slaughter  of  cattle  has  become  inconsistent  with  the 
superior  right  of  the  community  to  the  enjoyment  of  pure  air  and  the  accompanying 
blessings  and  comforts.  The  owner  of  a  lot  within  the  fire  limits  of  a  city  may  be 
compelled  to  part  with  the  property,  because  he  is  unable  to  erect  a  brick  or  stone 
structure  upon  it,  and  the  local  regulations  will  not  permit  one  of  wood.  /  Eminent 
domain  only  recognizes  and  enforces  the  superior  right  of  the  community  ...  in  a 
similar  way.  — Cooley,  J.,  for  the  court,  in  People  v.  Salem,  20  Mich.  452  (1870); 
and  so  Cooley,  Const.  Lim.  6th  ed.  660,  note  (1890). 

The  phrase  Eminent  Domain  appears  to  have  originated  with  Grotius, 
and  the  nature  of  the  power  which  it  designates  is  accurately  described 
by  him.  That  power  is  a  universal  one,  and  is  as  old  as  political  society. 
Writers  on  public  law  who  succeeded  Grotius  found  some  fault  with  the 
name,  as  seeming  to  import  State  ownership  of  all  private  property  ; 
but  they  agreed  as  to  the  real  scope  of  the  power  in  question,  and  all 
recognized  the  name  as  an  accepted  one. 

The  statements  of  Grotius,  and  some  passages  from  the  leading 
writers  among  his  successors  down  to  the  middle  of  the  last  century, 
sometimes  cited  in  our  reports,  are  given  below.  To  these  are  added 
observations  from  Blackstone.  These  passages  will  bring  out  the  con- 
ceptions upon  this  subject  which  the  framers  of  our  first  constitutions 
entertained.  It  was  said  by  Chief  Justice  Marshall,  in  1827  ( Ogden  v. 
Saunders,  12  Wheat.  213,  353),  in  discussing  the  meaning  of  the 
phrase,  "  obligation  of  contracts,"  that,  •'  When  we  advert  to  the  course 
of  reading  generally  pursued  by  American  statesmen  in  early  life,  we 
must  suppose  that  the  framers  of  our  Constitution  were  intimately  ac- 
quainted with  the  writings  of  those  wise  and  learned  men  whose  trea- 
tises on  the  laws  of  nature  and  nations  have  guided  public  opinion  on 
the  subject  of  obligation  and  contract."  This  is  peculiarly  true  and 
peculiarly  applicable,  as  regards  the  topic  now  in  hand. 
vor,."i.  — 60 


946  THE    RIGHT   OF    EMINENT   DOMAIN.  [CHAP.  VL 

The  effect  of  our  constitutional  restraints  in  their  usual  form,  that 
which  we  find  in  the  earlier  instruments  (e.  g.  supra,  p.  412,  art.  5),  is 
simply  to  add  to  the  moral  dut}'  of  compensation,  described  by  Grotius, 
a  legal  sanction.  The}'  do  not  change  the  scope  or  nature  of  the  power 
itself.  'That  power  has  to  do  merely  with  dei)riving  a  person  of  his 
property  for  the  benefit  of  the  State.  It  will  be  observed  that  another 
matter  was  suggested  by  Bynkershoek  (infra,  pp.  949,  950  n.),  an  exten- 
sion of  the  doctrine  of  Eminent  Domain  :  Quidni  (jeneraliter  statuanms 
ornne  damnum  quod  privati  ferunt  pro  necessitate  vel  utlUtate  com- 
munis commune,  et  proinde  ex  area  puhlica  refarciendum  esse?  To 
this  question  he  gives  no  decisive  answer  ;  but  his  own  opinion  seems  to 
j  incline  in  favor  of  this  doctrine,  that  every  citizen  should  be  reimbursed 
for  any  loss  suffered  for  the  public  benefit.  Undoubtedly  no  such  doc- 
trine was  recognized  by  the  writers  on  public  law  as  an  established  one. 
As  a  broad  and  universal  maxim,  English  usage  knew  nothing  of  it. 
Our  early  constitutions  did  not  introduce  it.  The}'  dealt  with  this  great, 
well-known,  universal  power  of  all  governments,  to  apply  to  the  use  of 
the  State,  in  an  exigency,  any  i)rivate  property  whatever ;  and  gave  a 
legal  sanction,  not  elsewhere  existing,  to  those  moral  limitations  upon 
it  which  all  the  writers  on  public  law  had  acknowledged. 

Some  of  the  later  American  constitutions,  however,  (e.  g.  Colorado, 
s'ipr:i,  p.  435,  s.  15),  beginning  with  Illinois  iu  1870,  have  accepted 
the  moral  obligation  which  B}  nkershoek  suggested,  and  have  given  a 
legal  sanction  to  that  also,  rcguiring  compensation  whore  propertyjs' 
damagt'd  by  public  authority  and  not  merely  where  it  is  taken  awa\-. 
And  ill  some  cases,  even  the  courts,  without  the  aid  of  any  such  clause, 
moved  by  the  inconsiderate  action  of  legislatures,  have  sought  to  reach 
the  same  result  by  their  interpretation  of  the  words  "property"  and 
"taking."  The  legitimacy  of  this  latter  course  of  action  ma}-  be 
d()ul)ted.  As  to  the  former,  that  of  changing  the  constitutions,  the 
propriety  of  this  method  cannot  be  questioned,  if  any  community  has 
come  to  think  so  considerable  a  tying-up  of  their  legislature  to  be  neces- 
sary or  desirable.  That  compensation  is  often  omitted  when  it  should 
be  given,  is  true  enough  ;  the  remedy  for  this  is  another  matter.  See 
infra,  pp.  954,  983  n.^ 

From  Grotics,  De  Jure  Belli  et  Pacis,\\h.  i.  c.  1  (1625).  III.  In  naming  thit 
treatise  De  Jure  Belli,  we  mean  to  suggest  first,  what  has  just  been  said,  Whetiier 
any  war  is  just;  and,  second,  In  war,  what  is  just?  For  jus,  here,  means  merely  what 
is  just;  and  that  rather  in  a  negative  than  a  positive  sense,— -that y«s  is  what  is  not 
unjust.  That  is  unjust  which  is  contrary  to  the  nature  of  a  society  of  rational  crea- 
tures. .  .  .  IV.  There  is  another  meaning  oi  jus,  different  from  this,  yet  derived  from 
''it,  which  refers  to  a  person  ["as  when  we  say  my  right," — Whewell's  Translation] ; 
in  which  sense  right  [jus]  is  a  moral  quality  belonging  to  a  person,  whereby  he  may 
justly  have  or  do  anything.  ...  A  moral  quality,  when  perfect,  we  call  facultas  ■ 
when  not  perfect,  optlludo.  ...  V.  Facultas  is  so  called  by  the  jurists,  —  by  its 
own  name.  We.  hereafter,  shall  caU  it /ms,  in  the  strict  and"  proper  sense  of  that 
word.      Under  this   are  includec^  (l))Po<es<as,  —  whether   over   one's  self,  which   is 


1  See  also  Thayer's  Ong.  and  Scope  Am.  Doct.  Const.  Lau;  pp.  29,  30.  —  Ed- 


CHAP.  VI.]  THE   RIGHT   OF   EMINENT    DOMAIN.  947 

called  liberty  ;  or  over  others,  as  the  father's  or  the  master's  power  ,\{2)j  Dom inn iWj 
whether  full,  or  not  full,  as  usufruct,  or  the  right  of  a  pledgee  {jus  pignoi-is) ,-  ami '(3)  ] 
Crediltim,  the  right  which  stauds  opposed  to  debt.  VI.  This  _/uc«/<as,  again,  is  two"- 
fold;  namely,  vubjarm,  which  exists  for  private  use,  and  ^minens,  which  is  superior  to 
the  jus  (,•«/(/«/ /A^~§tB'Ce  it  belongs  to  the  community,  for  the  common  benefit,  as  against 
persons  and  things.  Thus  the  ref/ia  potestas  has  under  it  the  father's  and  the  master's 
power  of  control;  so,  as  against  what  belongs  to  individuals,  the  dominium  Regis,  for 
the  common  benefit,  is  greater  than  that  of  private  owners ;  and  [as  regards  Creditum] 
every  one  has  a  greater  obligation  to  the  State,  for  public  ends,  than  to  his  private 
creditor.! 

Ibid.  lib.  iii.  c.  20.  VII.  I.  This  also  is  a  common  question;  what  may  be  done 
for  tlie  sake  of  peace  with  the  goods  of  individuals,  by  kings  who  have  no  other  right 
over  tlie  propertv  of  subjects  than  the  regal  right.  We  have  elsewhere  said,  that  the 
property  of  subjects  is  under  the  eminent  domain  of  the  State ,  so  that  the  State,  or 
he  who  acts  for  it,  may  use,  and  even  alienate  and  destroy  such  property  ;  not  only 
in  case  of  extreme  necessity,  in  which  even  private  persons  have  a  right  over  the  prop- 
erty of  others;  but  for  ends  of  public  utility,  to  which  ends  those  who  founded  civil 
society  must  be  supposed  to  have  intended  that  private  ends  should  give  way  2.  But 
it  is  to  be  added,  that  when  this  is  done,  the  State  is  bound  to  make  good  the  loss  to 
those  who  lose  their  property ,  and  to  thi.s^public  purpose,  among  others,  he  who  has 
"suffered  the  loss  must,  if  need  be,  contribute.  Nor  is  the  State  relieved  from  this  onus, 
if,  for  the  present,  it  be  unable  to  discharge  it,  but  at  any  future  time,  when  the 
means  are  there,  the  obligation  which  had  been  suspended  revives.'-^ 

From  PoFENDORF,  De  Jure  Naturie  et  Gentium,  lib.  i.  e.  1,  s.  19  (1672).  Polestas 
(control),  in  respect  of  what  is  one's  own,  is  called  dominium  ;  polestas,  in  respect  of 

1  III.  De  jure  belli  cum  inscribimus  banc  tractationem,  primum  hoc  ipsum  intelli- 
gimus,  quod  dictum  jam  est,  sitne  helium  aliquod  justum,  et  deinde  quid  in  bello  justum 
sit?  Nam  jus  hie  nihil  aliud  quam  quod  justum  est  significat,  idque  negante  magis 
sensu  quam  aiente,  ut  jus  sit  quod  injustum  non  est.  Est  autem  injustum,  quod 
natural  societatis  ratione  uteiitium  repugnat  .  .  .  IV.  Ab  hac  juris  significatione 
diversa  est  altera,  sed  ab  hac  ipsa  veniens,  quae  ad  personam  refertur  quo  sensu  jus 
est,  Qualitas  moralis  person*  competens  ad  aliquid  ju.ste  habendum  vel  agendum.  .  .  . 
Qualitas  autem  moralis  perfecta,  facultas  nobis  dicitur  ;  minus  perfecta,  aptitudo.  .  .  . 
V.  Facultatem  Jurisconsulti  nomine  sui  appellant,  nos  posthac  jus  proprie  aut  stricte 
dictum  appellabimus :  sub  quo  continentur  Potestas,  tum  in  se,  qu«  lihertas  dicitur, 
tum  in  alios  ;  ut  patria,  dominica  -.  Dominium,  plenum  sive  minus  pleno,  ut  usufructus, 
jus  pignoris :  et  Creditum,  cui  ex  adverse  respondet  debitum.  VI.  Sed  haec  facultas 
rursurn  duplex  est :  vulgaris  scilicet,  qute  usus  particularis  causa  comparata  est ;  et 
eminens,  quas  superior  est  jure  vulgari,  utpote  commuuitati  competens  in  partes  et  res 
partium,  boni  communis  causa.  Sic  regia  potestas  sub  se  habet  et  patriam  et  domini- 
cam  potestatem  :  sic  in  res  singulorum  majus  est  dominium  Regis  ad  bonum  com- 
mune, quam  dorainorum  singularium :  sic  reipublicae  quisque  ad  usus  publicos  magis 
obligatur,  quam  creditori. 

2  VII.  1.  Disputari  et  hoc  solet,  quid  in  res  singulorum  possint  pacis  causa  statuere, 
qui  reges  sunt,  nee  in  res  subditorum  aliud  jus  habent  quam  regium  Alibi  diximus 
res  subditorum  sub  eminenti  dominio  esse  civitatis,  ita  ut  civitas,  aut  qui  civitatis  vice 
fungitur,  iis  rebus  uti,  easque  etiam  perdere  et  alienare  possit,  non  tantum  ex  summa 
necessitate,  quae  privatis  quoque  jus  aliquod  in  aliena  concedit,  sed  ob  publicam 
utilitatem,  cui  privatas  cedere  illi  ipsi  voluisse  censendi  sunt,  qui  in  civilem  coetum 
coierunt.  2.  Sed  addendum  est,  id  cum  fit,  civitatem  tenere  his,  qui  suum  amitti>nt, 
sarcire  damnum  de  publico,  in  quod  publicum  nomen  et  ipse,  qui  damnum  passus  est 
si  opus  est,  contribuet.  Neque  hoc  onere  levabitur  civitas,  si  nunc  forte  ei  praestatione 
par  non  sit,  sed  quandocumque  copia  suppetit,  exseret  sese  quasi  sopita  obligatio. 

The  translation  of  this  last  passage  from  Grotius  is  mainly  taken  from  Dr.  VVhewell's 
edition  (Cambridge,  University  Press,  1853).  His  rendering  of  the  former  one  is 
inaccurate,  and  another  is  substituted.  For  a  third  passage  from  Grotius,  see  infra, 
p.  982,  note.  —  Ed. 


948  THE    RIGHT   OF   EMINENT   DOMAIN.  [CIIAI'.  VL 

other  persons  is,  properly  speaking,  imperium  ;/poteslas,  in  respect  of  the  property  of 
other  persons,  constitutes  a  servitude.^ 

Ibid  lib.  viii.  c.  5,  s.  7.  As  regards  eminent  domain,  some  persons  condemn,  not  so 
much  the  thmg  itself,  as  its  name  For  they  say  that  the  very  nature  of  supreme 
rule  (imperium)  established  for  the  public  welfare,  gives  a  sufficient  title  to  the  prince, 
when  necessity  presses,  fur  using  the  property  of  iiis  subjects ;  siuce  all  must  be  under- 
stood to  be  surrendered,  without  which  the  common  good  cannot  be  obtained  ;  and, 
further,  that  it  is  a  swelling  phrase,  which  bad  rulers  may  abuse  to  squander  the 
resources  of  their  subjects.'-  But  it  is  idle  to  contend  over  words ;  and  it  is  not  unrea- 
sonable to  designate  by  a  specific  name  a  portion  of  the  supreme  rule  which  manifests 
itself  in  a  specific  way  about  a  specific  matter.  What  the  import  is  of  this  dominium 
may  be  gathered  from  these  considerations.  It  is  a  matter  of  natural  equity,  when 
there  is  to  be  a  contribution  towards  the  preservation  of  anything  possessed  in  common, 
by  those  who  share  in  it,  that  individuals  sliould  contribute  only  a  proportional  share, 
and  that  no  one  should  be  oj)pressively  loaded  beyond  others.  The  same  thing  holds 
in  States.  But  since  often  the  e.xigencies  of  a  government  are  such  that  either  urgent 
necessity  does  not  allow  the  fixing  of  the  proportions  of  what  is  to  be  collected  from 
individuals,  or  else  some  specific  possession  of  one  citizen,  or  of  a  few,  is  required  for 
the  necessary  uses  of  the  State,  the  supreme  government  must  be  able  to  apply  tliis 
thing  to  the  public  necessities :  provided,  nevertheless,  that  what  exceeds  the  propor- 
tional share  of  its  owners  shall  be  refunded  by  the  other  citizens.* 

From  Heineccius,  Elem.  Jur.  Nat.  et  Genl.  lib.  ii.  c.  8,  s  168  (1730)  Among  the 
inherent  rights  of  supreme  power  there  is,  furthermore,  the  right  of  imposing  ta.xes 
and  tribute  upon  its  citizens ,  nay,  even  of  applying  to  the  use  of  the  State  their  prop 
ertv,  when  necessity  requires  it,  —  a  right  which  is  usually  called  the  right  of  eminent 
domain.  [Note.]  We  confess,  however,  that  this  use  of  the  word  is  not  quite  apt,  for 
the  conception  of  dominium  and  that  of  imperium  are  different  things  ■  it  is  the  latter 
and  not  the  former  which  belongs  to  rulers  {nnjierantibus).  For  this  reason  what 
Grotius,  de  jure  belli  et  pads,  i.  1,6,  first  styled  dominium  eminens,  Seneca,  de  bene/. 
vii.  4,  more  accurately  called  poteslas.  To  kings,  he  said,  belongs  the  control  of  all 
things  (jioteslas  omnium),  to  individuals  the  ownership  {propnelus)  of  them.  .  .  . 
But,  so  long  as  the  controversy  is  about  the  name  and  origin  of  the  thing,  and  no  one 
doubts  about  the  actual  right  of  rulers,  when  necessity  requires,  to  apply  to  the  use  of 


1  Potestas  in  res  proprias,  vocatnr  dominium.  Potestas  in  personas  alias,  imperium 
proprie  est ;  potestas  in  rem  alienam,  serviius. 

^  It  behoves  a  democracy,  like  our  own,  to  remember  that  this  objection  has  a  dis- 
tinct application  to  them.  A  ruler  who  is  ignorant  or  careless  is  no  less  a  bad  ruler, 
because  he  means  well.  The  evil  in  question  is  a  specific  result;  it  does  not  matter 
what  the  motives  of  the  ruler  are.  — Ed. 

3  Dominii  eminentis  non  tam  rem,  quam  vocabulum  aliqui  damnant.  Ipsam  enim 
vim  imperii  propter  salutem  publicam  instituti,  sufficientem  principi  titulum  prabere, 
urgente  necessitate  utendi  bonis  suorum  subditorum  ;  eo  quod  omnia  simul  concessa 
intelligantur,  sine  quibus  obtineri  bonum  commune  non  potest.  Ambitiosum  quoque 
esse  id  vocabulum,  quo  mali  principes  abnti  possint  ad  dissipandas  subditorum  facul- 
tates.  Vernm  uti  super  vocabulis  litigare  supervacnum  est;  ita  particulam  summi 
imperii,  quje  certo  sese  modo  circa  certam  rem  exserit,  pecnliari  nomine  insignire,  noN 
priBter  rationem  est.  Ejus  autem  dominii  quae  vis  sit,  ex  hisce  intelligetur.  Natu- 
ralis  est  oequitatis,  ut  si  ad  communem  quampiam  rem  conservandam  ab  lis  qui  de 
eadem  participant,  conferendum  quid  sit,  singuli  ratam  duntaxat  partem  conferant, 
nee  unus  supra  caeteros  graviter  oneretur.  Idem  et  in  civitatibus  obtinet  Sed  cum 
siepe  ea  sint  reipublicae  tempora,  ut  vel  urgens  necessitas  non  admittat  ratas 
partes  a  singulis  colligi,  vel  certa  qusepiam  res  unius  aut  paucorum  civium  ad  neces- 
sarios  usus  reipublicae  requiratur,  poterit  summum  imperium  eam  rem  publicis  neces- 
sitatibus  adhibere ;  ita  tamen,  ut  quod  ratam  partem  dominorum  excedit,  a  cseteris 
civibus  sit  ipsis  refundendum. 


CHAP.  VI.]  THE   RIGHT   OF    EMINENT   DOMAIN.  949 

the  State  the  property  of  citizens,  we  see  no  fit  reason  whatever  for  wholly  condemn- 
ing the  word,  when  once  it  has  been  accepted.' 

From  Bynkekshoek,  Quest.  Jiir,  Pub  lib.  ii.  c.  15  (1737).  That. power  (potestas) 
wherein  a  prince  excels  (eminet)  his  subjects,  is  what  tlie  writers  on  public  law  call 
dominium  eminens  or  supereminens,  — following  Grotius,  who  led  in  this.  L  i.  De  Jure 
B.  ij-  P.  c.  3,  s.  6,  n.  2,  and  I.  ii.  c.  14,  s.  7  &  8.  Hut  I  agree  with  Thomasius,  ad 
Huberum  de  jure  civitatis  1.  i.  s.  3,  c.  6,  n.  38,  in  thinicing  it  more  accurately  called 
imperium  eminens,  rather  than  dominium  eminens,  for  whatever  of  this  right  princes 
use,  proceeds  from  their  supreme  power.  .  .  .  That  potestas  eminens  extends  to  the 
persons  and  property  of  the  sul)jects ;  and  if  this  were  taken  away  all  will  readily 
allow  that  the  State  could  not  be  preserved.  By  this  power,  if  so  it  seem  good  to 
the  prince,  war  is  declared,  peace  made,  treaties  entered  into,  tribute  and  taxes  im 
posed,  obligations  laid  upon  subjects  and  their  property,  even  the  whole  of  tliem,  nay, 
even  the  possessions  of  single  individuals  seized  upon  Of  this  power  none  of  the 
wise  ever  doubted ;  the  whole  dispute  is  over  fixing  the  limits  of  it.  .  .  .  But  before 
you  can  accurately  fix  these,  all  the  details  (species)  of  supreme  power  {imperii  emi- 
nentis)  must  be  reckoned  up,  and  we  must  carefully  deliberate  and  pass  upon  each.  .  .  . 
I  have  determined  to  treat  merely  of  that  part  by  which  the  prince,  out  of  his  supreme 
power  {imperio  eininenti),  takes  away  from  his  subjects  an  acquired  right,  whether  it 
consists  in  a  thing  itself  [in  re),  whether  movable  or  immovable,  or  in  a  claim  {in 
actume).  That  the  prince  may  do  tliis,  all  agree ,  but  it  is  not  equally  agreed  on  what 
occasion  he  may  do  it.  Pufendorf,  1  viii.  De  Jure  Nat.  et  Gent.  c.  5,  s.  7,  where  he 
treats  of  this  right  of  the  prince,  thought  that  there  was  no  place  for  the  right  of 
eminent  domain  unless  the  necessity  of  the  State  should  call  for  it,  not  meaning,  how- 
ever, that  the  last  extreme  of  necessity  should  be  demanded.  Grotius  was  contented 
with  utility  (utilitate)  only,  L.  ii.  De  Jure  B.  <^-  P.  c.  14,  s.  7;  for  he  said,  that  in 
order  to  take  away  an  acquired  right  from  subjects  by  virtue  of  eminent  domain, 
{ex  vi  snpereminentis  dominii),  there  must  be,  first,  a  public  use  (utilitas),  and  then,  if 
possible,  compensation  must  be  made,  out  of  the  common  funds,  to  him  who  has  lost 
what  was  his.  And  afterwards,  s.  6,  the  right  of  subjects  is  subordinated  to  this  right 
of  eminent  domain  {ei  dominio),  so  far  as  public  uses  demand.  It  is,  indeed,  true 
enougli  that  both  formerly  and  now,  on  all  liands,  princes  have  exercised  this  right 
for, both  reasons,  as  well  necessity  as  utility  but  convenience  often  shades  off  into 
necessity,  so  that  you  cannot  easily  tell  this  from  that ;  and  wjiat  one  man  will  call 
utility  another  will  call  nece.^sity.  For  my  part  I  do  not  urge,  noii  do  I  know  of  any 
one  who  does,  that  the  prince  may  not  exercise  this  right  for  both  reasons.  .  .  .  But 
when  a  fit  reason  requires  it,  whatever  he  takes  away,  let  him  take  it  with  as  little 
Jiarm  to  his  subjects  as  may  be,  and  upon  paying  the  price  out  of  the  common  chest. 
Whoever  purposes  anything  else  is  rather  a  robber  than  a  prince.  ...  He  who 
requires,  as  I  do,  in  order  to  the  exercise  of  the  supreme  power  {imperium  eininens) 
public  necessity  or  a  public  use  (utilitalem),  excludes  all  other  causes,  without  excep- 
tion Since  the  subject,  then,  is  bound  to  part  with  his  property  for  both  reasons,  as 
I  said,  must  he  also  lose  it  for  purposes  of  public  pleasure  or  aesthetic  gratification,  or 
even  public  decoration  alone"?  I  should  not  think  so,  nor  did  the  Roman  Senate  think 
so  in  the  case  of  Marcus  Licinius  Crassus,  who  objected  to  leading  through  his  farm 

'  Inter  immauentia  majestatis  jura  est  etiam  jus  tribnta  et  vectigalia  imperandi 
civibus;  quin  et  eorum  bona,  exigente  necessitate,  reipublicae  usibus  adplicandi, 
quod  jus  dominium  eminens  adpellare  mos  est.  [Author's  note.  Fatemur  tamen 
non  satis  commode  hoc  adhiberi  vocabulum,  quum  diversi  sint  dominii  et  imperii 
conceptus ;  et  non  illud,  sed  hoc  competat  imperantibus.  Unde  quod  Grotius,  de 
jure  belli  et  pac.  i  1,6,  primus  vocavit  dominium  eminens,  id  Seneca,  de  benef.  vii.  4, 
rectius  dewommawit  polestatem  Ad  reges,  inquit,  potestas  omnium,  ad  singulos  pro- 
prietas  pertinet.  .  Sed  dum  lis  est  de  vocabulo  reique  origine,  et  de  ipso  jure  impe- 
rantium  bona  civium  urgente  necessitate  reipul)lictB  usibus  adplicandi,  nemo  dubitat, 
lur  vocabulum  semel  receptum  plane  proscribendum  putaremus^  nullam  omnino 
idoneam  rationem  vidimus.] 


950  THE   RIGHT   OF   EMINENT    DOMAIN.  [CHAP.  Vf. 

an  aqueduct  which  the  Prsetors  were  building,  and  which  was  said  to  have  no  other 
occasion  than  public  pleasure  and  decoration.  .  .  .  But  for  whatever  reason  the  sub- 
ject's property  or  claims  {res  vel  actiows)  are  taken  and  destroyed,  what  Grotius  adds, 
in  tlie  passage  quoted,  is  fair  and  just,  that  the  owner's  compensation  should  be  paid 
out  of  the  public  money.  .  .  .  This,  indeed,  in  these  cases.  But  why  may  we  not  lav 
it  down  generally,  tliat  every  loss  (damnum)  whicli  private  persons  bear  for  the 
common  necessity  or  utility,  is  a  common  loss  and  therefore  one  to  be  refunded  from 
the  common  chest  ■*  .  .  It  is  fit  as  regards  losses  which  arise  from  the  calamitv  of 
war,  that  all  subjects  should  bear  them  with  calmness,  and  that  no  restitution  should 
ever  be  made  for  them.  But  as  to  what  Consultor  says,  that  the  value  of  lands  is  not 
to  be  paid  wliich  are  taken  for  purposes  of  fortification,  perhaps  it  is  true  when  war  is 
raging,  and  while  laws  are  silenced  by  arms,  and  when  sudden  and  temporary 
defences  are  made;  but  when  they  are  constructed  for  permanent  use,  I  cannot 
recognize  this  as  true.  The  rules  which  I  have  brought  forward  in  this  chapter  and 
the  last  are  at  war  with  this  view,  and  the  usages  of  nations  as  received  here  and  else- 
where are  at  war  with  it.i 

1  Ilia  potestas,  qua  princeps  supra  snbditos  eminet  dominium  eminens  vel  super- 
eminens  appellant  scriptores  juris  publici,  sequuti  Grotium,  qui  ita  praivit,  1.  i.  De  Jure 
B.  cj-  P.  c.  3,  s.  6,  n.  2,  &  1.  ii.  c.  14,  s.  7  &  8.  Assentior  tamen  Thomasio,  Ad  Ilube- 
rum  de  Jure  Civitatis,  1.  i.  sect.  .3.  c.  6,  n.  38,  existimanti,  rectius,  dici  imperium 
eminens,  quam  dominium  eminens :  nam  quicquid  ejus  juris  exercent  principes,  pro- 
ficiscitur  a  suprema  eorum  potestate.  .  .  .  Potestas  ilia  eminens  porrigitur  ad  personas 
&  bona  subditoruni,  &  facile  largientur  omnes,  ea  sublata,  civitatem  salvam  esse  non 
posse.  Ex  ea  potestate  helium  indicitur,  pax  pangitur,  fcedera  ineuutur,  tributa  & 
vectigalia  imperautur,  subditi  eorumque  bona,  etiam  in  solidum,  obligautur,  quin  & 
occupantur  res  singulorum,  si  ita  visum  fuerit  priucipi.  De  ea  principis  potestate 
nemo,  qui  sapit,  dnbitavit  unquam,  sed  de  finibus  ejus  regundis  omnis  disputatio  est. 

.  Priusquam  autem  hos  recte  regas,  recensendae  omnes  species  imperii  eminentis, 
de  singulis  deliberandum  &  caute  pronunciandum  est.  .  .  .  De  ea  specie  duntaxat 
agere  constitui,  qua  princeps,  ex  imperio  emiueuti,  subditis  aufert  jus  qua;situm, 
sive  id  consistat  in  re  mobili,  sive  immobile,  sive  in  actione.  Id  principi  licere  inter 
omnes  constat,  sed  non  seque  constat,  ex  qua  causa  liceat.  Pufendorfius,  1  viii  De 
Jure  Nat.  (^  Gent.  c.  5,  s.  7,  ubi  de  eo  jure  principis  agit,  existimavit,  dominio  emi- 
nent! locum  non  esse,  nisi  reipublica;  Necessitas  requisiverit,  ita  tamen,  ut  postremum 
necessitatis  gradum  non  desideret.  Grotius  sola  utilitate  contentus  est,  1.  ii.  De  Jure 
B.  ^-  P.  c.  14,  s.  7;  nam,  ut  jus  quoesitum  subditis  auferatur  e.x  vi  supereminentis 
dominii,  primum,  inquit,  requiritur,  utilitas  publica,  deinde,  ut,  si  .fieri  potest,  compen- 
satio  fiat  ei,  qui  snum  amisit,  ex  communi.  Et  mox,  s.  6,  subditoruni  jus  ei  dominio 
subest,  quatenus  publica  ntilitas  desiderat.  Sane  verissimum  est,  ex  utraque  causa, 
tam  necessitatis,  quam  utilitatis  id  jus  &  olim  exercuisse  principes,  &  nunc  passim 
exercere.  Sed  &  ssepe  utilitas  in  necessitatem  incidit,  ut  non  facile  banc  ab  ilia  dis- 
tinxeris  ;  quodque  alius  utilitatem,  alius  necessitatem  appellabit.  Ipse  non  intercedo, 
nee  scio  quemquam  intercedere,  quominus  princeps  et  utraque  causa  eo  jure  uti  possit. 
.  .  .  Sin  autem  urgeat  ratio  idonea,  quicquid  aufert,  auferet  quam  minimo  subditoruni 
detrimento,  &  soluto,  ex  area  communi,  pretio.  Qui  aliter  in  animum  induxerit  suum, 
praedo  potius  est,  quam  princeps.  .  .  .  Qui,  ut  imperium  eminens  exerceri  possit, 
necessitatem  vel  utilitatem  publicam  desiderat,  ut  ipse  desidero,  reliqua.s  causas,  sine 
exceptione  omnes,  excludit  An  igitur,  ut  subditus  re  sua  carere  tenetur  ex  utraque, 
quam  dixi,  causa,  ita  quoque  tenebitur,  ex  causa  voluptatis  vel  amoenitatis  publico;, 
vel  etiam  ex  causa  solius  ornatus  publici  ^  non  putaverim,  neque  etiam  putavit  Senatus 
Romanus  in  causa  M  Licinii  Crassi,  nolentis  per  fundum  suum  derivari  aquaeductuni, 
quem  moliebantur  Praetores,  quique  non  aliam,  quam  voluptatis  &  ornatus  causam 
habere  dicebatur.  .  .  .  Ex  quacunque  autem  causa  res  vel  actiones  subditorum  ail 
bonum  publicum  occupantur  vel  destruuntur  «quum  &  justum  est,  quod  addit  Grotius 
d.  loc.  pretium  dominis  e  publico  esse  refarciendum.  .  .  .  Atque  hrec  quidem  in  hisce 
causis.  Sed  quidni  generaliter  statuamus,  omne  damnum,  quod  privati  ferunt  pro 
necessitate  vel  utilitate  communi,  commune,  &  proinde  ex  area  publica  refarciendum 


CHAP.  VI,]  THE    RIGHT    OF    EMINENT   DOMAIN.  951 

From  Vattel,  Le  Droit  des  Gens,  liv.  i.  c.  20,  s.  244  (1758).  In  political  society 
everythiug  must  give  way  to  the  common  good  ;  and  if  even  the  person  of  tKe  citizens 
"is  subject  to  this  rule,  their  property  cannot  be  excepted.  The  State  cannot  live,  or 
continue  to  administer  public  affairs  in  tiie  most  advantageous  manner,  if  it  have  not 
the  power,  on  occasion,  to  dispose  of  every  kind  of  property  under  its  control.  It 
should  be  presumed  that  when  the  nation  takes  po.ssession  of  a  country,  property  in 
specific  things  is  given  up  to  individuals  only  upon  this  reservation.  The  right  which 
belongs  to  society  or  to  the  sovereign  to  dispose,  in  case  of  necessity  and  for  the  pub- 
lic welfare,  of  every  possession  which  the  State  contains,  is  called  eminent  domain.  It 
is  evident  that  in  certain  cases  this  right  is  necessary  to  him  who  governs,  and  there- 
fore that  it  makes  part  of  the  empire  or  sovereign  power,  and  should  be  placed  among 
the  droits  de  majeste.  §  45.  When  the  people,  then,  confer  the  empire  upon  any  one, 
they  award  to  him,  at  the  same  time,  the  eminent  domain,  unless  they  expressly  re- 
serve it.  I<>ery  prince  who  is  really  sovereign  is  clothed  with  this  right,  when  the 
nation  has  not  excepted  it,  in  whatever  way  his  authority  may  be  otherwise  limited. 
If  the  sovereign  dispose  of  public  property,  in  virtue  of  his  eminent  domain,  the 
alienation  is  valid  as  having  been  made  with  sufficient  autliority.  And  so  when  he 
disposes,  in  an  exigency,  of  the  property  of  a  community  or  an  individual,  the  alien- 
ation will  be  valid,  for  the  same  reason.  But  justice  demands  that  this  community  or 
this  individual  be  made  whole  out  of  the  public  money  ;  and  if  the  State  have  not 
enough  to  do  this,  all  the  citizens  are  bound  to  contribute ;  for  the  expenses  of  the 
State  should  be  borne  equally  or  in  a  just  proportion.  In  this  respect  it  is  like  throw- 
ing merchandise  overboard  to  save  the  ship.i 

esse  ■?  .  .  .  Damnum,  quod  oritur  ex  calamitate  belli,  opportet,  et  omnes  subditi  aequo 
animo  ferant,  nee  ejus  ulla  unquam  fit  restitutio.  Sed  quod  ait  Cousultor,  non  refundi 
pretium  agrorum,  qui  muniendi  ergo  capiuntur,  fortasse,  verum  est  fervente  bello, 
(juanidiu  legibus  silentium  imponunt  arma,  aut  cum  munitiones  fiunt  tumultariaj,  &  ad 
tempus,  sed  cum  exstruuntur  in  perpetuum,  id  verum  esse  nondum  potui  animadver- 
tere.  Repugnant  leges,  quas  hoc  &  praecedenti  capite  attuli,  repugnant  mores,  hie  & 
alibi  gentium  recepti. 

1  Tout  doit  tendre  au  bien  commun  dans  la  socie'te'  politique,  et  si  la  personne  meme 
des  citoyens  est  soumise  k  cette  regie,  leurs  biens  u'en  peuvent  etre  exceptc's.  L'Etat 
ne  pourroit  subsister,  ou  administrer  toujours  les  affaires  publiques  de  la  maniere  la 
plus  avantageuse,  s'il  navoitpas  lepouvoir  de  disposer  dans  I'occasion  de  toutes  sortes 
de  biens  soumis  a  son  empire.  On  doit  meme  prc'sumer,  que  quand  la  nation  s'empare 
d'un  pays,  la  propriete  de  certaines  choses  n'est  abandonnee  aux  particnliers  qu'avec  cette 
re'serve'.  Le  droit  qui  appartient  a  la  societe,  ou  au  souverain,  de  disposer,  en  cas  de 
nt'cessite  &  pour  le  salut  public,  de  tout  bien  renferme  dans  I'Etat,  s'appelle  domaine 
c'minent.  II  est  evident  que  ce  droit  est  ne'cessaire,  en  certains  cas,  a  celui  qui  gou- 
verne,  &  par  conse'quent  qu'il  fait  partie  de  I'empire,  ou  dn  souverain  pouvoir,  &  doit 
etre  mis  au  nombre  des  droits  de  majeste.  (§  45.)  Lors  done  que  le  peuple  defere 
I'empire  a  quelqu'un,  il  lui  attribue  en  meme-tems  le  domaine  e'minent,  a  moins  qu'il 
ne  le  reserve  expresse'ment.  Tout  prince  ve'ritablement  souverain  est  revetu  de  ce 
droit,  quand  la  nation  ne  I'a  point  excepte,  de  quelque  maniere  que  son  autorite'  soit 
limite'e  a  d'autres  egards.  Si  le  souverain  dispose  des  biens  publics,  en  vertu  de  son 
domaine  e'minent,  I'alienation  est  valide,  comme  ayant  ete'  faite  avee  un  pouvoir  suffi- 
sant,  Lorsqu'il  dispose  de  meme,  dans  un  besoin,  des  biens  d'une  communaute,  ou  d'un 
particulier,  I'alie'nation  sera  valide,  par  la  meme  raison.  Mais  la  justice  demande  que 
cette  communaute  ou  ce  particulier  soit  dedommage  des  deniers  publics:  &  si  letresor 
n'est  pas  en  etat  de  le  faire,  tons  les  citoyens  sont  obliges  d'y  contrilnier ;  car  les  charges 
de  I'Etat  doivent  etre  supportees  avec  e'galitc',  ou  dans  une  juste  proportion.  II  en  est 
de  cela  comme  du  jet  des  marchandises,  qui  se  fait  pour  sauver  le  vaisseau. 

In  copying  the  foregoing  passage  from  an  Amsterdam  edition  of  Vattel,  of  1775, 
I  observe  an  interesting  confirmation  of  Chief  Justice  Marshall's  remark  on  page  945, 
s'lpnt.  It  is  entered  as  a  gift  to  the  library  of  Harvard  College  from  Benjamiu 
Franklin  — Ed. 


952  THE    RIGHT   OF   EMINENT   DOMAIN.  [CHAP.  VI. 

From  1  Blacl-sfone's  Com/nentanes  {Chittij's  ed.,  1829)  139  [1st  ed.  (1765)  135]  So 
great  moreover  is  the  regard  of  the  law  for  private  property,  that  it  will  not  authorize 
the  least  violation  of  it ;  no,  not  even  for  the  general  good  of  the  wliole  community.  If 
a  new  road,  for  instance,  were  to  be  made  througli  the  grounds  of  a  private  person,  it 
might  perhaps  be  extensively  beneficial  to  the  public ;  but  the  law  permits  no  man,  or 
set  of  men,  to  do  this  without  consent  of  the  owner  of  the  land.  In  vain  may  it  be  urged, 
that  the  good  of  the  individual  ought  to  yield  to  that  of  the  community ;  for  it  would 
be  dangerous  to  allow  any  private  man,  or  even  any  public  tribunal,  to  be  the  judge  of 
this  common  good,  and  to  decide  whether  it  be  expedient  or  no.  Besides,  the  public 
good  is  in  nothing  more  essentially  interested,  than  in  the  protection  of  every  individual's 
private  rights,  as  modelled  by  the  municipal  law.  In  this  and  similar  cases  the  legisla- 
ture alone  can,  and  indeed  frequently  does,  interpo,se,  and  compel  the  individual  to  acqui- 
esce. But  how  does  it  interpose  and  compel  ?  Not  by  absolutely  stripping  the  subject 
of  his  property  in  an  arbitrary  manner ;  but  by  giving  him  a  full  indemnification 
and  equivalent  for  the  injury  thereby  sustained.  The  public  is  now  considered  as  an 
individual,  treating  with  an  individual  for  an  exchange.  ^1]  that  the  legislature 
does,  is  to  oblige  the  owner  to  alienate  his  possessions  for  a  reasonable  price  ;  and  even 
this  is  an  exertion  of  power,  which  the  legislature  indulges  with  caution,  and  which 
nothing  but  the  legislature  can  perform.  [Note  by  Joseph  Chitty.]  (18)  These  obser- 
vations must  be  taken  with  considerable  qualification,  for,  as  observed  by  Buller,  J., 
there  are  many  cases  in  which  individuals  sustain  an  injury,  for  which  the  law  gives 
no  action  for  instance,  pulling  down  houses  or  raising  bulwarks  for  the  preservation 
and  defence  of  the  kingdom  against  the  king's  enemies.  The  civil  law  writers  indeed 
say  that  the  individuals  who  suffer  have  a  right  to  resort  to  the  public  for  a  satisfac- 
tion, but  no  one  ever  thought  that  the  common  law  gave  an  action  against  the  individ- 
ual who  pulled  down  the  house,  &c.  And  where  the  acts  of  commissioners  appointed 
by  a  paving  Act  occasion  a  damage  to  an  individual,  without  any  excess  of  jurisdiction 
ou  their  p<art,  the  commissioners,  or  paviors  acting  under  them,  are  not  liable  to  an 
action.  4  Term  Rep.  794,  6,  7  ;  3  Wils.  461  ;  6  Taunton,  29.  In  general,  however,  a 
power  of  this  nature  must  be  created  by  statute,  and  which  usually  provides  compensa- 
tion to  the  individual.  Thus  by  the  Highway  Act  (13  Geo.  III.  c.  78  ;  and  3  Geo.  IV. 
c.  126,  sec.  84,  85),  two  justices  may  either  widen  or  divert  any  highway  through  or 
over  anv  person's  soil,  even  without  his  consent,  so  that  the  new  way  shall  not  be  more 
than  thirty  feet  wide,  and  that  they  pull  down  no  building,  nor  take  away  the  ground 
of  anv  garden,  park,  or  yard.  But  the  surveyor  shall  offer  the  owner  of  the  soil,  over 
which  the  new  way  is  carried,  a  reasonable  compensation,  which  if  he  refuses  to 
accept,  the  justices  shall  certify  their  proceedings  to  some  general  quarter  sessions ; 
and  the  surveyor  shall  give  fourteen  days'  notice  to  the  owner  of  the  soil  of  an  inten- 
tion to  apply  to  the  sessions ;  and  the  justices  of  the  sessions  shall  impanel  a  jury,  who 
shall  assess  the  damages  which  the  owner  of  the  soil  has  sustained,  provided  that  they 
do  not  amount  to  more  than  forty  years'  purchase.  And  the  owner  of  the  soil  shall 
still  be  entitled  to  all  the  mines  within  the  soil,  which  can  be  got  without  breaking  the 
surface  of  the  highway.  Many  other  Acts  for  local  improvements,  recently  passed, 
contain  similar  compensation  clauses.* 

"The  power  to  take  private  property  for  public  use,"  said  Field,  J ,  for  the  court, 
in  U.  S.  V.  Jones,  109  U.  S.  513,  518  (1883),  "generally  termed  the  right  of  eminent 

1  It  is,  perhaps,  Black.stone's  figurative  phrase,  that  "  the  public  is  now  considered  as 
an  individual  treating  with  an  individual  for  an  exchange,"  that  has  led  some  judges 
and  writers  to  define  the  right  of  eminent  domain  as  a  right  of  compulsory  purchase. 
But  such  a  conception  must  be  taken  with  reserve.  This  power,  apart  from  any  clause 
of  restraint  in  our  written  constitutions,  must  be  regarded  as  a  universal  power  pos- 
sessed by  all  governments,  —  the  right  to  take  and  to  apply  to  the  public  use  that  wiiich 
the  public  welfare  requires.  The  obligation  to  give  just  compensation,  unquestionable 
and  universally  admitted,  is  a  moral  obligation,  not  enforceable  by  courts,  it  would 
seem,  as  against  clear  and  indubitable  action  of  the  legislature,  unless  the  Constitu- 
tion add  to  this  moral  obligation  a  legal  sanction.  —  Ed. 


CHAP.  VI.]  THE    RIGHT   OF    EMINENT   DOMAIN.  953 

domain,  belongs  to  every  independent  goveniment.  Itisan  incident  of  sovereignty,  and, 
as  said  in  Boom  v.  Patterson,  98  U.  S.  106,  requires  no  constitutional  recognition.  The 
provision  found  in  tiie  Fifth  Amendment  to  tiie  Federal  Constitution,  and  in  the  con 
stitutions  of  the  several  States,  for  just  compensation  for  tlie  property  taken,  is  merely 
a  limitation  upon  the  use  of  the  power.  It  is  no  part  of  tiie  power  itself,  hut  a  condi 
tion  upon  which  the  power  may  be  exercised.  It  is  undoubtedly  true  that  the  power  of 
appropriating  private  property  to  public  uses  vested  in  the  general  government — its 
right  of  eminent  domain,  wliicii  N'attel  defines  to  be  the  rigiit  of  disposing,  in  case  of 
necessity  and  for  tlie  public  safety,  of  all  the  wealth  of  the  country  —  cannot  be  trans- 
ferred to  a  State  any  more  tiiau  its  other  sovereign  attril)utes ;  and  tliat,  when  the  use 
to  which  the  property  taken  is  applied  is  i)ul)iic,  the  propriety  or  expediency  of  t'.;e 
appropriation  cannot  be  called  in  question  by  any  other  authority.  But  there  is  no 
reason  why  the  compensation  to  be  made  may  not  be  ascertained  by  any  appropriate 
tnbunal,  capable  of  estinuiting  tlie  value  of  tlie  property.  There  is  nothing  in  tiie 
nature  of  the  matter  to  be  determined  whicli  calls  for  tiie  establishment  of  any  special 
tribunal  by  the  appropriating  power. 

"  The  proceeding  for  the  ascertainment  of  the  value  of  the  property,  and  consequent 
compensation  to  be  made,  is  merely  an  inquisition  to  establish  a  particular  fact  as  a 
preliminary  to  the  actual  taking;  and  it  may  be  prosecuted  before  commissioners  or 
special  boards  or  tlie  courts,  witli  or  without  the  intervention  of  a  jury,  as  the  legisla- 
tive power  may  designate.  All  that  is  required  is  that  it  siiall  be  conducted  in  some 
fair  and  just  manner,  with  opportunity  to  tlie  owners  of  the  property  to  present  evi- 
dence as  to  its  value,  and  to  be  heard  thereon.  Whether  the  tribunal  shall  be  created 
directly  by  an  Act  of  Congress,  or  one  already  established  by  the  States  shall  be 
adopted  for  the  occasion,  is  a  mere  matter  of  legislative  discretion." 

The  nirjht  of  Eminent  Domain,  19  Monthly  Law  Reporter  (Boston),  241,  247.  The 
right  of  eminent  domain  is  that  attribute  of  sovereignty  by  which  the  State  may  take, 
appropriate,  or  divest  private  property  whenever  the  public  exigencies  demand  it ;  or, 
according  to  the  usual  definition,  it  is  the  right  of  taking  private  property  for  public 
purposes.  And  to  this  right  the  obligation  always  attaches  of  making  just  compensa- 
tion for  the  property  taken.  .  .  . 

By  our  definition,  it  is  the  right  of  taking,  appropriating,  or  divesting  property , 
and  so  is  distinguished,  on  the  one  hand,  from  a  right  of  property,  and  ou  the  other, 
from  a  mere  right  of  regulating  the  use  of  property.  It  can  only  be  exercised  when 
some  specific  subject-matter  of  property  is  required,  for  which  there  can  be  no  suffi- 
cient substitute;  and  herein  it  is  distinguished  from  the  right  of  taxation.  .  .  .  Again, 
the  riglit  is  distinguished  from  that  of  taxation,  in  that  the  property  taken  under  it  is 
takeif  without  any  reference  to  collecting  the  owner's  share  of  the  common  public 
expenses ,  and  also  in  this,  that  it  operates  upon  individual  parties,  while  the  right  of 
taxation  deals  with  the  whole  community,  or  with  a  special  class  of  persons  in  thecom- 
nmnity,  on  some  rule  of  apportionment ;  and  finally,  when  the  right  of  eminent  domain 
is  exercised,  compensation  must  be  made  to  the  private  party  with  whom  the  State  is 
dealing,  wherein  this  right  is  distinguished  from  the  right  of  taxation  and  from  all 
other  rights  of  sovereignty.  .  .  .  What  is  taken  under  this  right,  is  regarded  as  so 
much  above  or  aside  from  the  owner's  share  of  the  common  expenses ;  and  since  it  is 
manifestly  unjust  that  he  should  be  compelled  to  contribute  more  than  tlie  other  mem- 
bers of  the  community,  he  must  be  reimbursed  from  that  common  fund  to  which  all 
contribute,  himself  as  well  as  the  rest.   .  .  . 

But  while  this  obligation  is  thus  well  established  and  clear,  let  it  be  particularly 
noticed  upon  what  ground  it  stands,  viz.,  upon  the  natural  rights  of  the  individual.  On 
the  other  hand,  the  right  of  the  State  to  take  springs  from  a  different  source,  viz., 
a  necessity  of  government.  These  two,  therefore,  have  not  the  same  origin  ;  they  dc 
not  come,  for  instance,  from  any  implied  contract  between  the  State  and  the  individ- 
ual, that  the  former  shall  have  the  property,  if  it  will  make  compensation  •  the  right 
is  no  mere  right  of  pre-emption,  and  it  has  no  condition  of  compensation  annexed  to  it, 
either  jirecedent  or  subsequent.     But  there  is  a  right  to  take,  and  attached  to  it  as  an 


954  THE    RIGHT   OF   EMINENT    DOMAIN.  [CHAP.  VI. 

iucident,  an  obligation  to  make  compensation  ;  this  latter,  morally  speaking,  follows 
the  other,  indeed,  like  a  shadow,  but  it  is  yet  distinct  from  it,  and  flows  from  another 
source. 

See,  then,  the  consequences.  If  the  State  appropriate  private  property  to  satisfy  a 
public  exigency,  and  fail  to  make  or  provide  for  compensation,  has  it  therefore  exer- 
cised its  power  wrongfully  ?  It  would  seem  not  for  if  a  public  exigency  exist,  re- 
quiring the  propert}',  and  it  be  appropriated  accordingly,  tliat,  as  we  have  seen,  is 
legitimate  ;  so  far  all  is  right,  and  the  citizen  cannot  complain  ;  and  if  the  sovereign 
do  not  make  recompense,  then  he  fails  indeed  in  his  duty  to  the  individual;  but  for  all 
that,  he  does  no  more  than  his  duty  to  the  community  in  taking  the  property,  and 
therefore  tlie  individual  cannot  demand  his  property  back,  altiiougii  the  State  should 
never  pay  him.  He  has  an  eternal  claim  indeed  against  the  State,  which  can  never  be 
blotted  out  except  only  by  satisfaction;  but  this  claim  is  for  compensation,  and  not  for 
his  former  property. 

Therefore,  in  the  absence  of  constitutional  provisions  affecting  the  question,  it 
would  follow  that  a  loss  of  property  from  an  exercise  of  the  right  of  eminent  domain, 
wliich  is  fair  in  all  respects  other  than  in  making  or  providing  for  compensation,  must 
be  regarded  by  the  courts  as  damnum  absque  injuria.^  Every  court  must  hold  the 
assumption  of  private  property  to  satisfy  a  public  exigency  to  be  just  and  proper, 
antl  an  exercise  of  clear  legislative  power.  And  herein  such  a  case  would  differ 
from  one  where  tiie  legislature  siiould  seek  to  transfer  property  from  one  individual 
to  another,  with  no  pretence  of  public  necessity  ;  such  an  act  would  not  be  the  ex- 
ercise of  due  legislative  power,  but  would  involve  an  arbitrary  assumption  of  power, 
and  might  be  reached,  as  such,  by  the  courts.  ...  If  there  be  a  public  exigencj',  or 
if  there  be  room  to  say  that  any  public  advantage  is  to  be  gained  by  the  appropria- 
tion of  private  property,  or  its  transfer  from  one  individual  to  another,  then  it  would 
seem  that  the  discretion  of  the  legislature  could  not  be  controlled  (in  the  absence  of 
constitutional  provision)  by  any  power  short  of  the  supreme  power  of  the  sovereign. 
For  the  judiciary  ma}'  not  substitute  their  discretion  for  that  of  the  legislature,  nor 
exercise  it  at  all  in  a  matter  intrusted  to  the  sole  discretion  of  another  department. 

Ibid.  241,  323.  If  the  ground  taken  at  the  outset  of  our  investigation  be  the 
true  one,  viz. :  that  the  right  of  eminent  domain  is  an  inherent  right  of  sovereignty, 
and  therefore  the  same  in  all  States,  and  one  to  be  interpreted  upon  principles  applicable 
the  whole  world  over,  —  then,  of  course,  in  all  our  American  States,  this  right,  so  far 
as  it  remains  unaffected  by  constitutional  provisions,  stands  upon  the  general  principles 
which  govern  the  sovereignty  in  all  other  countries,  and  which  it  has  been  sought  to 
set  forth  and  maintain  in  tiie  course  of  this  essay. 

All  the  American  constitutions,  however,  may  be  said  to  have  provisions  that  affect 
this  right  in  some  degree ;  since  all  provide  that  the  sovereign  power  of  legislation, 
which  includes  this  right,  shall  be  vested  in  the  legislature  ;  and  so  in  a  body  con- 
stantly changing,  and  bound  by  a  perpetual  obligation  to  transmit  the  sovereignty  to 
its  successors  intact  Thus  all  the  American  constitutions,  in  declaring  that  the  right 
of  eminent  domain  shall  be  vested  in  the  legislature,  provide,  by  necessary  implication, 
that  the  legislature  shall  not  impair  or  part  with  it. 

A  number  of  the  State  constitutions  have  no  other  provision  than  this,  that  can 
properly  be  held  to  apply  to  our  subject. 

A  majority  of  them,  however,  and  the  Federal  Constitution  besides,  contain  a  clause 
(substantially  the  same  in  all)  that  "private  property  shall  not  be  taken  for  public 
purposes  without  just  compensation."  .  .  . 

Some  States  have  other  provisions  explaining  or  limiting  the  right  of  eminent  do- 
main, as  it  exists  in  the  hands  of  their  legislatures,  which  we  will  now  very  briefly 
indicate.  Most  of  these,  it  will  be  noticed,  serve  only  to  enunciate,  and  put  under  the 
protection  of  the  judiciary,  some  one  or  more  of  those  principles  already  laid  down 
and  enforced  in  our  pages. 

1  But  compare  Randolph,  Eminent  Domain,  s  227.  —  Ed. 


CHAP.  VI.]  THE   RIGHT   OF   EMINENT    DOMAIN.  955 

The  Constitution  of  Vermont  provides  that  the  owner  of  property  taken,  "  ought 
to  receive  an  equivalent  in  money."  That  of  Ohio  has  a  similar  provision,  requiring 
either  ni(»ney  or  a  deposit  of  money. 

That  of  New  York  requires  that  when  property  is  taken,  the  damages  must  be 
assessed  by  a  jury,  or  by  not  less  than  three  commissioners  appointed  by  a  court  of 
record.  It  also  authorizes  the  taking  of  lands  for  private  roads, — the  necessity 
of  the  road  to  be  ascertained  and  the  damages  to  be  assessed,  by  a  jury,  and  that 
amount,  together  with  the  expenses  of  the  proceeding,  to  be  paid  by  the  person  to 
be  benefited. 

The  Constitution  of  New  Jersey  has  the  usual  provision,  to  which  it  is  added  that 
"  land  may  be  taken  as  heretofore  for  public  highways,  until  the  legislature  shall 
direct  compensation  to  be  made." 

The  Constitution  of  Pennsylvania  forbids  tlie  legislature  to  authorize  any  corporate 
body  or  individual  to  take  private  property  for  public  use  without  requiring  compen- 
sation to  be  made,  or  adequate  security  to  be  given,  before  the  taking.   .  .  . 

The  constitutions  of  Mississippi  and  Kentucky  require  compensation  to  be  made 
before  the  property  is  taken.  That  of  Ohio  has  a  similar  provision,  excepting  only 
cases  of  necessity,  demanding  immediate  seizure. 

The  Constitution  of  Ohio  also  provides  that  benefits  shall  not  be  deducted  in  ascer- 
taining compensation. 

Those  of  Georgia  and  Texas  forbid  the  legislature  to  pass  laws  emancipating  slaves, 
without  the  consent  of  each  of  the  owners  previously. 

The  constitutions  of  Alabama  and  Kentucky  forbid  the  legislature  to  emancipate 
slaves  without  their  owners'  consent,  or  paying  to  the  owners,  previously  to  such  eman- 
cipation, a  full  equivalent  in  money  for  the  slaves  so  emancipated 

We  have  now  referred  to  all  the  provisions  relating  to  our  .subject,  ^hat  occur  in 
the  United  States  constitutions.  The  clauses  in  them  relating  to  frial  by  jpry  seem  to 
be  generally,  if  not  universally,  held  inapplicable  to  proceedings  under  tlif  right  of 
eminent  domain.  And  the  same  is  true  of  that  provision  engrafted  into  a  number  of 
the  State  constitutions  from  MagnajCharta,  that  "  no  freeman  shall  be  deprived  of  his 
property,  but  by  the  judgment  of  his  peers  or  by  the  law  of  the  land."  ^ 

^  The  foregoing  statement  was  made  in  1856.  Now,  only  three  constitutions,  New 
Hampshire,  North  Carolina,  and  Virginia  are  without  a  clause  expressly  requiring 
compensation.  Sixteen,  beginning  with  Illinois,  in  1870,  require  compensation  even 
when  property  has  been  "  damaged  ; "  and  three  others  require  it  where  municipal 
and  other  corporations  exercise  the  right  in  question. 

For  the  existing  provisions  in  all  our  constitutions,  see  Randolph,  Em.  Dom,, 
401-416. —  Ed. 


956  KOHL   ET   AL.   V.    UNITED   STATES.  [CHAP.  VI. 


KOHL  ET  AL.  V.  UNITED   STATES. 
Supreme  Court  of  the  United  States.     1875. 

[91  U.  S.  367.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 

This  was  a  proceeding  instituted  bj*  the  United  States  to  appropriate 
a  parcel  of  land  in  the  city  of  Cincinnati  as  a  site  for  a  post-office  and 
other  public  uses. 

The  plaintiffs  in  error  owned  a  perpetual  leasehold  estate  in  a  portion 
of  the  propert}'  sought  to  be  appropriated.  Thej-  moved  to  dismiss  the 
proceeding  on  the  ground  of  want  of  jurisdiction  ;  which  motion  was 
overruled.  The}'  then  demanded  a  separate  trial  of  the  value  of  their 
estate  in  the  property ;  vehich  demand  the  court  also  overruled.  To 
these  rulings  of  the  court  the  plaintiffs  in  error  here  excepted.  Judg- 
ment was  rendered  in  favor  of  the  United  States.  .  .  .  [Here  follows  a 
citation  of  the  statutes  relating  to  the  matter,  which  is  placed  in  a 
note.^] 

i  There  are  three  Acts  of  Congress  which  have  reference  to  the  acquisition  of  a  site 
for  a  post-office  in  Cincinnati.  The  first,  approved  March  2,  1872,  17  Stat.  39,  is  as 
follows :  — 

"  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled,  That  the  Secretary  of  the  Treasury  be,  and  he  is  hereby, 
authorized  and  directed  to  purchase  a  central  and  suitable  site  in  the  city  of  Cincinnati, 
Ohio,  for  the  erection  of  a  building  for  the  accommodation  of  the  United  States  courts, 

"custom-house,  United  States  depository,  post-office,  internal-revenue  and  pension 
offices,  at  a  cost  not  exceeding  three  hundred  thousand  dollars;  provided  that  no 
monev  which  may  hereafter  be  appropriated  for  this  purpose  shall  be  used  or  expended 
in  the  purchase  of  said  site  until  a  valid  title  thereto  shall  be  vested  in  the  United 
States,  and  until  the  State  of  Ohio  shall  cede  its  jurisdiction  over  the  same,  and  shall 
duly  release  and  relinquish  to  the  United  States  the  right  to  tax  or  in  any  way  assess 
said  site  and  the  property  of  the  United  States  that  may  be  thereon  during  the  time 
that  the  United  States  shall  be  or  remain  the  owner  thereof." 

In  the  Appropriation  Act  of  June  10,  1872,  17  Stat.  352,  a  further  provision  was 
made  as  follows  :  — 

"  To  commence  the  erection  of  a  building  at  Cincinnati,  Ohio,  for  the  accommodation 
of  the  United  States  courts,  custom-house,  United  States  depository,  post-office, 
internal-revenue  and  pension  offices,  and  for  the  purchase,  at  private  sale  or  by  con- 
demnation, of  ground  for  a  site  therefor,  —  the  entire  cost  of  completion  of  which 
building  is  hereby  limited  to  two  million  two  hundred  and  fifty  thousand  dollars 
(inclusive  of  the  cost  of  the  site  of  the  same),  —  .seven  hundred  thousand  dollars  ;  and 

■  the  Act  of  March  12,  1872,  authorizing  the  purchase  of  a  site  therefor,  is  hereby  so 
amended  as  to  limit  the  cost  of  the  site  to  a  sum  not  exceeding  five  hundred  thousand 
dollars." 

And  in  the  subsequent  Appropriation  Act  of  March  3,  1873,  17  Stat.  .523,  a  further 
provision  was  inserted  as  follows:  — 

"  For  purchase  of  site  for  the  building  for  custom-house  and  poat-office  at  Cincin- 
nati, Ohio,  seven  hundred  and  fifty  thousand  dollars." 


CHAP.  VI.]  KOHL    ET    AL.    V.    UNITED   STATES.  957 

Mr.  E.  W.  Kittredge.,  for  plaintiffs  in  error. 

Mr.  Assistant  Attorney- General  Edwin  B.  Smith,  contra. 

Mr.  Justice  Strong  delivered  the  opinion  of  tlic  court. 

It  has  lyt  been  seriously  contended  during  the  argument  that  the 
United  States  government  is  w^ithout  power  to  appropriate  lands  or 
other  property  within  the  States  for  its  own  uses,  and  to  enable  it  to 
perform  its  proper  functions.  Such  an  autliority  is  essential  to  its 
independent  existence  and  perpetuity.  These  cannot  be  preserved  if 
tlie  obstinacy  of  a  private  person,  or  if  any  other  authority,  can  prevent 
the  acquisition  of  the  means  or  instruments  by  which  alone  govern- 
mental functions  can  be  performed.  Tlie  powers  vested  by  the  Consti- 
tution in  the  general  government  demand  for  their  exercise  the  acquisi- 
tion of  lands  in  all  the  States.  These  are  needed  for  forts,  armories, 
and  arsenals,  for  navy-yards  and  light-houses,  for  custom-houses,  post- 
offices,  and  court-houses,  and  for  other  public  uses.  If  the  right  to 
acquire  property  for  such  uses  may  be  made  a  barren  right  by  the 
unwillingness  of  property-holders  to  sell,  or  by  the  action  of  a  State 
prohibiting  a  sale  to  the  Federal  government,  tlie  constitutional  grants 
of  power  may  be  rendered  nugatory,  and  the  government  is  dependent 
for  its  practical  existence  upon  the  will  of  a  State,  or  even  upon  that  of 
a  private  citizen.  This  cannot  be.  No  one  doubts  the  existence  in  the 
State  governments  of  the  right  of  eminent  domain,  —  a  right  distinct  from 
and  paramount  to  the  right  of  ultimate  ownership.  It  grows  out  of  the 
necessities  of  their  being,  not  out  of  the  tenure  by  which  lands  are  held. 
It  may  be  exercised,  though  the  lands  are  not  held  by  grant  from  the 
government,  either  mediately  or  immediately,  and  independent  of  the 
consideration  whether  they  would  escheat  to  the  government  in  case  of 
a  failure  of  heirs.  The  right  is  the  offspring  of  political  necessity  ;  and 
it  is  inseparable  from  sovereignty,  unless  denied  to  it  by  its  funda- 
mental law.  Vattel,  c.  20,  34  ;  Bynk.,  lib.  2,  c.  15  ;  Kent's  Com. 
338-340  ;  Coole}'  on  Const.  Lim.  584  et  seq.  But  it  is  no  more  neces- 
sary for  the  exercise  of  the  powers  of  a  State  government  than  it  is  for 
the  exercise  of  the  conceded  powers  of  the  Federal  government.  That 
government  is  as  sovereign  within  its  sphere  as  the  States  are  within 
theirs.  True,  its  sphere  is  limited.  Certain  subjects  only  are  com- 
mitted to  it ;  but  its  power  over  those  subjects  is  as  full  and  complete 
as  is  the  power  of  the  States  over  the  subjects  to  which  their  sovereignty 
extends.     The  power  is  not  changed  by  its  transfer  to  another  holder. 

But,  if  the  right  of  eminent  domain  exists  in  the  Federal  government, 
it  is  a  right  which  may  be  exercised  within  the  States,  so  far  as  is 
necessary  to  the  enjoyment  of  the  powers  conferred  upon  it  by  the  Con- 
stitution. In  Ableman  v.  Booth,  21  How.  523,  Chief  Justice  Taney 
described  in  plain  language  the  complex  nature  of  our  government,  and 
the  existence  of  two  distinct  and  separate  sovereignties  within  the  same 
territorial  space,  each  of  them  restricted  in  its  powers,  and  each,  within 
its  sphere  of  action  prescribed  by  the  Constitution  of  the  United  States, 
independent  of  the  other.     Neither  is  under  the  necessity  of  applying  to 


958  KOHL    ET    AL.    V.    UNITKD    STATES.  [CHAP.  VI. 

tlie  other  for  permission  to  exercise  its  lawful  powers.  Within  its  own 
sphere,  it  may  employ  all  the  agencies  for  exerting  them  which  are 
appropriate  or  necessar}',  and  which  are  ,not  forbidden  by  the  law  of  its 
beiiiii./  When  the  power  to  establish  post-oftices  and  to  create  courts 
within  the  States  was  conferred  upon  the  Federal  government,  included 
in  it  was  authority  to  obtain  sites  for  such  offices  and  for  court-houses, 
and  to  obtain  them  by  such  means  as  were  known  and  appropriate. 
The  right  of  eminent  domain  was  one  of  those  means  well  known  when 
the  Constitution  was  adopted,  and  employed  to  obtain  lands  for  public 
uses.  Its  existence,  therefore,  in  the  grantee  of  that  power,  ought 
not  to  be  questioned.  The  Constitution  itself  contains  an  implied 
recognition  of  it  be3-oud  what  may  justly  be  implied  from  the  express 
grants.  The  fifth  amendment  contains  a  provision  that  private  property 
shall  not  be  taken  for  public  use  without  just  compensation.  What  is 
that  but  an  implied  assertion,  that,  on  making  just  compensation,  it  may 
be  taken?  .  ./.  [Here  follows  a  passage  from  Coole}-,  Const.  Limitations.] 

We  refer  also  to  Ticombley  v.  Humphreij^  23  Mich.  471  ;  10  Pet. 
723;  Dickey  v.  Turnpike  Co.,  7  Dana,  113;  McCulloiigh  \.  3Iary- 
laud,  4  Wheat.  429. 

It  is  true,  this  power  of  the  Federal  government  has  not  heretofore 
been  exercised  adversel}' ;  but  the  non-user  of  a  power  does  not  dis- 
prove its  existence.  In  some  instances,  the  States,  by  virtue  of  their 
own  right  of  eminent  domain,  have  condemned  lands  for  the  use  of  the 
general  government,  and  such  condemnations  have  been  sustained  by 
their  courts,  without,  however,  denying  the  right  of  the  United  States 
to  act  independently  of  the  States.  Such  was  tlie  ruling  in  Gilmer  v. 
Lime  Pointy  18  Cal.  229,  where  lands  were  condemned  by  a  proceeding 
in  a  State  court  and  under  a  State  law  for  a  United  States  fortification. 
A  similar  decision  was  made  in  Burt  v.  The  Merchants  Ins.  Co..,  106 
Mass.  350,  where  land  was  taken  under  a  State  law  as  a  site  for  a  post- 
office  and  sub-treasury  building.  Neither  of  these  cases  denies  the 
right  of  the  Federal  government  to  have  lands  in  the  States  condemned 
for  its  uses  under  its  own  power  and  by  its  own  action.  The  question 
was,  whether  the  State  could  take  lands  for  any  other  public  use  than 
that  of  the  State.  In  Ticotnbley  v.  Humjyhrey,  23  Mich.  471,  a 
different  doctrine  was  asserted,  founded,  we  think,  upon  better  reason. 
/The  proper  view  of  the  right  of  eminent  domain  seems  to  be,  that  it  is 
a  right  belonging  to  a  sovereignty  to  take  private  property  for  its  own 
public  uses,  and  not  for  those  of  another.  Beyond  that,  there  exists  no 
necessity;  which  alone  is  the  foundation  of  the  right.  If  the  United 
States  have  the  power,  it  must  be  complete  in  itself.  It  can  neither  be 
enlarged  nor  diminished  by  a  State.  Nor  can  any  State  prescribe  the 
manner  in  which  it  must  be  exercised.  The  consent  of  a  State  can 
never  be  a  condition  precedent  to  its  enjoyment.  Such  consent  is 
needed  only,  if  at  all,  for  the  transfer  of  jurisdiction  and  of  the  right  of 
exclusive  legislation  after  the  land  shall  have  been  acquired. 

It  may,  therefore,  fairly  be  concluded  that  the  proceeding  m  the  case 


CHAP.  VI.]  KOHL    ET    AL.    V.    UNITED   STATES.  959 

we  have  in  hand  was  a  proceeding  by  the  United  States  government  in 
its  own  right,  and  bv  virtue  of  its  own  eminent  domain.  The  Act  of 
Congress  of  March  2,  1872,  17  iStat.  39,  gave  authority  to  the  Secretary 
of  the  Treasury  to  purcliase  a  central  and  suitable  site  in  tiie  city  of 
Cincinnati,  Ohio,  for  the  erection  of  a  building  for  the  accommodation 
of  the  United  States  courts,  custom-house.  United  States  depository, 
l)ost-office,  internal-revenue  and  pension  offices,  at  a  cost  not  exceeding 
$300,000  ;  and  a  pioviso  to  the  Act  declared  that  no  money  should  be 
expended  in  the  purchase  until  the  State  of  Ohio  should  cede  its  juris- 
diction over  the  site,  and  relinquish  to  the  United  States  the  right  to 
taxTthe  ploperty.  The  authority  here  given  was  to  purchase.  If  that 
wiTe  all,  it  might  be  doubted  whether  the  right  of  eminent  domain  was 
intended  to  be  invoked.  It  is  true,  the  words  "to  purchase"  might  be 
construed  as  including  the  power  to  acquire  by  condenniation  ;  for, 
technically,  purchase  includes  all  modes  of  acquisition  other  than  that 
of  descent.  But  generally,  in  statutes  as  in  common  use,  the  word  is 
employed  in  a  sense  not  technical,  only  as  meaning  acquisition  by  con- 
tract between  the  parties,  without  governmental  interference.  That 
Congress  intended  more  than  this  is  evident,  however,  in  view  oT^tTie 
subsequent  and  amendatory  Act  passed  June  10,  1872,  which  made 
an  appropriation  •'  for  the  purchase  at  private  sale  or  by  condemnation 
of  the  ground  for  a  site  "  for  the  building.  These  provisions,  connected 
as  tliiB}-  are,  manifest  a  clear  intention  to  confer  upon  the  Secretar}'  of 
the  Treasurv  power  to  acquire  the  grounds  needed  by  the  exercise  of 
the  national  right  of  eminent  domain,  or  by  private  purchase,  at  his 
discretion.  Why  speak  of  condemnation  at  all,  if  Congress  had  not  in 
view  an  exercise  of  the  right  of  eminent  domain,  and  did  not  intend  to 
confer  upon  the  secretary  the  right  to  invoke  it? 

But  it  is  contended  upon  behalf  of  the  plaintiffs  in  error  that  the 
Circuit  Court  had  no  jurisdiction  of  the  proceeding.  There  is  nothing 
in  the  Acts  of  1872,  it  is  true,  that  directs  the  process  by  which  the  con- 
templated condemnation  should  be  effected,  or  which  expressly  author- 
izes a  proceeding  in  the  Circuit  Court  to  secure  it.  Doubtless  Congress 
might  have  provided  a  mode  of  taking  the  land,  and  determining  the 
compensation  to  be  made,  which  would  have  been  exclusive  of  all  other 
modes.  They  might  have  prescribed  in  what  tribunal  or  by  what 
agents  the  taking  and  the  ascertainment  of  the  just  compensation  should 
be  accomplished.  The  mode  might  have  been  by  a  commission,  or  it 
might  have  been  referred  expressly  to  the  Circuit  Court ;  but  this,  we 
tiiink,  was  not  necessary.  The  investment  of  the  Secretary  of  the 
Treasury-  with  power  to  obtain  the  land  by  condemnation,  without  pre- 
scribing the  mode  of  exercising  the  power,  gave  him  also  the  power  to 
obtain  it  by  any  means  that  were  competent  to  adjudge  a  condemnation. 
The  Judiciary  Act  of  1789  conferred  upon  the  circuit  courts  of  the 
United  States  jurisdiction  of  all  suits  at  common  law  or  in  equity,  when 
the  United  States,  or  any  officer  thereof,  suing  under  the  authoi-ity  of 
any  Act  of  Congress,  are  plaintiffs.   If,  then,  a  proceeding  to  take  land 


960  KOHL    ET   AL.    V.    UNITED    STATES.  [CHAP.  YI. 

for  public  uses  b\'  condemnation  may  be  a  suit  at  common  law,  juris- 
diction of  it  is  vested  in  llie  Circuit  Court.  That  it  is  a  "  suit"  admits  of 
no  question.  In  JVesto/i  v.  Charleston,  2  Pet.  464,  Chief  Justice  Mar- 
shall, speaking  for  this  court,  said,  "  The  terra  [suit]  is  certainly  a  very 
compreliensive  one,  and  is  understood  to  iipply  to  any  proceeding  in  a 
court  of  justice  by  which  an  individual  pursues  that  remed}-  which  the 
law  affords.  The  modes  of  proceeding  may  be  various  ;  but,  if  a  right 
is  litigated  in  a  court  of  justice,  the  proceeding  by  which  the  decision 
of  the  court  is  sought  is  a  suit."  A  writ  of  prohibition  has,  therefore, 
been  held  to  be  a  suit ;  so  has  a  writ  of  right,  of  which  the  Circuit 
Court  has  jurisdiction  {Green  v.  Liter ^  8  Cranch,  229)  ;  so  has  Jicibeas 
corpus.  Holmes  v.  Jamison,  14  Pet.  564.  When,  in  the  eleventh 
section  of  the  Judiciary  Act  of  1789,  jurisdiction  of  suits  of  a  civil 
nature  at  common  law  or  in  equity  was  given  to  the  circuit  courts,  it  \\Laa_ 
intended  to  embrace  not  merely  suits  which  the  common  law  recognized 
as  among  its  old  and  settled  proceedings,  but  suits  in  which  legal  rights 
were  to  be  ascertained  and  determined  as  distinguished  from  rights  in 
equity,  as  well  as  suits  in  admiralty.  The  right  of  eminent  domain 
always  was  a  right  at  common  law.  It  was  not  a  right  in  equity,  nor 
was  it  even  the  creature  of  a  statute.  The  time  of  its  exercise  may 
have  been  prescribed  by  statute  ;  but  the  riglit  itself  was  superior  to 
any  statute.  That  it  was  not  enforced  through  the  agency  of  a  jury  is 
immaterial ;  for  many  civil  as  well  as  criminal  proceedings  at  common 
law  were  without  a  jury.  It  is  difficult,  then,  to  see  why  a  proceeding 
to  take  land  in  virtue  of  the  government's  eminent  domain,  and  de- 
termining the  compensation  to  be  made  for  it,  is  not,  within  the  meaning 
of  the  statute,  a  suit  at  common  law,  when  initiated  in  a  court.  It  is 
an  attempt  to  enforce  a  legal  right.  It  is  quite  immaterial  that  Con- 
gress has  not  enacted  that  the  compensation  shall  be  ascertained  in 
a  judicial  proceeding.  That  ascertainment  is  in  its  nature  at  least 
quasi  indicial.  Certainl}'  no  other  mode  than  a  judicial  trial  has  been 
provided. 

It  IS  argued  that  the  assessment  of  property  for  the  purpose  of  taking 
it  is  in  its  nature  like  the  assessment  of  its  value  for  the  purpose  of  tax- 
ation. It  is  said  tliey  are  both  valuations  of  the  property  to  be  made 
as  the  legislature  may  prescribe,  to  enable  the  government,  in  the  one 
case,  to  take  the  whole  of  it,  and  in  the  other  to  take  a  part  of  it  for 
public  uses  ;  and  it  is  argued  that  no  one  but  Congress  could  prescribe 
in  either  case  that  the  valuation  should  be  made  in  a  judicial  tribunal  or 
in  a  judicial  proceeding,  although  it  is  admitted  that  the  legislature 
might  authorize  the  valuation  to  be  thus  made  in  either  case.  If  tlie 
supposed  analogy  be  admitted,  it  proves  nothing.  Assessments  for 
taxation  are  specially  provided  for,  and  a  mode  is  prescribed.  No 
other  is,  therefore,  admissible.  But  there  is  no  special  provision  for 
ascertaining  the  just  compensation  to  be  made  for  land  taken.  That  is 
left  to  the  ordinary  processes  of  the  law  ;  and  hence,  as  the  government 
IS  a  suitor  for  the  property  under  a  claim  of  legal  right  to  take  it,  there 


CHAP.  VI.]  KOHL   ET   AL,    V,    UNITED   STATES.  961 

appears  to  be  no  reason  for  holding  that  the  proper  Circuit  Court  has 
not  jurisdiction  of  the  suit,  under  the  general  grant  of  jurisdiction  made 
by  the  Act  of  1  789. 

The  judgment  of  the  Circuit  Court  is  affirmed.^ 
[Field,  J.,  dissented  on  certain  incidental  points.] 

In  Van  Brockliii  x.  Tennessee,  117  U.  S.  151  (18SG),  Gray,  J.,  for  ^ 
the  court,  in_deciding  that  lands,  in  a  State,  belonging  to  the  United 
States,  whicli_had  been  bid  in  hy  the  United  States  at  auction,  in 
default  of  payment  of  direct  taxes  by  the  former  owner,  cxjuJijiot  be 
taxed  hy  the  State,  commented  upon  a  decision  of  McLean,  J.,  in  U.  S. 
V.  a.  H.  Bridge  Co.,  6  McLean,  517,  and  said:  "The  question  in 
issue  in  that  case  was  not  of  the  State's  right  of  taxation,  but  of  its 
right  of  eminent  domain  for  the  construction  of  roads  and  bridges.  The 
decision  of  the  learned  justice  in  favor  of  the  validity  of  the  exercise  of 
that  right  by  a  State  over  lands  of  the  United  States,  without  the  con- 
sent of  the  United  States,  manifested  either  by  an  express  Act  of  Con- 
gress or  by  the  assent  of  a  department  or  officer  vested  by  law  with  the 
power  of  disposing  of  lands  of  the  United  States,  appears^rfo  have  been 
based  upon  the  theory-  that  the  United  States  can  hold  land  as  a  private 
proprietor,  for  other  than  public  objects,  and  upon  a  presumption  of  the 
acquiescence  of  Congress  in  the  State's  exercise  of  the  power  as 
tending  to  increase  the  value  of  the  lands  ;  and  it  finds  some  support 
in  dicta  of  Mr.  Justice  Woodbury,  in  a  case  in  which,  however,  the 
exercise  of  the  power  by  the  State  was  adjudged  to  be  unlawful. 
United  States  v.  Chicago,  7  How.  185, 194,  195.  But  jt_can  hai'diy  be 
reconciled  with  the  views  expressed  b}'  Congress,  m  Acts  concerning 
particular  railroads,  too  numerous  to  be  cited,  as  well  as  in  general 
legislation.  Acts  of  August  4,  1852,  ch.  80,  March  3,  1855,  ch.  200,  10 
Stat.  28,  683;  July  26,  1866,  ch.  262,  §  8,  14  Stat.  253;  Rev.  Stat. 
§  2477.  When  that  question  shall  be  brought  into  judgment  here,  it  will 
require  and  will  receive  the  careful  consideration  of  the  court."  ^ 

1  Compare  Cherokee  Nation  v.  So.  Kans.  Rij.  135  U.  S.  641,  656,  Twomblei/v.  Hum- 
phrei/,2S  Mich.  471  (1871),  In  re  Sec  Trensnn/,  i5  Fed  Rep.  396  (U.  S.  C.  C.  S. 
D.  N.  Y.  1891),  U.  S.  V.  Engeman  et  al.  45  Fed.  Rep.  546  (U.  S.  Dist.  Ct.  E.  D.  N.  Y. 
1891  )  — Ed. 

2  See  Prop'rs  Mt.  Hope  Cem.  v.  Boston  et  al.,  158  Mass.  509  (1893).  —  Ed. 

VOL.  I.  —  61  ' 


962  PEOPLE   V.    SMITH.  [CH.VP.  VL 


THE   PEOPLE,   EX  rel.   HERRICK   et  al.,  v.  SMITH. 
New  York  Court  of  Appeals.     1860. 

[21  N.  Y.  595.] 

Appeal  from  a  judgment  of  the  Supreme  Court.  The  relators  sued 
out  a  cet'tiorari,  for  the  purix)se  of  reviewing  an  order  of  the  county 
judge  of  Suffolk  County,  whereby  he  reversed  an  order  of  the  commis- 
sioners of  highwaj-s  of  the  town  of  Riverhead,  —  refusing  to  lay  out  a 
highway  in  that  town,  pursuant  to  a  i>etition  of  twelve  freeholders,  —  and 
proceeded  to  lay  out  such  highway.  The  relators  are  owners  and  occu- 
pants of  a  part  of  the  lands  through  which  the  highwa}",  so  laid  out, 
runs ;  which  lands  will  have  to  be  appropriated  for  its  track.  The 
single  ground  of  error  relied  on  was,  that  no  notice  was  served  on  the  re- 
lators of  the  proceedings,  on  the  appeal,  or  of  the  hearing  before  the 
county  judge.  The  Supreme  Court,  being  of  opinion  that  such  notice 
was  not  required  by  law,  affirmed  the  order  of  the  judge,  and  from  this 
judgment  of  affirmance  the  present  appeal  w^as  taken  by  the  relators. 
The  case  was  submitted  on  printed  arguments. 

Miller  &  Tuthill,  for  the  appellants. 

Willia7n  WickJiam,  for  the  respondent. 

Denio,  J.  The  subject  of  highways  and  bridges  on  Long  Island  is 
regulated  by  a  statute  passed  in  1830,  entitled  "  An  Act  regulating 
Highways  and  Bridges  in  the  Counties  of  Suffolk,  Queen's  and  King's." 
(ch.  56.)  The  system,  in  its  general  features,  is  similar  to  that  estab- 
lished b}'  the  Revised  Statutes  for  other  parts  of  the  State  ;  but  there 
are  some  discrepancies,  and  upon  them,  I  think,  the  question  in  the  / 
present  case  may  turn/  By  the  Long  Island  Act,  the  commissioners! 
have  power  to  lay  out  new  roads  without  the  consent  of  the  owners  of  I 
the  land  through  which  they  may  run,  upon  the  petition  of  twelve 
freeholders  of  the  town,  verified  by  oath  or  affirmation.  (§§  2,  47.) 
Nothing  is  said  respecting  their  giving  notice  to  any  one  of  the  hear- 
ing of  the  application  before  them.  Every  person  conceiving  himself 
aggrieved  by  a  determination  of  t'he  commissioners,  either  in  laying 
out,  or  refusing  to  lay  out,  a  highway,  may  appeal  to  three  judges 
of  the  Court  of  Common  Pleas.  (§  66.)  This  jurisdiction  is  now 
vested  in  the  county  judge  under  the  present  Constitution.  (Laws, 
1847,  p.  642,  §  27.)  Where  the  determination  appealed  from  is  against 
an  application  for  laying  out  a  road,  the  judge  is  to  give  notice  of  the 
time  and  place  of  heanng  the  appeal,  to  the  commissioners  b}-  whom 
such  determination  was  made  ;  and  where  the  commissioners'  deter- 
mination was  in  favor  of  the  application,  notice  is  not  only  to  be  given 
to  the  commissioners,  but  to  one  or  more  of  the  applicants  for  the  road. 
(Ji  69.)  The  proofs  and  allegations  of  the  parties  are  to  be  heard,  and 
whore  the  appeal  is  from  an  order  refusing  to  lay  out  a  road,  the  judge 


CHAP.  VI.]  PEOPLE   V.    SMITH.  963 

is  to  lay  it  out  in  the  same  manner  in  wliich  commissioners  are  directed 
to  proceed  in  like  cases.     (§§  71,  74.) 

It  will  thus  be  seen  that  tiie  only  notice  which  the  statute  requires  to 
be  given,  in  a  case  like  the  present,  is  of  the  time  and  place  of  hearing 
the  appeal,  and  that  such  notice  is  only  required  to  be  given  to  the 
commissioners  who  made  the  order  appealed  from.  If  the  commission- 
ers had  been  required  to  give  any  notice  of  the  hearing  before  them, 
then,  when  the  judge  came  to  lay  out  the  road,  in  consequence  of  his 
reversal  of  the  order  of  the  commissioners,  he  ought  to  give  the  same 
notice,  because  he  is  required  to  proceed,  in  the  performance  of  that 
duty,  in  the  same  manner  in  which  the  commissioners  were  directed  to 
proceed  when  the  case  was  before  them  ;  but  in  the  absence  of  any  pro- 
vision for  notice  of  the  hearing  before  the  commissioners,  no  such  dut}'  is 
required  of  the  judge.  It  follows  that,  if  the  relators,  as  owners  and  occu- 
pants of  the  land  which  was  to  be  taken  for  the  road  track,  were  entitled 
to  notice  of  the  hearing  before  the  judge,  it  is  in  consequence  of  some 
general  principle  of  law,  and  not  because  it  is  required  by  any  provi- 
sion of  the  statute.  This  is  the  view  of  the  matter  taken  b}'  the  appel- 
lant's counsel,  for  he  expressh'  admits  in  his  printed  argument  that 
there  is  nothing  in  the  Act  requiring  notice  to  be  given  to  the  land- 
owners_. 

The  question  then  is,  whether  the  State,  in  the  exercise  of  the  power 
to  appropriate  the  property  of  individuals  to  a  public  use,  where  the 
duty  of  judging  of  the  expedienc}'  of  making  the  appropriation,  in  a 
class  of  cases,  is  committed  to  pul)lic  officers,  is  obliged  to  afford  to  the 
owners  of  the  property  an  opportunity  to  be  heard  before  those  officers 
when  they  sit  for  the  purpose  of  making  the  determination.  I  do  not 
speak  now  of  the  process  for  arriving  at  the  amount  of  compensation  to 
be  paid  to  the' owners,  but  of  the  determination  whether,  under  the  cir- 
cumstances of  a  particular  case,  the  property  required  for  the  purpose 
shall  be  taken  or  not ;  and  I  am  of  opinion  that  the  State  is  not  under 
any  obligation  to  make  provision  for  a  judicial  contest  upon  that  ques- 
tion. The  only  part  of  the  Constitution  which  refers  to  the  subject  is 
that  which  forbids  private  property  to  be  taken  for  public  use  without 
compensation,  and  that  which  prescribes  the  manner  in  which  the  com- 
pensation shall  be  ascertained.  It  is  not  pretended  that  the  statute 
under  consideration  violates  either  of  these  provisions.  There  is  there- 
fore no  constitutional  injunction  on  the  point  under  consideration. 
/The  necessity  for  appropriating  private  property  for  the  use  of  the  pub- 
lic or  of  the  government  is  not  a  judicial  question.  The  power  resides 
in  the  legislature.  /  It  ma}-  be  exercised  by  means  of  a  statute  which 
shall  at  once  designate  the  property  to  be  appropriated  and  the  purpose 
of  the  appropriation  ;  or  it  may  be  delegated  to  public  officers,  or,  as  it 
has  been  repeatedl}'  held,  to  private  corporations  established  to  carry 
on  enterprises  in  which  the  public  are  interested.  There  is  no  restraint 
upon  the  power,  except  that  requiring  compensation  to  be  made.  And 
where  the  power  is  committed  to  public  officers,  it  is  a  subject  of  legis- 


964  PEOPLE   V.    SMITH.  [CHAP.  YI, 

lative  discretion  to  determine  what  prudential  regulations  shall  be 
established  to  secure  a  discreet  and  judicious  exercise  of  the  authority. 
The  constitutional  provision  securing  a  trial- b}' jury  in  certain  cases, 
and  that  which  declares  that  no  citizen  shall  be  deprived  of  his  property 
without  due  prosess  of  law,  have  no  application  to  the  case.  The  jury 
1  trial  can  onl}'  be  claimed  as  a  constitutional  right  where  the  subject  is 
[judicial  in  its  character.  The  exercise  of  the  right  of  eminent  domain 
'  stands  on  the  same  ground  with  the  power  of  taxation.  Both  are 
emanations  of  the  law-making  power.  They  are  the  attributes  of  polit- 
ical sovereignty,  for  the  exercise  of  which  the  legislature  is  under  no 
necessity  to  address  itself  to  the  courts.  In  imposing  a  tax  or  in  ap- 
propriating the  property  of  a  citizen,  or  a  class  of  citizens,  for  a  public 
purpose,  with  a  proper  provision  for  compeni='ation,  the  legislative  act 
is  itself  due  process  of  law  ;  though  it  would  not  be  if  it  should  under- 
take to  appropriate  the  propert}'  of  one  citizen  for  the  use  of  another, 
or  to  confiscate  the  propert}'  of  one  person,  or  a  class  of  persons,  or  a 
particular  description  of  property  upon  some  view  of  public  policy, 
where  it  could  not  be  said  to  be  taken  for  a  public  use.  The  People  v. 
The  Mayor  of  Brooklyn,  4  Comst.  419  ;  Taylor  v.  Porter,  4  Hill,  140 ; 
Wynehamer  v.  The  People,  3  Kern.  378. 

It  follows  from  these  views  that_it  is  not  necessamjoi'  theUegislature 
in  the  exercise  of  the  right  of  eminent  domain,  either  directly^ or  indi- 
rectly  through  public  officers  or  agents,  to  invest  the  proceeding  with 
the  forms  or  substance  of  judicial  process^  It  ma}'  allow  the  owner  to 
intervene  and  participate  in  the  discus^i^m  before  the  officer  or  board  to 
whom  the  power  of  determining  wnether  the  appropriation  shall  be 
made  in  a  particular  case,  or  it  may  provide  that  the  officers  shall  act 
upon  their  own  views  of  propriety  and  duty  without  the  aid  of  a  foren- 
sic contest.  TJxe  appropriation  of  the  propertv  is  an  act  of  public 
administration,  and  the  form  and  manner  of  its  performance  is  such  as 
thejegislatm-e  shall  in  its  discretion  preRcrib£.  In  the  case  before  us 
the  Act  declares  that  the  judge  shall  give  notice  to  the  commissioners 
of  highways  whose  order  is  appealed  from,  and  it  is  silent  as  to  notice 
to  any  other  person.  The  appellants  and  the  commissioners  are  the 
only  parties  who  are  required  to  be  convened  on  the  hearing  before  the 
judge,  or  to  have  notice  of  that  hearing,  and  it  is  their  proofs  and  alle- 
gations only  which  the  judge  is  obliged  to  hear.  It  was  doubtless  con- 
sidered that  the  commissioners,  who  had  officially  decided  against  the 
Act  which  the  ai)pellants  were  seeking  to  promote,  would  sufficiently 
represent  the  views  upon  that  side  of  the  question.  But  if  we  should 
think  it  was  discreet  that  the  land-owners  should  have  been  furnished 
with  notice  and  allowed  to  participate,  still  the  Act  furnishes  the  rule, 
and  the  court  has  no  power  to  change  it. 

The  counsel  for  the  appellant  relies  upon  the  case  of  The  People  v. 
The  Judges  of  Herkimer,  20  Wend.  186,  where  it  was  held  that  a 
written  notice  of  a  hearing  upon  appeal  before  the  judges  in  a  case  like 
the  present,  which  was  governed  by  the  Revised  Statutes,  ought  to  be 


CHAP.  VI,]  FAIKCHILD    ET   AL.    V.    CITY   OF   ST.    PAUL.  965 

given  ;  and  the  proceedings  of  the  judges  were  reversed  for  the  want  of 
such  a  notice.  The  case  iUustrates  tiie  ditt'ei-ence  between  the  general 
highway  law  and  the  system  provided  for  Long  Island  in  this  respect. 
.  .  .  The  difference  between  the  cases  is,  that  the  Revised  Statutes 
provide  for  giving  the  notice,  the  want  of  which  is  here  objected  to,  and 
the  Long  Island  Act  does  not.  The  judgment  of  the  Supreme  Court 
must  be  affirmed. 
All  the  judges  concurring,  Judgment  affirmed.^ 


FAIRCHILD  ET  AL.  V.   CITY  OF   ST.   PAUL. 
Supreme  Court  of  Minnesota,  189L 

[46  Minn.  540.] 

Appeal  by  plaintiffs,  H.  S.  Fairchild  and  Greenleaf  Clark,  from  a 
judgment  of  the  District  Court  for  Ramsej' Count}',  where  the, action 
(brought  to  recover  $33,634.50  for  quarrying  and  removing  stone  from 
plaintiff's  premises  and  for  other  trespasses  thereon)  was  tried  by 
Kelly,  J. 

C.  H.  Benedict  and  S.  Duffidd  Mitchell,  for  appellants.  Daniel  W. 
Lawler  and  Herman  W.  Phillips,  for  respondent. 

Mitchell,  J.  This  was  an  action  to  recover  damages  for  certain 
alleged  acts  of  trespass  in  removing  stone  from  tlie  premises  of  the 
plaintiffs.  The  defendant  justified  the  acts  on  the  ground  that  it  had 
acquired  a  title  to  the  land  for  the  purposes  of  a  public  street.  The 
case  was  tried  upon  the  theory  that  its  decision  depended  on  the  ques- 
tion whether  or  not  the  cit}^  of  St.  Paul  had  acquired  a  title  in  fee,  and 
by  stipulation  it  was  agreed  that  the  court  should  determine  two  ques- 
tions, ut3. :  First,  had  the  defendant  the  power  and  right  to  condemn 
thejjae,  oH-lajid  for  street  purposes?  and,  if  so,  second,  had  the  defendant 
duly  condemned,  for  such  purposes,  the  fee  of  the  land  in  question? 

1.  The  main  contention  of  the  plaintiffs  upon  the  argument  was,  to, 
use  their  own  language,  "  that  the  public  exigencies  do  not  demand  the 
taking  and  condemnation  of  the  absolute  fee-simple  title  to  land  for  tlie 
purpose  of  highways  and  streets  ;  that  the  public  wants  are  supplied  by 
the  enjoyment  of  an  easement;  and  that  any  act  of  the  legislature 
which  assumes  and  attempts  to  authorize  a  municipality  to  take  and 
condemn  the  absolute  fee-simple  title  to  land  for  such  purposes  is 
unconstitutional  and  void."  More  briefly  stated,  the  proposition  is\ 
that  the/legislature  cannot  authorize  the  taking  of  any  greater  estate  ill 
land  for  public  use  than  is  necessary';  that  an  estate  in  fee  is  not 
necessary  for  the  purposes  of  a  street ;  therefore  the  legislature  cannot 
authorize  the  taking  of  such  an  estate  for  such  purposes.     While  we 

1  Compare,  as  regards  taxation,  Spencer  v.  Merchant,  125  U.  S.  345 ;  s.  c  ante,  647 
—  Ed. 


966  FAIRCHILD   ET   AL.   V.   CITY   OF   ST.   PAUL.  [CHAP.  VI. 

have  given  the  question  the  careful  examination  due  to  tlie  ehiborate 
brief  and  ver^'  earnest  argument  of  the  learned  counsel,  yet  it  has  never 
seemed  to  us  that  there  was  anything  in  his  contention.  In  this  case 
it  must  be  conceded  that  the  legislature,  if  it  had  the  power  to  do  so, 
has  given  the  city  of  St.  Paul  authorit}-  to  condemn  an  estate  in  fee  for 
street  purposes  ;  the  language  of  the  charter  being :  "  In  all  cases  the 
land  taken  and  condemned  in  the  manner  aforesaid  (for  streets)  shall 
be  vested  absolutely  in  the  city  of  St.  Paul  in  fee-simple."  Mun.  Code 
lS8i,  §  153  (Sp.  Laws  1874,  p.  59,  §  17).  lUiere  is  nothing  better 
settled  than  that,  the  power  of  eminent  domain  being  an  incident  of 
sovereignty,  the  time,  manner,  and  occasion  of  its  exercise  are  wholly 
in  the  control  and  discretion  of  the  legislature,  except  as  restrained  bj' 
the  Constitution.  It  rests  in  the  wisdom  of  the  legislature  to  determine 
when  and  in  what  manner  the  public  necessities  require  its  exercise ; 
and  with  the  reasonableness  of  the  exercise  of  that  discretion  the  courts 
will  not  interfere.  Wilkin  v.  I^irst  Dit\,  etc.,  R.  6*0  ,  16  Minn.  244 
(271);  Weir  v.  St.  Paul,  S.  <b  T.  F.  E.  Co.,  18  Minn.  139  (155). 
As  the  legislature  is  the  sole  judge  of  the  public  necessit}'  which 
requires  or  renders  expedient  the  exercise  of  the  power  of  eminent 
domain,  so  it  is  the  exclusive  judge  of  the  amount  of  land,  and  of  the 
estate  in  land,  which  the  public  end  to  be  subserved  requires  shall  be 
taken.  The  onlj'  limitation  —  at  least,  the  only  one  applicable  to  a  case 
like  the  present  —  which  the  Constitution  imposes  upon  the  exercise  of 
the  right  of  eminent  domain  b}-  the  legislature  is  that  private  property 
shall  not  be  taken  for  public  use  without  just  compensation  therefor 
first  paid  or  secured.  Of  course,  there  is  the  further  limitation,  neces- 
saril}'  implied,  that  the  use  shall  be  a  public  one  ;  upon  which  question 
the  detennination  of  the  legislature  is  not  conclusive  upon  the  courts. 
But,  when  the  use  is  public,  the  necessity  or  expedienc}'  of  appropriating 
any  particular  property  is  not  a  subject  of  judicial  cognizance.  Conse- 
quently, if  in  the  legislative  judgment  it  is  expedient  to  do  so,  it  has  the 
power  expressl}'  to  authorize  a  municipal  corporation  compulsoril}'  to 
acquire  the  absolute  fee-simple  to  lands  of  private  persons  condemned 
for  street  or  any  other  .public  purpose.  The  authorities  are  so  numer- 
ous and  uniform  to  this  effect  that  an  extended  citation  of  them  is 
unnecessary.  See,  however,  Dill.  Mun.  Corp.  §  589  ;  Cooley,  Const. 
Lim.  688  ;  Lewis,  Em.  Dom.  277  ;  Elliott,  Roads  &  S.  172  ;  Mills,  Em. 
Dom.  §§  50,  51  ;  Boom  Co.  v.  Patterson,  98  U.  S.  403,  406  ;  Siceet  v. 
Buffalo,  etc..  My.  Co.,  79  N.  Y.  293,  299. 

It  is  often  laid  down  as  tlie  law  that  the  taking  of  property  must 
alwa3-s  be.  limited  to  the  necessity  of  the  case,  and  consequent!}',  no 
more  can  be  appropriated  in  any  instance  than  is  needed  for  the  par- 
ticular use  for  which  the  appropriation  is  made.  But  it  will  be  found 
that  this  is  almost  invariably  said,  not  in  discussing  the  extent  of  the 
power  of  the  legislature,  but  with  reference  to  the  construction  of 
statutes  granting  authority  to  exercise  the  right  of  eminent  domain,  and 
where  the  authority  to  take  a  certain  quantity  of  land  or  a  particular 


CHAP.  VI.]  STUBBINGS   V.    EVANSTON.  967 

estate  therein  depended,  not  upon  an  express  grant  of  power  to  do  so, 
but  upon  the  existence  of  an  alleged  necessity-,  from  which  the  disputed 
power  is  to  be  implied.  This  distinction  is  clearly  brought  out  by 
Justice  Cornell  in  Milwaukee  &  St.  Paul  By.  Co.  v.  City  of  Faribault., 
23  Minn.  1G7.  Upon  the  principle  that  statutes  conferring  compulsory 
powers  to  take  private  property  are  to  be  strictly  construed,  it  follows 
that,  when  the  estate  or  interest  to  be  taken  is  not  defined  by  the  legis- 
lature, only  such  an  estate  or  interest  can  be  taken  as  is  necessary  to 
accomplish  the  purpose  in  view,  and,  when  an  easement  is  sufficient,  no 
greater  estate  can  be  taken.  It  is  on  this  principle  that  where  the 
legislature  has  authorized  the  taking  of  land  for  the  purposes  of  streets, 
without  defining  the  estate  that  may  be  taken,  or  expressly  authorizing 
the  taking  of  the  fee,  it  is  held  that  only  an  easement  can  be  taken. 
This  is  construed,  under  such  statutes,  to  be  the  extent  of  the  grant  of 
authority  ;  but  no  well-considered  case  can  be  found  which  holds  that 
the  legislature  might  not  authorize  the  taking  of  the  fee,  if  it  deemed  it 
expedient. 

It  is  perhaps  foreign  to  the  present  inquiry  to  consider  the  nature 
and  extent  of  the  title  which  the  city  of  8t,  Paul  acquires  in  land  con- 
demned for  street  purposes.  But,  notwithstanding  the  broad  language 
used  in  the  city  charter,  we  think  that  it  must  be  construed  as  only  a 
qualified  or  terminable  fee,  —  that  is,  the  fee-simple  for  street  purposes, 
—  which  gives  the  city  absolute  control  over  the  land  for  those  purposes, 
but  that  its  title  is  not  a  proprietary,  but  what  might  be  termed  a 
sovereign  or  prerogative,  one,  which  it,  as  an  agency  of  the  State,  holds 
in  trust  for  the  public  for  street  purposes,  and  which  it  can  neither  sell 
nor  devote  to  a  private  use.   .  .  .  Judgment  affirmed.^ 

\^  Stubbing s  y.  Ei-anston,  134  111.  37,  41  (1891),  in  sustaining  a 
ruling  that  where  a  part  of  premises  under  lease  was  taken,  'Lthe  ten- 
ant remains  bound  to  pay  rent  for  the  whole,  according  to  the  terms  of 
the  lease,"  the  court  (Craig,  J.)  said  : 

The  general  rule  no  doul)t  is,  that  eviction  of  the  lessee  from  the 
premises  by  a  paramount  title  will  discharge  him  from  the  payment  of 
any  rent  which  may  fall  due,  by  the  terms  and  conditions  of  the  lease, 
after  eviction.  But  where  a  part  of  leased  premises  may  be  taken  un- 
der the  power  of  eminent  domain,  can  such  a  taking  be  regarded  as  an 
eviction?  Washburn  (1  Real  Prop.  p.  342),  in  speaking  on  this  sub- 
ject, says  :  "  It  has  sometimes  been  attempted  to  apply  the  principle 
of  eviction  from  a  part  of  the  premises,  where  lands  under  lease  have 
been  appropriated  to  public  use  under  the  exercise  of  eminent  domain. 
.  .  /But  the  better  rule,  and  one  believed  to  be  adopted  in  most  of  the 
States,  is,  that  such  a  taking  operates,  so  far  as  the  lessee  is  concerned, 
upon  his.  interest  as  property,  for  which  the  public  are  to  make  him 
compensation,  and  does  not  affect  his  liability  to  pay  rent  for  the  entire 
estate,  according  to  the  terms  of  his  lease,  —  and  this  extends  to  ground 
rent.     Such  taking  does  not  abate  any  part  of  the  rent  due." 

1  And  so  D'lngJey  v.  Boston,  100  Mass.  544.  —  Ed. 


968  STUBBINGS    V.    EVANSTON.  [CHAP.  VI. 

Parks  V.  C'di/  of  Boston^  15  Pick.  198,  is  an  interesting  case  on  the 
question.  It  was  there  held  :  "•  Where  part  of  a  lot  of  land  under  lease 
is  taken  b}'  the  major  and  aldermen  of  Boston,  for  the  purpose  of  widen- 
ing a  street,  the  lease  is  not  thereby  extinguished,  nor  is  the  lessee  dis- 
charged from  his  liability  to  pa}'  the  reserved  rent  during  the  residue  of 
the  term,  but  the  lessor  and  lessee  are  each  entitled  to  recover  compen- 
sation for  the  damage  so  sustained  by  them,  respectively."  The  same 
pi'inciple  was  announced  in  an  earlier  case,  Ellis  v.  Welch,  6  Mass. 
24G,  and  in  a  later  case,  Patterson  v.  City  of  Boston^  20  Pick.  159. 

In  Foote  v.  City  of  Cincinnati^  11  Ohio,  408,  where  the  leased  pre- 
mises had  been  appropriated  for  a  street,  the  Supreme  Court  held  that 
the  lessee  was  not  relieved  from  the  payment  of  rent,  but  he  was  en- 
titled to  recover  from  the  city  for  the  damages  sustained.  See,  also, 
the  following  cases,  where  the  same  principle  is  announced  :  Work- 
man V.  Mifflin,  30  Pa.  St.  362  ;  Frost  v.  Ernest,  4  Whart.  86  ;  Gar- 
rity  V.  City  of  Chicago,  7  Bradw.  474. 

Under  the  authorities  it  seems  that  a  tenant,  where  a  portion  of  the 
leased  premises  is  taken,  under  the  power  of  eminent  domain,  for  the 
use  of  the  public,  cannot,  as  against  his  landlord,  claim  an  eviction, 
and  be  released  from  the  payment  of  rent ;  and  as  his  liability  for  the 
payment  of  rent  continues  after  a  part  of  his  term  has  been  taken  by 
the  public  and  appropriated  to  public  use,  he  would  be  entitled  to 
recover  such  damages  as  he  sustained  b}*  the  taking  of  his  leased  prop- 
ert}'  b}'  the  public.  In  other  words,  the  lessee  takes  and  holds  his 
term  in  the  same  manner  as  any  other  owner  of  real  propert}'  holds  his 
title,  subject  to  the  right  of  the  public  to  take  a  part  or  the  whole  of  it 
for  public  use,  at  such  time  as  the  public  necessit}'  may  require,  upon 
the  payment  of  just  compensation. 

In  a  proceeding  to  condemn  lands  for  a  public  purpose,  it  is  not  some 
particular  interest  which  the  public  seek  to  take,  but  the  land  itself. 
If  A  has  one  estate  in  the  land  and  B  another,  in  the  proceeding  to 
condemn  each  is  entitled  to  compensation  for  the  land  taken,  as  his 
interest  may  appear  in  the  property  ;  ^and,  as  said  before,  if  one  has  a 
leasehold  interest,  he  maj'  recover  damages  for  such  interest  and  still 
be  held  liable  for  the  payment  of  rent,  as  that  liabilit}-  existed  be- 
fore the  leasehold  interest  was  taken  for  public  use.  A  different  rule 
has  been  adopted  in  some  States,  particularly  in  Missouri.  Piddle  v. 
PTussmaji,  23  Mo.  597;  Parclay  v.  PicJcles,  38  Id.  143.  In  those 
cases  it  was  held,  that  as  to  the  part  of  the  leased  premises  appropri- 
ated to  public  use  the  rent  was  extinguished,  and  no  liability  existed 
against  the  lessee  for  such  rents.  But  we  think  that  the  weight  of 
authority  is  the  other  way,  and  we  are  not  disposed  to  adopt  a  rule  of 
that  character.^ 

^  "  But  upou  what  principle  can  it  be  maintained,  that  a  lessee  under  such  circum- 
stances would  be  exempted  from  the  paj'ment  of  the  stipulated  rent  i  The  lessee 
takes  his  term,  just  as  every  other  owner  of  real  estate  takes  title,  subject  to  the  right 
and  power  of  the  public  to  take  it,  or  a  part  of  it,  for  public  use,  wheuever  the  public 


CHAP.  VI.]         BOSTON  WATER  POWER  CO.  V.  B.  AND  W.  KAILROAD.        969 


THE   BOSTON  WATER  POWER  COMPANY  v.  THE  BOSTON 
AND  WORCESTER  RAILROAD  CORPORATION  et  al. 

SuPKEME  Judicial  Court  of  Massachusetts.     1840. 

[23  Pick.  360.] 

Bill  in  equity,  filed  in  March,  1833,  containing  the  following  alle- 
gations. 

By  St.  1814,  c.  39,  divers  persons  were  incorporated  l)y  the  name 
of  the  Boston  and  Roxbury  Mill  Corporation,  and  by  that  statute  and 
those  of  1816,  c.  40,  1819,  c.  65,  and  1822,  c.  34,  the  corporation  was 
authorized  to  purchase  and  hold  real  and  personal  estate  ;  to  build  a 
dam  from  Charles  Street,  at  the  westerly  end  of  Beacon  Street,  in 
Boston,  westerly  to  Sewall's  Point,  in  Brookline,  so  as  to  exclude  the 
tide-water  on  the  northerly  side  of  the  dam  and  form  on  the  southerly 
side  a  reservoir  or  receiving  basin  of  the  space  between  the  dam  and 
Boston  Neck  ;  to  build  another  dam  from  Gravelly  Point,  in  Roxbury, 
to  the  dam  first  mentioned,  so  as  to  enclose  the  tide-water  within  Tide- 
TNIill  Creek,  on  the  westerly  side  of  this  cross  dam  ;  ^  to  cut  any  number 
of  convenient  raceways  from  the  full  basin  to  the  receiving  basin;  to 
maintain  and  keep  up  all  their  works  forever ;  and  to  lease  or  sell  the 
right  of  using  the  water,  upon  any  terms  and  in  any  manner  tliey  might 
think  proper ;  and  it  was  provided,  that  no  other  person  should  have  a 
rioht  to  dispose  of  the  water,  without  the  consent  of  the  corporation. 
The  corporation  was  authorized  to  make  over  the  main  dam  first  men- 
tioned a  good  and  substantial  road,  and  to  receive  toll  for  passing 
over  it.  Certain  duties  and  obligations  in  favor  of  the  public,  set 
forth  at  large  in  the  bill,  were  imposed  ui)on  the  corporation,  and  cer- 
tain penalties  and  forfeitures  created  to  secure  tlie  performance  of  its 
undertakings.     These  Acts  were  accepted  by  the  corporation,  whereby 

necessity  and  convenience  may  require  it.  Such  a  riglit  is  no  incumbrance ;  such  a 
taking  is  no  breach  of  the  covenant  of  the  lessor  for  quiet  enjoyment. 

"  The  lessee  then  holds  and  enjoys  exactly  what  was  granted  him,  as  a  consideration 
for  the  reserved  rent ;  which  is,  the  whole  use  and  beneficial  enjoyment  of  the  estate 
leased,  subject  to  the  sovereign  riglit  of  eminent  domain  on  the  part  of  the  public.  If 
he  has  suffered  any  loss  or  diminution  in  tlie  actual  enjoyment  of  this  use,  it  is  not  by 
the  act  or  sufferance  of  the  landlord  ;  but  it  is  by  the  act  of  the  public,  against  whom 
the  law  has  provided  him  an  ample  remedy.  If  he  is  compelled  to  pay  the  full  com- 
pensation, for  the  estate  actually  diminished  in  value,  this  is  an  element  in  computing 
the  compensation  which  he  is  to  receive  from  the  public.  In  tliis  view  it  becomes  un- 
important, in  settling  the  principle  we  are  now  discussing,  whether  the  taking  for 
public  use  diminishes  the  leased  premises,  little  or  much,  in  quantity  or  in  value ;  all 
this  will  be  taken  into  consideration  in  assessing  the  damages  which  the  lessee  may 
sustain."  — Shaw,  C.  J.,  for  the  court,  in  Parks  v.  Boston,  15  Pick  198,  205  (1834). 
Compare  ScoviUe  v   McMahon,  62  Conn.  378  —  Ed. 

1  For  a  plan  of  this  part  of  Boston,  which  elucidates  these  statements,  see  7  Pick  at 
p.  388.  — Ed. 


970        BOSTON  WATER  POWER  CO.  V.  B.  AND  W.  RAILROAD.         [CHAP.  VI. 

a  contract  conformable  to  the  terms  of  the  Acts  was  created  between  the 
corporatioD  and  the  Commonwealth. 

This  contract  was  performed  on  the  part  of  the  corpoi'ation,  b}'  the 
erection  of  the  works  required,  being  works  of  great  magnitude  and 
expense,  and  of  great  public  convenience  and  utility  ;  and  thereby-  the 
corporation  became  entitled  to  the  exclusive  right  and  privilege  of 
forever  using  the  soil  included  within  the  limits  of  the  full  basin,  for 
the  purpose  of  keeping  it  covered  with  water  to  the  height  and  extent 
of  surface  to  which  the  tide  naturally  flowed  it,  and  the  exclusive  right 
and  privilege  of  forever  keeping  the  soil  included  within  the  limits  of 
the  receiving  basin  uncovered  b}-  the  tide-waters,  and  using  it  for  a 
reservoir  to  receive  and  carrj-  oflf  the  waters  flowing  from  the  full  basin 
through  the  raceways  cut,  or  which  should  thereafter  be  cut,  through 
the  cross  dam,  and  the  exclusive  right  and  privilege  of  cutting  raceways 
through  any  part  of  the  cross  dam,  and  of  using  or  disposing,  bj-  lease 
or  otherwise,  of  the  water-power  thereb}'  created. 

The  plaintiffs  were  incorporated  by  the  name  of  the  Boston  Water 
Power  Company,  on  June  12th,  1824  (St.  1824,  c.  26),  with  power  to 
purchase  and  hold  an}'  quantit}'  of  the  water-power  created  by  the 
establishment  of  the  dams  above  mentioned,  and  by  an  indenture, 
dated  May  9th,  1832,  the  Boston  and  Roxbury  Mill  Corporation  trans- 
ferred to  them,  for  the  sum  of  175,000  dollars,  all  the  grantors'  right 
to  the  land  above  the  main  dam,  and  all  the  water-power,  and  all  their 
privileges,  contracts,  duties,  and  obligations  respecting  the  water- 
power  ;  and  the  plaintiffs  thereby-,  so  far  as  regards  the  water-power, 
became  entitled  to  the  exclusive  right  and  privilege  of  forever  using 
the  soil  included  within  the  two  basins,  for  the  purposes  before  men- 
tioned, and  to  all  the  water-power  which  can  be  and  is  created  b}-  the 
constructing  and  maintaining  of  the  dams,  without  any  hindrance, 
obstruction,  interruption,  or  diminution  of  the  capacity  of  the  basins 
respective!}'. 

The  plaintiff's  allege,  that  the  Boston  and  Worcester  Railroad  Cor- 
poration deny  and  disregard  these  vested  rights,  and  threaten  to  build 
a  railroad  through  the  full  basin,  and  over  the  cross  dam,  and  through 
the  receiving  basin  ;  and  have  actually  commenced  building  the  same, 
by  driving  piles  in  both  of  the  basins  ;  and  have  taken  for  their  road  a 
strip  of  land  twenty-six  feet  wide  through  the  full  basin,  and  five  rods 
wide  through  the  receiving  basin. 

The  construction  of  the  railroad  through  and  across  the  two  basins 
and  cross  dam  will,  it  is  alleged,  greatly  diminish  the  water-power,  and 
abridge  the  franchise  vested  in  the  plaintiffs,  of  using  the  soil  and 
space  between  the  main  dam  and  Boston  Neck  for  their  basins,  to  their 
irreparable  injury,  and,  so  far  as  their  rights  are  concerned,  will  be  a 
nuisance. 

The  bill  concludes  with  a  prayer  for  a  perpetual  injunction  and  other 
relief.  .  .  .  [The  rest  of  the  statement  of  facts  is  a  recital  of  the  defen- 
dants' answer,  the  substance  of  which  sufficiently  appears  from  the 
opinion.] 


CHAP.  VI.]         BOSTON  WATER  POWER  CO.  V.  B.  AND  W.  RAILROAD.        971 

C.  G.  Loving  (with  whom  were  J.  Mason  and  Gardiner)^  for  the 
plaintiffs-  .         , 

Aijlwin,  and  F.  Dexter,  for  the  defendants. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  .  For  the  pur- 
poses of  this  hearing  it  is  admitted,  by  the  defendants,  that  the  piers, 
embankments,  and  bridges  erected  by  them  in  the  construction  of  the 
Boston  and  Worcester  Railroad  in  and  over  the  full  and  receiving 
basins  claimed  by  the  plaintiffs,  do,  to  a  certain  extent,  diminish  the 
volume  of  water  which  those  basins  would  otherwise  contain,  and  do 
therefore  to  some  extent  impair  and  diminish  the  water-power  to  be 
derived  therefrom.  But  they  insist  that  this  is  damnum  absque 
injuria,  that  they  are  legally  justified  in  so  laying  out  the  railroad  over 
tlie  basins,  that  the  damage  thereby  suffered  by  the  plaintiffs  is  not  \\\ 
consequence  of  a  tort  done  by  the  defendants,  to  be  deemed  in  law  or 
equity  a  nuisance,  or  abated  as  such,  but  an  act  done  by  rightful 
authority,  for  which  the  remedy  is  by  a  compensation  in  damages,  to 
be  obtained  in  the  manner  provided  by  law.  This,  at  present,  consti- 
tutes the  question  between  the  parties.  This  is  a  question  involving 
public  and  private  interests  of  very  great  magnitude,  and  requiring  the 
most  mature  consideration.  In  deciding  it,  the  court  have  the  satis- 
faction of  feeling  that  they  have  derived  great  benefit  from  a  full, 
able,  and  ingenious  argument,  which  seems  quite  to  have  exhausted 
the  subject. 

The  first  question  which  we  propose  to  consider  is,  whether  the 
legislature  had  the  legal  and  constitutional  authority  to  grant  to  the 
corporation  created  for  the  purpose  of  establishing  a  railroad  from 
Boston  to  Worcester,  the  power  to  lay  their  road  over  and  across  the 
basins  of  the  plaintiffs,  on  paying  them  the  damage  sustained  thereb}', 
and  to  keep  up  and  maintain  the  same. 

It  is  contended  on  the  part  of  the  plaintiffs,  and  this  constitutes  one 
of  the  main  grounds  of  their  complaint,  that  the  legislature  had  no 
such  authorit}',  because  the}'  hold  a  franchise  in  and  over  all  the  lands, 
flats  and  waters  included  in  their  full  and  receiving  basins,  obtained  by 
a  grant  from  the  Commonwealth  for  a  valuable  consideration,  and  that 
the  authority  contended  for  by  the  defendants  would  constitute  an 
interference  with  and  an  encroachment  upon  their  franchise,  amounting 
in  substance  and  effect,  to  revocation  or  destruction  of  the  franchise, 
and  a  withdrawal  of  the  beneficial  uses  of  the  grant.  In  order  to  judge 
of  this,  it  is  necessary  to  consider  the  nature  and  origin  of  the  plain- 
tiffs' rights  as  claimed  and  set  forth  by  them,  and  the  manner  in  which 
they  are  affected  by  the  acts  of  the  defendants,  supposing  them  war- 
ranted by  the  Act  of  the  Legislature. 

We  do  not  now  stop  to  inquire  into  the  objections  taken  by  the 
defendants,  that  the  plaintiffs  have  not  complied  with  the  conditions  of 
the  grants  made  to  them,  by  the  Act  incorporating  the  Boston  and 
Roxbui-y  Mill  Corporation,  and  the  several  subsequent  Acts  ;  that  is  a 
subject  of  separate  and  distinct   consideration.      Supposing  them    to 


972        BOSTON  WATER  POWER  CO    V.  B.  AND  W.  RAILROAD.         [CIIAP.  YL 

have  complied  with  those  conditions,  what  are  the  rights  claimed  b}' 
them?  The  plaintifl's  were  authorized  to  enclose  and  pen  up  a  portion 
of  the  navigable  waters  adjoining  Boston,  so  as  to  prevent  the  ebb  and 
flow  of  the  tide  therein,  and  to  discontinue  any  further  use  thereof  by 
the  public  for  purposes  of  navigation,  to  make  use  of  part  of  the  public 
domain,  being  all  that  part  of  the  land  covered  by  water  lying  below 
low-water  mark,  or  more  than  one  hundred  rods  from  high-water  mark, 
and  to  acquire  by  purchase  or  by  appraisement,  without  the  consent 
of  the  owners,  that  part  of  the  soil  belonging  to  individuals,  and  to 
have  the  perpetual  use  thereof  for  mill  purposes,  and  to  make  a  high- 
way on  their  dams  and  take  toll  thereon.  Other  rights,  no  doubt, 
were  incident,  but  this  is  a  summary  of  their  important  rights  and 
privileges. 

The  effect  of  the  authority  granted  to  the  railroad  corporation  to 
lay  their  road  over  these  basins,  was  to  some  extent  to  diminish  their 
surface,  and  reduce  their  value.  But  the  court  are  of  opinion,  that 
this  could  in  no  proi)er  legal  sense  be  considered  as  annulling  or 
destroying  their  franchise.  They  could  both  stand  together.  The  sub- 
stance of  the  plaintiffs'  franchise  was  to  be  a  corporation,  to  establish 
a  highway  and  take  toll,  to  establish  mills,  and  to  make  use  of  land  for 
mill  ponds,  derived  parth'  from  the  public  and  partly  from  individ- 
uals, either  by  purchase  or  by  taking  it,  for  public  use,  at  an  appraise- 
ment, by  authority  of  the  legislature.  So  far  as  this  gave  them  a 
right  to  the  use  of  land,  it  constituted  an  interest  and  qualified  prop- 
erty in  the  land,  not  larger  or  more  ample,  or  of  an}-  different  nature, 
from  a  grant  of  land  in  fee,  and  did  not  necessarily-  withdraw  it  from  a 
liability  to  which  all  the  lands  of  the  Commonwealth  are  subject,  to  be 
taken  for  public  use,  at  an  equivalent,  when  in  the  opinion  of  the 
legislature,  the  public  exigency,  or  as  it  is  expressed  in  case  of  high- 
ways, when  public  convenience  and  necessity  may  require  it.  The 
plaintiffs  still  retain  their  franchise,  they  still  retain  all  their  rights 
derived  from  the  legislative  grants,  and  the  only  effect  of  the  subse- 
quent Acts  IS  to  appropriate,  to  another  and  distinct  public  use,  a 
portion  of  the  land  over  which  their  franchise  was  to  lie  used.  AVe 
cannot  perceive  how  it  differs  from  the  case  of  a  turnpike  or  canal. 
Suppose  a  broad  canal  extends  across  a  large  part  of  the  State.  The 
proprietors  have  a  franchise  similar  to  that  of  the  plaintiffs,  to  use  the 
soil  in  which  the  bed  of  the  canal  is  formed,  and  it  is,  in  the  same 
manner,  derived  by  a  grant  from  the  legislature.  It  is  a  franchise. 
But  if  afterwards  it  becomes  necessary  to  lay  a  turnpike,  or  a  public 
highway  across  it,  would  this  be  a  disturbance  or  revocation  of  the 
franchise  and  inconsistent  with  the  power  of  the  legislature  in  exercis- 
ing the  right  of  eminent  domain,  for  the  public  benefit?  It  might 
occasion  some  damage  ;  but  that  would  be  a  damage  to  property,  and 
pursuant  to  the  bill  of  rights,  must  be  compensated  for  by  a  fair  equiva- 
lent. It  may  be  said,  that  the  way  might  be  carried  high  over  the 
canal,  and  so  not  obstruct  it.    But  suppose  a  railroad,  a  new  erection. 


CHAP.  VI.]         BOSTON  WATER  POWER  CO.  V.  B.  AND  W.  RAILROAD.        973 

not  contemplated  when  the  canal  was  granted,  and  from  the  nature  of 
wliich,  it  must  be  kept  on  a  level,  so  as  to  subject  the  canal  proprietors 
to  considerable  expense  and  trouble;  whatever  other  objections  might 
be  made  to  it,  it  seems  to  us,  that  it  could  not  be  considered  as  a  revo- 
cation, still  less  an  annihilation  of  the  franchise  of  the  proprietors. 

If  it  is  suggested,  that  under  this  chum  of  power,  the  legislature 
might  authorize  a  new  turnpike,  canal,  or  railroad  on  the  same  line 
with  a  former  one  to  its  whole  extent,  we  think  the  proper  answer  is, 
that  such  a  measure  would  be  substantially  and  in  fact,  under  what- 
ever color  or  pretence,  taking  the  fi-anchise  from  one  company  and 
giving  it  to  another,  in  derogation  of  the  first  grant,  not  warranted  by 
the  right  of  eminent  domain,  and  incompatible  with  the  nature  of 
legislative  power.  In  tliat  case  the  object  would  be  to  provide  for  the 
public  the  same  public  easement,  which  is  already  provided  for,  and 
secured  to  the  public,  by  the  prior  grant,  and  for  which  there  could  be 
no  public  exigency.     Such  a  case  therefore  cannot  be  presumed.^ 

If  the  whole  of  a  franchise  should  become  necessary  for  the  public 
use,  I  am  not  prepared  to  say,  that  tlie  right  of  eminent  domain,  in  an 
extreme  case,  would  not  extend  to  and  authorize  the  legislature  to  take 
it,  on  payment  of  a  full  equivalent.  I  am  not  aware  that  it  stands 
upon  a  higher  or  more  sacred  ground,  than  the  right  to  personal  or 
real  property.  Suppose,  for  instance,  that  a  bridge  had  been  early 
granted  over  navigable  waters,  say  in  this  harbor,  at  the  place  where 
East  Boston  ferry  now  is,  and  the  extension  of  our  foreign  commerce, 
and  the  exigencies  of  the  United  States  in  maintaining  a  navy  for  the 
defence  of  the  country,  should  render  it  manifestly  necessary  to  remove 
such  bridge  ;  I  cannot  say  that  it  would  not  be  in  the  power  of  the 
legislature  to  do  it,  paying  an  equivalent. 

Or  suppose,  as  it  has  sometimes  been  suggested,  that  these  dams  of 
the  plaintiffs,  by  checking  the  tide-waters  flowing  through  the  channels 
below  Charles  River  bridge,  and  through  the  harbor  of  Boston,  should 
have  so  far  altered  the  regimen  of  the  stream,  as  gradually  to  fill  up 
the  main  channel  of  the  harbor  and  render  it  unfit  for  large  ships  ; 
suppose  it  were  demonstrated,  to  the  entire  satisfaction  of  all,  that  this 
was  the  cause,  that  the  harbor  would  become  unfit  for  a  naval  station, 
or  for  commerce,  by  means  of  which  most  extensive  damage  would 
ensue  to  the  city,  to  the  Commonwealth,  and  to  the  Eastern  States 
(for  I  mean  to  put  a  strong  case  for  illustration),  would  it  not  be 
competent  for  the  legislature  to  require  the  dams  to  be  removed,  the 
basins  again  laid  open  to  the  flux  and  reflux  of  the  tide?  I  am  not 
prepared  to  say  that  it  would  not,  on  payment  of  an  equivalent.  But 
it  is  not  necessary  to  the  decision  of  this  cause,  to  consider  such  a 
case,  because,  as  before  said,  the  act  of  the  defendants  does  not,  in 
any  legal  sense,  annul  or  destroy  the  franchise  of  the  plaintifl's. 

Nor,  in  the  opinion  of  the  court,  is  this  exercise  of  power  by  the 

1  Compare  Greenwood  v.  Freight  Co.  105  U.  S.  13,  and  1  Hare,  Am.  Const.  Law, 
345. —  Ed. 


974         BOSTON  WxVTEK  POWER  CO.  V.  B.  AND  W.  RAILKOAD.        [CHAP.  VI. 

legislature,  a  law  impairing  the  obligation  of  contracts,  within  the 
meaning  of  the  Constitution  of  the  United  States.  A  giant  of  land  is 
held  to  be  a  contract  within  the  meaning  of  this  provision  ;  and  such 
grant  cannot  be  revoked  b}'  a  State  legislature.  This  was  held  in 
regard  to  the  revocation  of  grants  of  land  by  the  State  of  Georgia. 
Fletcher  v.  Peck,  6  Cranch,  87.  And  yet  there  can  be  no  doubt,  that 
land  granted  by  the  government,  as  well  as  any  other  h.nd,  ma}'  be 
taken  by  the  legislature  in  the  exercise  of  the  right  of  eminent  domain, 
on  payment  of  an  equivalent.  Such  an  appropriation  therefore  is  not 
a  violation  of  the  contract  by  which  propert}-,  or  rights  in  the  nature  of 
property,  and  which  may  be  compensated  for  in  damages,  are  granted 
b}'  the  government  to  individuals. 

The  right  b}'  which  individuals  owning  mills  are  enabled  to  flow 
the  lands  of  proprietors  of  meadows  is  essentially  of  the  same  char- 
acter with  that  of  the  plaintiffs,  and  the  main  difference  is,  that  the 
former  are  obtained  by  the  operation  of  a  general  law,  and  the  latter  by 
a  special  act.  But  in  the  former  case,  the  mill-owners  obtain  an  ease- 
ment or  franchise,  not  a  property  in  the  soil,  and  that,  without  and 
against  the  consent  of  tlie  owners,  upon  high  considerations  of  public 
expediency  and  necessit}'.  But  it  seems  to  us,  that  it  cannot  be  suc- 
cessfully maintained,  that  a  railroad,  canal,  or  turnjjike,  could  not  be 
laid  over  such  a  pond,  because  it  would  diminish  the  capacity  of  the 
pond,  and  proportionably  lessen  the  mill-power.  Forward  v.  Hmnp- 
sliire  and  Hampden  Canal  Co.^  22  Pick.  462. 

It  is  difficult,  perhaps  impossible,  to  la}"  down  an}-  general  rule,  that 
would  precisely  define  the  power  of  the  government,  in  the  exercise  of 
the  acknowledged  right  of  eminent  domain.  It  must  be  large  and 
liberal  so  as  to  meet  the  public  exigencies ;  and  it  must  be  so  limited 
and  restrained,  as  to  secure  effectually  the  rights  of  the  citizen.  It 
must  depend  in  some  measure  upon  the  nature  of  the  exigencies  as 
they  arise,  and  the  circumstances  of  particular  cases.  In  the  present 
case,  the  court  are  all  of  opinion,  that  the  rights  of  the  plaintiffs,  in  the 
land  of  the  full  and  receiving  basins,  are  not  of  such  a  character  as  to 
exclude  the  authority  of  the  legislature,  from  taking  a  small  portion  of 
it,  for  laying  out  a  railroad,  it  being  for  another  and  distinct  public  use, 
not  interfering  with  the  franchise  of  the  plaintiffs,  in  any  other  way 
than  by  occupying  such  portion  of  this  land. 

But  it  is  contended  that  the  Act  in  question  is  not  valid,  inasmuch  as 
it  does  not  provide  a  compensation  for  the  damage  done  to  the  plain- 
tiffs' franchise.  We  are,  however,  of  opinion,  that  this  objection  is 
founded  upon  the  assumption  already  considered,  viz.,  that  the  taking 
of  a  portion  of  the  land  over  which  the  franchise  extends  is  a  taking  of 
their  franchise.  The  Act  does  not  take  away  the  plaintiffs'  franchise, 
but  provides  for  taking  part  of  the  land,  in  which  the  plaintiffs  have  a 
qualified  right  of  property.  This  is  provided  for  in  the  first  section  of 
the  Act  of  Incorporation,  which  directs  that  all  damage  occasioned  to 
any  person  or  corporation,  by  the  taking  of  such  land  or  materials,  that 


CHAP.  VI.]        BOSTON  WATER  POWER  CO.  V.  B.  AND  W.  RAILROAD.        975 

is,  land  five  rods  wide,  for  the  purposes  aforesaid,  shall  be  paid  for,  b}- 
the  said  corporation,  in  the  manner  thereinafter  provided. 

It  has  been  held,  that  these  provisions  for  taking  land,  and  providing 
for  an  indemnit}-,  are  remedial  and  to  be  construed  liberally  and  bene- 
ficiall}',  and  will  therefore  extend  to  leaseholds,  easements,  and  other 
interests  in  land,  as  well  as  to  land  held  by  complainants  in  fee. 
Ellis  V.  Welch,  6  Mass.  R.  246  ,  Parks  v.  Boston,  15  Pick.  203. 

Another  ground  much  relied  upon  to  show  that  the  Act  is  unconstitu- 
tional and  m valid,  is,  that  the  Act  does  not  of  itself  appropriate  the 
specific  land  taken,  to  public  use,  but  delegates  to  the  corporation  the 
power  of  thus  taking  private  property  for  public  use,  and  therefore, 
the  appropriation,  or  the  right  of  eminent  domain,  is  not  exercised  by 
the  competent  and  proper  authorit}-,  and  that  such  power  cannot  be 
delegated. 

This  power  is  certainly  one  of  a  high  and  extraordinary  character, 
and  ought  to  be  exercised  with  great  caution  and  deliberation.  This 
objection  deserves  and  has  received  great  consideration.  On  the 
whole,  the  court  are  of  opinion,  that  the  Act  is  not  open  to  this  objec- 
tion. Taking  the  whole  Acts  of  Incorporation  together,  we  are  of 
opinion  that  it  sufficiently  declares  the  public  necessity  and  conven- 
ience of  a  railroad,  fixes  the  tei'mini,  viz.  in  or  near  the  city  of  Boston 
and  thence  to  any  part  of  Worcester  in  the  county  of  Worcester,  in 
such  manner  and  form  as  the  corporation  shall  think  most  expedient. 
Nothing  therefore  is  delegated  to  the  corporation,  but  the  power  of 
directing  the  intermediate  course  between  the  termini.  The  question 
of  necessity  for  public  use  is  passed  upon  and  decided  by  the  legis- 
lature. Whether  the  road  goes  over  the  lands  of  one  or  another  private 
individual,  does  not  aff'ect  that  question.  So  far  as  the  objection  is, 
that  the  power  is  delegated  to  the  corporation  instead  of  being  exer- 
cised by  county  commissioners,  or  any  other  public  body,  it  is  rather  a 
question  of  propriety  and  fitness,  than  one  of  power.  In  the  present 
case  we  think  that  the  interests  of  the  corporation  and  those  of  the 
public  were  so  nearly  coincident,  it  being  plainly  for  the  advantage  of 
both  that  the  shortest,  safest,  and  cheapest  route  should  be  chosen,  that 
the  power  might  be  safely  intrusted  to  a  corporation  thus  constituted. 
This  mode  of  exercising  the  right  of  eminent  domain  is  warranted  by 
numerous  precedents,  both  in  our  own  Commonwealth  and  in  most  of 
the  other  States  of  the  Union. 

We  are  then  brought  to  another  and  very  important  inquiry,  which 
is  this ;  supposing  the  legislature  has  a  full  and  constitutional  authority 
to  pass  an  Act,  empowering  the  defendants  to  la}'  out  their  railroad 
over  the  land  used  by  the  plaintiffs,  whether  the}'  have  in  fact  granted 
any  such  power.  This  must  depend  upon  the  construction  of  the  Act 
of  Incorporation.  .  .  . 

The  court  are  of  opinion,  upon  the  whole  case,  that  the  legislature 
had  the  constitutional  power,  to  a  limited  extent,  to  exercise  the  right 
of  eminent  domain  over  the  lands  used  by  the  complainants  as  their 


976  WEST   KIVER   BRIDGE   CO.    V.    DIX    ET   AL.  [CHAP.  YI. 

full  and  receiving  basins,  providing  In  the  Act  suitable  measures  for 
ninking  compensation  to  the  complainants,  if  they  sustained  damage 
thereby  ;  that  the  Act  did  make  such  provision  ;  that  the  power  of  the 
legislature  was  well  executed,  in  declaring  the  general  purpose  and 
exigenc}'  of  appropriating  private  property  for  public  use,  b}-  establish- 
ing a  railroad  within  certain  termini  expressed,  and  by  granting  to  a 
corporation,  established  and  constituted  as  the  defendant  corporation 
was,  the  power  of  determining  the  particular  course  and  direction  of 
the  railroad  between  those  termini;  that  the  defendants  were  not 
restrained,  b}-  express  words,  or  any  necessaiy,  just,  or  reasonable 
implication,  from  laying  out  their  railroad  as  they  have  done,  over  the 
basins  used  by  the  complainants  under  their  franchise,  and  therefore, 
that  the  averment  of  the  complainants,  that  the  railroad  is  laid  over 
their  basins  without  any  just  and  lawful  authority,  and  is  consequently 
a  nuisance,  is  not  supported. 

In  The  West  Elver  Bridge  Co.  v.  Dix  et  al,  6  How.  507,  532 
(1848),  on  error  to  the  Supreme  Court  of  Vermont,  it  was  held  that 
the  real  estate,  easement,  and  franchise  of  a  bridge  corporation,  char- 
tered by  the  State,  might  be  taken  b}-  the  right  of  eminent  domain. 
The  court  (Daniel,  J.)  said  :  ''  Into  all  contracts,  whether  made  between 
States  and  individuals  or  between  individuals  only,  there  enter  con- 
ditions which  arise  not  out  of  the  literal  terms  of  the  contract  itself ; 
the}'  are  superinduced  by  the  pre-existing  and  higher  authorit}-  of  the 
laws  of  nature,  of  nations,  or  of  the  community  to  which  the  parties 
belong ;  they  are  always  presumed,  and  must  be  presumed,  to  be 
known  and  recognized  by  all,  are  binding  upon  all,  and  need  never, 
therefore,  be  carried  into  express  stipulation,  for  this  could  add  nothing 
to  their  force.  Every  contract  is  made  in  subordination  to  them,  and 
must  j'ield  to  their  control,  as  conditions  inherent  and  paramount, 
wherever  a  necessit}'  for  their  execution  shall  occur.  Such  a  condition 
is  the  right  of  eminent  domain.  This  right  does  not  operate  to  impair 
the  contract  effected  b}-  it,  but  recognizes  its  obligation  in  the  fullest 
extent,  claiming  only  the  fulfilment  of  an  essential  and  inseparable  con- 
dition. Thus,  in  claiming  the  resumption  or  qualification  of  an  investi- 
ture, it  insists  raerel}'  on  the  true  nature  and  character  of  the  right 
invested.  The  impairing  of  contracts  inhibited  by  the  Constitution  can 
scarcel}',  b}'  the  greatest  violence  of  construction,  be  made  applicable 
to  the  enforcing  of  the  terms  or  necessary  import  of  a  contract ;  the 
language  and  meaning  of  the  inhibition  were  designed  to  embrace  pro- 
ceedings attempting  the  interpolation  of  some  new  term  or  condition 
foreign  to  the  original  agreement,  and  therefore  inconsistent  with  and 
violative  thereof.  It,  then,  being  clear  that  the  power  in  question  not 
being  within  the  purview  of  the  restriction  imposed  by  the  tenth  section 
of  the  first  article  of  the  Constitution,  it  remains  with  the  States  to  the 
full  extent  in  which  it  inheres  in  every  sovereign  government,  to  be 
exercised  by  them  in  that  degree  that  shall  by  them  be  deemed  com- 


CHAP.  VL]         boston  &  LOWELL  R.  K,  V.  SALEM  &  LOWELL  R.  R.  977 

mensurate  witli  public  necessity.  So  long  as  they  shall  steer  clear  of 
the  single  predicament  denounced  by  the  Constitution,  shall  avoid  in- 
terference with  tlie  obligation  of  contracts,  the  wisdom,  the  modes,  the 
policy,  the  hardship  of  any  exertion  of  this  power  are  subjects  not 
within  the  proper  cognizance  of  this  court.  This  is,  in  truth,  purely  a 
question  of  power ;  and  conceding  tlie  power  to  reside  in  the  State  gov- 
ernment, this  concession  would  seem  to  close  the  door  upon  all  further 
controversy  in  connection  with  it.  Tlie  instances  of  the  exertion  of 
this  power,  in  some  mode  or  other,  from  the  very  foundation  of  civil 
government,  have  been  so  numerous  and  familiar,  that  it  seems  some- 
what strange,  at  this  day,  to  raise  a  doubt  or  question  concerning  it. 
In  fact,  the  whole  policy  of  the  countr}',  relative  to  roads,  mills,  bridges, 
and  canals,  rests  upon  this  single  power,  under  which  lands  have  been 
always  condemned  ;  and  without  the  exertion  of  this  power,  not  one  of 
the  improvements  just  mentioned  could  be  constructed.  In  our  coun- 
try it  is  believed  that  the  power  was  never,  or,  at  any  rate,  rarel}', 
questioned,  until  the  opinion  seems  to  have  obtained  that  the  right  of 
property-  in  a  chartered  corporation  was  more  sacred  and  intangible 
than  the  same  right  could  possibly  be  in  the  pei-son  of  the  citizen  ;  an 
opinion  which  must  be  without  any  grounds  to  rest  upon,  until  it  can 
be  demonstrated  either  that  the  ideal  creature  is  more  tlian  a  person,  or 
the  corporeal  being  is  less.  For,  as  a  question  of  the  power  to  appro- 
priate to  public  uses  the  property  of  private  persons,  resting  upon  the 
ordinary  foundations  of  private  right,  there  would  seem  to  be  room 
neither  for  doubt  nor  difficulty.  A  distinction  has  been  attempted,  in 
argument,  between  the  power  of  a  government  to  appropriate  for  pub- 
lic uses  property  which  is  corporeal,  or  may  be  said  to  be  in  being,  and 
the  like  power  in  the  government  to  resume  or  extinguish  a  franchise. 
The  distinction  thus  attempted  we  regard  as  a  refinement  which  has  no 
foundation  in  reason,  and  one  that,  in  truth,  avoids  the  true  legal  or 
constitutional  question  in  these  causes  ;  nameh',  that  of  the  right  in 
private  persons,  in  the  use  or  enjoyment  of  tlieir  private  property,  to 
control  and  actually  to  prohibit  the  power  and  duty  of  the  government  to 
advance  and  protect  the  general  good.  We  are  aware  of  nothing  pecu- 
liar to  a  franchise  which  can  class  it  higher,  or  render  it  more  sacred, 
than  other  propert}'.     A  franchise  is  property,  and  nothing  more." 

In  Boston  &  Lowell  R.  R.  Corp.  v.  Salem  &  Lowell  R.  R.  Co.,  et  ah, 
2  Gra}',  1,  35  (1854),  after  holding  that  a  legislative  provision  in  plain- 
tiffs' charter  that  no  other  railroad  should  be  authorized  between  certain 
points  for  thirty  years  was  a  valid  contract,  the  court  (Shaw,  C.  J.) 
said:  "But  it  is  earnestly  insisted  that  the  grants  to  the  defendant 
corporations  do  warrant  and  justify  them  in  setting  up  the  line  of  trans- 
portation by  railroad,  by  the  union  of  the  several  sections  of  their 
respective  railroads  ;  and  that  it  may  be  regarded  as  lawfully  done, 
under  the  right  of  the  government  to  appropriate  private  property  for 
public  use.  It  is  fully  conceded  that  the  right  of  eminent  domain,  the 
VOL.  I.  — 62 


978  BOSTON  A  LOWELL  R.  R.  V.  SALEM  &  LOWELL  R.  R.         [cHAP.  VL 

right  of  the  sovereign,  exercised  in  due  form  of  law,  to  take  private 
property  for  public  use,  when  necessity  requires  it,  of  which  the  gov- 
ernment must  judge,  is  a  right  incident  to  every  government,  and  is 
often  essential  to  its  safet}'.  And  property  is  nomen  general issimum, 
and  extends  to  every  species  of  valuable  right  and  interest,  and  includes 
real  and  personal  property,  easements,  franchises,  and  incorporeal 
hereditaments.  Even  the  term  '  taking,'  which  has  sometimes  been  relied 
upon  as  implying  something  tangible  or  corporeal,  is  not  used  in  the 
Massachusetts  Declaration  of  Rights  ;  but  the  provision  is  this  :  '  When- 
ever the  public  exigencies  require  that  the  property  of  any  individual 
should  be  appropriated  to  public  uses,  he  shall  receive  a  reasonable 
compensation  therefor.'  Declaration  of  Rights,  art.  10.  Here  again 
the  term  '  appropriate '  is  of  the  largest  import,  and  embraces  every 
mode  by  which  property  may  be  applied  to  the  use  of  the  public. 
Whatever  exists,  which  public  necessity  demands,  may  be  thus  appro- 
priated. It  was  held  in  the  Supreme  Court  of  the  United  States  that  a 
franchise  to  build  and  maintain  a  toll  bridge  might  be  so  appropriated ; 
and  that  the  right  of  an  incorporated  company  to  maintain  such  a 
bridge,  under  a  charter  from  a  State,  might,  under  the  right  of  eminent 
domain,  be  taken  for  a  highway.  West  Ricer  Bridge  v.  Dix^  6  How. 
507.  The  same  point  was  afterwards  decided  in  the  same  court  in  the 
case  of  a  railroad.  Richmond,  Fredericksburg,  &  Potomac  Railroad 
V.  Louisa  Railroad,  13  How.  83.  Such  appropriation  is  not  regarded 
as  impairing  the  right  of  property,  or  the  obligation  of  any  contract ;  on 
the  contrary,  it  freely  admits  such  right,  and  in  all  just  governments 
provision  is  made  for  an  adequate  compensation,  which  recognizes  the 
owner's  right. 

"  Nor  does  it  appear  to  us  to  make  any  difference  whether  the  land, 
or  any  other  right  or  interest  thus  appropriated,  be  derived  directly 
from  the  government,  or  acquired  otherwise ;  for  the  reason  already 
stated,  that  it  does  not  revoke  the  grant  or  annul  or  impair  the  contract, 
but  recognizes  and  admits  the  validity  of  both.  If,  for  instance,  gov- 
ernment, through  its  authorized  agent,  had  contracted  to  convey  land 
to  an  individual,  and  afterwards,  and  before  the  title  passed,  it  should 
be  necessary  to  appropriate  such  land  to  public  uses,  such  taking  would 
not  impair  the  obligation  of  the  contract ;  the  individual  would  have 
the  same  right  to  compensation  for  the  loss  of  his  equitable  title  to  the 
land,  as  he  would  have  had  for  the  land  itself  if  the  title  to  it  had 
passed.  If,  therefore,  in  the  great  advancement  of  public  improve- 
ments, in  the  great  changes  which  take  place,  in  the  number  of  inhab- 
itants, in  the  number  of  passengers  and  quantity  of  property  to  be 
transported,  or  in  great  and  manifest  improvements  in  the  mode  of 
travel  and  locomotion,  it  becomes  necessary  to  appropriate,  in  whole  or 
in  part,  a  franchise  previously  granted,  the  existence  of  which  is  recog- 
nized and  admitted,  we  cannot  doubt  that  it  would  be  competent  for  the 
legislature,  in  clear  and  express  terras,  to  authorize  the  appropriation  of 
such  franchise,  making  adequate  compensation  for  the  same. 


CHAP.  VI.]  GARDNER  V.   TRUSTEES   OF   NEWBURGH.  979 

"  But  we  cannot  perceive  in  the  Acts  of  Incorporation  of  the  three 
defendant  corporations,  or  in  any  of  the  Acts  in  addition  thereto,  any 
Act  of  the  government,  taking  or  appropriating  any  of  the  rights,  fran- 
chises,  or  privileges  of  the   plaintiff  corporation   under   the   right  of 
eminent  domain.     The  characteristics  of  such  an  Act  of  appropriation 
are  known  and  well  understood.     It  must  appear  that  the  government 
intend  to  exercise  this  high  sovereign  right,  by  clear  and  express  terms, 
or  by  necessary  implication,  leaving  no  doubt  or  uncertainty  respecting 
such  intent.     It  must  also  appear  by  the  Act  that  they  recognize  the 
right  of  private  property,  and  mean  to  respect  it ;  and  under  our  Con- 
stTtution,  the  Act  conferring  the  power  must  be  accompanied  by  just 
and  constitutional  provisions  for  full  compensation  to  be  made  to  the 
owner.     If  the  government  authorizes  the  taking  of  property,  for  any 
use  other  than  a  public  one,  or  fails  to  make  provision  for  a  compensa- 
tion, the  Act  is  simply  void  ;  no  right  of  taking  as  against  the  owner  is 
conferred  ;  and  he  has  the  same  rights  and  remedies  against  a  party 
acting  under  such  authority,  as  if  it  had  not  existed.     In  general,  there- 
fore, "when  any  Act  seems  to  confer  an  authority  on  another  to  take 
property,  and  the  grant  is  not  clear  and  explicit,  and  no  compensation 
is  provided  by  it,  for  the  owner  or  party  whose  rights  are  injuriously 
affected,  the  law  will  conclude  that  it  was  not  the  intent  of  the  legis- 
lature to  exercise  the  right  of  eminent  domain,  but  simply  to  confer  a 
right  to  do  the  act,  or  exercise  the  power  given,  on  first  obtaining  the 
consent  of  those  thus  affected." 


GARDNER  v.  TRUSTEES   OF  NEWBURGH. 
Court  of  Chancery  of  New  York.     1816. 

[2  Johns.  Ch.  162.] 

The  bill,  which  was  for  an  injunction,  stated  that  the  plaintiff  Is 
owner  of  a  farm,  in  the  village  of  Newburgh,  through  which  a  stream 
of  water  has,  from  time  immemorial,  run,  having  its  source  from  a 
spring  in  the  adjoining  farm  of  the  defendant,  Hasbrouck,  and  after 
enterhig  the  plaintiff's  land,  continues  its  whole  course  through  his 
farm  until  it  empties  into  the  Hudson  River.  That  this  stream  greatly 
fertilizes  his  fields,  and,  running  near  his  house,  serves  for  watering 
his  cattle,  and  for  various  domestic  and  economical  purposes.  That  it 
supplies  water  to  a  brick-yard  on  the  farm  of  the  plaintiff,  where  most 
of  the  bricks  used  in  Newburgh  are  made  ;  it  also  supplies  a  large  dis- 
tillery erected  by  him  at  great  expense,  and  a  churning-mill,  and  water 
for  a  mill-seat,  where  the  plaintiff  is  about  to  erect  a  mill  for  grinding 
plaster  of  paris.  That  the  trustees  of  the  village  of  Newburgh,  the 
defendants,  by  false  representations,  obtained  an  Act  of  the  Legislature, 


980  GARDNER   V.   TRUSTEES    OF   NEWBURGH.  [CHA.P.  VL 

passed  the  27th  of  March,  1809,  to  enable  the  said  trustees  to  sui)pl3' 
the  inhabitants  of  the  village  with  pure  and  wholesome  water.  That 
the  trustees  applied  to  the  plaintiff  for  leave  to  divert  the  stream,  offer- 
ing him  a  trifling  and  very  inadequate  compensation,  which  he  refused. 
That  the  said  trustees  having  obtained  leave  from  the  defendant,  Has- 
brouck,  the  owner  of  the  spring,  to  use  and  divert  the  water,  or  a  part 
tliereof,  that  is,  a  stream  one  inch  and  a  quarter  in  diameter,  taken 
from  a  great  elevation,  have  commenced  a  conduit  and  tlireaten  to 
divert  the  stream,  or  a  great  part  thereof,  from  4he  plaintiff's  farm. 
That  the  plaintiff  is  apprehensive  that  if  this  is  done,  there  will  not,  in 
a  dry  season,  be  water  sufficient  even  for  his  cattle,  etc.  The  plaintiff, 
therefore,  prayed  an  injunction  to  prevent  the  defendants  from  divert- 
ing the  water,  etc.  The  bill  was  sworn  to,  and  the  plaintiff  produced 
several  affidavits,  which  stated  that  the  stream  was  not  more  than 
sufficient  for  the  distillery,  brick-yard,  etc.,  of  the  plaintiff,  and  if 
diverted  through  a  pipe,  or  tube,  of  the  proposed  diameter,  would 
greatly  injure,  if  not  render  the  works  useless.  One  of  the  affidavits 
stated  that  the  whole  stream  would  pass  through  a  tube  of  one  inch 
diameter,  with  a  head  of  five  feet. 

£urr  and  J.   V.  JV^.   Yates,  for  the  plaintiff. 

The  Chancellor.  The  statute  under  which  the  trustees  of  the 
village  of  Newburgh  are  proceeding  (sess.  32,  ch.  119)  makes  ade- 
quate provision  for  the  party  injured  by  the  laying  of  the  conduits 
through  his  land,  and  also  affords  security-  to  the  owner  of  the  spring, 
or  springs,  from  whence  the  water  is  to  be  taken.  But  tliere  is  no  pro- 
vision for  making  compensation  to  the  plaintiff,  through  whose  land  the 
water  issuing  from  the  spring  has  been  accustomed  to  flow.  The  bill 
charges,  that  the  trustees  are  preparing  to  divert  from  the  plaintiff's 
land  the  whole,  or  the  most  part  of  the  stream,  for  the  purpose  of 
supplying  the  village.  The  plaintiff's  right  to  the  use  of  the  water  is 
as  valid  in  law,  and  as  useful  to  him  as  the  rights  of  others  who  are 
indemnified  or  protected  by  the  statute ;  and  he  ought  not  to  be 
deprived  of  it,  and  we  cannot  suppose  it  was  intended  he  should  be 
deprived  of  it,  without  his  consent,  or  without  making  him  a  just  com- 
pensation. The  Act  is,  unintentionall}',  defective,  in  not  providing  for 
his  case,  and  it  ought  not  to  be  enforced,  and  it  was  not  intended  to 
be  enforced,  until  such  provision  should  be  made. 

It  is  a  clear  principle  in  law,  that  the  owner  of  land  is  entitled  to  the 
use  of  a  stream  of  water  which  has  been  accustomed,  from  time  imme- 
morial, to  flow  through  it,  and  the  law  gives  him  ample  remedy  for  the 
violation  of  this  right.  To  divert  or  obstruct  a  water-course  is  a 
private  nuisance  ;  and  the  books  are  full  of  cases  and  decisions  assert- 
ing the  right  and  affording  the  remedy.  (F.  N.  B.  184.  Moore  v. 
Browne,  Dyer,  319  b  ;  LvttereVs  Case,  4  Co.  86  ;  Glynne  v.  Nichols^ 
Comb.  43,  2  Show.  507;  Prichnaa  v.  Trip,  Comb.  231.) 

The  Court  of  Chancery  has  also  a  concurrent  jurisdiction,  l\y  injunc- 
tion,  equally    clear   and    well    established    in   these   cases   of  private 


CHAP.  VI.]  GARDNER   V.    TRUSTEES    OF   NEWBURGII.  981 

nuisance.  Without  noticing  nuisances  arising  from  otiier  causes,  we 
liave  many  cases  of  tiie  application  of  equity  powers  on  this  very 
subject  of  diverting  streams.  In  Finch  v.  Jiesbridger  (2  Vern.  390), 
the  Lord  Keeper  held,  that  after  a  long  enjoyment  of  a  water-course 
running  to  a  liouse  and  garden,  through  the  ground  of  another,  a  right 
was  to  be  presumed,  unless  disproved  by  the  other  side,  and  the 
plaintiff  was  quieted  in  his  enjoyment,  by  injunction.  So,  again,  in 
Bush  V.  Western  (Prec.  in  Cli.  o3Uj,  a  plaintiff  who  had  been  in 
possession,  for  a  long  time,  of  a  water-course,  was  quieted  by  injunc- 
tion, against  the  interruption  of  the  defendant,  who  had  diverted  it, 
though  the  plaintiff  had  not  established  his  right  at  law,  and  the  court 
said  such  bills  were  usual.  These  cases  show  the  ancient  and  estab- 
lished jurisdiction  of  this  court;  and  the  foundation  of  that  jurisdiction 
is  the  necessity  of  a  preventive  remedy  when  great  and  immediate 
mischief,  or  material  hijury  would  arise  to  the  comfort  and  useful 
enjT)"ynient  of  propert}'.  The  interference  rests  on  the  principle  of  a 
clear  and  certain  right  to  the  enjoyment  of  the  subject  in  question,  and 
an  injurious  interruption  of  that  right  which,  upon  just  and  equitable 
grounds,  ought  to  be  prevented.  {Ano7i.  1  Vern.  120  ;  East  India  Com- 
pany V.  Sandi/s,  1  Vern.  127  ;  Hills  v.  University  of  Oxford.,  1  Vei'u. 
275  ;  Anon.  1  Vesey,  476  ;  Anon.  2  Vese}',  41-1  ;  Whitchurch  wllide.,  2 
Atk.  391  ;  2  Vesey,  453  ;  Attorney- General  v.  Mchol,  16  Vesey,  338). 

In  the  application  of  the  general  doctrines  of  the  court  to  this  case, 
it  appears  to  me  to  be  proper  and  necessary-  that  the  preventive  remedy 
be  applied.  There  is  no  need,  from  what  at  present  appears,  of  send- 
ing the  plaintiff  to  law  to  have  his  title  first  established.  His  right  to 
the  use  of  the  stream  is  one  which  has  been  immemorially  enjoyed,  and 
of  which  he  is  now  in  the  actual  possession.  The  trustees  set  up  no 
other  right  to  the  stream  (assuming,  for  the  present,  the  charges  in  the 
bill)  than  what  is  derived  from  the  authority  of  the  statute  ;  and  if 
they  are  suffered  to  proceed  and  divert  the  stream,  or  tlie  most  essential 
part  of  it,  the  plaintiff  would  receive  immediate  and  great  injurj',  b}' 
the  suspension  of  all  those  works  on  liis  land  which  are  set  in  operation 
by  the  water.  In  addition  to  this,  he  will  lose  the  comfort  and  use  of 
the  stream  for  farming  and  domestic  purposes  ;  and,  besides,  it  must 
be  painful  to  any  one  to  be  deprived,  at  once,  of  the  enjoyment  of  a 
stream  which  he  has  been  accustomed  always  to  see  flowing  by  the  door 
of  his  dwelling.  A  right  to  a  stream  of  water  is  as  sacred  as  a  right  to 
the  soil  over  which  it  flows.  .  It  is  a  pait  of  the  freehold  of  which  no 
man  can  be  disseised  •'  but  by  lawful  judgment  of  his  {)eers,  or  by  due 
process  of  law."  This  is  an  ancient  and  fundamental  maxim  of 
common  right  to  be  found  in  magna  charta,  and  which  the  legisla- 
ture has  incorporated  into  an  Act  declaratory  of  the  rights  of  the 
citizens  of  this  State.     (Laws,  sess.  10,  ch.  1  ) 

I  have  intimated  that  the  statute  does  not  deprive  the  plaintiff  of  the 
use  of  the  stream,  until  recompense  be  made.  He  would  be  entitled  to 
his  action  at  law  for  the  interruption  of  his  right,  and  all  his  remedies 


982  GARDNER   V.   TRUSTEES    OF   NEWBUKGH.  [CHAP.  VI. 

at  law,  and  in  this  court,  remain  equally  in  force.  But  I  am  not  to  be 
understood  as  denying  a  competent  power  in  the  legislature  to  take 
private  property  for  necessary  or  useful  public  purposes  ;  and,  perhaps, 
even  for  the  purposes  specified  in  the  Act  on  which  this  case  arises. 
But  to  render  the  exercise  of  the  power  vahd,  a  fair  compensation  must, 
in  all  cases,  be  previously  made  to  the  individuals  affected,  under  some 
equitable  assessment  to  be  provided  bv  law.  This  is  a  necessary 
qualification  accompanying  the  exercise  of  legislative  power,  in  taking 
private  property  for  public  uses ;  the  limitation  is  admitted  by  the 
soundest  authorities,  and  is  adopted  b}'  all  temperate  and  civilized 
governments,  from  a  deep  and  universal  sense  of  its  justice. 

Grotius  (De  Jur.  B.  &  P.  b.  8,  eh.  14,  s.  7),^  Puflfendorf  (De  Jur. 
Nat.  et  Gent.  b.  8,  ch.  5,  s.  7),  and  Bynkershoeck  (Qufest.  Jur.  Pub.  b.  2, 
ch.  15),  when  speaking  of  the  eminent  domain  of  the  sovereign,  admit 
that  private  property  may  be  taken  for  public  uses,  when  public 
necessity  or  utility  require  it ;  but  the}'  all  la}"  it  down  as  a  clear  prin- 
ciple of  natural  equit}',  that  the  individual  whose  property  is  thus 
sacrificed,  must  be  indemnified.  The  last  of  those  jurists  insists,  that 
private  property  cannot  be  taken,  on  an}-  terms,  without  consent  of  the 
owner,  for  purposes  of  public  ornament  or  pleasure ;  and,  he  men- 
tions an  instance  in  which  the  Roman  Senate  refused  to  allow  the 
praetors  to  carry  an  aqueduct  through  the  farm  of  an  individual, 
against  his  consent,  when  intended  merely  for  ornament.  The  sense 
and  practice  of  the  English  government  are  equall}'  explicit  on  this 
point.  Private  propert}'  cannot  be  violated  in  an}-  case,  or  by  any  set 
of  men,  or  for  any  public  purpose,  without  the  interposition  of  the 
legislature.  And  how  does  the  legislature  interpose  and  compel?  .  .  . 
[Here  follows  a  passage  from  1  Bl.  Com.  139.     See  supra,  p.  952.] 

I  may  go  further,  and  show  that  this  inviolability  of  private  property, 
even  as  it  respects  the  acts  and  the  wants  of  the  State,  unless  a  just 
indemnity  be  afforded,  has  excited  so  much  interest,  and  been  deemed 
of  such  importance,  that  it  has  frequently  been  made  the  subject  of  an 
express  and  fundamental  article  of  right  in  the  constitution  of  govern- 

1  This  citation  should  be  Book  ii.  c.  14,  s.  7.  The  treatise  has  but  three  books. 
Chapter  fourteen  relates  to  the  promises  and  contracts  of  kings.  After  speaking  of 
the  sense  in  which  they  may  be  said  to  incur  obligations  to  their  subjects,  the  author 
goes  on,  in  section  7,  thus  :  "  VII.  Sed  hoc  quoque  sciendum  est,  posse  subditis  jus  etiam 
quaesitum  auferri  per  regem  duplici  modo,  aut  in  poenam,  aut  ex  vi  supereminentis 
dominii.  Sed  ut  id  fiat  ex  vi  supereminentis  dominii,  j)rimum  requiritur  utilitas  publica ; 
deinde,  ut  si  fieri  potest  compensatio  fiat  ei  qui  suum  amisit,  ex  communi.  Hoc  ergo  si- 
cut  in  rebus  aliis  locum  habet,  ita  et  in  jure  quod  ex  promisso  aut  contractu  quaeritur." 

In  Whewell's  translation  the  passage  is  given  thus :  "  This  also  is  to  be  noted,  that 
a  right,  even  when  it  has  been  acquired  by  subjects,  may  be  taken  away  by  the  king 
in  two  modes  ;  either  as  a  Penalty,  or  by  the  force  of  Eminent  Dominion.  But  to  do 
this  by  the  force  of  Eminent  Dominion,  there  is  required,  in  the  first  place,  public 
utility ;  and  next,  that,  if  possible,  compensation  be  made  to  him  who  has  lost  what 
was  his,  at  the  common  expense.  And  as  this  holds  with  regard  to  other  matters,  so 
does  it  with  regard  to  rights  which  are  acquired  by  promise  or  contract." 

For  other  passages  from  Grotius,  as  well  as  the  other  citations  in  the  text,  sej) 
supra,  pp.  946-950.  —  Ed. 


CHAP.  VI.]  GARDNER   V.    TRUSTEES   OF   NEWBURGH.  983 

ment.  Such  an  article  is  to  l)e  seen  in  the  bill  of  rights  annexed  to 
the  constitutions  of  the  States  of  Pennsylvania,  Delaware,  and  Ohio ; 
and  it  has  been  incorporated  in  some  of  the  written  constitutions 
adopted  in  Europe  (Constitutional  charter  of  Lewis  XVIII.  and  the 
ephemeral,  but  verj-  elalwratel^'  drawn,  Constitution  de  la  Republique 
J^ran^aise  of  1795).  But  what  is  of  higlier  authority,  and  is  absolutely 
decisive  of  the  sense  of  the  people  of  this  countrj-,  it  is  made  a  part  of 
the  Constitution  of  the  United  States,  "  that  private  property  shall  not 
be  taken  for  public  use,  without  just  compensation."  I  feel  m3'self, 
therefore,  not  onl3'  authorized,  but  bound  to  conclude,  that  a  provision 
for  compensation  is  an  indispensable  attendant  on  the  due  and  consti- 
tutional exercise  of  the  power  of  depriving  an  individual  of  his  prop- 
ertj-;  and  I  am  persuaded  that  the  legislature  never  intended,  by  the 
Act  in  question,  to  violate  or  interfere  with  this  great  and  sacred  prin- 
ciple of  private  right.  This  is  evident  from  the  care  which  this  Act 
bestows  on  the  rights  of  the  owners  of  the  spring,  and  of  the  lands 
through  which  the  conduits  are  to  pass.  These  are  the  only  cases  in 
which  the  legislature  contemplated  or  intended  that  the  Act  could  or 
should  interfere  with  private  right,  and  in  these  cases  due  provision  is 
made  for  its  protection,  or  for  compensation.  There  is  no  reason  wh}' 
the  rights  of  the  plaintiff  should  not  have  the  same  protection  as  the 
rights  of  his  neighbors,  and  the  necessity  of  a  provision  for  his  case  could 
not  have  occurred,  or  it,  doubtless,  would  have  been  inserted.  Until, 
then,  some  provision  be  made  for  affording  him  compensation,  it  would 
be  unjust,  and  contrary  to  the  first  principles  of  government,  and 
equall}'  contrary  to  the  intention  of  this  statute,  to  take  from  the 
plaintiff  his  undoubted  and  prescriptive  right  to  the  use  and  enjoj'ment 
of  the  stream  of  water.  .  .  . 

I  shall,  accordingly,  upon  the  facts  charged  in  the  bill,  and  supported 
by  affidavits,  as  a  measure  iramediatel}'  necessary  to  prevent  impending 
injur}',  allow  the  injunction,  and  wait  for  the  answer,  to  see  whether  the 
merits  of  the  case  will  be  varied.  Injunction  granted} 

1  Compare  Chancellor  Kent,  in  1832  (1  Kent's  Com.  *447) :  "The  principle  in  the 
English  government,  that  the  Parliament  is  omnipotent,  does  not  prevail  in  the  United 
States ;  though,  if  there  be  no  constitutional  o])jection  to  a  statnte,  it  is  with  us  as 
absolute  and  uncontrollable  as  laws  flowing  from  the  sovereign  power  under  any  other 
form  of  government."     See  ante,  p.  16.5,  note. 

This  case  and  that  of  5/nn/cA-so»i  v.  Johnson  (infra,  p.  986),  are  sometimes  referred  to 
as  if  they  judicially  held  that  in  a  State  where  the  Constitution  is  silent,  the  courts  can 
disregard  a  legislative  Act  which  plainly  and  indisputably  takes  private  property  for 
public  purposes,  without  providing  for  compensation.  Neither  case  so  holds.  In 
Gardner  v.  Neivhurqh,  the  statute  was  not  set  .nside ;  but  its  true  construction  was 
declared,  and  the  defendants  were  enjoined  from  violating  it.  This  construction  was 
reached  on  the  ground,  first,  that  other  parts  of  the  statute  indicated  the  intention  to 
be  what  is  now  laid  down ;  and,  second,  that  the  contrary  view  would  impute  to  the 
legislature  what  would  be  "  unju.«t  and  contrary  to  the  first  principles  of  government." 
This  method,  in  constitutional  questions,  that  of  construction,  is  one  on  which  courts 
may  travel  far;  and  they  do  and  should.  Compare  Note  to  Paxton's  Case,  ante, 
p.  48,  Doe,  J.,  in  Orr  v.  Qtnmbi/,  54  N.  H.  647,  and  Com.  v.  Lehigh,  ^c.  Co.,  29  AtL 
Rep.  664,  665  (Pa.  July,  1894).  —  Ed. 


984  ROGEKS  V.    BKADSHAW.  [CHAP.  VL 


ROGERS   V.   BRADSHAW. 
New  York  Court  of  Errors.     1823. 

[20  Johns.  735.1] 

S.  Young  and  H.  Bleecker,  for  the  plaintiffs  in  error. 

A.   Van   Yechten,  for  the  defendant  in  error. 

Tiie  Chancellor  [Kent].  This  case  came  before  the  Supreme  Court 
upon  certiorari,  founded  on  a  justice's  judgment. 

It  appeared  by  the  return  of  the  justice,  that  Bradshaw  sued  Rogers 
and  Magee,  in  trespass,  for  entering,  in  June,  1821,  upon  his  land,  and 
cutting  down  timber.  They  justified  under  the  several  Acts  relative  to 
the  canals.  It  was  shown  in  proof,  that  the  route  of  the  northern  canal, 
at  the  place  in  question,  was  directed  by  the  chief  engineer;  that  the 
turnpike  road  adjoining  the  place  where  the  trespass  w^as  alleged  to 
have  been  committed,  was  unavoidably  encroached  on  by  the  tract  or 
course  of  the  canal,  and  that  another  road  was  indispensable  at  that 
place,  and  must  have  been  made  before  the  canal  was  commenced  y  that 
the  land  on  which  the  entrj-  was  made,  was  a  necessary,  if  not  the  only 
course  for  the  road,  and  was  the  least  expensive,  and  best  for  the  ac- 
commodation of  the  public  ;  the  chief  engineer  approved  of  the  road  as 
staked  out,  and  it  was  staked  out  by  his  direction,  and  was  in  length 
about  forty-two  rods,  and  in  width  four  rods  ;  and  the  two  defendants, 
under  the  authority  of  the  canal  commissioners,  and  in  pursuance  of  a 
contract  with  one  of  them,  were  putting  the  ground  in  the  form  of  a 
turnpike,  when  the  action  of  trespass  was  brought.  The  timber  and 
wood  cut  down  were  supposed  to  have  been  worth  from  twent}-  to  forty 
dollars.  Upon  these  facts,  the  justice  held  the  justification  valid,  and 
gave  judgment  for  the  defendants. 

The  Supreme  Court  reversed  the  judgment  of  the  justice  ;  and  in  the 
opinion  delivei-ed  by  the  Chief  Justice  in  behalf  of  the  court,  it  was 
stated,  that  the  land  of  Bradshaw  was  not  entered  upon  for  the  prosecu- 
tion of  canal  improvements,  but  was  taken  as  a  substitute  for  part  of  the 
turnpike  road,  which  had  been  broken  up  and  taken  for  the  canal,  and 
thei'ofore  the  case  did  not  come  within  the  powers  given  to  the  canal 
commissioners  by  the  Act  of  1817.  It  was  further  stated,  that  the 
case  did  not  come  within  the  powers  granted  b}'  the  Act  of  1820,  be- 
cause a  turnpike  was  not  a  public  road  or  highway,  within  the  meaning 
of  the  Act,  and  because  the  Act  contained  no  provision  for  compensa- 
tion to  the  owner  of  the  land  so  taken.  .  .  . 

According  to  my  view,  then,  of  the  case,  the  Supreme  Court  were 
mistaken  when  they  held,  that  the  Act  of  1817  did  not  apply  to  the 
case,  on  the  ground  that  the  land  of  the  defendant  in  error  had  not 
been  entered  upon  for  the  prosecution  of  the  canal  improvements.     I 

1  The  statement  of  facts  is  omitted.  —  Ed. 


CH.Vr.  VI.]  ROGERS    V.    BRADSIIAW.  985 

apprehend,  the}-  were  equally  in  an  error  when  the}'  held,  that  under 
the  subsequent  Act  of  1820,  the  proceedings  were  indefensible.  .   .  . 

It  appears  to  me  to  be  a  sufficient  answer  to  this  objection,  that  the 
Act  of  1817  had  provided  the  renied}-  for  compensation  for  every  injury 
committed  by  the  commissioners  in  the  execution  of  their  powers ;  and 
when  new  powers  are  added  (though,  I  apprehend,  the  Act  of  1820  did 
not,  on  this  point,  confer  any  power  not  before  existing),  the  same 
remcd}'  would  applj-.   .   .  . 

If  the  remedy  given  in  1817  did  not  extend  to  lands  appropriated 
under  the  powers  mentioned  in  the  latter  Act,  yet  I  should  doubt  ex- 
ceedingh-,  whether  the  general  principle,  that  pi-ivate  property  is  not  to 
be  taken  for  public  uses  without  just  compensation,  is  to  be  carried  so 
far  as  to  make  a  public  officer  who  enters  upon  private  property  by 
virtue  of  legislative  authority,  specially  given  for  a  public  purpose,  a 
trespasser,  if  he  enters  before  the  property  has  been  paid  for.  I  do  not 
know,  nor  do  I  find,  that  the  precedents  will  justify  any  court  of  justice 
in  carrying  the  general  principle  to  such  an  extent.  The  Supreme 
Court,  in  one  pai't  of  their  opinion,  admit,  that  the  canal  commissioners 
have  a  right  to  enter  upon,  and  occupy  lands,  necessary-  to  effectuate 
the  objects  of  their  appointment,  without  having  first  paid  the  loss 
and  damage  the  proprietor  of  lands  may  sustain.  This  equitable  and 
constitutional  title  to  compensation,  undoubtedl}',  imposes  it  as  an 
absolute  duty  upon  the  legislature  to  make  provision  for  compensation, 
whenever  the}-  authorize  an  interference  with  private  right.  Perhaps, 
in  certain  cases,  the  exercise  of  the  power  might  be  judicially  restrained, 
until  an  opportunity  was  given  to  the  party  injured  to  seek  and  obtain 
the  compensation.  But  it  would  deserve  a  very  grave  consideration 
biifore  we  undertook  to  la}'  down  the  broad  proposition,  that  notwith- 
standing a  statute  clearly  and  expressly  directed  the  assumption  of 
private  property  for  a  necessar}-  public  object,  it  would  still  be  a  nuUit}', 
and  the  officer  who  undertook  to  execute  it  a  trespasser,  if  a  provision 
for  compensation  did  not  constitute  part  and  parcel  of  the  Act  itself. 
However,  it  is  not  necessary  to  give  any  opinion  on  tliis  point,  for,  as  I 
have  already  observed,  the  provision  for  compensation,  in  the  Act  of 
1817,  extended  to  cases  arising  under  the  Act  of  1820. 

I  am,  accordingly,  of  opinion,  that  whether  the  justification  of  the 
commissioners  be  referred  to  the  Act  of  1817,  or  of  1820,  it  is  equally 
valid  and  effectual,  and  that  the  judgment  of  the  Supreme  Court  is, 
consequently,  erroneous,  and  ought  to  be  reversed. 

This  being  the  unanimous  opinion  of  the  court,  it  was,  thereupon, 
ordered,  adjudged,  and  decreed,  that  the  judgment  of  the  Supreme 
Court  be  reversed,  &c.,  and  that  the  record  be  remitted,  &e. 

Judgment  of  reversal} 

1  And  so  Jerome  v.  Ross,  7  Johns.  Ch.  315,  344.  But  see  Randolph,  Eminent 
Domain,  s.  229. 

In  a  case  relating  to  taxation  it  was  said  by  Brewer,  J.,  for  the  court,  in  Paulsen 
V.  Portland,  149  U.  S.  30,  38  (1892),  that,  "While  uot  questioning  that  notice  to  the 


986  SINNICKSON   V.  JOHNSON   ET   AL.  [CHAP.  VI 


SINNICKSON  V.  JOHNSON  et  al. 
New  Jersey  Supreme  Court  of  Judicature.     1839. 

[2  Harrison,  129.] 

R.  P.   Thompson,  for  plaintiff,  W.  N.  Jeffers,  for  defendants. 

Dayton,  J.  The  declaration  complains  of  the  defendants  for  an 
injur}'  done  to  their  meadows  b}' reason  of  the  erection  and  continuance 
of  a  darn  over  Salem  Creek.  The  defendants  plead  as  a  justification, 
that  said  dam  was  erected  and  continued  by  virtue  of  an  Act  of  the 
Legislature  of  the  State,  entitled,  "  An  Act  to  authorize  John  Denn,  of 
the  county  of  Salem,  to  shorten  the  Navigation  of  Salem  Creek,  by  cut- 
ting a  Canal,"  passed  November  6,  1818.  All  which  is  set  out  with 
proper  averments.  To  this  plea,  the  plaintiff  has  demurred,  and  the 
defendants  have  filed  a  joinder.  [The  statement  of  the  contents  of 
the  Act  is  placed  in  a  note.*] 

tax-payer  in  some  form  must  be  given  before  an  assessment  for  the  construction  of  a 
sewer  can  be  sustained,  as  in  any  other  demand  upon  the  individual  for  a  portion  of 
his  property,  we  do  not  think  it  essential  to  the  validity  of  a  section  in  the  charter  of 
a  city  granting  power  to  construct  sewers  that  there  should  in  terms  be  expressed 
either  the  necessity  for  or  the  time  or  manner  of  notice  The  city  is  a  miniature 
State,  the  council  is  its  legislature,  the  charter  is  its  Constitution  ;  and  it  is  enough  if, 
in  that,  the  power  is  granted  in  general  terms,  for  when  granted,  it  must  necessarily 
be  exercised  subject  to  all  limitations  imposed  by  constitutional  provisions,  and  the 
power  to  prescribe  the  mode  of  its  exercise  is,  except  as  restricted,  subject  to  the 
legislative  discretion  of  the  council." 

Compare  Davidson  v.  A'  0.,  96  U.  S.  97,  105 ;  s.  c.  supra,  pp  610,  614  —Ed. 

1  The  Act  in  question  (Pamph.  L.  of  1818,  p.  .5)  enacts  substantially  as  follows:  — 

Sec.  1.    That  John  Denn  be  authorized  to  cut  the  canal  as  therein  prescribed. 

Sec.  2.  That  the  canal  shall  be  cut  wholly  on  the  land  of  said  Denn,  at  least  twenty- 
two  feet  broad  at  the  top  and  of  sufficient  width  at  the  bottom,  and  depth  of  water  for  all 
vessels  navigating  said  creek  ;  and  shall,  when  cut  and  opened,  be  at  all  times  after- 
ward a  public  highway,  and  be  kept  open  at  least  of  the  depth  and  width  aforesaid,  at 
the  sole  expense  of  said  Denn,  his  heirs  and  assigns. 

Sec.  3.  That  when  said  Denn  shall  have  completed  the  canal,  as  is  directed,  and 
obtained  a  certificate  thereof  from  the  Chosen  Freeholders  of  the  townships  of  Man- 
nington  and  Lower  Penns  Neck,  or  a  majority  of  them,  and  filed  the  same  in  the 
Clerk's  Office  of  the  county  of  Salem,  "  it  shall  and  may  be  lawful  for  the  said  John 
Denn,  his  heirs  and  assigns,  to  build  a  bridge  over  the  said  Salem  Creek,>r  the  accom- 
wodotion  of  himself,  his  heirs  and  assigns,  opposite  the  mansion  house  of  the  said  John 
Denn,"  provided  that  the  land  to  be  occupied  in  its  construction  be  his  own,  and  that 
he  do' not  by  its  abutments  contract  tlie  creek  so  as  to  injure  the  navigation  ;  and  do 
put  a  draw  in  the  same,  at  least  twenty-two  feet  wide,  and  that  he,  his  heirs  and 
assigns,  maintain  said  bridge  and  draw,  at  their  own  cost  and  charges. 

Sec.  4.  That  any  person  who  shall  obstruct  the  digging  of  the  canal,  &c.,  or  injure 
the  bridge,  &c.,  shall  forfeit  one  hundred  dollars,  to  said  Denn,  his  heirs  and  assigns 

Sec.  .5.  That' when  the  canal  shall  have  been  completely  finished,  and  made  navigable 
for  vessels  as  aforesaid,  and  shall  be  used  and  found  sufficient  for  the  space  of  three 
years  after  being  first  used,  "  it  shall  and  may  be  lawfnl  for  the  said  Denn,  his  heirs  or 
assigns,  to  stop  the  creek  at  the  place  where  the  said  bridge  may  have  been  erected;" 
from  which  time  his  liability  to  maintain  the  bridge  and  draw  shall  cease. 


CHAP.  VI.]  SINNICKSON    V.   JOHNSON    ET   AL.  987 

The  point  presented  by  the  demurrer,  is  this  :  Does  the  above  Act 
exonerate  John  Denn,  his  heirs  and  assigns,  from  the  payment  of  dam- 
ages done  to  individuals,  by  stoppage  of  the  creek?  Great  care  has 
been  used  by  the  legisUiture,  in  providing  another  navigable  highway 
for  the  public,  in  lieu  of  that  which  was  authorized  to  be  stopped  up. 
So,  too,  the  legislature  have  provided  against  all  damages  (which  could 
be  anticipated)  to  private  i-ights.  John  Denn  was  to  use  no  one's  land 
but  his  own,  and  everything  was  to  be  done  at  his  individual  expense. 
But  although  I  think  it  plain  that  the  legislature  never  intended  to  in- 
jure private  rights,  yet  the  unforeseen  result  is  otherwise.  The  meadows 
in  question  are  admitted,  by  the  state  of  the  pleadings,  to  have  been 
damnified  by  the  stoppage  of  this  creek  ;  and  yet  the  statute  which 
authorizes  the  Act  has  not  provided  compensation  for  the  injury.  The 
constitutionality  of  the  law  is  not  now  questioned  ;  but  it  is  insisted 
that  the  common  law  right  of  the  plaintiff  to  recover  damages  is  in  full 
force.     And  in  this  position,  I  think,  the  plaintiff  is  right. 

It  is  a  well  settled  rule,  that  statutes  in  derogation  of  common  law 
rights  are  to  be  strictly  construed  ;  and  we  are  not  to  infer  that  the 
legislature  intended  to  alter  the  common  law  principles,  otherwise  than 
is  clearl}'  expressed.     11  Mod.  149. 

Chancellor  Vroora  in  an  o[)inion  delivered  in  the  term  of  August, 
1835,  in  reference  to  another  branch  of  the  same  subject  matter,  which 
is  now  before  us,  laid  down  the  position  distinctly,  that  the  Act  in  ques- 
tion does  not  exempt  him  who  does  an  injury  from  damages ;  which 
opinion,  thus  far,  the  counsel  contend,  is  not  law. 

But  the  question  whether  a  party  who  has  acted  in  pursuance  of  a 
statute,  is  protected  from  damages,  where  the  statute  itself  is  silent,  has 
been  before  some,  at  least,  of  our  most  respectable  State  courts.  In  the 
case  of  Gardner  v.  The  Trustees  of  Newhiirgh  et  ah,  2  J.  C.  C.  162,  a 
company  had  been  chartered  to  suppl}'  the  town  of  Newburgh  with  pure 
water,  but  were  restrained  b}*  injunction  from  diverting  a  water-course, 
as  authorized  b3'  the  statute,  until  compensation  was  made  to  the  own- 
ers of  the  land  through  which  it  ran,  although  the  Act  made  no  provi- 
sion for  such  compensation  to  them  ;  and  Kent,  Ch.,  observed,  that  the 
owner  of  the  lands  "  would  be  entitled  to  his  action  at  law,  for  the 
interruption  of  his  right,  and  all  his  remedies  at  law,  and  in  that  court, 
remained  equall}'  in  force." 

The  case  of  Crittenden  v.  Wilson,  5  Cowen,  IGG,  is  in  point.  In 
this  case,  the  court  held  that  the  right  of  the  legislature  to  grant  the 
privilege  of  making  a  dam  over  the  Otselic  River,  which  was  a  public 
highwa}-,  was  too  clear  to  be  disputed,  but  the  grantee  took  it  subject 
to  the  restriction,  sic  iitere  tuo,  uf  alienum  no7i  Icp.das.  That  if  no 
provision  for  the  pa3-ment  of  damages  done  to  individuals,  by  reason 
of  the  dam,  had  been  made  b3'  statute,  the  defendant  would  still  be 
liable  to  pay  them. 

It  is  true  that  in  Rogers  v.  Bradshaw,  20  J.  R.  73o,  it  is  intimated 
that  an  exception  to  this  rule  may  exist  in  the  case  of  public  commis- 


988  SIXNICKSOX   V.    JOHNSON    ET   AL.  [CHAP.  VI. 

sioners  acting  under  direction  of  the  statute,  as  the  direct  agents  of 
the  State  in  the  execution  of  a  great  pubUc  improvement,  and  not  as 
volunteers  for  their  own  benefit. 

In  the  case  of  Stephens  v.  Proprietors  of  the  Middlesex  Canal,  12 
Mass.  R.  466,  it  is  said  that  should  the  legislature  authorize  an  im- 
provement (as  cutting  a  canal)  the  execution  of  which  would  require 
or  produce  the  destruction,  or  diminution  of  private  property,  without 
at  the  same  time  giving  relief,  the  owner  would  undoubtedly  have  his 
action  at  common  law  for  damages. 

These  authorities  would  appear  to  cover  and  rule  the  present  case. 
But  it  was  contended  b}-  counsel,  that  they  were  decided  upon  their 
respective  States'  bills  of  rights,  which  declare  that  private  propert}' 
shall  not  be  taken  for  public  use,  without  just  compensation,  and  that 
as  our  Constitution  contains  no  such  limit  or  restriction,  the  cases  have 
no  application,  or  in  other  words  that  the  Legislature  of  New  Jerse}' 
being  unrestricted  b}'  constitutional  provisions,  is  omnipotent,  and  ma}' 
take  private  property  for  public  use,  without  compensation,  whenever 
it  shall  will  to  do  so. 

The  right  to  take  private  property  for  public  use  does  not  depend  on 
constitutional  provisions,  but  is  one  of  the  attributes  of  sovereign 
power;  and  the  Constitution  of  the  United  States  recognizes  it  as  such, 
when  it  says,  the  right  shall  not  be  exercised  without  just  compensa- 
tion. This  power  to  take  private  property  reaches  back  of  all  consti- 
tuted provisions  ;  and  it  seems  to  have  been  considered  a  settled  principle 
of  universal  law,  that  the  right  to  compensation  is  an  incident  to  the 
exercise  of  that  power :  that  the  one  is  so  inseparably  connected  with 
the  other,  that  they  may  be  said  to  exist  not  as  separate  and  distinct 
principles,  but  as  parts  of  one  and  the  same  principle.  Puffendorf, 
b.  8,  ch.  5,  p.  222;  2  Montesquieu,  ch.  15,  p.  200;  Vattel,  112,  113; 
1  Black.  C.  139  ;  2  Kent,  C.  339,  340  ;  2  J.  C.  C.  168  ;  1  Peter's  Com. 
R.  99,  111  ;  3  Story's  Com.  on  Constitution,  661  ;  Bonaparte  v.  Cam- 
den and  Amhoy  Railroad  Conipany,  Bald.  R.  220.  The  language 
of  Judge  Baldwin,  in  the  case  last  cited,  is  "  the  obligation"  to  (make 
compensation),  "  attaches  to  the  exercise  of  the  power  "  (to  take  the 
property),  "  though  it  is  not  provided  for  liy  the  State  Constitution,  or 
that  of  the  United  States  had  not  enjoined  it." 

And  Story  calls  the  provision  on  this  subject,  in  the  Constitution  of 
the  United  States,  merely  "  an  affirmance  of  a  great  doctrine  estab- 
lished by  the  common  law."  This  principle  of  public  law  has  been 
made,  by  express  enactment,  a  part  of  the  Constitution  of  the  United 
States  {vide  5th  Amendment),  l)ut  it  has  been  decided  that  as  a  consti- 
tutional provision,  it  does  not  apply  to  the  several  States.  Barron  v. 
Mayor  of  Baltimore,  7  Peters,  247;  Livingston's  Lessee  v.  Moore., 
7  Peters,  551,  552.  Still  if  the  opinions  of  the  above  distinguished  jurists 
be  correct,  it  is  operative  as  a  principle  of  universal  law  ;  and  the  legis- 
lature of  this  State  can  no  more  talvc  private  property  for  public  use, 
without  just  compensation,  than  if  this  restraining  principle  were  iucor- 


CHAP.  VI.]  SINNICKSON   V.   JOHNSON   ET   AL.  989 

porated  into,  and  made  part  of  its  State  Constitution.  I  have  felt  it  a 
diit}-  to  notice  tliis  point,  thus  far,  because  of  its  interest  and  importance 
in  the  abstract,  and  of  the  groat  reliance  placed  upon  it  in  tlie  argument 
of  the  counsel,  though  I  scarce!}-  considered  it  necessary  lor  the  settle- 
nu'ut  of  this  case,  to  pronounce  upon  it  a  different  opinion. 

According  to  my  understanding  of  the  Act  in  question,  the  legisla- 
ture neither  intended  to  take,  nor  has  it  taken,  private  property  for 
public  use,  in  the  sense  in  whicli  these  terms  are  proper!}'  to  be  under- 
stood. For  the  accommodation  of  John  Denn,  tiiey  authorized  him  (if 
he  thought  proper  so  to  do)  to  stop  up  a  navigable  creek  upon  condi- 
tion that  he  cut  a  canal  at  his  own  expense  and  upon  his  own  propert}-, 
as  a  highway  for  tlie  public,  in  lieu  of  the  creek.  By  the  terms  of  the 
Act,  tlierefore,  I  think,  tlie  legislature  has  manifested  a  clear  intent  to 
provide  against  au}^  interference  with  private  propert}-.  It  merely 
agreed  to  give  up  its  right  of  passage  upon  the  creek  (or  in  otiier  words, 
its  pulilic  projierty  there)  for  anotiier  right  of  passage  equal!}-  or  more 
valualjie,  to  be  provided  by  John  Denn.  Tlie  damages  which  have  ac- 
crued to  tlie  meadow  owners  have  not  arisen  from  cutting  the  canal, 
wliich,  in  one  sense,  was  for  the  benefit  of  the  public,  but  by  the  stop- 
page of  tlie  creek,  which  was  for  the  individual  benefit,  or  private 
emolument  of  John  Denn. 

Tlie  case  therefore  is  not  within  the  principle  laid  down  in  4  Durn.  & 
E.  796,  and  SuU07i  v.  Clark,  6  Taunt.  29,  41,  where  it  was  held  that 
pul)!ic  olHcers  acting  under  the  autliority  of  an  Act  of  Parliament,  in 
repairing  public  streets,  were  not  answerable  for  damages,  unless  they 
were  guilty  of  an  excess  of  jurisdiction  ;  that  the  maxim  api)lied,  salus 
popull,  suprema  est  lex,  and  that  if  no  satisfaction  were  given  by  the 
Act  of  Parliament,  the  party  was  without  remedy.  It  is  not  therefore 
necessary  to  inquire  whether  or  not  these  cases  conflict  in  princii)le  with 
those  already  cited.  Gibbs,  C.  J.,  in  Sutton  v.  Clark,  carefully  dis- 
tinguishes the  case  of  a  public  officer  who  is  bound  to  execute  a  duty 
imposed  on  liim  by  statute,  from  that  of  a  mere  volunteer,  who  acts 
not  for  public  purposes,  but  private  emolument.  I  tliink  it  can  hardly 
be  pretended,  that  John  Denn^  stopped  Salem  Creek  for  public  pur- 
poses under  any  obligatory  directions  of  the  statute.  So  far  from  this, 
it  is  evident  on  tlie  face  of  tlie  act,  tliat  it  was  done  voluntarily  and  for 
Ids  own  accommodation.  The  most  that  can  be  said  Hm-  liiui  is,  that  by 
cutting  the  canal,  he  paid  a  consideration  to  the  [)ublic,  for  the  privi- 
lege of  doing  so. 

The  powers  given  by  the  Act  to  John  Denn  are  such  only  as  he 
■would  have  had,  if  the  creek  in  question  had  been  liis  own.  He  can 
build  his  bridge  over  it,  or  dam  it  up,  at  his  pleasure,  and  his  bridge  or 
dam  cannot  be  complained  of  by  the  public,  as  a  nuisance  ;  but  if  in 
exercising  his  rights,  he  damnifies  the  property  of  liis  neighbors,  he  is 
liable,  like  every  other  citizen,  to  respond  in  damages  to  the  amount  of 
the  injury. 

Judgment  must  be  entered  for  the  plaintiff  on  demurrer,  witli  costs. 


990  HARVEY   V.    THOMAS.  [CHAP.  VL 

Nevins,  J.  .  .  .  Upon  examining  this  Act  I  cannot  view  it  in  any 
otlier  light  than  a  private  Act  and  intended  for  the  benefit  of  John 
Denn.  .  .  .  Does  this  Act  then  confer  npon  John  Denn  and  his  assigns 
the  right  to  talie,  injure,  or  destroy  private  property,  without  compen- 
sation to  the  owners?  If  it  does,  it  is  unconstitutional  and  void,  and 
in  violation  of  natural  justice,  and  therefore  would  not  be  a  defence  to 
the  plaintiffs  claim.  If  it  does  not  confer  such  right,  it  constitutes  no 
justification,  and  the  plea  cannot  therefore  be  sustained.  The  legisla- 
ture are  to  be  considered  as  conferring  nothing  but  what  they  had  a 
constitutional  right  to  grant.  They  could  not  grant  to  him  the  right 
to  overflow  the  land  of  the  plaintiff  or  in  an}'  other  wa}'  to  injure  or 
destroy  it  without  compensation,  and  if  no  such  compensation  is  pro- 
vided for,  the  plaintiff  has  a  right  to  seek  his  remedy  through  courts 
of  justice  by  suit.  It  is  no  answer  to  say  that  the  party  injured  must 
or  may  resort  to  the  justice  of  the  legislature.  If  such  be  his  only 
remedy,  it  is  of  too  vague,  indefinite,  and  uncertain  a  character  to  be 
recognized  b}'  courts.  The  Constitution  and  laws  of  this  State  can 
never  leave  the  citizen  such  remedy  only,  for  a  clear  infringement  of 
his  private  rights.  Nor  is  it  an  available  argument  to  say  that  if  the 
defendants,  as  the  assignees  of  John  Denn,  are  to  respond  to  the  plain- 
tiff in  this  action  for  the  injur}'  to  his  propert}'  by  reason  of  an  act 
authorized  by  law,  the  consequences  to  them  may  be  ruinous,  and  the 
work  contemplated  b}-  the  act,  absolutel}'  prevented.  Suppose  it  to  be 
so,  ma}'  it  not  be  answered  that  in  accepting  the  grant,  they  acted 
voluntarily,  and  should  have  foreseen  and  provided  against  the  conse- 
quences, and  would  it  not  be  equally  if  not  more  unjust  and  oppressive 
upon  the  plaintiff  to  ruin  and  destroy  his  property,  without  the  slightest 
compensation  or  recompense? 

I  am  of  opinion  that  the  plea  is  no  justification  to  the  act  complained 
of,  and  that  the  demurrer  therefore  be  sustained. 

HoRNBLOwfiR,  Ch.  J.,  concurred  in  sustaining  the  demurrer.  He  had 
not  time  to  prepare  a  written  opinion. 

Ford,  J.,  read  an  opinion  sustaining  the  demurrer. 

White,  J.,  was  not  present  at  the  argument,  and  gave  no  opinion. 
Judgment  for  plaintiff ,  on  the  demurrer,  with  costs. 

In  Harvey  v.  Thomas,  10  Watts,  63,  66  (1840),  in  holding  valid  a 
Pennsylvania  statute  of  May  5,  1832,  for  the  construction  of  lateral 
railroads  to  connect  private  propert}'  with  certain  public  improvements, 
the  court  (Gibson,  C.  J.)  said  :  "  The  most  material  point  in  the  cause 
is  that  which  involves  the  constitutionality  of  the  statute  on  which  the 
defendant's  right  is  founded  ;  but  it  is  one  about  which  little  need  be 
said.  If  there  is  an  appearance  of  solidit}'  in  any  part  of  the  argument, 
it  is  that  the  legislature  have  not  power  to  authorize  an  application  of 
another's  property  to  a  private  purpose  even  on  compensation  made, 
because  there  is  no  express  constitutional  affirmance  of  such  a  power. 
But  who  can  point  out  an  express  constitutional  disaffirmance  of  it? 


CHAP.  VI.]  HARVEY  V.   THOMAS.  991 

The  clause  by  which  it  is  declared  that  no  man's  property  shall  be 
taken,  or  applied  to  puhlic  use,  without  the  consent  of  his  representa- 
tives, and  without  just  compensation  made,  is  a  disabling,  not  an 
enabling  one ;  and  the  right  would  have  existed  in  full  force  without  it. 
Whethe"  the  power  was  only  partially  restrained  for  a  reason  similar  to 
that  which  induced  an  ancient  lawgiver  to  annex  no  penalty  to  parricide, 
or  whether  it  was  thought  there  would  be  no  temptation  to  the  act  of 
taking  the  property  of  an  individual  for  another's  use,  it  seems  clear 
that  tliere  is  nothing  in  the  Constitution  to  prevent  it;  and  the  practice 
of  the  legislature  has  been  in  accordance  with  the  principle,  of  which 
the  application  of  another's  ground  to  the  purpose  of  a  private  way  is 
a  preo-nant  proof.  It  is  true  that  the  title  of  the  owner  is  not  divested 
by  it  r  but  in  the  language  of  the  Constitution,  the  ground  is  nevertheless 
'  applied  '  to  private  use.  It  is  also  true,  that  it  has  usually,  perhaps 
always,  been  so  applied  on  compensation  made  ;  but  this  has  been  done 
from  a  sense  of  justice,  and  not  of  constitutional  obligation.  But  as  in 
the  case  of  the  statute  for  compromising  the  dispute  with  the  Con- 
necticut claimants,  under  which  the  property  of  one  man  was  taken 
from  him  and  given  to  another,  for  the  sake  of  peace,  the  end  to  be 
attained  by  this  lateral  railroad  law  is  the  public  prosperity.  Pennsyl- 
vania has  an  incalculable  interest  in  her  coal  mines ;  nor  will  it  be 
alleged  that  the  incorporation  of  railroad  companies,  for  the  develop- 
ment of  her  resources,  in  this  or  any  other  particular,  would  not  be  a 
measure  of  public  utility ;  and  it  surely  will  not  be  imagined  that  a 
privilege  constitutionally  given  to  an  artificial  person,  would  be  less 
constitutionally  given  to  a  natural  one.  .  .  .  Judgment  affirmed."  ^ 

1  In  affirming  this  point,  in  Hans  v.  Risher,  32  Pa.  169, 177.  the  court  (Woodward, 
J.)  said  .  "The  truth  is,  when  a  lateral  railroad  is  laid  upon  intervening  lands,  private 
property  is  not  taken  for  private  use,  and  there  was  no  occasion  for  Judge  Gibson's 
remark  in  Harvey  v.  Thomas,  10  Watts,  63,  that  the  Constitution  does  not  forbid  such 
taking.  The  private  property  is  taken  for  public  use  —  for  clear  and  definite  objects 
of  a  public  nature  which  are  of  sufficient  importance  to  attract  the  sanction  of  the 
sovereign.  That  an  individual  expects  to  gain  thereby,  and  has  private  motives  for 
risking  the  whole  of  the  necessary  investment,  and  acquires  peculiar  rights  in  the 
work,  detracts  not  a  whit  from  the  public  aspects  of  it.  The  same  thing  can  be  said  of 
every  railway  corporation  and  of  almost  every  public  enterprise." 

The  statute  as  to  lateral  railroads  provided  that,  any  owner  of  land,  mills,  quarries, 
coal  mines,  lime-kilns  or  other  real  estate,  not  over  three  miles  from  any  railroad, 
canal,  or  slack  water  navigation  made  by  the  State  or  any  corporation,  who  wishes  to 
make  a  railroad  thereto  over  any  intervening  land,  may  enter  and  survey,  and  on  peti- 
tioning the  court  of  common  pleas  of  the  county,  have  six  commissioners  appointed, 
and  on  the  report  of  any  four  of  these  that  such  railroad  is  necessary  and  useful  "  for 
public  or  private  purposes,"  and  after  certain  other  judicial  proceedings,  may  have  a 
final  order  authorizing  the  road.  The  petitioners  are  to  own  the  road.  Anybody  may 
use  it,  but  only  in  the  proprietors'  Avagons,  at  specified  rates.  The  Commonwealth 
may  at  any  time  take  the  roads  on  repaying  the  owners  their  outlay.  Dunl.  Laws 
Pa.  (ed.  1847)  487. 

Compare  6  Am.  Law  Rev.  197,  Taj/lor  v.  Porter  et  a!.,  4  Hill,  140,  148,  Nelson,  C. 
J  dissenting;  and  many  cases  holding  the  laying  out  of  so-called  "private  roads" 
constitutional ;  e.  ^.  Sherman  y.  Binck,  32  Cal.  241  (1867),  affirmed  in  Montere//  Co.  v. 
Cnshin/j,  83  Cal.  507,  511  (1893),  and  Los  Anc/elcs  Co  v  Ee>/es,  32  Pac.  Pep.  2-33 
ICal.  Feb.  1893).    Compare  also  Matter  of  Split  Bock  Cable  Co.,  128  N.  Y.  408.  —  Ed. 


992  RALEIGH   AND    GASTON    RAILROAD    CO.    V.   DAVIS.         [CHAP.  YL 


RALEIGH  &  GASTON   RAILROAD   COMPANY  v.  DAVIS. 

SUPKEME    COUKT    OF    NOKTH    CAROLINA.       1837. 
[2  Dev.  4-  Bat.  451.] 

The  plaintiffs  were  incorporated  by  an  Act  of  the  General  Assembl}' 
passed  in  December,  1835  (2  Rev.  Stat.  299),  "  for  the  purpose  of 
effecting  a  communication  by  a  railroad  from  some  point,  in  or  near 
the  city  of  Raleigh,  to  the  termination  of  the  Greensville  and  Roanoke 
Railroad,  at  or  near  Gaston,  on  the  Roanoke  River."  After  providing 
for  the  organization  of  the  company,  with  the  usual  faculties  of  plead- 
ing and  being  impleaded,  and  purchasing  and  holding  estates  real  and 
personal,  as  far  as  may  be  necessary  for  the  purposes  of  the  Act,  it  pro- 
ceeds in  the  seventh  section,  '■  to  invest  the  president  and  directors 
with  all  the  rights  and  powers  necessary  for  the  construction,  repair, 
and  maintaining  a  railroad,  to  be  located  as  aforesaid,  and  to  make  and 
construct  all  such  works  as  may  be  necessary  and  expedient  to  the 
proper  completion  of  the  road."  B3'  the  12th  section,  the  company 
have  immediately  "  full  power  to  enter  upon  all  lands  through  which 
they  may  wish  to  construct  the  road,  to  lay  out  the  same,"  not  invading 
dwelling-houses,  etc.,  and  with  other  restrictions,  particularly  men- 
tioned. And  by  the  17th  and  21st  sections,  entry  may  be  made  upon 
the  lands  thus  laid  off  for  the  purpose  of  constructing  the  i-oad,  and 
upon  adjacent  lands  for  the  purpose  of  getting  the  necessar3-  materials, 
with  a  provision  in  the  22d  section  for  redress  b}-  action  and  double 
damages,  for  any  wanton  or  wilful  injur}'  to  the  land,  crops,  or  other 
propert}',  by  an  entiy  for  either  of  these  purposes. 

To  provide  for  the  condemnation  of  the  land  thus  laid  off  for  the 
l"oad,  or  entered  upon  after  having  been  thus  laid  off,  and  also  to 
provide  for  a  compensation  to  the  owner  of  the  land,  is  the  subject  of 
nine  sections  of  the  Act  —  beginning  with  the  12th  and  ending  with  the 
20th  section..  The  material  provisions  of  those  parts  of  the  Act  are, 
that  if  the  company'  and  the  owner  of  the  land  cannot  agree  as  to  the 
terms  of  purchase,  the  former  is  authorized,  after  notice  to  the 
owner,  to  apply  to  the  Court  of  Pleas  and  Quarter  Sessions,  and  the 
court  is  thereupon  required  to"  appoint  five  disinterested  and  impartial 
freeholders,  to  assess  the  damages  to  the  owner  from  the  condemna- 
tion of  the  land  for  the  purpose  aforesaid,  any  three  of  whom,  after 
being  sworn  and  viewing  the  premises  and  hearing  such  evidence  as 
either  part}'  may  offer,  may  ascertain  those  damages  and  certifj"  the 
same  "  in  a  form  given  in  the  Act :  and  in  making  the  assessment,  "  they 
shall  consider  the  proprietor  of  the  land  as  tlie  owner  of  the  whole  fee- 
simple  interest  therein,  and  take  into  consideration  the  qualit}'  and 
quantity  of  the  land  condemned,  the  additional  fencing  that  will  be 
required  thereb}',  and  all  the  inconveniences  that  will  result  to  the  pro- 
prietor from  the  condemnation  thereof."     The  report  of  the  freeholders, 


CHAP.  VI.]         EALEIGH   AND    GASTON    RAILROAD    CO.    V.    DAVIS.  993 

when  thus  made,  is  to  be  returned  by  tiiem  forthwith  to  the  court,  and 
"  unless  some  good  cause  be  shown  against  tlie  report,  it  shall  be  con- 
firmed by  the  court,  and  entered  of  record  ;  whereupon,  upon  pa3'ment 
or  tender  of  the  damages,"  the  land  reviewed  and  assessed  as  aforesaid 
shall  be  vested  in  the  Raleigli  and  Gaston  Railroad  Company,  and  they 
shall  be  adjudged  to  hold  the  same  in  fee  simple,  in  the  same  manner 
as  if  the  proprietor  had  sold  and  conveyed  it  to  them.  "  If  the  company 
shall  take  possession  of  any  land,  and  fail  for  fort}'  days  to  institute 
proceedings  for  its  condemnation  as  aforesaid,  or  shall  not  prosecute 
them  with  diligence,  the  proprietor  of  the  land  may  apply  to  the  court 
to  ai)point  the  freeholders  wilii  the  same  duties  and  powers  in  all 
respects  as  before,  and  the  court  shall  in  like  manner  affirm  or  disaffirm 
the  report;  "  and  "  when  any  such  report,  ascertaining  the  damages, 
shall  be  confirmed,  the  court  shall  render  judgment  in  favor  of  the  pro- 
prietor for  the  damages  so  assessed  and  double  costs,  and  when  the 
damages  and  costs  shall  be  satisfied,  the  title  of  the  land  for  which  such 
damages  are  assessed  shall  be  vested  in  the  company  in  the  same 
manner  as  if  the  proprietor  had  sold  and  conveyed  it  to  them." 

B3'  other  parts  of  the  Act,  the  com})any  is  required,  under  pain  of 
forfeiture,  to  begin  the  work  within  two,  and  finish  it  within  ten  years  ; 
and  is  vested  with  the  exclusive  right  of  transportation  on  the  road, 
and  required  to  transport  all  persons  and  property  for  certain  tolls. 

It  is  a  misdemeanor,  punishable  b}'  fine  and  imprisonment,  to  destroy 
or  injiH'e  the  road,  or  place  any  obstructioa  on  it. 

By  section  25,  all  machines  and  vehicles  and  "  all  the  works  of  the 
said  company  constructed,  or  property  acquired  under  the  authority  of 
the  Act,  and  all  profits  which  shall  accrue  from*  the  same,  shall  be 
vested  in  the  respective  stockholders  of  the  compau}'  forever,  in  propor- 
tion to  their  respective  shares  ;  and  the  same  shall  be  deemed  personal 
estate,  and  shall  be  exempt  from  any  public  charge  or  tax  for  fifteen 
years." 

By  the  last  section,  "  the  corporate  powers  granted  by  the  Act  are  to 
enure  for  ninet\'  ^ears  and  no  longer,  unless  renewed  bj'  competent 
authority." 

The  road,  as  laid  out,  passes  over  the  land  of  Mr.  Davis,  situate  in 
Warren  County,  and,  at  November  Term,  1830,  the  company  moved 
the  court  of  that  county  to  a[)point  five  freeholders  to  make  the  assess- 
ment, according  to  the  Act.  Mr.  Davis  appeared  and  made  known  to 
the  court,  that  he  and  the  compan3-  had  been  unable  to  agree  touching 
the  price  to  be  paid  to  him  for  the  land  sought  to  be  condemned,  or 
touching  the  compensation  for  the  inconveniences  he  must  be  subjected 
toby  the  proposed  location  of  the  road.  And  he  refused  his  assent  to 
the  mode  of  proceeding  for  settling  the  controversj-  touching  the  said 
price  and  compensation  then  and  there  prosecuted  b}'  the  compan}',  but 
objected  to  the  same  —  first,  as  a  violation  of  the  right  of  private  prop- 
erty secured  by  the  12th  section  of  the  Bill  of  Rights;  and,  secondly, 
as  depriving  him  of  the  right  to  a  trial  by  jury,  which  is  made  inviolable 
VOL.  I. —63 


994  RALEIGH    AND   GASTON    RAILROAD    CO.    V.   DAVIS.         [cHAP.  VL 

by  the  14th  section  of  the  same  instrument.  The  court,  nevertheless, 
appointed  the  freeholders,  and  made  the  order  specifying  their  duties 
in  the  words  of  the  statute.  At  the  next  term,  three  of  them  returned 
their  report  in  the  form  prescribed  in  the  14th  section,  together  with 
the  certificate  of  the  justice  of  the  peace  who  administered  the  oath  to 
them. 

The  company  thereupon  moved  to  confirm  the  report  and  have  it 
entered  of  record  ;  but  the  other  party  opposed  the  motion,  and  prayed 
tlie  court  to  dismiss  the  proceedings.  Upon  consideration  thereof,  the 
County  Court  refused  the  motion  of  the  company,  and  granted  that  of 
Mr.  Davis ;  from  which  an  appeal  was  prayed,  which  was  also  refused, 
upon  the  ground  that  no  appeal  is  given  in  the  charter. 

The  case  was  then  brought  into  the  Superior  Court  by  a  certiorari, 
and  was  there  heard  on  the  last  Spring  Circuit,  before  his  Honor  Judge 
Bailey,  when  the  order  of  the  County  Court,  dismissing  the  proceed- 
ings, was  held  to  be  erroneous,  and  reversed  with  costs,  and  a  writ  of 
procedendo  ordered,  commanding  the  County  Court  to  proceed  further 
in  the  case  according  to  the  said  Act  of  the  General  Assembly'  and  the 
law  of  the  land.  From  that  judgment  Mr.  Davis  appealed  to  this 
court. 

The  case  was  argued  at  the  last  term,  by  Badger,  for  the  plaintiffs, 
and  the  Attorney- General  and  W.  H.  Haywood,  for  the  defendants. 
The  court  continued  the  case  under  advisement  until  the  present  term, 
when  their  opinion  was  delivered  by  Ruffin,  CiUfiP-elusTiCE  ;  who, 
having  stated  the  case  as  above,  proceerled  as  follows  :  —  As  no  objec- 
tion was  made  in  either  of  the  courts  below,  that  the  road  was  laid  out 
so  as  to  cover  more  land  or  in  a  different  form  than  the  charter 
authorizes ;  or  that  the  freeholders  acted  irregularly ;  or  that  the 
damages  assessed  are  not  a  fair  and  adequate  compensation  for  the 
fee-simple  of  the  land  taken  and  all  incidental  damages,  it  must  be 
assumed,  that  there  is  no  ground  for  exception  in  either  of  those 
respects.  The  case  is  therefore  to  be  decided  on  the  specific  constitu- 
tional objections  made  on  the  part  of  the  defendant. 

Upon  those  questions  the  court  had  the  benefit  of  a  full  argument  at 
the  last  term.  The  impressions  received  were  then  so  decided,  as  to 
have  warranted  the  delivering  of  our  judgment  immediately,  if  it  had 
been  necessary,  but  as  the  prosecution  of  the  work  conducted  hy  this 
company  could  not  be  impeded  by  the  delay,  and  some  of  the  points 
made  are  novel  and  of  much  magnitude,  in  reference  to  a  class  of 
subjects  on  which  there  has  been  recently  and  probably  will  be  copious 
legislation,  it  seemed  discreet,  before  announcing  a  decision,  to  give  to 
the  argument,  and  to  the  whole  subject,  the  deliberation  for  which  the 
vacation  oflfered  the  opportunity. 

The  right  of  the  public  to  private  propert}',  to  the  extent  that  the  use 
of  it  is  needful  and  advantageous  to  the  public,  must,  we  think,  be 
universally  acknowledged.  .  .  .  This,  too,  is  not  only  the  right  of  the 
nation,  constituted  by  the  aggregate  body  of  the  people,  but  it  is  a 


CHAP.  VI.]         KALEIGH    AND    GASTON    RAILROAD    CO.    V.    DAVIS.  995 

light  and  power  of  government.  It  was  said  at  the  bar,  that  it  was  a 
sovereign  right,  and  therefore  remains  witli  the  people  of  this  State, 
since  it  is  not  granted  in  the  Constitution.  The  position,  if  true,  would 
destroy  the  value  of  the  power  here  and  dissolve  the  government.  But 
it  seems  to  the  court  wholly  untenable.  It  is  true  the  eminent  domain 
is  a  political  and  sovereign  power  ;  so  is  every  otlier  power  vested  in,  or 
exercised  by,  any  government.  Before  a  people  institute  a  government, 
they  are  themselves  necessaril}'  the  possessors  of  all  political  i)ower 
which  men,  by  the  natural  and  divine  law,  can  rightfully  exercise  over 
each  other.  But  by  the  constitution  of  government,  the  political  powers 
requisite  to  the  existence  of  government  and  to  the  discharge  of  those 
functions  for  which  the  community  created  it,  are  transferred  by  the 
people  to  the  government.  From  the  people,  the  government  derives 
the  power  to  act  on  and  control  the  people  themselves,  unless  in  those 
points  in  which  the  government  is  restricted  b}-  limitations  of  power. 
With  that  exception,  tlie  powers  of  tiie  nation  become  those  of  the 
government,  save  onl}'  tliat  ove,r  the  constitution  of  government  itself, 
to  abolish  or  alter  it.  The  government  of  the  United  States  is  an  excep- 
tion to  the  general  principle,  from  its  peculiar  construction.  To  its 
formation  the  people  of  the  several  States  were  parties,  and  the}^  as 
the  people  of  several  States,  have  specially  delegated  to  it  particular 
powers  for  the  purpose  of  making  themselves  one  people,  under  one 
government,  for  particular  purposes  onl}-.  But  these  incidental  powers, 
derived  by  a  fair,  proximate,  and  natural  implication  from  those  enu- 
merated, or  from  the  purposes  of  forming  the  Constitution,  as  declared 
on  its  face,  have  been  exercised,  and  must  be  yielded.  The  government 
of  North  Carolina,  however,  is  not  one  of  specially  delegated  powers  : 
it  is  only  one  of  limited  and  restricted  power. 

The  Constitution  begins  l)y  simply  "  establishing  a  government  for 
this  State,"  and  vests  "  the  legislative  power  in  a  Senate  and  House  of 
Commons."  There  are  no  grants  of  power  to  the  legislature  except  in 
a  few  instances,  where  the  power  would  not  seem  naturalh-  to  arrange 
itself  under  the  general  class  of  legislative  powers,  according  to  pre- 
cedent usage,  as  the  election  of  the  Governor  and  other  high  officers. 
It  does  not  even  confer  the  revenue  power,  nor  that  of  granting  the 
vacant  lands  ;  yet  the  legislature  has  always  exercised  both  powers,  by 
levying  taxes,  and  by  autliorizing  dispositions  of  the  public  domain, 
although  "  the  right  to  the  unappropriated  soil  is  declared  to  be,  in  a 
free  government,  one  of  the  essential  rights  of  the  collective  body  of  the 
people,"  which  means  nothing  more  than  that  it  shall  not  be  seized  on 
by  any  individual  or  particular  class,  but  shall  be  kept  or  disposed  of 
for  the  common  benefit  of  the  whole  people.  This  power,  or  right  of 
eminent  domain,  is  likewise  possessed  b}'  the  government,  and  may  be 
exercised  by  the  legislature  or  under  its  authority.  Unless  vested 
there,  it  cannot  be  called  into  action,  and  without  it  neither  the  govern- 
ment nor  the  State  could  hold  together.  It  is  peculiarl}"  fit  to  be  wielded 
by  the  legislature  —  it  is  a  power  founded  on  necessity.    But  it  is  a  neces- 


99G  RALEIGH    AND    GASTON    RAILROAD    CO.    V.    DAVIS.         [CHAP.  VL 

sity  that  varies  in  urgenc}'  with  a  population  and  production  increasing 
or  diminishing,  and  demanding  channels  of  communication,  more  or 
less  numerous  and  improved,  and  therefore  to  be  exercised  according  to 
circumstances,  from  time  to  time.  The  Legislature  of  North  Carolina, 
when  it  was  a  province,  and  since  it  became  a  State,  have  always  exer- 
cised it,  either  directly  or  through  the  intervention  of  the  courts  that 
administer  the  domestic  police  of  the  several  counties.  It  is  a  power 
which  the  government  is  bound  to  the  people  to  exercise,  limited  only 
by  a  sound  discretion  as  to  the  number  and  nature  of  the  roads,  and 
restricted  as  to  the  mode  of  exercising  it  b}'  the  provisions  in  the 
Constitution,  if  any  such  there  be.  It  is  contended  that  there  are  such 
provisions,  and  that  the  Act  before  us  is  in  violation  of  them  in  several 
respects. 

It  is  said  — first,  that  the  right  of  property  involves  the  right  to  pre- 
cedent compensation  for  it,  when  taken  for  public  use.  It  is  thence 
deduced  as  a  corollary,  that  the  questions  whether  the  propert}'  shall 
be  taken,  and  what  compensation  shall  be  paid  for  it,  do  constitute  a 
question  at  law  respecting  property,  and  must  be  tried  b}'  a  jur\', 
according  to  the  14th  section  of  the  Bill  of  Rights. 

If  the  government  can  lawfully  take  private  property-  for  public  use, 
without  compensation,  then,  confessedly,  there  is  no  controversy  to 
be  tried  by  a  jury.  But  the  government  ma}'  prescribe  such  terms 
as  ma}-  be  deemed  befitting  its  own  character  and  the  justice  of  the 
State.  So,  though  there  be  a  constitutional  obligation  on  the  govern- 
ment to  make  compensation,  yet  if  the  compensation  need  not  precede 
the  taking  of  the  propert}-,  the  condemnation  of  the  defendant's  land  is 
not  illegal,  because  he  may  refer  to  the  constitutional  mode  of  ascer- 
taining and  enforcing  payment  of  its  value  and  other  damages.  It 
behooves  the  counsel  for  the  defendants,  therefore,  to  establish  both 
parts  of  the  proposition. 

The  right  to  compensation,  as  an  absolute  and  legal  right,  was  con- 
tested by  the  counsel  for  the  plaintiffs,  and  strenuously  asserted  on  the 
other  side.  The  court  do  not  decide  it,  but  in  this  case  will  assume  it 
to  exist  as  contended  on  the  part  of  the  defendant,  though  not  on  all 
the  grounds  on  which  his  counsel  placed  it.  The  court  cannot  adopt 
some  of  the  several  distinct  sources  from  which  it  was  derived. 

One  of  them  was  the  Fifth  Amendment  of  the  Constitution  of  the 
United  States,  providing  that  "  no  person  shall  be  deprived  of  his  life, 
liberty,  or  property,  without  due  process  of  law ;  nor  shall  private 
property  be  taken  for  public  use  without  just  compensation."  That 
has  always  been  understood  to  be  a  limitation  of  the  power  of  the  Fed- 
eral government,  and  not  of  that  of  the  States.  It  was  authoritatively 
so  held  by  the  Supreme  Court  of  the  United  States,  in  Barron  v.  The 
Mayor  of  Baltimore,  7  Peters's  Rep.  243,  which  dispenses  with  further 
observations  from  this  court. 

The  natural  right  and  justice  of  compensation,  and  the  nature  of  our 
free  institutions,  were  also  relied  on  as  sufficient  in  themselves  to  create 


CHAP.  VI.]        KALEIGH   AND   GASTON   RAILROAD   CO.   V.   DAVIS.  997 

the  supposed  restriction  on  this  power.     But  the  sense  of  right  and  wrong 
varies  so  much  in  different  individuals,  and  the  principles  of  what  is 
called  natural  justice  are  so  uncertain,  that  they  cannot  be  referred  to  as 
a  sure  standard  of  constitutional  power.     It  is  to  the  Constitution  itself 
we  must  look,  then,  and  not  merely  to  its  supposed  general  complexion. 
There  must  be  words  in  it  which,  upon  a  fair  interpretation,  and  in  ref- 
erence to  the  subject-matter,  and  to  direct  consequences,  are  incompat- 
ible with  the  enactments  of  the  legislature,  before  a  court  can  pronounce 
such  enactments  null.     The  principle  is,  however,  so  salutary  to  the 
citizen,  and  concerns  so  nearly  the  character  of  the  State,  that  it  may 
well  be  urged  that  it  must  be  consecrated  by  its  adoption  in  some  part 
of  the  free  Constitution  of  this  State.     We  should  be  reluctant  to  pro- 
nounce judicially  our  inability  to  find  it  in  that  instrument.    If  it  be  not 
incorporated  therein,  the  omission  must  be  attributed  to  the  belief  of 
the  founders  of  the  government  that  the  legislature  would  never  perpe- 
trate so  flagrant  an  act  of  gross  oppression,  or  that  it  would  not  be 
tolerated  by  the  people,  but  be  redressed  by  the  next  representatives 
chosen.     There  is  no  doubt  that,  while  the  legislature  and  the  people  of 
this  State  expressly  restrict  the  action  of  the  general  government  on 
this  subject,  it  must  have  been  supposed  by  the  people  that  their  own 
local  government  was  in  like  manner  restrained,  or  would  never  act  in 
a  manner  to  make  such  a  restraint  necessary.     There  is,  however,  no 
clause  in  that  instrument  which  seems  to  bear  on  the  point,  unless  it  be 
that  which  is  relied  on  in  the  argument  for  the  defendant.     It  is  the 
twelfth  section  of  the  Bill  of  Rights,  which  declares,  "  that  no  freeman 
shall  be  disseised  of  his  freehold,  or  deprived  of  his  life,  liberty,  or 
property,  but  by  the  law  of  the  land."     Under  the  guaranty  of  this 
article,  it  has  been  held,  and  in  our  opinion  properly  held,  that  private 
property  is  protected  from  the  arbitrary  power  of  transferring  it  from 
one  person  to  another.    We  doubt  not  that  it  is  also  protected  from  the 
power  of  despotic  resumption,  upon  a  legislative  declaration  of  forfeit- 
ure, or  merely  to  deprive  the  owner  of  it,  or  to  enrich  the  treasurj-, 
unless  as  a  pecuniary  contribution  by  way  of  tax.     Such  Acts  have  no 
foundation  in  any  of  the  reasons  on  which  depends  the  power,  in  virtue 
of  the  right  of  eminent  domain,  to  take  private  property  for  the  public 
use,  and  they  could  not  be  sustained  by  the  offer  of  the  fullest  compen- 
sation.    Though  not  so  obvious,  it  may  also  be  true  that  the  clause 
under  consideration  is  restrictive  of  the  right  of  the  public  to  the  use  of 
private  property,  and  impliedly  forbids  it,  without  compensation.     But 
it  is  a  point  on  which  the  court  is  not  disposed,  nor  at  liberty,  to  give  a 
positive  opinion  on  this  occasion.     It  is  not  required  as  a  preventive 
warning  against  unjust  legislation.     For  it  is  more  inadmissible  to  sup- 
pose that  the  legislative  Acts  will  be  designed  to  work  oppression  and 
wrong  than  to  violate  the  Constitution  directly.    It  is  not  deemed  prob- 
able,"and  with  difficulty  conceived  to  be  possible,  that  the  legislature 
will  at  any  time  take  the  property  of  the  citizen  for  public  use,  without 
at  the  same  time  providing  some  reasonable  method  of  ascertaining  a 


998  RALEIGH   AND    GASTON    RAILROAD   CO.    V.   DAVIS.         [cHAP.  VL 

just  compensation,  and  some  certain  means  of  pajing  it.  Moreover,  it 
is  not  open  to  tlie  court  to  give  tlie  definitive  opinion  demanded,  be- 
cause it  does  not,  in  our  judgment,  necessaril}'  arise  here,  and  it  is 
indecent  to  decide  so  grave  a  question  extrajudicial!}-.  Here  the  stat- 
ute does  give  compensation  fair  and  liberal,  embracing  not  only  the 
direct,  but  all  incidental  and  consequential  damages.  For  the  purpose 
of  this  cause,  therefore,  it  may  be  taken  for  granted  that  compensation 
is  in  all  cases  requisite,  as  no  doubt  it  will  in  all  cases  be  made.  But 
with  this  admission,  the  court  is  of  opinion  that  the  proposition  of  the 
defendant's  counsel,  as  to  the  mode  of  ascertaining  it,  and  the  period  of 
payment,  is  not  sound. 

Unless  the  compensation  must  precede  the  seizure  of  the  property,  it 
is  true  that  in  many  cases  one  of  the  principal  securities  for  it  is  im- 
paired, and  by  possibility  may  be  lost, —  that  of  the  judicial  enforce- 
ment of  the  right.  When  the  property  is  taken  for  the  public  directly, 
and  the  payment  is  to  be  made  out  of  the  treasury,  the  compensation 
cannot  be  made  the  subject  of  litigation  against  the  State,  but  the  party 
must  rely  on  the  integrity  of  the  legislature  and  the  general  will  to  ha^•e 
equal  right  done  to  all.  Yet  it  seems  impossible  to  lay  it  down  as  a 
principle  that  compensation  is  indispensably  a  condition  precedent ;  and 
this  must  be  added  to  the  examples  already-  known,  in  which  an  injunc- 
tion of  the  Constitution  cannot  be  made  the  subject  of  judicial  cog- 
nizance, but  finds  its  only  sanction  in  the  understanding  and  conscience 
of  the  legislator.  The  exigencies  of  the  public  may  be  too  urgent  to 
admit  of  the  delay  requisite  to  the  simplest  mode  of  previous  investi- 
gation. In  time  of  war,  for  example,  an  army  must  have  food,  or 
ammunition,  or  quarters,  a  field  for  encampment,  or  an  intrenchment  for 
defence,  and  the  necessit}'  is  pressing  and  immediate.  Other  instances 
suggest  themselves,  in  which  a  previous  assessment  cannot  be  had  with 
any  reasonable  hope  of  doing  justice.  The  Act  before  us  supplies  one 
such  in  the  21st  section.  It  authorizes  an  entry  into  lands  adjacent 
to  the  road,  to  cut,  quarry,  dig,  and  carr\-  awa}'  wood,  stone,  gravel, 
or  earth  for  the  construction  or  repair  of  the  road.  And  for  those 
materials,  and  for  all  incidental  damages  done  in  taking  or  carrying 
them  away,  reasonable  compensation  is  to  be  assessed  by  three  free- 
holders, upon  view  and  on  oath.  In  the  like  manner,  our  public  road 
law  directs  the  overseer  to  cut  timber  and  dig  earth  for  bridges  and 
cansewaj-s,  and  gives  tlie  owner  a  petition  to  the  County  Court  for  ade- 
quate compensation,  to  be  fixed  by  the  justices,  out  of  the  county  funds. 
Antecedent  assessments,  in  such  cases,  must  be  made  entirely  at  a  ven- 
ture, for  it  is  uncertain  what  quantity  of  materials  will  be  requisite  or 
can  be  procured  at  a  particular  place,  or  how  many  tracks  may  be 
broken  on  the  owner's  land,  and  even  the  weather  and  season  of  the 
year  may  materially  vary  the  damage.  Therefore  the  Acts  must  almost 
necessarily  prpvide  for  payment  for  injuries  done  which  can  be  seen, 
known,  and  truly  estimated.  The  compensation  to  be  adequate  must  be 
subsequent. 


CHAP.  VI. J         RALEIGH   AND    GASTON    llAILROAD   CO.    V.    DAVIS.  999 

It  may  be  observed  that  in  this  we  onl}'  adopt  the  established 
course  of  legislation  and  adjudication  in  that  country  from  which  we 
derive  Magna  Charta  and  most  of  the  other  free  principles  declared  in 
our  Bill  of  Rights.  The  case  o'i  Bayfield  v.  Porter,  13  East,  200,  is  a 
decision  upon  a  similar  Act  of  Parliament,  which  confines  the  owner  of 
the  land  to  the  remedy  given  by  the  Act.  The  case  is  cited  with  an 
acknowledgment  that  it  is  not  an  authority  upon  the  question  of  legis- 
lative power  in  America ;  for  that  in  England  is  unquestionably  tran- 
scendant,  and  ours  is  as  certainly  limited.  But  when  it  is  recollected 
with  what  reverence  the  great  charter  has  ever  been  held  by  both 
branches  of  that  legislature,  and  especially  by  that  which  is  popular ; 
and  when,  moreover,  it  is  called  to  mind  that  the  rights  of  private  prop- 
erty have  never  been  more  respected  than  in  that  country,  where  it  is 
carried  to  the  extent,  perhaps  injurious,  of  successfully  opposing  great 
political  reforms,  and  generally  prevents  the  abolition  of  even  a  public 
office  without  compensation  to  the  incumbent,  it  may  reasonably  be  in- 
ferred that  neither  the  Parliament,  nor  the  courts,  nor  the  people  of 
that  country  perceived  an  infraction  of  the  Magna  Charta  in  those 
statutes.  As  practical  evidence  of  the  true  sense  of  that  clause  in  it, 
which  has  been  transferred  into  our  Bill  of  Rights,  those  legislative  and 
judicial  proceedings,  though  not  authority,  are  entitled  to  much  respect. 
In  a  still  greater  degree  does  the  legislation  of  our  own  country,  com- 
mencing at  an  early  period  of  our  provuicial  State,  and  continued  up  to 
the  present  time,  upon  the  subject  of  laying  out  roads  and  making 
compensation,  claim  our  attention  as  an  authoritative  exposition  of  the 
general  sense,  through  a  long  course  of  time,  of  the  relative  rights  of 
the  public  and  of  individuals.  It  establishes  or  recognizes,  on  the  one 
hand,  the  obligations  of  the  public  to  pa}'  a  fair  remuneration  for  in- 
juries to  individuals  for  the  public  service  ;  but,  on  the  other,  it  evinces 
the  settled  usage,  and  thence  the  legality  of  providing  that  the  com- 
pensation may  be  antecedent,  or  subsequent  to  the  injur}',  as  the 
necessities  of  the  public  for  the  property  may  be  immediate  or  other- 
wise, and  according  to  the  convenience  of  both  parties  for  truly  esti- 
mating the  amount.  In  the  Constitution  of  New  York  is  contained  an 
express  clause  for  compensation  for  private  property  taken  for  public 
use ;  and  it  is  there  settled  also  that  neither  the  payment  nor  the 
assessment  need  precede  the  opening  of  a  road  over  the  land  of  an  indi- 
vidual. Case  V.  Thompson,  6  Wendell,  634.  Indeed,  the  principle 
applies  alike  to  every  entry  on  the  land,  and  would  exclude  one  even 
for  examination  and  survey,  if  correct.  The  court  concludes,  there- 
fore, that  it  is  competent  to  the  legislature  to  take  private  property, 
for  the  public  use,  without  a  previous  or  cotemporaneous  payment  of 
its  value. 

If  the  foregoing  reasoning  be  just  to  establish  the  result  declared,  it 
seems  to  go  far  also  to  show  that  it  is  in  the  discretion  of  the  legislature 
to  appoint  the  tribunal  by  which  the  compensation  shall  be  assessed. 
If  the  obligation  on  the  legislature  to  make  compensation  be  perfect 


1000  KALEIGH    AND    GASTON    RAILROAD    CO.    V.    DAVIS.         [CHAP.  VL 

and  constitutional,  it  may  be  competent  to  the  judiciaiy  to  declare  that 
the  title  of  the  individual  was  never  divested  if  the  legislature  were  to 
refuse,  or  for  a  long  time  delay,  to  make  an^'  compensation.  Yet,  if 
that  which  appears  to  be  just,  or  does  not  appear  to  be  insufficient,  be 
provided  and  offered  by  the  legislature,  however  it  may  have  been  fixed 
on,  there  is  no  ground  for  the  interposition  of  the  courts.  It  is  said,  if  this 
be  true,  the  party  to  the  controversy  nominates  the  judges  to  decide, 
and  might,  indeed,  make  the  decision  directly  without  a  reference  to 
any  other  person.  Perhaps  the  Act  might  be  found  so  nearly  allied  to 
the  judicial  functions  as  to  be  forbidden  to  the  legislature.  If  it  be  not, 
the  court  is  not  aware  of  anything  to  prevent  a  legislative  assessment, 
except  propriety  and  the  unfitness  of  large  bodies  for  the  impartial  and 
minute  investigations  necessary  to  the  justice  of  such  cases.  It  is 
not  likely  that  the  attempt  will  ever  be  made,  even  in  point  of  form, 
unless  to  carry  into  effect  a  previous  agreement  of  parties.  /At  all 
events,  it  was  not  done  in  this  instance,  but  the  decision  was  referred 
to  persons  judicially  selected,  impartial,  and  acting  under  oath,  with 
opportunities  for  full  information  from  evidence  and  from  view.  To 
such  a  tribunal  no  objection  seems  to  be  furnished  by  the  principles  of 
justice  or  by  the  provisions  of  the  Constitution. 

It  was,  however,  contended  at  the  bar  that  it  is  an  evasion  of  the 
spirit,  if  not  a  violation  of  the  express  words,  of  the  fourteenth  section 
of  the  Bill  of  Rights,  by  which,  "  in  all  controversies  at  law  respecting 
propert}-,  the  ancient  mode  of  trial  by  jury  is  to  remain  sacred  and 
inviolate." 

This  is  a  controvers}'  at  law.  Is  it  also  one  respecting  property?  In 
what  sense  is  it  so?  The  necessity  for  the  road  between  different 
points  is  a  political  question,  and  not  a  legal  controvers}' ;  and  it  be- 
longs to  the  legislature.  So,  also,  does  the  particular  line  or  route  of 
the  road,  whether  it  shall  or  shall  not  be  laid  out  so  as  to  pass  over  the 
lands  of  particular  persons  ;  and  that  has  also  been  decided  b}-  the 
legislature  or  referred  to  scientific  engineers.  The  onlj'  subject  for 
the  consideration  of  the  jurv  is,  therefore,  the  quantum  of  compensation. 
Reduced  to  that  point,  the  case  of  Smith  v.  Caw2')bell,  3  Hawks,  590,  is 
a  decision  that  it  is  not  a  controvers}'  "  respecting  property,"  within  the 
sense  of  the  Bill  of  Rights.  But  the  remaining  words  of  the  clause  3"et 
more  clearly  exclude  this  case  from  its  operation.  "  The  ancient  mode 
of  trial  by  jur}' "  is  the  consecrated  institution.  This  expression  has  a 
technical,  peculiar,  and  well-understood  sense.  It  does  not  import 
that  every  legal  controvers}-  is  to  be  submitted  to  and  determined  hx  a 
juiy,  but  that  the  trial  by  jury  shall  remain  as  it  anciently  was.  Causes 
may  yet  be  determined  on  demurrer,  and  that  being  an  issue  of  law  is 
determined  by  the  court.  Final  judgment  may  also  be  taken  on  default, 
when  the  whole  demand  in  certaint}'  is  therebj'  admitted  ;  as  is  pro- 
vided for  actions  of  debt  by  the  Act  of  1777,  which  was  passed  by 
nearly  the  same  persons  who  composed  the  Congress  of  1776.  Interest 
at  a  certain  rat",  fixed  by  law  upon   notes  as  well  as  bonds,  and  in 


CHAP.  VJ.J         EALEIGII    AND   GASTON    RAILROAD    CO.    V.    DAVIS.  1001 

actions  of  assumpsit,  is  computed  by  the  clerk  ;  and  costs,  in  all  cases, 
taxed  by  him.  Tliese  are  all  controversies  respecting  property  in  the 
same  sense  with  the  present,  but  they  are  none  of  them  trials,  or  cases 
for  trials,  by  ]\.n-y.  There  is  no  trial  of  a  cause,  standing  on  demurrer 
or  default.  Trial  refers  to  a  dispute  and  issue  of  fact,  and  not  to  an 
issue  of  law,  or  inquisition  of  damages.  The  terms  of  this  section  are 
with  respect  to  the  controversies  mentioned  in  it,  analogous  to  those  in 
the  ninth  section  with  respect  to  criminal  prosecutions.  That  provides 
tliat  "  no  freeman  shall  be  convicted  of  any  crime  but  b}'  the  unanimous 
verdict  of  a  jury."  Judgments  may  be  undoubtedly  given  in  indict- 
ments on  demurrer,  on  the  prisoner's  standing  mute  and  refusing  to 
plead,  upon  submission,  and  upon  cognovit.  When,  therefore,  a  con- 
viction b\'  verdict  is  spoken  of,  it  has  in  view  only  the  case  of  a  plea  b}' 
the  accused  and  issue  on  it.  That  raises  a  question  which  can  be  tried 
onl}'  by  jury,  and  determined  against  the  accused  only  by  the  unani- 
mous consent  of  the  jur}'.  "  Trial  b}'  jurj-,"  in  civil  cases,  is  equivalent 
to  "conviction  bj-  verdict"  in  criminal  proceedings.  They  do  not 
include,  b}-  force  of  tliose  terras,  any  ease  in  which  there  is  not  an 
issue  of  fact.  It  is  the  course,  both  in  England  and  this  country,  to 
resort  to  this  favorite  Anglo-Saxon  mode  of  determining  all  legal  con- 
troversies, as  well  as  trying  issues,  civil  and  criminal,  where  it  can  be 
used  without  great  inconvenience.  It  might  have  been  adopted  in  this 
instance,  and  probably  would  have  been  prescribed  in  the  Act,  but  for 
the  delay,  expense,  and  difficulty  of  proceeding  by  writ  of  ad  qnod 
damnum  on  so  long  a  road,  passing  over  the  lands  of  so  many  pro- 
prietors. But  it  is  not  indispensable  in  such  a  case,  because  it  is  not 
embraced  in  tlie  words  used  in  the  Bill  of  Rights.  Many  of  the  State 
legislatures,  to  whose  codes  we  have  had  access,  have  proceeded  in  a 
similar  way  ;  and  it  has  received  judicial  approbation.  In  New  York,  it 
was  held  by  Chancellor  Walworth,  in  B^ekman  v.  The  Saratoga  and 
Schenectady  Railroad,  3  Paige's  Rep.  45,  that  the  ascertaining  the  dam- 
ages by  commissioners  was  not  repugnant  to  that  part  of  the  Constitu- 
tion of  that  State  which  preserves  the  trial  by  jury.  In  Livingston  v. 
The  3Iayor  of  New  York,  8  Wendell,  85,  the  same  point  was  ruled 
unanimously,  both  in  the  Supreme  Court  and  in  the  Court  of  Errors.  In 
Livingston  v.  Moore,  7  Peters,  469,  the  distinction  upon  the  words 
"  trial  by  jury"  is  explicitly  expressed  by  the  Supreme  Court  of  the 
United  States.  It  arose  upon  these  words  in  the  Constitution  of  Penn- 
sylvania:  "  Trial  by  jury  shall  remain  as  heretofore."  The  court  say, 
"  the  distinction  between  trial  by  jury  and  inquest  of  office  is  so  fa- 
miliar to  every  mind  as  to  leave  no  sufficient  ground  for  extending  to 
the  latter  that  inviolabilit}-  which  could  have  been  intended  only  for 
the  former."  In  the  same  light  does  the  subject  seem  to  have  been 
viewed  by  our  legislature  in  passing  a  variety  of  Acts.  Not  to  mention 
the  numerous  charters  for  roads  and  canals,  with  provisions  similar  to 
that  now  before  us,  the  first  Mill  Act  and  those  for  partition  and  others, 
substitute  commissioners  for  a  jury  to  assess  the  value  in  the  one  case, 


1002  RALEIGH    AND    GASTON    RAILROAD    CO.    V.    DAVIS.         [cilAP.  TI. 

and  to  make  the  division  in  the  other,  with  power  to  charge  one  lot 
with   mone}'  to  be  paid  to  the  other. 

The  opinion  of  the  court  is,  that  it  was  competent  to  the  legislature 
to  adopt  the  mode  it  did  for  the  assessment  of  the  damages  to  the 
defendant. 

It  is  further  objected,  that  the  charter  takes  more  than  the  right  of 
eminent  domain  authorizes.  It  is  said  that  the  public  is  only  entitled 
to  the  use  of  private  property,  leaving  the  property-  and  right  of  soil  in 
the  proprietors;  and  that  here  the  whole  fee  is  taken,  and  not  for  the 
public,  but  for  the  company,  which  is  but  a  private  corporation. 

The  doctrine  of  the  common  law  is,  that  the  public  has  only  an  ease- 
ment in  the  land  over  which  a  road  passes,  and  that  the  right  of  soil  is 
undisturbed  thereby.  The  reason  is,  that  ordinarily'  the  interest  of  the 
public  requires  no  more.  Every  beneficial  use  is  included  in  the  ease- 
ment, in  respect,  at  least,  to  such  highways  as  existed  at  the  time  the 
principle  was  adopted,  and  to  which  it  had  reference.  But  if  the  use 
requisite  to  the  public  be  such  an  one  as  requires  the  whole  thing,  the 
same  principle  which  gives  to  the  public  the  right  to  any  use  gives 
the  right  to  the  entire  use,  upon  paying  adequate  compensation  for  ihe 
whole.  It  is  for  the  legislature  to  judge,  in  cases  in  which  it  may  be 
for  the  public  interest  to  have  the  use  of  private  property-,  whether,  in 
fact,  the  public  good  requires  the  property-,  and  to  what  extent.  .  .  . 

Upon  the  supposition  that  the  legislature  ma^-  take  the  propert3'  to 
the  public  use,  it  is  next  said  that  this  taking  is  not  legitimate,  because 
the  property  is  bestowed  on  private  persons.  It  is  true  that  this  is  a 
private  corporation,  its  outla3S  and  emoluments  being  individual  prop- 
erty* ;  but  it  is  constituted  to  effect  a  public  benefit  by  means  of  a  road, 
and  that  is  publici  juris.  In  earlier  times,  there  seems  to  have  been 
a  necessity  upon  governments,  or  at  least  it  was  a  settled  policy  with 
them,  to  effect  everything  of  this  sort  b}'  the  direct  and  sole  agencj'  of 
the  government.  The  highways  were  made  b}'  the  public,  and  the  use 
was  accordingly  free  to  the  public.  The  government  assumed  the 
exclusive  direction  as  well  as  authorit}",  as  if  they  chose  to  be  seen  and 
felt  in  everything,  and  would  avoid  even  a  remote  connection  between 
private  interests  and  public  institutions.  An  immense  and  beneficial  rev- 
olution has  been  brought  about  in  modern  times  b}-  engaging  individual 
enterprise,  industry,  and  economy  in  the  execution  of  public  works  of 
internal  improvement.  The  general  management  has  been  left  to  indi- 
viduals, whose  private  interests  prompt  them  to  conduct  it  beneficiallj' 
to  the  public  ;  but  it  is  not  entirel}'  confided  to  them.  From  the  nature 
of  their  undertaking  and  the  character  of  the  work,  they  are  under  suf- 
ficient responsibilities  to  insure  the  construction  and  preservation  of  the 
work,  which  is  the  great  object  of  the  government.  The  public  interest 
and  control  are  neither  destroyed  nor  suspended.  The  control  con- 
tinues as  far  as  it  is  consistent  with  the  interests  granted,  and  in  all  cases 
as  far  as  may  be  necessar}'  to  the  public  use.  The  road  is  a  highwa}', 
although  the  tolls  may  be  private  property'  by  force  of  the  grant  of  the 


CHAP.  VI.]        RALEIGH    AND   GASTON    RAILROAD    CO.    V.    DAVIS. 


1003 


franchise  to  collect  them.  It  is  a  common  nuisance  to  allow  it  to  be- 
come ruinous,  or  to  obstruct  it.  The  government  ma}',  upon  sufficient 
cause,  claim  a  forfeiture  of  the  charter,  or  compel  the  execution  and 
repairs  of  the  road  by  those  undertaking  them,  by  any  means  appli- 
cable to  other  persons  charged  with  the  like  duties  in  respect  to  other 
highways.  The  difterence  is,  that  the  coi-poration,  in  lieu  of  the  sov- 
ereign, has  the  custody  and  property  of  the  road,  and  the  collection  of 
the  tolls  in  reimbursement  of  the  cost  of  construction  and  remuneration 
for  labor  and  risk  of  capital.  As  to  the  corporation,  it  is  a  franchise, 
like  a  ferry  or  any  other.  As  to  the  public,  it  is  a  highway,  and  in  the 
strictest  sense  publici  Juris.  The  land  needed  for  its  construction  is 
taken  by  the  public  for  the  public  use,  and  not  merely  for  the  private 
advantage  of  individuals.  It  is  only  vested  in  the  company  for  the 
purposes  of  the  Act,  —  that  is,  to  make  the  road.  This  case  is,  there- 
fore, essentially  different  from  that  of  Ifoke  v.  Henderson,  4  Dev. 
Rep.  1,  which  was  so  much  insisted  on  at  the  bar.  There,  the  office,  a 
subject  of  property  to  a  certain  extent,  was  taken  from  one  and  vested 
in  another,  exactly  in  the  same  state  and  to  the  same  public  purposes 
as  it  was  held  by  the  first.  The  public  interest  was  in  the  service  of  the 
officer,  being  precisely  the  same,  with  either  person  for  the  incumbent.  It 
was,  therefore,  taken  solely  for  the  benefit  of  the  new  appointee,  which 
could  not  be  supported.  But  in  this  case,  the  land  is  taken  from  the 
defendant  for  a  public  purpose,  to  which  it  had  not  been  applied  while 
in  his  hands.  It  is  taken  to  be  immediately  and  directly  applied  to  an 
established  public  use,  under  the  control  and  direction  of  the  public 
authorities,  with  only  such  incidental  private  interests  as  the  legislature 
has  thought  proper  to  admit,  as  the  means  of  effecting  the  work  and 
insuring  a  long  preservation  of  it  for  the  public  use. 

It  is  the  opinion  of  the  court  that  no  one  of  the  objections  is  sufficient 
to  arrest  the  proceeding  for  condemnation,  and  that  the  judgment  of 
the  Superior  Court  must  be  affirmed.  This  will  be  certified  to  that 
court,  that  a  writ  o^ procedendo  may  issue  thence  to  the  County  Court. 

Per  Curiam.  Judgment  reversed.'^ 

J  Compare  Bloodgood  v.  Mohawk,  SjX.  R.  R.  Co.,  18  Wend.  9  (1837).  —Ed. 


1004   EVERGREEN  CEMETERY  ASSOC.  V.    BEECHER  ET  AL.   [cHAP.  VL 


THE    EVERGREEN     CEMETERY     ASSOCIATION    OF     NEW 
HAVEN   V.  BEECHER  et  al. 

Connecticut  Supreme  Court  of  Errors.     1885. 
[53   Conn.  551.] 

Action  by  the  plaintiff,  a  cemeteiy  association  organized  under  the 
laws  of  the  State,  for  the  purpose  of  taking  lands  for  the  enlargement 
of  its  territory,  under  the  provision  of  Gen.  Statutes,  p.  293,  sec.  4 ; 
brought  to  the  Superior  Court.  The  defendants  demurred  to  the  com- 
plaint, and  the  case  was  reserved  for  the  advice  of  this  court.  The 
case  is  sufficiently  stated  in  the  opinion. 

J.  W.  Ailing  and  J.  II.   Wehb,  for  the  plaintiff. 

jS.  JE.  Baldwin  and  J.  H.  Whiting^  for  the  defendants.  .  .  . 

Pardek,  J.  This  is  a  complaint  asking  leave  to  take  land  for  ceme- 
tery purposes  by  right  of  eminent  domain.  The  case  has  been 
reserved  for  our  advice. 

The  plaintiff  is  the  owner  of  a  cemetery,  and  desires  to  enlarge  it  by 
taking  several  adjoining  pieces  of  land,  each  owned  by  a  different 
person,  and  has  made  these  owners  joint  defendants.  .  .  . 

The  safety  of  the  living  requires  the  burial  of  the  dead  in  proper 
time  and  place  ;  and,  inasmuch  as  it  may  so  happen  that  no  individual 
ma}'  be  willing  to  sell  land  for  such  use,  of  necessit}-  there  must  remain 
to  the  public  the  right  to  acquire  and  use  it  under  such  regulations  as 
a  proper  respect  for  the  memorj'  of  the  dead  and  the  feelings  of  sur- 
vivors demands.  In  order  to  secure  for  burial-places  during  a  period 
extending  indefinitely  into  the  future  that  degree  of  care  universally 
demanded,  the  legislature  permits  associations  to  exist  with  power  to 
discharge  in  behalf  and  for  the  benefit  of  the  public  the  dut}-  of  pro- 
viding, maintaining,  and  protecting  them.  The  use  of  land  bj-  them 
for  this  purpose  does  not  cease  to  be  a  public  use  because  they  require 
varying  sums  for  rights  to  bury  in  different  localities  ;  not  even  if  the 
cost  of  the  right  is  the  practical  exclusion  of  some./  Corporations  take 
land  by  right  of  eminent  domain  primarily  for  the  benefit  of  the  public, 
incidentally  for  the  benefit  of  themselves.  As  a  rule,  men  are  not 
allowed  to  ride  in  cars,  or  pass  along  turnpikes,  or  cross  toll-bridges, 
or  have  grain  ground  at  the  mill,  without  making  compensation.  One 
man  asks  and  pays  for  a  single  seat  in  a  car ;  another  for  a  special 
train  ;  all  have  rights  ;  each  pays  in  proportion  to  his  use  ;  and  some 
are  excluded  because  of  their  inabilit}'  to  pay  for  any  use  ;,  nevertheless 
it  remains  a  public  use  as  long  as  all  persons  have  the  same  measure  of 
right  for  the  same  measure  of  raone\'. 

But  it  is  a  matter  of  common  knowledge  that  there  are  man}'  ceme- 
teries which  are  strictly  private  ;  in  which  the  public  have  not,  and  can- 
not acquire,  the  right  to  bury.     Clearly  the  proprietors  of  these  cannot 


CHAP.  VI.]        BOSTON   AND    ROXBURY   MILL    CORP.    V.   NEWMAN.  1005 

take  land  for  such  continued  private  use  bj'  right  of  eminent  domain. 
The  complaint  alleges  that  the  plaintiff  is  an  association  duly  organized 
under  the  laws  of  this  State  for  the  purpose  of  establishing  a  burying- 
ground  ;  that  it  now  owns  one  ;  that  it  desires  to  enlarge  it ;  and  that 
such  enlargement  is  necessary  and  proper.  There  [s  no  allegation  that 
the  land  which  it  desires  to  take  for  such  enlargement  is  for  the  public 
use  in  the  sense  indicated  in  this  opinion. 

Therefore  the  Superior  Court  is  advised  that  for  the  reason  that  the 
complaint  does  not  set  out  any  right  in  the  plaintiffs  to  acquire  title  to 
the  land  of  the  defendants  otherwise  than  by  their  voluntary  deed,  the 
demurrer  must  be  sustained. 

In  this  opinion  the  other  judges  concurred.^ 


BOSTON   AND   ROXBURY   MILL   CORPORATION  v. 
NEWMAN. 

Supreme  Judicial  Court  of  BIassachusetts.     1832. 

[12  Pick.  467] 

[The  statement  of  facts  is  omitted.  They  will  appear  sufficiently 
by  reference  to  The  Bost.  W.  P.  Co.  v.  The  Bost.  &  Wore.  E.  B.  Co.^ 
supra,  p.  969.'-] 

Gorham  and   C.  G.  Loring,  for  the  plaintiffs. 

Fletcher  and  D.  A.  /Simmons,  for  the  defendant. 

Putnam,  J.,  delivered  the  opinion  of  the  court.^  The  plaintiflTs  claim 
an  easement  over  the  land  of  tlie  defendant.  It  is  admitted  that  he 
owns  the  fee.  The  plaintiffs  contend  that  they  have  acquired  a  right 
to  use  the  defendant's  land  as  a  receiving  basin,  into  which  the  water 
retained  in  their  full  basin  may  flow,  for  the  purpose  of  working  the 
various  mills  which  they  have  built  and  may  erect ;  and  that  such  a 
right  has  been  acquired  in  virtue  of  the  grant  of  the  legislature  of  this 
Commonwealth,  to  establish  the  Boston  and  Roxbury  Mill  Corpora- 
tion. .They  contend  that  the  "  public  exigencies  require  "  that  the  prop- 
erty of  the  defendant,  as  well  as  of  divers  other  owners  of  flats  ground 
constituting  the  receiving  basin,  should  be  appropriated  to  enable  the 
corporation  to  carry  their  enterprise  into  effect,  which  enterprise  they 
say  was  of  public  benefit ;  that  the  appropriation  is  within  the  provi- 
sion of  the  10th  article  of  the  Bill  of  Rights,  an  appropriation  "  to 

1  And  so  In  the  Matter  of  the  Deansville  Cemeterj/  Assoc,  66  N.  Y.  569  (1876),  and 
B'd  of  Health  v.  Van  Hoesev,  87  Mioh.  533  (1891).  Compare  Onry  v.  Goodwin,  26  Pac. 
Rep.  376  (Ariz.  1891),  Prop's  Mt.  Hope  Cem.  v.  Boston  et  al.  158  Mass.  509  (1893). 
-Ed. 

2  See  also  a  plan  of  this  part  of  Boston  in  7  Pick.  388.  —  Ed. 

3  Shaw,  C.  J.,  did  not  sit  in  the  case. 


1006  BOSTON    AND    KOXBURY    MILL    CORP.    V.    NEWMAN.         [CHAl'.  VI. 

public  uses  ;  "  and  that  a  reasonable  compensation  was  provided  for 
the  owners  of  the  flats  ground  in  and  by  the  Act  of  Incorporation. 

Those  positions  are  denied  bj*  the  defendant.  He  contends  that  the 
enterprise  of  the  plaintiffs  was  and  is  of  a  private  character,  and  that 
the  legislature  had  no  authorit}'  to  take  or  subject  the  land  of  the 
defendant  to  any  incumbrance  or  service  for  the  benefit  of  the  plain- 
tiffs. And  fiutlier,  that  if  it  were  of  a  public  character  within  the  mean- 
ing of  the  Constitution,  no  reasonable  compensation  has  been  provided 
for  the  damage  sustained  b}-  the  defendant. 

Let  us  examine  these  pretensions.  And  first,  was  the  enterprise  of 
the  plaintiffs  so  far  of  a  public  nature  as  to  come  within  the  meaning 
of  the  Constitution,  and  to  require  the  appropriation  of  the  property  of 
the  defendant  to  carry  the  undertaking  of  the  plaintiffs  into  effect? 

The  design  was  to  construct  a  dam  or  dams,  for  the  purpose  of 
obtaining  a  head  and  fall  of  the  waters  of  a  navigable  arm  of  the  sea, 
whereby  to  work  grist-mills,  iron  manufactories,  and  other  mills  for 
other  useful  purposes,  and  also  to  make  an  avenue  or  highway  over  the 
dams,  for  the  accommodation  of  all  persons,  cattle,  horses  and  carriages, 
for  a  fixed  rate  of  toll. 

To  effect  these  objects,  the  right  to  obstruct  the  navigable  water  or 
arm  of  the  sea,  by  the  dams,  and  the  right  to  pen  u'^  the  tide-water  in 
a  full  basin,  and  so  to  raise  a  head  of  water,  must  he  obiained.  And 
the  right  to  excaide  the  tide-waters  from  the  emp^j  vvtSMi,  into  which 
the  waters  of  the  full  basin  should  run,  must  also  be  obtained.  The 
receiving  basin  would  be  emptied  at  low  water  and  ihe  gates  shut 
against  the  sea ;  the  pond  would  be  filled  by  the  flow  of  the  tide,  and 
kept  in  by  the  gates  ;  and  thus  a  perpetual  mill  power  of  great  extent 
would  be  acquired.  Connected  with  these  water-powers,  the  dam,  or 
avenue  from  Beacon  Street  to  Sewall's  Point  in  Brookline,  made  a 
prominent  subject  in  the  consideration  of  the  enterprise  and  fixing  its 
character,  viz.,  whether  it  should  be  considered  as  one  merely  of  a  pri- 
vate nature,  or  as  one  involving  great  objects  of  public  utility. 

The  owners  of  the  upland  owned  the  flats  ground  to  the  extent  of 
one  hundred  rods.  The  Commonwealth  had  the  title  to  the  flats  be- 
yond. So  far  as  it  regarded  the  right  of  the  public,  it  is  not  contended 
but  that  the  corporation  acquired  it  by  the  act  of  the  legislature.  But 
the  flats  between  the  upland  and  those  belonging  to  the  Commonwealth 
must  be  subjected  to  the  control  of  the  corporation,  or  they  could  not 
carr}'  their  undertaking  into  effect. 

Here  was  a  creation  of  an  immense  perpetual  mill-power,  as  well  as 
a  safe  and  commodious  avenue,  in  and  over  the  waste  waters  of  the 
ocean  and  adjoining  to  a  great  city. 

We  should  be  at  a  loss  to  imagine  any  undertaking  of  an  individual 
or  association  of  persons  with  a  view  to  private  emolument,  in  which 
the  public  had  a  more  certain  and  direct  interest  and  benefit. 

It  was  conceded  in  the  able  argument  for  the  defendant,  that  the 
toll-bridge  or  avenue  might  be  sustained,  so  far  as  it  affected  the  prop- 


CHAP.  VI.]        BOSTON    AND    ROXBURY   MILL   CORP.    V.    NEWMAN.         1007 

erty  of  individuals,  upon  tlio  same  principles  that  are  applicable  to 
turnpike  roads,  where  the  lands  of  individuals  are  taken  by  the  road 
proprietors  (with  a  view  indeed  to  the  tolls),  because  there  is  a  right 
in  the  public  to  pass  on  the  avenue,  paying  toll,  as  on  a  highway.  But 
it  is  said  that  the  analogy  fails,  when  applied  to  laying  bare  the  flats, 
in  order  to  get  the  water-power  for  mills,  because  the  public  have  no 
right  in  respect  to  the  manufactories,  as  they  iiave  to  travel  upon  the 
turnpike  roads.  But  the  public  ma}'  be  well  said  to  be  paid  or  com- 
pensated in  the  one  as  well  as  in  the  other  case,  and  are  benefited 
by  the  one  improvement  as  well  as  b}-  the  other.  Take  the  grist-mill 
established  in  tliis  city,  as  an  example.  Is  it  of  no  benefit  to  have  the 
corn  ground  near  to  the  inhabitants,  rather  than  at  a  distance?  "  Bat 
you  cannot  compel  the  miller  to  grind  your  corn  for  the  toll,  as  you 
may  the  proprietors  of  the  turnpike  to  let  you  travel  over  the  road  for 
a  toll."  If  there  be  not  an  actual,  there  is  a  moral  necessity  imposed 
upon  the  owner  of  the  mill,  to  accommodate  the  public  to  tlie  extent  of 
his  power.  Who  ever  heard  of  a  refusal?  And  in  regard  to  the  manu- 
facturing establishments,  is  it  nothing  to  the  public  that  great  numbers 
of  citizens  have  the  means  of  employment  brought  to  their  homes? 
and  are  not  the  proprietors  obliged  to  give  employment?  They  cannot 
carr}'  their  works  on  witliout  labor,  and  who  that  is  disposed  to  indus- 
try and  to  tliat  kind  of  employment  is  prevented  from  its  exercise? 
This  becomes  a  matter  of  interest,  which  will  certainly  direct  and 
govern  the  parties.  And  it  is  among  the  most  pleasant  considerations 
attending  this  branch  of  the  subject,  that  the  interest  or  benefit  aris- 
ing from  manufacturing  establishments  is  distributed  quite  as  much, 
and  oftentimes  more,  among  the  laborers  and  operatives,  than  among 
the  proprietors  of  the  works. 

But  it  is  no  sure  test  of  the  public  exigenc}',  that  the  land-owner 
shall  have  a  certain  right  to  use  the  thing  thus  brought  into  operation. 
Take  an  aqueduct,  for  example,  brought  by  the  enterprise  and  capital 
of  individuals  through  lands  of  others  for  the  use  of  a  cit}',  paying  all 
the  damages  for  the  taking  of  the  waters  at  the  spring,  and  for  the 
digging  up  of  the  soil  of  strangers  in  order  to  conduct  it.  Those 
strangers  have  no  right  to  the  water  thus  brought  into  the  cit}',  unless 
the  proprietors  of  the  aqueduct  shall  permit  it.  And  can  it  be  ques- 
tioned that  the  legislature  might  subject  the  lands  of  individuals  to  the 
control  of  the  associated  proprietors,  to  obtain  such  a  public  benefit? 
Who  could  say  that  the  public  exigencies  did  not  require  individuals 
to  grant  the  necessar}'  privileges,  for  a  proper  compensation,  to  carry 
such  a  work  into  effect?  It  would  be  for  the  interest  of  the  proprietors 
to  furnish  the  water  at  a  reasonable  price. 

The  plaintiffs  are  an  authorized  association  to  procure  water-power 

I      to  drive  mills  of  various  kinds  b\'  tide-waters.     How  does  it  differ  in 

principle,  from   the  effecting  of  such  an   intent  b}-  fresh  water,  and 

thereby  subjecting  the  lands  of  others  to  the  service  of  the  mill-owner? 

For  more  than  a  centurj-  the  mill-owner  has  had  the  right  to  raise  a 


1008  BOSTON    AND    ROXBUKY   MILL    CORP.    l\    NEWxMAN.         [CHAP.  VL 

head  or  pond  of  water  by  flowing  the  lands  of  others,  payuig  tlie  dam- 
age. In  many  such  eases  valuable  meadows  have  been  inundated,  and 
thus  private  property  has  been  taken,  without  the  consent  of  the  owners, 
excepting  only  as  they  may  be  supposed  to  iiave  consented  to  the  laws 
made  by  tlie  legislature.  But  for  those  Mill  Acts,  as  they  are  called,  the 
mill-owner  would  have  been  liable  for  the  damages  at  common  law,  or 
the  owner  of  tlie  land  might  have  removed  the  dam  as  a  private  nui- 
sance. But  under  and  in  virtue  of  those  Acts,  the  dam  is  protected  ; 
it  is  no  longer  removable  as  a  nuisance  ;  and  the  owner  of  the  land  is 
thereby  deprived  of  the  entire  dominion  of  the  soil,  because  the  public 
good  required  the  sacrifice  at  his  hands,  for  a  reasonable  price. 

The  old  statutes  speak  of  mills  as  greatl}'  beneficial  to  the  public. 
The  preamble  of  Prov.  St.  8  Anne,  c  1,  an  Act  for  the  upholding  and 
regulating  of  mills,  recites  that  they  sometimes  fall  into  disrepair  and 
are  rendered  useless  and  unserviceable,  if  not  totalh*  demolished,  to 
the  hurt  and  detriment  of  the  public,  as  well  as  the  loss  to  the  partners 
who  are  ready  to  rebuild,  etc.  So  the  Prov.  St.  12  Anne,  c.  8,  speaks 
of  "  mills  serviceable  to  the  public  good  and  the  benefit  of  the  town  ; " 
and  gives  to  the  mill-owners  liberty  to  continue  and  improve  the  pond 
for  their  best  advantage  without  molestation,  paying  damages  for  rais- 
ing the  water,  etc.  The  Prov.  St.  1  Geo.  II.  c.  4,  gave  treble  damages 
for  the  trespass  of  taking  up,  breaking  down,  or  damnifying  any  dam 
made  use  of  for  the  enclosing  of  water  improved  for  the  benefit  of  any 
mill,  etc. 

These  Acts  were  revised  by  the  St.  1795,  c.  74,  which  provides  that 
the  mill-owner  may  flow  any  lands  not  belonging  to  him  (not  merely  a 
small  quantity,  as  in  the  St.  12  Anne),  which  shall  be  found  necessary 
to  raise  a  suitable  head  of  water  to  work  his  mill,  paying  damages, 
etc.  The  jury  however  are  to  determine  how  far  the  public  con- 
venience and  the  circumstances  of  the  case  do  justify  such  flowing. 

The  St.  1824,  c.  153,  provides  for  the  recovery  of  damages  sustained 
by  the  owner  of  the  land  either  above  or  below  the  mill.  And  the  St. 
1825,  c.  109,  gives  the  mill-owner  a  right  of  tendering  the  amount  of 
the  damages  ;  thus  putting  trespass  and  contract  upon  the  same  foot- 
ing ;  and  it  further  limits  the  claim  to  two  years  before  the  process, 
etc. 

Now  we  have  nothing  to  do  with  the  expediency  of  those  various 
Mill  Acts^but  it  is  certainly  apparent,  that  the  legislature  have  con- 
sidered it  for  the  public  good  to  encourage  the  erection  of  mills,  and 
have  subjected  the  property  of  the  citizens  to  the  control  of  the  mill- 
owners,  they  paying  the  damage.  In  these  cases  the  damage  has  been 
sustained  by  reason  of  the  flowing  of  the  lands.  But  in  the  case  at 
bar,  the  damage  is  in  laying  bare  the  flats  of  the  tide-water,  so  as  to 
make  a  fall  for  the  water  in  the  pond  or  full  basin.  But  we  do  not 
perceive  that  there  is  any  difference  in  the  principles  applicable  to  tlie 
two  cases.  The  object  in  each  is  to  get  a  head  and  fall,  for  mill  pur- 
poses.    In  one  case,  having  a  fall,  you  flow  meadows  and  upland  to 


CHAP.  VI.]         BOSTON   AND    liOXBURY   MILL   CORP.   V.   NEWMAN.  1009 

get  a,  head  ;  in  the  other,  having  a  head,  you  empty  or  lay  bare  the  flats 
to  make  a  fall.  In  each  case  a  head  and  fall  are  obtained  for  the  water 
power.  In  each  case  the  mill-owner  operates  on  the  lands  of  other 
persons,  and  the  damage,  it  should  seem,  cannot  be  greater  where  the 
land  is  made  bare,  than  where  it  is  overflowed.  The  soil  in  each  case 
is  in  the  owner,  and  he  may  use  it  in  an}'  way  which  is  not  inconsis- 
tent with  the  rights  granted  to  the  mill-owner.  But  he  may  do  nothing 
more ;  for  we  cannot  accede  to  the  position  of  the  learned  counsel  for 
the  defendant,  that  he  has  a  right  to  fill  up  his  flats  ground,  and  so  to 
diminish  the  reservoir.  The  fallacy-,  we  think,  consists  in  taking  it  for 
granted,  that  the  legislature  had  no  authority  to  make  the  grant  to  the 
corporation,  and  to  subject  the  lands  of  the  defendant  to  the  service 
claimed.  If  it  were  not  necessary  thus  to  affect  the  property  of  the 
defendant  for  public  uses,  the  argument  would  be  sound ;  but  if 
the  public  exigencies  required  the  appropriation  of  the  defendant's 
property  to  the  extent  defined  in  the  grant  to  the  corporation,  they 
being  accountable  in  damages,  then  it  would  seem  clearl}'  to  follow, 
that  the  defendant  cannot  lawfully  do  an^^  act  or  thing  which  shall 
counteract  the  grant.  It  should  be,  so  far  as  regards  these  parties, 
just  as  if  the  defendant  had,  for  a  consideration  paid,  granted  to  the 
plaintiffs  the  right  which  they  now  claim  under  the  legislative  grant. 
To  recur  again  to  the  example  of  the  aqueduct ;  —  would  it  be  lawful 
for  one  through  whose  lands  it  has  been  conducted  by  the  authorit}' 
of  the  legislature,  and  who  has  been  paid  his  damages,  would  it  be 
lawful  for  him  to  cut  off  the  pipes,  under  the  claim  to  dig  upon  his  own 
land  to  an}'  depth  he  pleased  ? 

The  principle  is,  that  the  lands  of  individuals  are  holden  subject  to 
the  requisitions  of  the  public  exigencies,  a  reasonable  compensation 
being  paid  for  the  damage.  It  is  not  taking  the  property  of  one  man 
and  giving  it  to  another.  At  most,  it  is  a  forced  sale,  to  satisfy  the 
pressing  want  of  the  public.  Now  this  is  as  it  should  be.  The  will  or 
caprice  of  an  individual  would  often  defeat  the  most  useful  and  exten- 
sive enterprises,  if  it  were  otherwise.  Property  is  nevertheless  suffi- 
ciently guarded  by  the  Constitution.  The  individual  is  protected  in  its 
enjoyment,  saving  only  when  the  public  want  it,  not  merely  for  orna- 
mental, but  for  some  necessary  and  useful  purposes.  Then  indeed  the 
owner  must  part  with  it  for  an  equivalent. 

It  was  argued  for  the  defendant,  that  here  was  no  jury  to  ascertain 
the  extent  to  which  the  plaintiffs  might  flow,  or  lay  bare  the  flats.  And 
it  seems  to  us  that  a  jury  was  altogether  unnecessary,  because  tlic  legis- 
lature for  themselves,  being  upon  the  spot,  upon  a  full  view  and  con- 
sideration of  the  matter,  determined  and  ascertained  the  extent,  as 
well  as  the  public  exigenc}'  of  the  grant. 

It  has  been  argued,  that  the  legislature  expected  the  plaintiffs  would 

obtain  the  consent  of  the  owners  of  the  flats  ground.     If  that  were  so, 

and  the  expectation  were  not  realized,  it  would  become  necessar}'  that 

the  legislative  power  should  enable  the  plaintiffs  to  eflfect  their  enter- 

voL.  I.  —  64 


1010  BOSTON   AND   ROXBURY   MILL   CORP.    V.   NEWMAN,         [CHAP.  VI. 

prise.  And  besides,  by  providing  for  damages  which  might  be  sus- 
tained, the  legislature  must  have  contemplated  the  case  which  might 
happen,  of  a  dissent  of  some  persons  whose  i)ro[jerty  might  be  injured. 

The  contracts  which  were  made  between  the  petitioners  and  the  town 
of  Boston,  were  ratified  bj'  the  legislature,  as  if  they  had  been  made  by 
the  corporation  and  the  town.  But  the  defendant  did  not  come  into 
an}'  contract  with  the  petitioners  or  the  corporation,  affecting  his  own 
private  property.  He  is  not  to  be  affected  by  those  contracts,  in  any 
way,  advantageously  or  injuriously  ;  but  he  stands  upon  his  own  rights 
as  regulated  b}-  the  law. 

It  was  said  that  it  was  not  necessary  that  the  plaintiffs  should  have 
the  whole  of  the  flats,  to  give  effect  to  the  legislative  grant ;  though 
it  seemed  to  be  admitted  that  the  whole  was  necessary  for  the  comple- 
tion of  the  plaintiffs'  enterprise.  But  the  grant  seems  to  us  to  embrace 
the  whole  which  the  plaintiffs  claim.  The}'  were  authorized  "  effectu- 
all}'  to  exclude  the  tide-water,  and  to  form  a  reservoir  or  empty  basin 
of  the  space  between  the  dam  [from  Charles  Street]  and  Boston  Neck."- 
The  defendant's  land  is  between  those  termini. 

We  are  clearl}-  of  opinion,  that  the  grant  to  the  Boston  and  Roxbury 
Mill  Corporation  was  well  warranted  by  the  public  exigencies',  and  that 
the  undertaking,  although  commenced  with  a  view  to  the  private  ad- 
vantage of  the  stockholders,  promised  to  be  of  immense  and  certain 
utility  to  the  State.  That  anticipation  has  been  fully  realized,  so  far  as 
it  related  to  the  public.  We  regret  that  it  did  not  prove  beneficial  to 
the  enterprising  projectors. 

But  it  is  contended,  that  there  was  no  reasonable  compensation 
provided  for  the  injur}'  which  the  defendant  has  sustained. 

Let  us  examine  the  Act  in  that  respect.  By  the  sixth  section  it  is 
provided,  that  any  person  or  corporation  sustaining  any  damage  by  the 
building  of  the  dams,  etc.,  "  or  from  the  exercise  of  any  of  the  rights 
and  powers  given  to  the  corporation,"  ma}'  have  the  same  ascertained 
(if  there  be  any),  in  the  first  place  by  a  committee  to  be  appointed  by 
the  Court  of  Common  Pleas,  and  if  their  report  should  not  be  satisfac- 
tory, then  may  have  the  same  tried  and  determined  by  a  jury.  The 
committee  are  to  inquire,  "  whether  any  damage  has  been  sustained 
from  the  causes  aforesaid,  and  if  any,  they  shall  estimate  the  same, 
and  where  the  damage  is  annual  they  shall  so  declare  the  same  in  their 
report."  It  is  said  by  the  counsel  for  the  defendant,  that  this  provision 
was  wholly  inadequate  ;  that  the  defendant  was  benefited  by  having  his 
land  relieved  from  the  tide-water ;  that  there  was  no  present  damage, 
and  no  provision  for  damage  which  should  thereafter  arise.  And  it 
said  further,  that  the  corporation  had  done  no  act  in  taking  the  defend- 
ant's land,  so  as  to  enable  him  to  make  any  claim  for  damages. 

These  suggestions  are  more  ingenious  than  sound.  The  depriving 
one  of  the  beneficial  use  of  his  lands  is,  in  the  sense  of  the  law,  a 
taking  of  his  lands.  It  would  be  very  clear  in  the  case  of  flowing. 
But  the  principle  is  the  same  in  laying  bare  the  lands.     In  each  case, 


CHAP.  VI.]        BOSTON    AND   KOXBURY   MILL   CORP.    V.    NEWMAN.  1011 

the  absolute,  unqualified  use  of  the  soil  is  taken  awa}'.  The  owner 
cannot  (as  we  have  seen)  counteract  the  effect  of  the  grant,  by  filling 
up  his  land,  in  the  one  case,  an}'^  more  than  in  the  other.  He  has  the 
fee  remaining  in  him,  subject  only  to  the  right  of  the  mill-owner  to 
flow,  or  to  lay  bare  the  land,  in  order  to  obtain  the  water-power  for 
mill  purposes.  When  therefore  the  plaintiffs  had  built  their  dams,  and 
excluded  the  water  from  the  defendant's  flats,  for  an  empt\^  basin,  there 
was  in  one  sense  a  taking  of  the  defendant's  land.  He  thenceforward 
might  claim  any  damage  which  he  sustained  from  the  diminished  right 
to  use  his  land  as  he  pleased.  Before  the  legislative  grant,  the  defend- 
ant might  have  filled  up  his  flats  ground  to  a  certain  extent,  not  inter- 
fering with  the  rights  of  others.  After  the  grant,  he  could  not  lawfidly 
do  it.  He  was  deprived  of  the  complete  dominion  and  use  which  he 
enjoyed  before.  If  he  sustained  any  damage  from  that  interference 
with  his  land,  it  accrued  presently.  If  it  were  waste  property,  and  no 
real  injury  was  sustained,  tliat  might  well  operate  with  a  reasonable 
man  to  prevent  an^^  claim  for  damage.  The  corporation  then  asseiied 
their  right  to  lay  bare  the  defendant's  flats  forever.  They  took  the 
defendant's  land  for  their  mill  operations,  as  effectually  as  the  mill- 
owner  upon  a  fresh- water  stream  takes  the  land  above  by  flowing. 
The  mill-owner,  in  each  case,  claims  an  easement  in  the  soil  of  another. 
To  that  extent  the  owner  of  the  land  may  claim  damage,  and  a  present 
damage,  for  any  injury  or  diminution  in  the  value  of  his  estate,  which 
may  be  redressed  in  the  mode  pointed  out  in  the  Act  of  the  Legislature. 
These  views  of  the  case  have  led  us  to  a  clear  opinion,  that  the 
judgment  should  be  for  the  plaintiffs,  with  damages  (by  consent  in 
such  event)  at  one  dollar  and  full  costs  of  suit.^ 

1  Compare  Olmstead  v.  Camp,  33  Conn.  532,  545  (1866),  a  petition  under  astatute 
of  1864,  for  the  right  to  flood  certain  land  with  the  mill-pond  of  a  grist-mill. 
McCuRDY,  J.,  for  the  court,  said;  "The  Constitution  declares  that '  the  property  of 
no  person  shall  be  taken  for  public  use  without  just  compensation.'  This  is  indeed  a 
principle  of  natural  law.  The  decision  of  the  case  turns  upon  the  meaning  and 
effect  of  this  provision.  The  defendant  insists  that,  in  favor  of  private  rights,  the 
construction  should  be  strict,  and  that  the  term  '  public  use  '  means  possession,  occu- 
pation, direct  enjoyment,  by  the  public.  Or  in  other  words  that  the  property  must 
be  literally  taken  by  the  public  as  a  body  into  its  direct  possession  and  for  its  actual 
use,  as  in  the  instances  of  a  State  house,  a  court  house,  a  fort,  an  arsenal,  a  park,  &c. 

"  It  seems  to  us  that  such  a  limitation  of  the  intent  of  tliis  important  clause  would 
be  entirely  different  from  its  accepted  interpretation,  and  would  prove  as  unfortunate 
as  novel.  One  of  the  most  common  meanings  of  the  word 'use'  as  defined  l)y 
Webster,  is  '  usefulness,  utility,  advantage,  productive  of  benefit.'  '  Public  use '  may 
therefore  well  mean  public  usefulness,  utility  or  advantage,  or  what  is  productive  of 
general  benefit ;  so  that  any  appropriating  of  private  property  by  the  State  under  its 
right  of  eminent  domain  for  purposes  of  great  advantage  to  the  community,  is  a  tak- 
ing for  public  use.  Such,  it  is  believed,  is  the  construction  which  has  uniformly  been 
put  upon  the  language  by  courts,  legislatures,  and  legal  authorities.  .  .  . 

"  The  question  is  asked  with  great  pertinence  and  propriety,  what  then  is  the  limit 
of  the  legislative  power  under  the  clause  which  we  have  been  considering,  and  what  is 
the  exact  line  between  public  and  private  uses  ?  Our  reply  is  that  which  has  hereto- 
fore been  quoted.     From  the  nature  of  the  case  there  can  be  no  precise  line.     The 


1012  HAZEN   V.   THE   ESSEX    COMPANY.  [cHAP.  VI. 


HAZEN  V.  THE  ESSEX   COMPANY. 
Supreme  Judicial  Court  op  Massachuseits.     1853. 

[12  Cash.  475.] 

Shaw,  C.  J.^  Tliis  is  an  action  of  tort  at  common  law,  in  tlie 
nature  of  an  action  on  tlie  case,  for  raising  a  dam  across  tlie  Merrimack 
River,  by  which  a  mill-stream  emptying  into  that  river,  above  the  site 
of  said  dam,  was  set  back  and  overflowed,  and  a  mill  of  the  plaintiff 
situated  thereon,  and  the  mill  privilege,  were  damaged  and  destroyed. 
To  this  declaration  the  defendants  demurred,  and  the  plaintiff  joined  in 
demurrer. 

The  defendant  company  were  chartered  by  an  Act  of  Incorporation. 
St.  1845,  c.  163.  They  were  incorporated  for  the  purpose  of  construct- 
ing a  dam  across  the  Merrimack  River,  and  constructing  one  or  more 
locks  and  canals  in  connection  with  said  dam,  to  remove  obstructions 
in  said  river  by  falls  and  rapids,  and  to  create  a  water-power,  to  be  used 
for  mechanical  and  manufacturing  purposes. 

The  plaintiff  states  in  his  declaration  that  he  owns  a  mill  situated  in 
Andover,  on  a  small  stream  flowing  into  the  river  on  the  south  side, 
half  a  mile  above  the  place  of  the  defendants'  dam,  and  that  he  had  a 
right  to  the  use  of  this  stream  at  the  level,  at  which  it  naturally  flowed, 
but  that  the  defendants,  by  color  of  an  Act  of  March  20,  1845  (the 
statute  above  mentioned),  erected  a  dam  in  the  town  of  Lawrence, 
within  the  limits  mentioned  in  said  Act,  that  said  river  was  a  navigable 
river,  that  by  means  of  said  dam,  the  defendants  flowed  back  the  waters 
on  the  wheel  of  the  plaintiffs  mill,  prevented  said  stream  from  passing 
into  Merrimack  River  at  its  natural  height,  &c. 

power  requires  a  degree  of  elasticity  to  be  capable  of  meeting  new  conditions  and 
improvements  and  the  ever  increasing  necessities  of  society.  The  sole  dependence 
must  be  on  the  presumed  wisdom  of  the  sovereij^n  authority,  supervised,  and  in  cases 
of  gross  error  or  extreme  wrong,  controlled,  by  the  dispassionate  judgment  of 
the  courts.  In  the  case  of  Fletcher  v.  Peck,  6  Cranch,  128,  Chief  Justice  Marshall 
says :  '  The  question  whether  a  law  is  repugnant  to  the  Constitution  is  at  all  times  a 
question  of  great  delicacy,  which  ought  seldom  if  ever  to  be  decided  in  the  affirmative 
in  a  doubtful  case.'  It  may  be  remarked  that  tiie  justice  and  propriety  of  a  flowage 
law  is  peculiarly  a  question  for  legislative  ratlier  than  judicial  determination,  although 
we  have  briefly  discussed  the  subject  on  its  merits. 

"  But  the  defendant  claims  that,  according  to  the  facts  found  by  the  court,  the  use 
in  this  particular  case  is  not  of  a  public  nature.  Upon  this  point  we  can  entertain  no 
doubt.  From  the  first  settlement  of  the  country  grist-mills  of  this  description  have 
been  in  some  sense  peculiar  institutions,  invested  with  a  general  interest.  Towns 
have  procured  them  to  be  established  and  maintained.  The  State  has  regulated  their 
tolls.  In  many  instances  they  have  been  not  merely  a  convenience,  but  almost  a 
necessity  in  the  community.  .  .  . 

"  The  report  should  be  accepted  and  the  doings  of  the  committee  established." 

The  reporter  adds  that,  "  In  this  opinion  the  other  judges  concurred,  except  Hin- 
MAN,  C.  J.,  who  dissented."  —  Ed. 

1  Big  BLOW,  J.,  did  not  sit  in  this  case. 


CHAP.  VI.]  HAZEN   V.   THE    ESSEX   COMPANY,  1013 

The  demurrer  admits  all  the  material  facts  that  are  thus  set  out  in 
the  (leclaralion.  In  general,  an  Act  of  Incorporation  of  this  description 
is  held  to  be  a  public  law,  to  l)e  taken  notice  by  the  court  without  being 
specially  set  out.  But  independently  of  tliat  rule,  in  the  present  case, 
the  Act  of  Incorporation  is  referred  to  in  the  declaration,  as  the 
authority  under  color  of  which  the  defendants  claimed  title,  and,  there- 
fore, its  construction  and  validity  are  put  in  issue  and  brought  before 
the  court  by  the  demurrer. 

As  the  owner  of  land  through  which  a  watercourse  passes,  has  a 
right  to  the  reasonable  use  of  such  current  as  it  passes  through  his 
land,  the  plaintiff  would  have  a  good  right  of  action,  were  not  the 
erection  of  the  dam  justified  by  their  Act  of  Incorporation.  The  de- 
fendants maintain  that  they  are  so  justified,  by  an  Act  of  the  Legisla- 
ture, exercising,  as  they  may,  the  sovereign  power  of  the  State,  in  the 
right  of  eminent  domain,  to  take  and  appropriate  private  property  for 
public  use  ;  that  the  plaintiff's  property  in  the  mill  and  mill  privilege 
was  so  taken,  and  that  his  remedy  is  by  a  claim  for  damages  under  the 
Act,  and  not  by  action  at  common  law,  as  for  a  wrongful  and  unwar- 
rantable encroachment  upon  the  plaintiff's  right  of  property. 

The  plaintiff  denies  this  right  under  the  said  charter  and  Act  of 
Incorporation. 

1.  It  is  said  it  was  not  necessary  to  take  this  land  and  this  mill-site 
of  the  plaintiff,  because  within  the  terms  of  the  Act,  the  dam  might 
have  been  placed  above  the  outlet  of  the  particular  tributary,  and  so  it 
was  not  necessary  to  flow  out  the  plaintiff's  mill.  But  there  is  nothing 
to  show  that  it  might  have  been  so  placed,  without  flowing  other  mills, 
as  much  privileged  as  the  plaintiffs,  or  that  it  might  have  been  placed 
so  much  higlier  up,  with  the  advantages  to  navigation  and  the  much 
larger  mill-power  of  the  river,  for  manufacturing  purposes  contemplated 
by  the  Act. 

But  we  think  it  is  a  fallacy  to  suppose  that  a  mill  or  mill  privilege  is, 
in  principle,  exempted  from  being  taken  under  the  power  of  eminent 
domain  over  any  other  private  propert}'.  An  impression  of  that  kind 
may  have  arisen  from  the  rule  applicable  to  the  general  Mill  Acts.  It 
stands  on  a  different  principle.  Thus,  each  successive  proprietor  on 
the  watercourse  has  an  equal  right  to  use  the  power  of  the  stream 
through  his  own  land,  to  erect  a  mill,  which  is  for  the  general  benefit ; 
he,  therefore,  who  first  appropriates  it  bv  erecting  a  mill,  shall  be  held 
secure  against  the  claims  of  another  who  has  not  so  appropriated  the 
stream.  It  would  afford  no  encouragement  to  the  building  of  mills 
generally,  if  one  which  had  been  so  built,  could  be  superseded  and 
destroyed  by  any  other  proprietor  who  should  simpl}'  propose  to  build 
another  mill.  This  is  the  sole  ground  on  which,  in  the  administration  of 
the  Mill  Acts,  a  mill-proprietor,  under  a  general  right  to  erect  and 
maintain  a  dam  on  his  own  land,  although  it  may  flow  the  land  of 
another,  cannot  flow  a  mill  already  erected.  But  this  principle  can 
have  no  influence  on  the  legislature,  in  determining  what  is  necessary 


1014  HAZEN   V.   THE    ESSEX    COMPANY.  [ciIAP.  VI. 

to  be  taken  for  public  use ;  the  value  of  a  mill  can  as  well  be  compen- 
sated in  mone}',  as  that  of  any  other  property  so  taken.  The  case 
cited,  Springfield  V.  Gonnecticat  River  Mailroad  Company,  4  Cush.  63, 
has  no  bearing  on  the  present  case. 

2.  It  is  then  contended  that  if  this  Act  was  intended  to  authorize  the 
defendant  company  to  take  the  mill-power  and  mill  of  the  plaintiff,  it 
was  void,  because  it  was  not  taken  for  public  use,  and  it  was  not 
within  the  power  of  the  government,  in  the  exercise  of  the  right  of 
eminent  domain. 

This  is  the  main  question.  In  determining  it,  we  must  look  to  the 
declared  purposes  of  the  Act,  and  if  a  public  use  is  declared,  it  will  be 
so  held,  unless  it  manifestlj*  appears,  b}-  the  provisions  of  the  Act,  that 
they  can  have  no  tendency'  to  advance  and  promote  such  public  use. 
The  declared  purposes  are,  to  improve  the  navigation  of  Merrimack 
River,  and  to  create  a  large  mill-power  for  mechanical  and  manufactur- 
ing purposes.  In  general,  whether  a  particular  structure,  as  a  bridge, 
or  a  lock,  or  canal  or  road,  is  for  the  public  use,  is  a  question  for  the 
legislature,  and  which  may  be  presumed  to  have  been  correctly  decided 
by  them.  Commomoealth  v.  Breed,  4  Pick.  463.  That  the  improve- 
ment of  the  navigation  of  a  river  is  done  for  the  public  use,  has  been 
too  frequently  decided  and  acted  upon,  to  require  authorities.  And  so 
to  create  a  wholl}'  artificial  navigation  b}'  canals.  The  establishment  of 
a  great  mill-power  for  manufacturing  purposes,  as  an  object  of  great 
public  interest,  especially  since  manufacturing  has  come  to  be  one  of 
the  great  public  industrial  pursuits  of  the  Commonwealth,  seems  to 
have  been  regarded  b}'  the  legislature  and  sanctioned  by  the  jurispru- 
dence of  the  Commonwealth,  and,  in  our  judgment,  rightly  so,  in 
determining  what  is  a  public  use,  justifying  tlie  exercise  of  the  right  of 
eminent  domain.  See  St.  1825,  c.  148,  mcorporating  the  Salem  3Iill- 
Dam.  Corporation ;  Boston  and  Roxhury  Mill-Dam  Corporation  v. 
N'ewman,  12  Pick.  467.  The  Acts  since  passed,  and  the  cases  since 
decided  on  this  ground,  are  ver}'  numerous.  That  the  erection  of  this 
dam  would  have  a  strong  and  direct  tendency  to  advance  both  these 
public  objects,  there  is  no  doubt.  We  are,  therefore,  of  opinion,  that 
the  powers  conferred  on  the  corporation  b3-  this  Act,  were  so  done  within 
the  scope  of  the  authority  of  the  legislatiu'e,  and  were  not  in  violation  of 
the  Constitution  of  the  Commonwealth. 

3.  Another  objection  is  taken  to  this  Act,  that  it  provides  no  ade- 
quate means  of  making  compensation  to  private  individuals,  for  the 
damage  done  to  their  property,  b\-  the  erection  and  maintenance  of  the 
defendants'  dam,  and  the  necessary  consequences  thereof,  in  flowing 
their  lands.  If  it  were  so,  it  would  certainly  be  a  very  serious  objec- 
tion to  the  validit}"  of  tlie  Act.  Chadwick  v.  Proprietors  of  Haverhill 
Bridge,  2  Dane  Ab.  687  ;  Callender  v.  Marsh,  1  Pick.  430.  We  are, 
then,  to  look  at  the  statute,  to  see  whether  it  is  obnoxious  to  this 
objection.  It  is  said  that  compensation  for  property  appropriated,  is  a 
common-law  right,  independent  of  the  declaration  of  rights.     If  by 


CHAP.  VI.]  HAZEX   V.   THE   ESSEX    COMPANY.  1015 

this  it  is  intended  to  sa}'  that  compensation  in  such  case  is  required 
b}'  a  plain  dictate  of  natural  justice,  it  must  be  conceded.  ,,  But  this 
right  ma}'  be  regulated,  and  the  remedy  made  certain  and  definite  by 
law.  The  bill  of  rights  declares  a  great  general  principle  ;  the  pa;-ticu- 
lar  law  prescribes  a  practical  rule,  by  which  the  remedy  for  the  viola- 
tion of  right  is  to  be  sought  and  afforded.  ...  [It  is  then  held  that  the 
statute  provides  due  compensation.] 

Demurrer  sustained  and  Judgment  for  the  defendants. 
G.  3Imot,  for  the  plaintiff;  K  Merwln^  for  the  defendants.^ 

1  Compare  Williams  v.  Nelson,  23  Pick.  141,  Head  v.Amoskeag  Man.  Co.,  113  U.  S. 
9  ;  S.  C.  ante,  p.  760,  and  Lowell  v.  Boston,  HI  Mass.  454,  464  ;  s.  C.  »«/'a,p.  1224;  rurner 
V.  Nije,  154  Mass  579,  s.  c.  supra,  p.  893.  Compare  also  Cary  v.  Daniels,  8  Met.  466, 
476-478,  with  Occam  Co.  v.  Sprague  Mfg.  Co.,  35  Conn.  496,  and  Eltmg  Woollen  Co. 
V.  Willlnms,  36  Conn.  310. 

See  Holf/oke  Water-Power  Co.  v.  Conn.  Riv.  Co., 22  Blatchf.  C.  C.  Rep.  131  (1884); 
s.  c.  52  Conn.  570,  as  to  a  dam  affecting  property  rights  in  another  State.  Compare 
Mannville  Co.  v.   Worcester,  138  Mass.  89.     Randolph,  Em.  Dom.  ss.  28,  29. 

In  the  Wntuppa  Reservoir  Co.  v.  Fall  River,  147  Mass.  548  (1888),  it  was  held 
that  the  legislature  might  appropriate  to  the  use  of  a  city  the  waters  of  a  "  gr^at  pond  " 
without  providing  for  compensation  to  the  owners  of  land  on  either  the  pond  or  its 
outlet.  The  court  (Morton,  C.  J.)  said  "  Under  the  ordinance  [of  1647 j  the  State 
owns  the  great  ponds  as  public  property,  held  in  trust  for  public  uses.  ...  As  this 
case  depends  upon  the  effect  of  the  Colony  ordinance,  the  decisions  in  England  cannot 
be  of  assistance  to  us.  They  dejjend  upon  the  common-law,  which,  as  we  have  said,  is 
changed  by  the  ordinance.  The  same  may  be  said  of  the  decisions  in  the  other  States 
of  this  country,  most  of  Avhich  are  governed  by  the  rules  of  the  common-law.  In  New 
York  and  Pennsylvania,  it  has  been  held  that  the  rules  of  the  common  law  do  not  apply 
to  such  great  navigable  streams  as  the  Hudson,  Mohawk,  and  Delaware  Rivers,  though 
they  may  not  be  tidal  rivers  throughout ;  that  the  title  of  such  streams  is  in  the  gov- 
ernment in  trust  for  the  people ;  and  that  the  State  may  u.se  the  waters,  or  authorize 
their  use,  for  the  purposes  for  which  they  are  held  in  trust,  without  any  compensation 
to  riparian  proprietors  who  are  damaged  by  such  use.  People  v.  Canal  Appraisers, 
S3  N.  Y.  461  ;  Vurick  v.  Smith,  9  Paige,  547;  Carson  v.  Blazer,  2  Binney,  475, 
Shrunk  v.  Schai/lkill  Navigation  Co.,  14  S.  &  R.  71 ;  Rundle  v.  Delaware  cj-  Raritan 
Canal  Co.,  14  How.  80. 

"  The  industry  of  counsel  has  furnished  us  with  references  to  between  two  and  three 
hundred  water  Acts  passed  by  the  legislature,  including  some  in  which  the  right  to  use 
the  waters  of  great  ponds  is  granted,  in  most  of  which  provision  is  made  for  compen- 
sation to  those  wliose  mill  privileges  or  water  rights  are  impaired.  These  show  that 
the  policy  of  the  State  has  heretofore  been  to  provide  such  compensation,  but  they  do 
not  show  that  the  State  has  not  the  power  to  use  the  waters  witliout  compensation. 
The  Act  we  are  considering  seems  to  mark  a  change  in  the  public  policy  in  regard  to 
the  waters  of  the  great  ponds,  as  since  its  enactment  several  other  Acts  have  been 
passed  containing  the  same  provisions  as  to  damages." 

For  a  good  statement  of  the  common-law  doctrine,  in  such  a  case,  apart  from  the 
Ordinance  of  1647,  see  Lord  v.  Meadville  Water  Co.,  135  Penn.  122  (1890).  See  also 
Smith  V.  Rochester,  92  N.  Y.  463  (1883).     For  the  Ordinance  itself,  see  .^iipra,  p.  696. 

Compare  Wat.  Res.  Co.  v.  Fa// /?/yer,  154  Mass.  305  (1891).  See  also  "  The  Watuppa 
Pond  Cases,"  2  Harv.  Law  Rev.  195 ;  "  Great  Ponds,"  lb.  316,  and  "  The  Law  of  Ponds," 
3  Harv.  Law  Rev.  1.  —  Ed. 


1016  TALBOT   ET   AL.    V.    HUDSON   ET   AL.  [CHAP.  VL 

TALBOT  ET  AL.  V.  HUDSON  et  al. 
Supreme  Judicial  Court  of  Massachusetts.     1860. 

[16   Gray,  417] 

£.  F.  Thomas  &  J.  G.  Abbott  ((?.  H.  Prest07i  with  them),  for  the 
plaintiffs,  and  S.  H.  Phillips  (Attorney-General)  &  J.  S.  Kei/es,  for 
the  defendants. 

Bigelow,  C.  J.  This  ease  comes  before  us  for  a  hearing  upon  the 
bill  and  answer,  somewhat  out  of  the  regular  course  of  proceedings  in 
chanceiy.  A  preliminary  injunction  was  heretofore  issued  ex  parte  by 
a  justice  of  this  court  on  the  filing  of  the  bill.  Upon  the  return  of  the 
subpcena,  a  motion  to  dissolve  this  injunction  was  made  by  the  defend- 
ants. This  motion  should  properly  have  been  heard,  in  the  first 
instance,  by  a  single  judge.  But  as  the  case  of  the  plaintiffs,  as  stated 
in  the  bill,  mainly  depends  on  the  determination  of  certain  questions  of 
law  which  can  in  no  way  be  affected  by  proof,  and  as  the  case  is  one 
of  great  importance,  involving  large  interests  both  of  a  public  and 
private  nature,  it  was  agreed  by  the  parties,  with  the  assent  of  the 
court,  that  these  questions  should  now  be  heard  and  fiuall}'  determined. 

The  case,  so  far  as  is  necessary  to  an  understanding  of  these 
questions,  may  be  briefl}'  stated  thus  :  The  plaintiffs  allege  that  they 
are  owners  by  purchase  of  a  valuable  mill  privilege,  water  rights,  and 
dam,  situated  in  the  northern  part  of  the  town  of  Billerica  upon  the 
falls  of  the  Concord  River,  with  land  in,  upon  and  adjoining  the  same  ; 
that  they  have  erected  on  said  river,  at  great  cost,  large  mills  and 
other  buildings,  used  and  improved  by  them  for  the  manufacture  of 
various  articles  ;  that  these  mills  are  carried  on  and  operated  by  the 
water  power  created  b}-  said  dam  and  river,  and  are  entirel}-  dependent 
thereon.  They  further  aver  that  the  defendants,  assuming  to  act  as 
commissioners  under  and  by  virtue  of  the  authority  conferred  by  a 
certain  Act  of  the  Legislature,  passed  on  the  4th  of  April,  1860,  entitled 
"an  Act  in  relation  to  the  flowage  of  the  meadows  on  Concord  and 
Sudbury  rivers,"  propose  to  take  down  and  remove  said  dam  to  a 
level  thirty-three  inches  below  the  top  thereof,  by  which  the  water 
power,  dam,  and  mills  of  the  plaintiffs  will  be  destroyed,  or  rendered  of 
little  or  no  value,  and  that  they  will  thereby  be  subjected  to  serious  and 
irreparable  loss,  for  which  the  defendants  would  be  unable  to  recom- 
pense them,  and  of  such  a  nature  that  they  are  remediless  except  by 
relief  in  equit}'.  They  then  aver  that  said  Act  of  the  Legislature  is 
unconstitutional  and  void,  and  furnishes  no  real  authority  for  the 
threatened  action  of  the  defendants  as  commissioners  under  its  pro- 
visions. The  defendants,  in  their  answer,  admitting  that  the  plaintiffs 
are  owners  of  the  dam,  water  rights,  mill  privileges,  and  mills,  as  stated 
by  the  bill,  and  alleging  their  due  appointment  and  qualification  to  act 
as  commissioners  under  the  Act  of  the  Legislature  aforesaid,  aver, 
among  other  things,  that  said  Act  is  valid  and  constitutional,  and  well 


CHAP.  VI.]  TALBOT   ET   AL.   V.    HUDSON    ET   AL.  1017 

authorizes  them  to  proceed  in  removing  a  portion  of  said  dam  in  pur- 
suance of  its  provisions ;  and  the}'  demur  to  the  bill  on  the  ground  that 
the  plaintiffs  do  not  state  a  case  which  entitles  them  to  relief  in 
equity. 

It  is  manifest  from  these  averments  and  denials  that  the  right  of  the 
plaintiffs  to  the  relief  which  they  seek  depends  chiefly  on  the  allegation 
of  the  invalidity  of  the  Act  of  the  Legislature  under  which  the  defend- 
ants claim  to  derive  their  authority  to  reduce  the  height  of  the  dam  in 
the  manner  set  out  in  the  bill.  This  question  has  been  ver}'  full}'  and 
elaborately  discussed  at  the  bar,  and  we  have  endeavored  to  bestow 
upon  it  verj'  careful  and  deliberate  consideration,  not  only  on  account 
of  the  important  nature  of  the  interests  involved  in  our  decision,  but 
also  because  it  requires  us  to  determine  whether  the  legislative  depart- 
ment of  the  government  has  not  exceeded  the  constitutional  limits  of 
its  authority. 

It  is  quite  obvious  that  the  first  step  in  this  inquiry  is  to  ascertain,  if 
we  can,  under  what  head  or  branch  of  legislative  power  or  authority  the 
Act  in  question  falls.  The  intention  of  the  legislature  in  this  respect 
must  be  gathered  mainly  from  the  terms  of  the  statute.  There  is  no 
express  declaration  of  the  objects  contemplated  by  it,  but  the}'  are  left 
to  implication.  Looking  to  the  general  structure  of  the  act  and  the 
nature  of  its  provisions,  we  cannot  doubt  that  it  was  intended  as  an 
exercise  of  the  right  of  eminent  domain.  It  is  similar  to  other  legisla- 
tive acts  which  authorize  the  taking  of  private  property  for  a  public 
^,  use.  It  expressly  authorizes  the  taking  and  removal  of  the  dam  by  a 
board  of  public  officers  appointed  for  this  specific  purpose  ;  it  provides 
the  same  remedy  in  behalf  of  persons  injured  by  such  taking  and 
removal  as  is  given  in  case  of  damages  occasioned  by  the  laying  out  of 
highways  ;  it  affords  to  the  party  aggrieved  by  the  award  of  the  com- 
missioners a  trial  by  jury,  and  confers  on  this  court  the  power  to  hear 
and  determine  all  questions  of  law  arising  in  the  proceedings,  and  to  set 
aside  the  verdict  of  the  jury  for  sufficient  cause.  These  provisions  are 
inconsistent  with  the  idea  that  the  act  was  framed  for  the  purpose  of 
exercising  the  general  police  or  superintending  power  over  private 
property,  which  is  vested  in  the  legislature,  or  in  order  to  prohibit  a 
use  of  it  which  was  deemed  injurious  to  or  inconsistent  with  the  rights 
and  interests  of  the  public.  If  such  were  the  object  of  the  statute, 
there  would  be  no  necessity  for  the  appointment  of  commissioners  to 
take  down  and  remove  the  dam,  or  for  the  provisions  making  com- 
pensation to  those  injured  in  their  property  thereby.  Such  enact- 
ments would  be  unusual  in  a  statute  intended  only  for  a  prohibition 
and  restraint  upon  the  appropriation  or  use  of  private  property  by  its 
owners ;  but  are  the  necessary  and  ordinary  provisions  when  the  legis- 
lature intend  to  exercise  the  right  to  take  it  for  a  supposed  pubUc  use. 
Thacher  v.  Dartmouth  Bridge,  18  Pick.  501.  Commonwealth  v. 
Tewksbury,  11  Met.  55. 
Such  being  the  manifest  design  of  tho  legislature  in  passing  the  Act 


1018  TALBOT  ET   AL.   V.   HUDSON   ET   AL.  [CHA?.  VI. 

in  question,  we  are  brought  directly-  to  a  consideration  of  tlie  objections 
urged  b}-  tlie  plaintiffs  against  its  validit}'.  The  first  and  principal  one 
is  that  it  violates  the  10th  article  of  the  Declaration  of  Rights,  because 
it  authorizes  the  taking  and  appropriation  of  private  property  to  a  use 
which  is  not  of  a  public  nature.  ~~~ 

In  considering  this  objection,  we  are  met  in  the  outset  with  the 
suggestion,  that  it  is  the  exclusive  province  of  the  legislature  to  deter- 
mine whether  the  purpose  or  object  for  which  property  is  taken  is  a 
public  use,  and  that  it  is  not  within  the  province  of  the  judicial  depart- 
ment of  the  government  to  revise  or  control  the  will  or  judgment  of  the 
legislature  upon  the  subject,  when  expressed  in  the  form  of  a  legal 
enactment.  But  this  position  seems  to  us  to  be  qbviousU'  untenable. 
The  provision  in  the  Constitution,  that  no  part  of  the  property  of  an 
individual  can  be  taken  from  him  or  applied  to  public  uses  without  his 
consent  or  that  of  the  legislature,  and  that  when  it  is  appropriated  to 
public  uses  he  shall  receive  a  reasonable  compensation  therefor,  neces- 
sarily implies  that  it  can  be  taken  only  for  such  a  use,  and  is  equiva- 
lent to  a  declaration  that  it  cannot  be  taken  and  appropriated  to  a 
purpose  in  its  nature  private,  or  for  the  benefit  of  a  few  individuals. 
In  this  view,  it  is  a  direct  and  positive  limitation  upon  the  exercise  of 
legislative  power,  and  any  act  which  goes  beyond  this  limitation  must 
be  unconstitutional  and  void.  No  one  can  doubt  that  if  the  legislature 
should  by  statute  take  the  property  of  A  and  transfer  it  to  B,  it  would 
transcend  its  constitutional  power.  In  all  cases,  therefore,  where  this 
power  is  exercised,  it  necessarily  involves  an  inquiry  into  the  rightful 
authorit}'  of  the  legislature  under  the  organic  law.  But  the  legislature 
have  no  power  to  determine  finall}'  upon  the  extent  of  their  authority' 
over  private  rights.  That  is  a  power  in  its  nature  essentialh'  judicial, 
which  the}'  are  b}'  Article  30  of  the  Declaration  of  Rights  expresslj' 
forbidden  to  exercise.  The  question  whether  a  statute  in  a  particular 
instance  exceeds  the  just  limits  prescribed  In-  the  Constitution  must  be 
determined  b}'  the  judiciary.  In  no  other  way  can  the  rights  of  the 
citizen  be  protected,  when  they  are  invaded  by  legislative  acts  which  go 
beyond  the  limitations  imposed  by  the  Constitution. 

But  it  is  to  be  borne  in  mind,  that  in  determining  the  question 
whether  a  statute  is  within  the  legitimate  sphere  of  legislative  action, 
it  is  the  dut}'  of  courts  to  make  all  reasonable  presumptions  in  favor 
of  its  validit}'.  It  is  not  to  be  supposed  that  the  lawmaking  power  has 
transcended  its  authority,  or  committed  under  the  form  of  law  a  viola- 
tion of  individual  rights.  When  an  act  has  been  passed  with  all  the 
requisites  necessar}-  to  give  it  the  force  of  a  binding  statute,  it  must  be 
regarded  as  valid,  unless  it  can  be  clearly  shown  to  be  in  conflict  with 
the  Constitution.  It  is  therefore  incumbent  on  those  who  deny  the 
validit}'  of  a  statute,  to  show  that  it  is  a  plain  and  palpable  violation  of 
constitutional  right.  If  they  fail  to  do  so,  or  leave  room  for  a  reason- 
able doubt  upon  the  question  whether  it  is  an  infringement  of  any  of 
the  guaranties  secured  by  the  Constitution,  the  presumption  in  favor  of 


CHAP.  VI.]  TALBOT   ET   AL.    V.    HUDSON    ET   AL.  1019 

the  validity  of  the  Act  must  stand.  Opinion  of  Justices^  8  Gray,  21. 
Besides,  it  is  a  well  settled  rule  of  exposition  that  in  considering 
whether  a  statute  is  witliin  the  liuiits  of  legislative  authority,  if  it  may 
or  may  not  be  valid  according  to  circumstances,  courts  are  bound  to 
presume  the  existence  of  those  circumstances  wiiich  will  support  it  and 
give  it  validit}'.      Wellington,  Petitioner,  16  Pick.  96. 

The  ultimate  purpose  which  the  legislature  had  in  view  in  passing  the 
Act  under  consideration  does  not  distinctly  appear  by  the  terms  of  the 
Act  itself.  But  it  ma}'  be  inferred  from  the  title  of  the  Act  and  the 
general  scope  of  its  provisions,  that  it  was  intended  to  relieve  the 
meadows  lying  on  the  borders  of  Concord  and  Sudbury  rivers,  chiefly 
in  the  towns  of  Lincoln,  Concord,  Sudbury,  and  Wayland,  from  large 
quantities  of  water  with  which  they  are  constantly  overflowed,  and 
which  are  supposed  to  be  set  back  by  the  dam  owned  by  the  plaintiffs. 
This  purpose  is  quite  clearl}'  indicated  by  the  provisions  in  the  fourth 
section  of  the  Act,  b}'  which  the  removal  of  the  dam  under  the  Act  is 
made  to  operate  as  a  bar  to  any  suits  by  the  proprietors  of  lands 
flowed  thereby  for  damages  sustained  in  consequence  of  such  flowage. 
And  indeed  it  is  conceded  by  the  parties  that  such  was  the  main  pur- 
pose of  the  statute. 

In  many  cases,  there  can  be  no  difficulty  in  determining  whether  an 
appropriation  of  property  is  for  a  public  or  private  use.  If  land  is 
taken  for  a  fort,  a  canal,  or  a  highway,  it  would  clearly  fall  within  the 
first  class ;  if  it  is  transferred  from  one  person  to  another  or  to  several 
persons  solely  for  their  peculiar  benefit  and  advantage,  it  would  as 
clearly  come  within  the  second  class.  But  there  are  intermediate  cases 
•where  public  and  private  interests  are  blended  together,  in  which  it 
becomes  more  difficult  to  decide  within  which  of  the  two  classes  they 
ma}'  be  properly  said  to  fall.  There  is  no  fixed  rule  or  standard  by 
which  such  cases  can  be  tried  and  determined.  Each  must  necessarily 
depend  upon  its  own  peculiar  circumstances.  In  the  present  case 
there  can  be  no  doubt  that  ever}'  owner  of  meadow  land  bordering  on 
these  rivers  will  be  directly  benefited  to  a  greater  or  less  extent  by  the 
reduction  of  the  height  of  the  plaintiffs'  dam.  The  Act  is  therefore  in 
a  certain  sense  for  a  private  use,  and  enures  directly  to  the  individual 
advantage  of  such  owners.  But  this  is  by  no  means  a  decisive  test  of 
its  validity.  Many  enterprises  of  the  highest  public  utility  are  produc- 
tive of  great  and  immediate  benefits  to  individuals.  A  railroad  or  canal 
may  largely  enhance  the  value  of  private  property  situated  at  or  near 
its  termini ;  but  it  is  not  for  that  reason  any  less  a  public  work,  for 
the  construction  of  which  private  property  may  well  be  taken.  We  are 
therefore  to  look  further  into  the  probable  operation  and  effect  of  the 
statute  in  question,  in  order  to  ascertain  whether  some  public  interest 
or  benefit  may  not  be  likely  to  accrue  from  the  execution  of  the  power 
conferred  by  it  upon  the  defendants.  If  any  such  can  be  found,  then 
we  are  bound  to  suppose  that  the  Act  was  passed  in  order  to  effect  it. 
AVe  are  not  to  judge  of  the  wisdom  or  expediency  of  exercising  the 


1020  TALBOT   ET   AL.   V.   HUDSON   ET   AL.  [CHAP.  VI. 

power  to  accomplish  the  object.  The  legislature  are  the  sole  and 
exclusive  judges  whether  the  exigency  exists  which  calls  on  them  to 
exercise  their  authority  to  take  private  propert}'.  If  a  use  in  its  nature 
public  can  be  subserved  by  the  appropriation  of  a  portion  of  the 
plaintiffs'  dam  in  the  manner  provided  by  this  Act,  it  was  clearlj'  within 
the  constitutional  authority  of  the  legislature  to  take  it,  and  in  tlic 
absence  of  any  declared  purpose,  we  must  assume  that  it  was  taken  for 
such  legitimate  and  autliorized  use. 

The  geographical  features  of  the  Concord  and  Sudburj'  rivers  are 
properly  within  the  judicial  cognizance  of  the  court.  The3'  are  stated 
in  detail  in  the  opinion  of  the  court  in  Sudbury  Meadows  v.  3Iiddlesex 
Cu7ial,  23  Pick.  45.  From  that  case  and  an  inspection  of  the  map,  it 
appears  that  these  two  rivers,  forming  parts  of  the  same  stream,  pass 
for  a  distance  exceeding  twenty  miles  through  a  tract  of  countr}', 
forming  their  banks  or  borders,  consisting  chiefly  of  meadows  compris- 
ing man}'  hundreds  of  acres ;  that  throughout  this  extent  the  waters 
are  very  sluggish,  having  onl}-  a  slight  fall,  until  they  reach  the  plain- 
tiffs' dam.  It  might  well  be  supposed  that  the  necessary  effect  of  an 
obstruction  in  a  stream  of  this  nature  would  be  to  cause  the  waters  to 
flow  back  in  the  bed  of  the  rivers,  to  fill  up  their  courses  or  channels, 
to  overflow  their  sides,  and  to  inundate  to  a  great  extent  the  adjacent 
land,  which  is  naturall}'  low  and  level,  and  thus  to  render  it  unfit  for 
agricultural  purposes  and  deprive  it  of  its  capacity  to  produce  any 
profitable  or  useful  vegetation.  The  improvement  of  so  large  a  terri- 
tor}',  situated  in  several  different  towns  and  owned  by  a  great  number 
of  persons,  b}'  draining  off  the  water  and  thereb\'  rendering  the  land 
suitable  for  tillage,  which  could  not  otherwise  be  usefuU}'  improved  at 
all,  would  seem  to  come  fairl}'  within  the  scope  of  legislative  action^ 
and  not  to  be  so  devoid  of  all  public  utilit}'  and  advantage  as  to  make 
it  the  duty  of  this  court  to  pronounce  a  statute,  which  might  well  be 
designed  to  effect  such  a  purpose,  invalid  and  unconstitutional.  The 
Act  would  stand  on  a  different  ground,  if  it  appeared  that  only  a  very 
few  individuals  or  a  small  adjacent  territor}'  were  to  be  benefited  by 
the  taking  of  private  property.  But  such  is  not  the  case  here.  The 
advantages  which  maj'  result  from  the  removal  of  the  obstruction 
caused  by  the  plaintiffs'  dam  are  not  local  in  their  nature,  nor  intended 
to  be  confined  to  a  single  neighborhood.  The}'  are  designed  to  embrace 
a  large  section  of  land  l3'ing  in  one  of  the  most  populous  and  highl}' 
cultivated  counties  in  the  State,  and  b}-  increasing  the  productive  capa- 
city* of  the  soil  to  confer  a  benefit,  not  onl}'  on  the  owners  of  the 
meadows,  but  on  all  those  who  will  receive  the  incidental  advantage 
arising  from  the  development  of  the  agricultural  resources  of  so  exten- 
sive a  territor}'. 

It  has  never  been  deemed  essential  that  the  entire  community  or  any 
considerable  portion  of  it  should  directly  enjov  or  participate  in  an 
improvement  or  enterprise,  in  order  to  constitute  a  public  use,  within 
the  true  meaning  of  these  words  as  used  in  the  Coustitutioa.     Such  aa 


CHAP.  VI.]  TALBOT   ET   AL,    V.   HUDSON   ET   AL.  1021 

interpretation  would  greatly  narrow  and  cripple  the  authority  of  the 
legislature,  so  as  to  deprive  it  of  the  power  of  exerting  a  material  and 
beneficial  influence  on  the  welfare  and  prosperity  of  the  State.  In  a 
broad  and  comprehensive  view,  such  as  has  been  heretofore  taken  of 
the  construction  of  this  clause  of  the  Declaration  of  Rights,  everything 
which  tends  to  enlarge  the  resources,  increase  the  industrial  energies, 
and  promote  the  productive  power  of  any  considerable  number  of  the 
inhabitants  of  a  section  of  the  State,  or  which  leads  to  the  growth  of 
towns  and  the  creation  of  new  sources  for  the  employment  of  private 
capital  and  labor,  indirectly  contributes  to  the  general  welfare  and  to 
the  prosperity  of  the  whole  communit}-. 

It  is  on  this  principle,  that  many  of  the  statutes  of  this  Common- 
wealth by  which  private  property  has  been  heretofore  taken  and  appro- 
priated to  a  supposed  public  use  are  founded.  Such  legislation  has 
the  sanction  of  precedents,  coeval  with  the  origin  and  adoption  of  the 
Constitution,  and  the  principle  has  been  so  often  recognized  and  ap- 
proved as  legitimate  and  constitutional  that  it  has  become  incorporated 
into  our  jurisprudence.  One  of  the  earliest  and  most  familiar  instances 
of  the  exercise  of  such  power  under  the  Constitution  is  to  be  found  in 
St.  1795,  c.  74,  for  the  support  and  regulation  of  mills.  By  this 
statute  the  owner  of  a  mill  had  power,  for  the  purpose  of  raising  a 
head  of  water  to  operate  his  mill,  to  overflow  the  land  of  proprietors 
above  and  thereby  to  take  a  permanent  easement  in  the  soil  of  another, 
to  the  entire  destruction  of  its  beneficial  use  by  him,  on  paying  a 
suitable  compensation  therefor.  Under  the  right  thus  conferred,  the 
more  direct  benefit  was  to  the  owner  of  the  mill  only  ;  private  property 
was  in  effect  taken  and  transferred  from  one  individual  for  the  benefit 
of  another ;  and  the  only  public  use,  which  was  thereby  subserved,  was 
the  indirect  benefit  received  by  the  community  by  the  erection  of  mills 
for  the  convenience  of  the  neighborhood,  and  the  general  advantage 
which  accrued  to  trade  and  agriculture  by  increasing  the  facilities  for 
traffic  and  the  consumption  of  the  products  of  the  soil.  Such  was  the 
purpose  of  this  statute,  as  appears  from  the  preambles  to  the  provincial 
Acts  of  8  and  13  Anne,  from  which  the  statute  of  1795  was  substan- 
tially copied.  It  is  thereby  declared  that  the  building  of  mills  has  been 
"  serviceable  for  the  public  good  and  benefit  of  the  town  or  considerable 
neighborhood."     Anc.  Chart.  388,  404. 

In  like  manner,  and  for  similar  purposes,  acts  of  incorporation  have 
been  granted  to  individuals  with  authority  to  create  large  mill  powers 
for  manufacturing  establishments,  b}'  taking  private  propert}',  even  to 
the  extent  of  destroying  other  mills  and  water  privileges  on  the  same 
stream.  Boston  &  Roxhury  Mill  Dam  v.  Newman^  12  Pick.  467. 
Hazen  v.  Essex  Co.^  12  Cush.  478.  Commonioealth  v.  Essex  Co.^  13 
Gray,  249.  The  main  and  direct  object  of  these  Acts  is  to  confer  a 
benefit  on  private  stockholders  who  are  willing  to  embark  their  skill 
and  capital  in  the  outla}'  necessar3'  to  carry  forward  enterprises  which 
indirectly  tend  to  the  prosperity  and  welfare  of  the  community.     And 


1022  TALBOT    ET   AL.    V.    HUDSON   ET   AL.  [CIIAP.  YI, 

it  is  because  they  thus  lead  incidentally  to  the  promotion  of  "one  of 
tlie  great  public  industrial  pursuits  of  the  Commonwealth,"  that  they 
have  been  heretofore  sanctioned  by  this  court,  as  well  as  hy  the  legis- 
lature, as  being  a  legitimate  exercise  of  the  right  of  eminent  domain 
justifying  the  taking  and  appropriation  of  private  property.  Hazen  v. 
Essex  Co.,  12  Cush.  475. 

It  is  certainly  difficult  to  see  any  good  reason  for  making  a  discrim- 
ination in  this  respect  between  different  branches  of  industr}-.  If  it  is 
lawful  and  constitutional  to  advance  the  manufacturing  or  mechanical 
interests  of  a  section  of  the  State  by  allowing  individuals  acting  pri- 
marily for  their  own  profit  to  take  private  property-,  there  would  seem  to 
be  little,  if  any,  room  for  doubt  as  to  the  authority-  of  the  legislature, 
acting  as  the  representatives  of  the  whole  people,  to  make  a  similar 
appropriation  by  their  own  immediate  agents  in  order  to  promote  the 
agricultural  interests  of  a  large  territory.  Indeed  it  would  seem  to  be 
most  reasonable,  and  consistent  with  the  principle  upon  which  legisla- 
tion of  this  character  has  been  exercised  and  judicially  sanctioned  in 
this  commonwealth,  to  hold  that  the  legislature  might  provide  that  land 
which  has  been  taken  for  a  public  use  and  subjected  to  a  servitude  or 
easement  b}'  which  its  value  has  been  impaired  and  it  has  been  ren- 
dered less  productive,  should  be  relieved  from  the  burden,  if  the  pur- 
pose for  which  it  was  so  appropriated  has  ceased  to  be  of  public  utility, 
and  its  restoration  to  its  original  condition,  discharged  of  the  incum- 
brance, will  tend  to  promote  the  interest  of  the  community  b}'  contrib- 
uting to  the  means  of  increasing  the  general  wealth  and  prosperit}'.  If 
the  right  of  a  mill  owner  to  raise  a  dam  and  flow  the  land  of  adjacent 
proprietors  has  ceased  to  be  of  any  public  advantage,  and  tends  to 
retard  prosperit}'  and  to  impoverish  the  neighborhood,  and  the  with- 
drawal of  the  water  from  the  land  by  taking  down  the  dam  and  render- 
ing the  land  available  for  agricultural  purposes  would  be  so  conducive 
to  the  interests  of  the  community  as  to  render  it  a  work  of  public 
utility,  there  is  no  good  reason  why  the  legislature  ma}-  not  constitu- 
tionall}'  exercise  the  power  to  take  down  the  dam  on  making  suitable 
compensation  to  the  owner.  It  would  onlj'  be  to  apph-  to  the  mill- 
owner  for  the  benefit  of  agriculture  the  same  rule  which  had  been 
previously  applied  to  the  land-owner  for  the  promotion  of  manufactur- 
ing and  mechanical  pursuits. 

Nor  are  we  without  precedent  for  acts  of  legislation  by  which 
private  property  has  been  taken  for  the  purpose  of  improving  land  and 
rendering  it  fertile  and  productive.  The  St.  of  1795,  c.  62,  for  the 
improvement  of  meadows,  swamps,  and  low  lands,  recognizes  the  right 
of  taking  private  property  for  the  purpose  of  redeeming  lands  from  the 
effects  of  stagnant  water  and  of  being  overflowed  by  obstructions  in 
brooks  and  rivers.  This  statute,  re-enacted  bj'  the  Rev.  Sts.  c.  115, 
has  been  long  in  use,  and  many  proceedings  under  it  have  taken  place, 
some  of  whicli  have  passed  under  the  judicial  cognizance  of  this  court. 
But  in  none  of  these  has  the  validity  of  the  statute  been  doubted  or 


CHAP.  VI.]       TALBOT  ET  AL.  V.    HUDSON  ET  AL.  1023 

denied.  Coomes  v.  Burt,  22  Pick.  422.  Da^  v.  Jlalburt,  11  Met. 
321.  Under  tiie  provisions  of  this  Act,  not  only  is  it  competent  to 
drain  or  overflow  tlie  land  of  a  proprietor  without  his  assent,  and  to 
compel  him  to  pay  a  portion  of  the  expense  attendant  on  the  proposed 
improvement,  but  also  to  open  the  flood-gates  of  any  mill  or  make 
needful  passages  through  or  round  the  dam  thereof  and  erect  tem- 
porary dams  on  the  land  of  any  person  who  is  not  a  proprietor  or  a 
party  to  the  proceedings.  For  the  injury  thus  occasioned  to  private 
property,  a  remedy  is  provided  by  the  statute.  But  it  is  clearly  an 
appropriation  of  private  property  primarily  for  the  benefit  of  the  owners 
of  the  meadows  or  low  lands  which  are  intended  to  be  improved,  and 
where  the  public  use  or  benefit  which  justifies  such  appropriation  con- 
sists in  the  indirect  advantage  to  the  community,  derived  from  the 
increase  of  the  productive  capacity  of  the  soil  and  the  promotion  of 
the  ao-ricultural  interests  of  the  owners  of  the  land.  .,,.«. 

It  was  suo-crested  at  the  argument,  that  there  was  an  essential  differ- 
ence between  the  provisions  of  statute  for  the  improvement  of  meadows 
and  low  lands  and  tliat  under  consideration,  because  by  the  former  it 
was  provided  that  the  damages  should  be  paid  by  the  parties  benefited, 
whereas  by  the  latter  they  are  to  be  paid  out  of  the  public  treasury. 
But  we  cannot  see  the  force  or  bearing  of  this  suggestion.  The  mode 
of  compensating  the  party  whose  property  is  taken  cannot  affect  the 
validity  of  the  appropriation,  so  far  as  it  depends  on  the  question, 
whether  it  was  taken  for  a  public  use.  If  the  use  is  not  in  its  nature 
public,  the  appropriation  is  invalid  and  unconstitutional,  and  the  mode 
by  which  compensation  to  the  owners  of  land  taken  is  to  be  made  is 
wholly  immaterial.  It  is  only  when  property  is  taken  for  a  purpose  for 
which  it  may  be  constitutionally  appropriated,  that  it  becomes  neces- 
sary to  determine  whether  provision  is  made  for  compensation,  suitable 
and  adequate  to  furnish  a  remedy  to  the  party  injured. 

But  if  there  were  no  precedent  for  such  legislation,  and  if  we  were 
unable  to  see  that  any  use  in  its  nature  public  could  be  effected  by  the 
exercise  of  the  power  conferred  on  the  commissioners  by  the  terms  of 
the  Act  under  consideration,  we  should  be  slow  to  decide,  on  the  case 
as  stated  in  the  bill,  that  the  statute  was  invalid,  and  that  the  legis- 
lature in  passing  it  transcended  their   constitutional  authority.     The 
burden  of  establishing  this  proposition  is  on  the  plaintiffs.     They  are 
bound  to  make  such  averments  in  their  bill,  either  by  way  of  allegations 
of  fiict  or  conclusions  of  law,  as  prima  facie  to  make  it  appear  that  the 
Act  has  no  force  or  validitv.  .  .   •  The  bill  contains  no  such  allegation. 
Certainly  in  a  hearing  on  bill  and  answer,  the  court  cannot  assume  the 
Act  to  be  unconstitutional,  in  the  absence  of  any  statement  of  facts  or 
other  averments  to  sustain  the  allegation  that  it  takes  property  "  for 
uses  and  purposes  which  are  in  violation  of  the  tenth  article  of  the  Bill 
of  Rio-hts  of  the  Constitution  of  the  Commonwealth  of  Massachusetts." 
Nor  Ts  it  to  be  overlooked  in  this  connection,  that  the  ordinary  pre- 
sumption in  favor  of  the  validity  of  an  Act  of  the  Legislature  is  greatly 


1024  TALBOT    ET  AL.    V.    HUDSON   ET   AL.  [cHAP.  VI. 

strengthened  in  the  present  case  by  the  consideration  that  the  power  to 
take  the  property  of  the  defendants  is  not  delegated  to  any  persons  or 
corporation  for  their  private  advantage  and  emolument,  who  are  to 
make  compensation  for  the  property  taken  out  of  their  private  capital 
or  stock.  But  it  is  an  exercise  of  the  power  of  eminent  domain  directl}' 
by  the  State  itself  through  agents  specially  appointed  for  the  purpose, 
and  the  compensation  provided  for  those  whose  property  may  be  taken 
or  injured  by  the  reduction  of  the  dam  is  to  be  paid  from  the  public 
treasury.  An  Act  thus  framed  clearly  indicates  that  in  the  judgment  of 
the  legislature  it  was  designed  to  subserve  some  important  public  use, 
so  necessary  that  it  ought  not  to  be  left  to  private  enterprise,  and  so 
universal  that  the  burden  of  accomplishing  the  object  should  be  borne, 
not  by  individuals,  or  corporations,  or  towns,  but  by  all  the  people  of 
the  Commonwealth.  We  know  of  no  instance  in  the  jurisprudence  of 
this  country-,  where  an  Act,  so  clearly  intended  to  effect  a  purpose 
which  was  deemed  by  the  legislature  to  be  of  public  utility,  has  been 
adjudged  unconstitutional  and  void.  Every  reasonable  presumption  is 
against  such  a  conclusion,  and  it  would  require  \ery  strong  circum- 
stances to  lead  the  court  to  overrule  the  judgment  of  a  co-ordinate 
branch  of  the  government,  so  unequivocallj'  expressed  in  a  matter  prim- 
arily within  their  province  to  determine. 

The  validity  of  the  statute  is  called  in  question  b}'  the  plaintiflfs  on 
the  further  and  distinct  ground  that  it  contains  no  reasonable,  certain, 
and  adequate  provision  for  compensation  to  those  whose  property  may 
be  taken  and  appropriated  in  carrying  out  the  purposes  of  the  Act. 
But  it  seems  to  us  that  there  is  an  obvious  and  decisive  answer  to  this 
objection.  By  the  third  section  of  the  Act,  it  is  provided  that  the  dam- 
ages which  may  be  recovered  on  due  proceedings  had  b}-  the  parties 
injured  shall  be  paid  out  of  the  treasury  of  the  Commonwealth,  and  the 
governor  is  authorized  to  draw  his  warrant  therefor.  This  is  clearly  an 
appropriation  of  so  much  mone}'  as  may  be  necessary  to  pay  the  dam- 
ages which  may  be  assessed  under  the  Act.  The  provision  could  not 
be  more  explicit  or  definite  as  to  the  amount  appropriated.  Until  the 
damages  are  ascertained  and  adjudicated,  the  sum  which  will  be  re- 
quired to  pay  them  is  necessarily  uncertain.  There  is  no  provision  of 
law,  which  makes  it  requisite  to  the  validity  of  an  appropriation  from 
the  treasury  of  the  Commonwealth  that  a  specific  sum  should  be  named 
and  set  apart  as  a  fund  to  meet  a  particular  exigency.  It  is  sufficient 
if  by  an  Act  or  resolve  passed  during  the  same  or  the  preceding 
political  year  the  payment  is  authorized.  St.  1858,  c.  1,  §§  1,  2.  Gen. 
Sts.  c.  15,  §§  30,  31.  That  such  an  appropriation  affords  a  remedy 
sufficiently  adequate  and  certain  is  too  clear  to  admit  of  doubt.  It  is  a 
pledge  of  the  faith  and  credit  of  the  Commonwealth,  made  in  the  most 
solemn  and  authentic  manner,  for  the  payment  of  the  damages  as  soon 
as  they  are  ascertained  and  liquidated  by  due  process  of  law.  Unless 
we  can  say  that  such  a  provision  affords  no  reasonable  guaranty  that 
the  persons  injured  will  receive  compensation,  we  cannot  adjudge  the 


CHAP.  VI.]  TALBOT   ET   AL.   V.   HUDSON   ET   AL.  1025 

statute  to  be  unconstitutional.  We  certainly  cannot  assume  that  the 
Comraonwealth  will  not  fulfil  its  obligations.  The  presumption  is 
directly  the  other  way.  Indeed  the  plaintiffs  do  not  aver  in  their  bill 
that  the  damages  which  may  be  awarded  to  them  under  the  Act  will 
not  be  duly  paid.  How  then  can  it  be  said  that  no  suitable  and 
adequate  provision  is  made  in  the  Act,  by  which  the  plaintiffs  can 
receive  the  compensation  to  which  the}-  may  be  entitled  ?  The  answer 
to  the  argument  that  no  process  is  provided  by  which  the  payment  can 
be  secured  and  enforced  is,  that  no  such  provision  is  necessary  in  cases 
where  the  power  of  eminent  domain  is  exercised  immediately  by  the 
State  itself,  in  pursuance  of  a  statute  which  enacts  that  compensation  is 
to  be  made  b\'  a  warrant  drawn  bj'  the  governor  of  the  Commonwealth 
upon  the  public  treasury.  We  are  bound  to  presume  that  the  chief 
magistrate  of  the  State  will  perform  his  dutj'  by  drawing  his  warrant  in 
conformity  with  the  requirements  of  law,  and  that  payment  of  a  public 
debt  thus  created  will  be  duly  made  in  lilie  manner  as  all  public  dues 
and  liabilities  are  paid  out  of  the  treasury  of  the  State.  The  elementary 
principle  that  the  sovereign  can  do  no  wrong  is  the  foundation  on 
which  rests  the  rule,  recognized  in  our  jurisprudence,  by  which  the 
State  is  exempted  from  being  subject  to  process  at  the  suit  of  a  cred- 
itor. The  presumption  of  law  is,  that  the  State  will  keep  its  faith 
inviolate,  and  honestly  fulfil  all  its  obligations.  3  Bl.  Com.  255.  4 
Bl.  Cora.  33.  Broom's  Max.  (3d  ed.)  51.  Hill  v.  United  States^  9 
How.  386.  Injunction  dissolved.^ 

1  That  the  improvement  of  Boston  Harbor  is  an  object  of  a  public  nature,  and 
thus  that  lands  taken  for  this  purpose  are  taken  for  a  public  use,  can  hardlv  be  con- 
troverted. It  is  not  necessary  that  the  entire  community  should  directlv  enjoy  or 
participate  in  an  improvement  or  enterprise,  in  order  to  constitute  a  public  use ;  and 
a  benefit  to  the  principal  harbor  of  the  Commonwealth  is  much  more  than  a  local 
advantage.  Nor  when  we  consider  that  Acts  of  Incorporation  have  been  granted,  and 
fully  recognized  as  constitutional,  which  authorized  the  taking  of  private  property  for 
the  purpose  of  carrying  forward  enterprises  such  as  the  construction  of  railroads,  or 
others  which  tend  to  the  prosperity  and  welfare  of  large  portions  of  the  community, 
should  we  be  willing  to  say,  even  if  no  improvement  of  Boston  Harbor  formed  a  part 
of  the  purpose,  that  the  legislature  might  not  properly  provide  for  the  reclamation  of 
a  large  body  of  lands,  such  as  flats,  substnntially  useless  in  their  original  condition,  for 
railroad  and  commercial  purposes,  by  taking,  subject  to  proper  compensation,  such  of 
them  as  were  necessary  for  the  accomplishment  of  the  object.  BoMon  S,-  Rorbnry  Mill 
Co.  V.Newman,  12  Pick.  467.  Talbot  v.  Hudson,  16  Gray,  417.  Bancroft  v.  Cambri(l(/e, 
126  Mass.  438.  —  Devexs,  J.,  for  the  court,  in  3foore  v.  Sanford,  151  Mass.  285,  290. 
(1890.)  Compare  ante,  pp.  89.*?-916  ;  Kingman  et  al.  Pet'rs,  153  Mass.  566,  571,  s.  C. 
infra,  p.  Iii34  n.  and  Waterloo  Co.  v.  Shanahan,  1 28  ^vT.  Y.  345  ( 1 891 ). 

In  Conirs  v.  Moesta,  91  Mich.  149,  153  (1892),  the  court  (Moxtgomert,  J.)  in 
sustaining  proceedings  under  a  statute  for  taking  land  for  the  widening  of  a  "boule- 
vard "  in  Detroit,  said  ■.  "  Complaint  is  also  made  of  the  definition  of  '  public  neces- 
sity '  employed.  The  judge  charged  as  follows  :  '  The  term  "  necessary  "  does  not  mean 
that  it  is  indispensable  or  imperative,  hut  only  that  it  is  convenient  and  useful,  and 
therefore,  if  you  find  that  the  improvement  is  useful,  and  a  convenience  and  a  benefit 
to  the  public  sufficient  to  warrant  the  expense  of  making  it,  then  yon  may  find  it 
necessary.'  The  jury  nmst  have  understood  this  charge  to  mean  that  in  order  to 
justify  a  finding  of  necessity,  it  must  appear  that  the  improvement  was  a  convenience, 
VOL.  I.  —  65 


1026  HIGGINSON   V.   IKHABITANTS    OF   NAHANT.  [CHAP.  VI. 


GEORGE  HIGGINSON  et  al.  v.  INHABITANTS  OF  NAHANT 

ET  AL. 

Supreme  Judicial  Coukt  of  Massachusetts.     1866. 

[11  Allen,  530.] 

Bill  in  equity  against  the  inhabitants  of  Nahant  and  the  selectmen 
thereof,  to  restrain  them  from  constructing  a  way  which  had  been  laid 
out  by  the  selectmen.  .  .  . 

The  case  was  reserved  for  the  determination  of  the  whole  court. 

S.  Bartktt  and  H.  W.  Paine  {F.  0.  Prince  with  them),  for  the 
plaintiffs. 

W.  0.  Eiidicott,  for  the  defendants. 

Hoar,  J.  There  are  three  principal  questions  presented  for  ad- 
judication  upon  this  report ;  the  first  two  requiring  a  decision  of  the 
rights  of  the  plaintiffs,  and  the  tliird  concerning  only  the  remedy. 

The  first  and  most  important  of  these  is  whether,  when  a  town  way 
has  been  laid  out  by  the  selectmen  of  a  town  with  all  the  forms  pre- 

—  a  benefit  to  the  public  of  sufficient  importance  to  warrant  the  public  in  incurring 
the  expense  in  making  it.  This  would,  under  our  decisions,  constitute  a  public  neces- 
sity.    Paul  V.  Detroit,  32  Mich.  119." 

In  Paul  V.  Detroit,  32  Mich.  108,  113  (1875),  the  court  (Campbell,  J.)  said:  "The 
Constitution  [of  Michigan]  provides  (Art.  18,  Sec.  2)  that  'when  private  property  ia 
taken  for  the  use  and  benefit  of  the  public,  tiie  necessity  for  using  such  property,  and 
the  just  compensation  to  be  made  therefor  (except  when  to  be  made  by  the  State), 
shall  be  ascertained  by  a  jury  of  twelve  freeholders,  residing  in  the  vicinity  of  such 
proj>erty,'  or  by  commissioners  appointed  by  a  court  of  record.  An  exception  wag 
afterwards  made  of  highway  commissioners.  .  .  .  This  provision  is  not  found  iu 
constitutions  generally,  and  was  never  known  in  Michigan  until  the  adoption  of  the 
Constitution  of  1851.  Before  that  neither  jury  nor  commissioners  had  any  duty  to 
perform  except  assessing  damages,  and  the  prerogative  of  taking  property  on  their 
own  estimate  of  its  necessity  was  exercised  by  legislatures  or  those  persons  or  corpora- 
tions whom  they  allowed  to  act  in  the  matter. 

"  The  change  was  made  from  a  well-founded  belief,  founded  on  experience,  that  pri- 
vate property  was  often  taken  improperly  and  without  any  necessity,  and  that  the 
pretence  of  public  utility  was  often  a  cloak  for  private  aggrandizement.  "Ways  were 
forced  through  private  property  to  enrich  the  owners  of  other  property,  who  were 
enabled  by  intrigues  and  sinister  influences  to  induce  municipal  bodies  to  use  the 
public  authority  to  subserve  their  private  schemes.  The  system  was  abused  to  the 
oppression  of  individuals  by  corruption  and  bargaining,  and  the  sacredness  of  private 
property,  and  its  immunity  from  any  interference  not  required  by  actual  public  exi- 
gencies, ceased  to  be  respected. 

"  The  Constitution  has  changed  this  by  requiring  the  whole  subject  to  be  determined 
by  a  jury  of  freeholders ;  so  that  each  case  shall  be  determined  by  a  separate  tribunal 
summoned  expressly  for  the  purpose,  who  must  be  unanimous  in  their  views  before 
any  land  can  be  taken  ;  who  must  act  openly  and  before  all  concerned,  in  hearing  and 
receiving  testimony;  who  cannot  listen  to  private  persuasion,  and  where  any  attempt 
to  influence  them  will  subject  the  offender  to  severe  and  disgraceful  punishment.  All 
these  safeguards  are  implied  in  the  use  of  the  term  '  jury ; '  and  no  action,  by  laws,  or 
by  proceedings  under  them,  can  be  maintained,  if  any  of  these  securities  are  impaired 
or  disregarded."  — Ed., 


CHAP.  VI.]  HIGGINSON    V.    INHABITANTS   OF   NAHANT.  1027 

scribed  by  the  statutes  of  the  Commonwealth,  and  has  been  duly  ac- 
cepted by  the  town,  it  is  competent,  in  order  to  impeach  the  validity  ot 
these  proceedings,  to  show  that  tlie  way  is  wholly  on  the  land  of  the 
plaintiffs  ;  that  it  enters  their  land  from  a  highway  and  returns  to  it  at 
abmit  the  same  place  where  it  enters  ;  that  it  leads  to  no  other  way  or 
landincr-place,  and  can   be  used  for  no  purposes  of  busniess  or  duty, 
or  of  access  to  the  lands  of  any  other  person  ;  but  that  it  was  laid  out 
by  the  selectmen  with  the  design  to  provide  access    not  for  the  town 
merely,  but  for  the  public,  to  points  or  places  in  the   ands  of  the  plain- 
tiffs, esteemed  by  the  selectmen,  and  those  who  applied  to  them  to  lav 
out  the  way,  as  pleasing  natural  scenery.     It  is  certainly  no  objection 
to  a  town  way  that  it  will  be  serviceable  not  only  to  the  inhabitants  of 
the  town,  but  also  the  public  generally.     Though  it  is  laid  out  by  the 
officers  and  constructed  and  paid  for  by  the  inhabitants  of  the  town, 
all    persons   have   an   equal    right   to   use   it   after   it   is   completed. 
Cragie  v.  3Idlen,  6   Mass.   7  ;  Monterey  v.  County  Commissioners, 

7  Cush.  394.  ^    ,    . 

But  the  position  of  the  plaintiffs  is,  that  in  the  case  presented  the  way 
is  not  intended  for  the  legitimate  purposes  of  a  way  ;  that  the  pretence 
of  laying  it  out  as  such  is  merely  colorable  ;  and  that  private  property 
cannot  be  lawfully  taken  and  appropriated  to  such  a  use. 

It  has  been  held  that,  in  laying  out  a  town  way,  a  formal  adjudica- 
tion that  the  public  convenience  and  necessity  require  it  is  not  made 
essential  to  its  legality.  Jones  v.  Andover,  9  Pick.  154.  The  reason 
of  this  seems  to  be  that  the  inhabitants  of  the  town,  who  constitute  the 
public  for  whose  use  and  advantage  the  way  is  principally  designed, 
and  who  are  to  bear  the  expense  of  constructing  it,  are  to  decide  by 
their  vote  whether  it  shall  be  established.  The  particular  community 
whose  convenience  is  to  be  consulted  determine  the  matter  for  them- 
selves. That  the  town  want  the  road  is  best  settled  by  the  town  s 
voting  to  have  it  and  pay  for  it. 

But  yet  the  statutes  authorizing  the  laying  out  of  town  ways  un- 
doubtedly imply  the  exercise  of  an  independent  judgment  by  the  select- 
men that  the  wav  is  needed.  A  way  laid  out  by  them  in  pursuance  ot 
instructions  by  the  town  is  not  warranted  by  law.  Kean  v.  Stetson, 
5  Pick.  492  ;  State  v.  Nexcmarket,  20  N.  H.  519.  And  the  purpose  for 
which  the  way  is  laid  out  may  be  inquired  into,  in  order  to  show  that 
it  was  illegal.  Thus  it  has  been  decided  in  New  Hampshire  that  where 
the  object°of  a  town  way  was  merely  to  avoid  a  toll-gate  upon  a  turn- 
pike it  could  not  lawfully  be  made,  the  reason  being  that  it  was  an  in- 
vasion of  an  existing  franchise.  TuTnj>xke  Co.  v.  Champney,  2  N.  H. 
199  And  see  West  Boston  Bridge  v.  County  Commissioners,  10 
Pick  270.  And  in  Woodstock  v.  Gallup,  28  Verm.  587,  it  was  said  by 
the  court  that,  while  ornament  and  the  improvement  of  the  grounds 
about  a  public  building  might  well  be  taken  into  consideration  and  re- 
garded in  connection  with  the  convenience  and  necessity  of  a  proposed 
hicrhway,  they  do  not  alone  constitute  a  sufficient  basis  for  establishing 


1028  HIGGINSOX    V.    INHABITANTS    OF   NAIIANT.  [CHAP.  VI. 

it.  The  doctrine  that  public  wa^'s  are  for  travel,  and  not  for  places  of 
amusement,  has  also  been  recognized  in  this  Commonwealth.  Blodgett 
V.  Boston,  8  Allen,  237. 

But  we  are  not  aware  of  an}-  case  in  which  it  has  been  ever  held  that, 
where  there  is  an  amount  of  travel  sufficient  to  warrant  the  construc- 
tion of  a  road  which  permanentl}-  seeks  a  particular  avenue,  the  pur- 
pose for  which  the  public  want  to  travel  is  to  be  regarded,  if  the  purpose 
is  lawful.  The  plaintiffs  have  contended  that  the  purpose  for  which  a 
road  is  wanted  must  be  a  purpose  of  business  or  duty,  in  order  to  create 
a  public  exigency.  But  we  think  it  impossible  to  go  into  such  refine- 
ments. Nahant  itself  is  a  town  which  owes  much  of  its  population  to  its 
attractiveness  for  other  purposes  than  business  or  profit.  The  passing 
from  place  to  place  is  a  rightful  object  of  public  provision  in  itself;  and 
the  occasions  for  it  are  as  extensive  as  the  pursuits  of  life.  Pleasure 
travel  may  be  accommodated  as  well  as  business  travel.  The  security 
against  an  unreasonable  invasion  of  private  rights  of  property  in  estab- 
lishing town  ways  unnecessarily  is  to  be  found,  first,  in  the  sense  of 
justice  and  duty  of  the  board  of  selectmen  ;  secondly,  in  the  improb- 
ability that  the  inhabitants  of  a  town,  with  full  opportunity  for  discus- 
sion and  remonstrance,  will  vote  to  accept  and  construct  a  way  which 
is  not  needed,  and  impose  upon  themselves  the  burden  of  constructing 
and  maintaining  it,  as  well  as  the  damages  to  the  landowners  whose 
property  is  taken  ;  and  thirdl}-,  in  the  power  to  apply  to  the  county 
commissioners  for  the  discontinuance  of  the  wa}',  if  the  town  refuse  to 
discontinue  it.  But  selectmen  may  la}'  out  and  towns  may  establish 
such  wa3's  as  they  think  necessar\'  for  an}'  of  the  lawful  purposes  of 
travel.  In  Blodgett  v.  Boston,  before  cited,  the  chief  justice  uses  this 
language  in  reference  to  the  obligation  of  a  town  to  keep  a  way  in  re- 
pair: "  The  word  'travellers'  may  well  embrace  within  its  meaning, 
as  applied  to  the  subject  matter,  every  one,  whatever  may  be  his  age 
or  condition,  who  has  occasion  to  pass  over  the  highway  for  any  pur- 
pose of  business,  convenience  or  pleasure.  Nor  is  the  motive  or  object 
with  which  a  street  or  way  is  thus  used,  if  it  be  not  unlawful,  at  all 
material  in  determining  whether  a  person  is  entitled  to  an  indemnity 
from  a  city  or  town  for  an  injury  occasioned  by  a  defect.  The  highway 
is  to  be  kept  safe  and  convenient  for  all  persons  having  occasion  to 
pass  over  it,  while  engaged  in  any  of  the  pursuits  or  duties  of  life." 
And  it  would  seem  that  roads  may  be  established  for  the  purposes  for 
which  they  are  afterward  to  be  kept  in  repair.  We  think,  therefore, 
that  the  only  true  test  is  whether  a  road  is  wanted  for  public  travel ; 
which,  in  the  case  of  town  ways,  is  to  be  decided  by  the  inhabitants  of 
the  town ;  and  that  we  cannot  go  into  a  consideration  of  the  reasons 
which  may  induce  people  to  wish  to  travel  upon  it,  if  the  travel  is  for 
an  innocent  and  lawful  purpose. 

If  the  doctrine  for  which  the  plaintiflTs  contend  were  supported,  a  road 
to  the  top  of  Mount  Washington,  to  Niagara  or  Trenton  Falls,  to  the 
Mammoth  Cave  of  Kentucky,  or  the  Natural  Bridge  in  Virginia,  or 


CHAP.  VI.]  HIGGINSON   V.   INHABITA^^TS   OF   NAHANT.  1029 

even  to  a  public  park  or  common  in  the  cities,  would  not  come  within  the 
powers  of  the  ofHcers  intrusted  with  the  duty  of  laying  out  ways.  It 
would  also  follow  that  the  legislature  would  not  have  the  constitutional 
rioht  to  take  private  property  for  a  public  park  or  pleasure  ground, 
makincr  full  compensation  to  the  owner- a  conclusion  which  we  shouid 
hesitat°e  to  arrive  at  without  mucli  farther  consideration,  m  view  ot  the 
important  relations  which  air,  exercise,  and  recreation  bear  to  the  general 
health  and  welfare  of  the  community. 

Nor  is  it  to  be  forgotten  that,  while  sufficient  public  ways  are  a  pro- 
tection against  trespasses  upon  private  property,  there  may  be  some 
reason  to  expect  that  a  way  furnishing  access  to  "  pleasing  natural 
scenery"  will  lead  to  settlement  and  habitation,  and  that,  in  the  plan 
of  a  town,  it  may  be  well  to  make  some  prospective  provision  for  prob- 
able  future  wants  of  the  inhabitants  in  this  respect.  •  •  • 

The  bill  must  be  dismissed  ivUn  costs. 

1  This  may  properly  be  deemed  to  be  a  public  purpose,  aud  a  statute  authorizing 
the  raisi^^<^oT  money  bv  taxation  for  the  erection  of  such  a  memonal  hall  maybe 
l7icated%n  the  san'.e  grounds  as  statutes  authorizing  the  rais^ngojn.^^^^^^^^^^^ 

ments,  statues,  gates  or  archways,  celebrations,  the  publication  of  t"^^"  '"^  '^"'^^^^^^^^^ 
roads  eading   0  points  of  fine  natural  scenery,  decorations  upon  public  buddings,  or 
oh  :  pthc^rnLents  or  embellishments,  designed  merely  to  p.^^^^^ 
welfare  either  by  providing  for  fresh  air  or  recreation,  or  by  educating  the  pub  ic 
Taste  or  by  inspiH"g  sentiments  of  patriotism  or  of  respect  for  the  memory  of  worthy 
S^iduals.     The  r'easonahle  use  of  public  money  for  ^^^  V^rV^l^^^ZZo 
tioned  by  several  different  statutes,  and  the  constitutional  right  of    lie     M'^-^  "  e  ^_- 
pass  such  statutes  rests  on  sound  principles.     Pub.   bts.  c.  2<,  §^  10   11  ,  bt..  18b 
cc     54   255,§5;  188.3,  c.  119;  1884,  e.  42  ;  1886,0.76;   1889,0.21;  IL,j,j.nsony.  ^a^ 
hant,  U  Allen,  530. -Charles  Allen,  J.,  for  the  court,  in  Kingmany.  Brockton,  153 

Mass  255,256  (1891).  n.    ^na  KI    Y 

In  the  case  of  In  the  Matter  of  the  Niagara  Falls  and  Whirlpool  Ry.  Co.  108  N.  Y. 
375  (1888),  the  court  (Andrews,  J.)  iu  holding  that  the  purpose  m  view  was  not  one 
which  would  justify  a  resort  to  the  right  of  eminent  domain,  said:      The  Niagara 
Eiver,  from  the  foot  of  the  American  Falls,  flows  northerly  for  several  m-l^s  witl,  a 
very  rapid  current,  and  the  river  on  either  side  is  faced  liy  precipitous  cliffs  the  cliff 
on  [he  American  side  rising  from  near  the  edge  of  the  river  to  a  height  of  from  one 
hundred  and  fifty  to  two  hundred  feet,  to  the  table  land  above.     The  river  from  the 
falls  to  the  point  known  as  '  The  Whirlpool,'  a  distance  of  about  three  miles  is  inter- 
e  tine,  and  persons  visiting  the  falls  have  been  enabled  by  moans  of  what  is  known  as 
a    "nTlined  railway  to  descend  from  the  top  of  the  bank  or  tab  e  land,  to  the  margin 
of  the  river.     This  railway  was  originally  a  private  enterprise  but  is  now  '-  "de'l  - 
the  land  taken  by  the  State  for  a  State  reservation.     Ihe     Whirlpool     adjoins  the 
lands  of  De  Veaux  College.     The  college  has  constructed  a  stairway  leading  down  to 
the  mar^^in  of  the  river  at  this  point  for  the  convenience  of  visitors,  and  derive    a 
revenue    ron.  its  use.     The  petitioner  has  located  its  road  along  the  margin  of  the 
rver  outside  of  the  cliff,  where  the  space  is  sufficient  between  the  cliffy  and  the  river  to 
permit  the  track  to  be  laid  and  at  other  points  where  the  cliff  "-^^^'^/^'dS    or 
Lss  from  the  margin,  the  location  contemplates  cutting  into  the  face  of  the  cliff  fo 
?he  road  way.     The  p  oposed  road  does  not  connect  at  either  end  with  a  highway.     It 
canbe  rSed  only  by  pas.sing  over  the  lands  of  the  State  or  the  lands  of  private 
owners.    Ce  can\e  no  habitations  along  the  line  of  the  road,  and  no  traffic    o 
commerce,  or  business,  except  in  conveying  passengers  over  the  road  to  see  th    rner 
anT   The  Whirlpool,'  and  returning  them  again  to  the  point  from  which  they  started 
The  sea^^n  for  visitors  at  the  Falls  is  substantially  confined  to  June,  July,  August,  and 


1030  SHOEMAKER   V.    UNITED   STATES.  [cHAP.  YI. 

In  Shoemaker  v.  U.  S.  147  U.  S.  282,  21)7  (1893),  in  considering 
certain  questions  relating  to  an  Act  of  Congress  of  Sept.  27,  1890, 
purporting  to  autliorize  the  establishing  of  a  public  park  in  the  District 
of  Columbia  and  the  coudeuiuation  of  certain  land  therefor,  the  court 

September.  The  proposed  road  cannot  be  operated  during  the  winter  on  account  of 
the  piling  up  of  the  ice,  and  if  its  operation  was  practicable  in  the  winter  season  it 
would  have  nothing  to  do.  It  is  aj^pareut  that  the  proposed  enterprise  has  been  under- 
taken and  is  to  be  carried  on  for  the  sole  purpose  of  furnishing  sight-seers  during 
about  four  months  of  the  year,  greater  facilities  than  they  now  enjoy  for  seeing  the 
part  of  Niagara  River  along  which  the  proposed  road  is  to  be  constructed.  .  .  . 

"  What  is  a  public  use  is  incapable  of  exact  definition.  The  expressions  public 
interest  and  public  use  are  not  synonymous.  The  etablishment  of  furnaces,  mills,  and 
manufactures,  the  building  of  churches  and  hotels,  and  other  similar  enterprises,  are 
more  or  less  matters  of  public  concern,  and  promote,  in  a  general  sense,  the  public 
welfare.  But  they  lie  without  the  domain  of  public  uses  for  which  private  owner- 
ship may  be  displaced  by  compulsory  proceedings.  The  ground  upon  which  private 
property  may  be  taken  for  railroad  uses,  without  the  consent  of  the  owner,  is  pri- 
marily that  railroads  are  highways  furnishing  means  of  communication  between 
different  points,  promoting  traffic  and  commerce,  facilitating  exchanges,  in  a  word 
they  are  improved  ways.  In  every  form  of  government  the  duty  of  providing  pub- 
lic ways  is  acknowledged  to  be  a  public  duty.  In  this  State  the  duty  of  laying  out 
and  maintaining  highways  has  in  the  main  been  performed  directly  by  the  State 
or  by  local  authorities,  but  from  an  early  day  the  legislature  has  from  time  to  time 
delegated  to  turnpike  corporations  the  right  and  duty  to  maintain  public  roads  in 
localities,  and  canal  companies  have  been  organized  with  powers  of  eminent  do- 
main. It  would  be  impracticable  and  contrary  to  our  usages  for  the  State  to  enter 
upon  the  general  business  of  constructing  and  operating  railroads,  and,  in  analogy  to 
the  delegation  of  the  power  of  eminent  domain  to  turnpike  and  canal  companies,  it 
wisely  delegates  to  corporate  bodies  the  right  to  construct  and  maintain  railroads  as 
public  ways  for  the  transportation  of  freight  and  passengers,  and  as  incident  thereto 
the  right  to  take  private  property  under  the  power  of  eminent  domain  on  making  com- 
pensation. In  considering  the  question  what  is  a  public  use  for  which  private  property 
may  be  taken  in  invitum.  Judge  Cooley  (Const.  Lim.  669)  remarks  'that  can  only  be 
considered  such  when  the  government  is  supplying  its  own  needs,  or  is  furnishing  facili- 
ties for  its  citizens  in  regard  to  these  matters  of  public  necessity  which  on  account  of 
their  peculiar  character,  and  the  difficulty,  perhaps  impossibility,  of  making  provision 
for  them  otherwise,  it  is  alike  proper,  useful,  and  needful  for  the  public  to  provide.' 
Whatever  rule,  founded  on  the  adjudged  cases  may  be  formulated  on  this  subject,  it 
cannot,  we  think,  be  framed  so  as  to  include  the  present  case.  The  fact  that  the  road 
of  the  petitioner  may  enable  the  portion  of  the  public  who  visit  Niagara  Falls,  more 
easily  or  more  fully  to  gratify  their  curiosity,  or  that  the  road  will  be  public  in  the 
sense  that  all  who  desire  will  be  entitled  to  be  carried  upon  it,  is  not  sufficient,  we 
think,  in  view  of  the  other  necessary  limitations,  to  make  the  enterprise  a  public  one 
so  as  to  justify  condemnation  proceedings.  The  case  does  not,  we  think,  differ  in 
principle  from  an  attempt  on  the  part  of  a  private  corporation,  under  color  of  an  Act 
of  the  Legislature,  to  condemn  lands  for  an  inclined  railway,  or  for  a  circular  railway, 
or  for  an  observatory,  to  promote  the  enjoyment  or  convenience  of  those  who  may 
visit  the  Falls.  The  State  has,  under  recent  legislation,  taken  lands  for  a  park  or  pub- 
lic place  at  Niagara  Falls.  The  taking  of  lands  by  municipalities  for  public  parks  is 
recognized  as  a  taking  for  public  use.  Brooklyn  Park  Commissioners  v.  Armstrong,  45 
N.  Y.  2.34 ;  In  re  Mtiijor,  etc.,  99  Id.  569.  They  contribute  to  the  health  and  enjoy- 
ment of  the  people  and  are  laid  out  with  drives  and  ways  for  public  use.  The  pro- 
ceedings in  the  case  of  The  Nahant  Road  (11  Allen,  530)  and  The  Mount  Washington 
Road  (35  N.  H.  1.34),  were  justified  on  the  ground  that  they  were  public  highways  in 
the  ordinary  sense,  although  primarily  intended  as  pleasure  drives.  It  is,  as  we  have 
said,  difficult  to  make  an  exact  definition  of  a  public  use.     It  is  easier  to  define  it  by 


CHAP.  VI.]        SHOEMAKER  V.   UNITED  STATES.  1031 

(Shiras,  J.)  said  :  "In  the  memory  of  men  now  living,  a  proposition 
to  take  private  property',  witliout  tlie  consent  of  its  owner,  for  a 
public  park,  and  to  assess  a  proportionate  part  of  tiie  cost  upon  real 
estate  benefited  thereby,  would  have  been  regarded  as  a  novel  exercise 
of  legislative  power. 

negation  than  by  affirmation.  We  are  conscious  of  the  serious  responsibility  which 
the  court  assumes  in  undertaking  to  dechire  that  not  to  be  a  public  use,  which  the 
legislature  has  declared  to  be  such.  The  validity  of  an  Act  of  the  Legislature  is  not  to 
be  assailed  for  light  reasons.  It  is  especially  necessary  that  the  question  of  what  con- 
stitutes a  public  use,  should  not  be  dealt  with  in  a  critical  or  illiberal  spirit,  or  made  to 
depend  upon  a  too  close  construction  adverse  to  the  public.  But  having  these  consid- 
erations in  miud,  we  are  nevertheless  constrained  to  conclude  that  the  enterprise  in 
question  is  essentially  private  and  not  public,  and  that  private  property  cannot  be 
taken  against  the  will  of  the  owners  for  the  con.struction  of  the  road  of  the  petitioner. 
The  order  appealed  from  should,  therefore,  be  affirmed.     All  concur.     Order  affirmed." 

Compare  Oun;  v.  Goodwin,  26  Pac.  Rep.  376  (Ariz.  1891),  In  re  Rock  li.  R.  Co.  12 
N.  Y.  Sup.  566  (1890),  In  re  Buffalo,  15  N.  Y.  Sup.  123  (1891). 

In  Farist  Steel  Co.  v.  Bridgeport,  60  Conn,  278,  291  (1891),  the  court  (Seymour,  J.) 
said :  "  One  other  point  demands  consideration.  It  is  claimed  that,  even  if  all  the 
proceedings  were  legal  in  form,  yet  there  is  a  fatal  objection  to  the  validity  of  the  as- 
sessment, in  that  the  case  itself  discloses  the  fact  that  the  harbor  lines  were  established 
and  the  appellant's  land  condemned  iu  order  that  the  new  bridge,  '  that  expensive  and 
sightly  structure  should  not  be  marred  by  placing  buildings  on  either  side  thereof ; ' 
and  not  for  any  legitimate  public  use  whatever.  The  appellant  says  that,  except  for 
public  uses,  private  property  cannot  be  taken  even  upon  the  payment  of  just  compensa- 
tion. We  presume  that  no  one  will  question  the  correctness  of  that  proposition.  The 
taking  of  private  property  in  the  legal  establishment  of  harbor  lines  is  prima  facie  a 
taking  for  public  use.  The  legislature  so  considered  it  iu  granting  the  charter  to  the 
city  of  Bridgeport,  and,  though  that  fact  is  not  conclusive,  inasmuch  as  it  is  held  almost 
universally  that  whether  a  particular  use  is  public  or  not  withiu  the  meaning  of  the  Con 
stitution  is  a  question  for  the  judiciary,  still  there  can  be  no  question  but  that  property 
taken  in  the  legal  establishment  of  harbor  lines  is  taken  for  public  use.  But  the  right 
to  establish  harbor  lines,  and  to  take  private  property  for  that  purpose,  must  be  exer- 
cised in  good  faith  and  for  a  public  use  naturally  connected  with  their  establishment. 
Private  property  cannot  be  taken  for  other  than  public  uses  under  the  guise  of  taking 
it  for  public  use.  There  may  be  difficulty  in  many  cases  in  applying  this  rule,  as  where 
nothing  appears  in  the  proceedings  of  the  purpose  for  which  the  lines  were  established, 
and  the  presumption  would  be  that  they  were  established  in  the  interest  of  navigation. 
But  where,  as  in  the  present  case,  all  the  proceedings  declare  the  purpose  to  be  an 
ulterior  one,  which  no  one  would  claim  to  be  a  public  one  within  the  meaning  of  the 
Constitution,  when  this  purpose  is  spread  upon  the  very  records  which  are  laid  before 
us  as  containing  the  authority  on  which  the  assessment  committee  acted,  we  should  be 
shiitting  our  eyes  to  the  real  state  of  affairs,  and  permitting  property  to  be  taken 
under  the  excuse  of  the  right  of  eminent  domain  in  a  case  where  no  public  use  was 
contemplated,  if  we  should  decide  in  accordance  with  the  appellee's  claim.  That 
would  commit  us  to  the  doctrine  that  we  are  bound  by  the  fact  that  it  was  a  harbor 
line  that  was  established,  no  matter  for  what  purpose  it  appears  to  have  been  estab- 
lished nor  how  far  it  is  removed  from  the  harbor.  We  cannot  accept  that  conclusion, 
but  must  hold  that,  whereas  it  appears  from  the  records  themselves,  which  are  intro- 
duced to  show  the  facts  upon  which  the  legality  of  the  assessment  depends,  that  the 
harbor  lines  were  laid  for  the  purpose  of  preventing  a  new  bridge  from  being  marred 
by  the  building  of  structures  connected  with  it  which  would  obscure  it,  and  not  in  the 
interests  of  navigation  or  any  other  public  use,  private  property  cannot  be  taken  with- 
out violating  constitutional  rights.  It  is  unnecessary  to  consider  the  other  questions 
which  were  discussed.  Upon  those  already  considered  we  advise  the  Superior  Court 
to  render  judgment  for  the  appellant,  annulling  the  assessment  appealed  from."  —  Ed. 


1032  SHOEMAKER   V.    UNITED   STATES.  [CHAP.  VL 

"  It  is  true  that,  in  the  case  of  many  of  the  older  cities  and  towns, 
there  were  commons  or  public  grounds,  but  the  purpose  of  these  was 
not  to  provide  places  for  exercise  and  recreation,  but  places  on  which 
the  owners  of  domestic  animals  might  pasture  them  in  common,  and 
they  were  generally  laid  out  as  part  of  the  original  plan  of  the  town  or 
city. 

''It  is  said,  in  Johnson's  Cyclopaedia,  that  the  Central  Park  of  New 
York  was  the  first  place  deliberately  provided  for  the  inhabitants  of  any 
city  or  town  iu  the  United  States  for  exclusive  use  as  a  pleasure- 
ground,  for  rest  and  exercise  in  the  open  air.  However  that  may  be, 
there  is  now  scarcely  a  city  of  an}-  considerable  size  in  the  entire  country 
that  does  not  have,  or  has  not  projected,  such  parks. 

"  The  validity  of  the  legislative  Acts  erecting  such  parks,  and  pro- 
viding for  their  cost,  has  been  uniforml}'  upheld.  It  will  be  sufficient 
to  cite  a  few  of  the  cases.  Brooklyn  Park  Commissioiiers  v.  Arm- 
strongj  45  N.  Y.  234  ;  la  re  Commissioiiers  of  the  Central  Park,  63 
Barb.  282  ;  Oicners  of  Ground  v.  Mayor  of  Albany,  15  Wend.  374  ; 
Holt  V.  Somerville,  127  Mass.  408;  Foster  v.  Boston  Park  Commis- 
sioners, 131  Mass.  225  ;  also  133  Mass.  321 ;  St.  Louis  County  Court 
V.  Grlswold,  58  Missouri,  175  ;  Cook  v.  South  Park  Commissioners, 
61  Illinois,  115  ;  Kerr  v.  South  Park  Commissioners,  117  U.  S.  379. 
Iu  these  and  many  other  cases  it  was,  either  directly  or  in  effect,  held 
that  land  taken  in  a  city  for  public  parks  and  squares,  by  authority  of 
law,  whether  advantageous  to  the  public  for  recreation,  health  or  busi- 
ness, is  taken  for  a  public  use, 

"  In  the  case  cited  from  the  Missouri  Reports,  where  the  legislature 
had  authorized  the  appropriation  of  land  for  a  public  park  for  the 
benefit  of  the  inhabitants  of  St.  Louis  Count}*,  situated  in  the  eastern 
portion  of  the  county,  near  to  and  outside  of  the  corporate  limits  of 
the  city  of  St.  Louis,  it  was  held  that  this  was  a  public  use,  notwith- 
standing the  fact  that  it  would  be  chiefly  beneficial  to  the  inhabitants 
of  the  city,  and  that  the  Act  was  not  unconstitutional. 

"The  adjudicated  cases  likewise  establish  the  proposition  that  while 
the  courts  have  power  to  determine  whether  the  use  for  which  private 
property  is  authorized  by  the  legislature  to  be  taken,  is  in  fact  a  public 
use,  yet,  if  this  question  is  decided  in  the  affirmative,  the  judicial  func- 
tion is  exhausted;  that  the  extent  to  which  such  property  shall  be 
taken  for  such  use  rests  wholly  in  the  legislative  discretion,  subject  only 
to  the  restraint  that  just  compensation  must  be  made. 

"A  distinction,  however,  is  attempted  in  behalf  of  the  plaintiffs  in 
error  between  the  constitutional  powers  of  a  State  and  those  of  the 
United  States,  in  respect  to  the  exercise  of  the  power  of  eminent 
domain,  and  this  distinction  is  supposed  to  be  found  in  a  restriction  of 
such  power  in  the  United  States  to  purposes  of  political  administration  ; 
that  it  must  be  limited  in  its  exercise  to  such  objects  as  fall  within  the 
delegated  and  expressed  enumerated  powers  conferred  by  the  Constitu- 
tion upon  the  United  States,  such  as  are  exemplified  hy  the  case  of 
post-offices,  custom-houses,  court-houses,  forts,  dockyards,  etc. 


CHAP.  VI.]  SHOEMAKER  V.   UNITED   STATES.  1033 

"  We  are  uot  called  upou,  by  the  duties  of  this  investigation,  to  cou- 
sider  whether  the  alleged  restriction  on  the  power  of  eminent  domain  in 
the  general  government,  when  exercised  within  the  territory  of  a  State, 
does  really  exist,  or  the  extent  of  such  restriction,  for  we  are  here 
dealing  with  an  exercise  of  the  power  within  the  District  of  Columbia, 
over  whose  territory  the  United  States  possess,  not  merely  the 
political  authority  that  belongs  to  them  as  respects  the  States  of  the 
Union,  but  likewise  the  power  '  to  exercise  exclusive  legislation  in  all 
cases  whatsoever  over  such  District.'  Constitution,  Art.  I.,  Sec.  8,  par. 
17.  It  is  contended  that,  notwithstanding  this  apparently  unlimited 
grant  of  power  over  the  District,  conferred  in  the  Constitution  itself, 
there  was  a  limitation  on  the  legislative  power  of  the  general  govern- 
ment contained  in  the  so-called  Act  of  Cession  by  the  State  of  Mary- 
land (Act  of  1791,  c.  45,  §  2),  a  proviso  to  which  is  in  the  words 
following :  '  Provided,  that  nothing  herein  contained  shall  be  so  con- 
strued to  vest  in  the  United  States  any  right  of  property  in  the  soil,  as 
to  affect  the  right  of  individuals  therein,  otherwise  than  the  same  shall 
or  may  be  transferred  by  such  individuals  to  the  United  States.'  It  is 
said  that  the  acceptance  by  the  United  States  of  the  grant  constituted 
a  contract  between  Maryland  and  the  United  States,  whereby,  in  view 
of  the  foregoing  language,  the  land  owner  was  to  be  protected  against 
any  exercise  by  the  general  government  of  the  sovereign  power  of 
eminent  domain.  It  is  sufficient  to  say  that  the  history  of  the  transac- 
tion clearly  shows  that  the  language  used  in  the  Maryland  Act  referred 
to  such  persons  as  had  not  joined  in  the  execution  of  a  certain  agree- 
ment by  which  the  principal  proprietors  of  the  Maryland  portion  of  the 
territory  undertook  to  convey  lands  for  the  use  of  the  new  cit}',  and 
their  individual  rights  were  thus  thought  to  be  secured.  The  provision 
had  no  reference  to  the  i)ower  of  eminent  domain,  which  belonged  to 
the  United  States  as  the  grantee  in  the  act  of  cession. 

"  This  position,  contended  for  by  the  plaintitfs  in  error,  was  raised  in 
the  case  of  Chesapeake  <&  Ohio  Canal  v.  Union  Bank^  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Columbia,  and  Cranch, 
C.  J.,  said :  '  The  eighth  objection  is  that  b}'  the  Maryland  Act  of 
Cession  to  the  United  States,  of  this  part  of  the  District  of  Columbia 
(1791,  c.  45,  sec.  2),  Congress  are  restrained  from  affecting  the  rights 
of  individuals  to  the  soil,  otherwise  than  as  the  same  should  be  trans- 
ferred to  the  United  States  by  such  individuals  ;  and  it  is  contended 
that  this  prohibits  the  United  States  from  taking  private  property  in 
this  District  for  public  use,  and  that  the  right  of  sovereignty,  wliich 
Maryland  exercised,  was  not  transferred.  We  think  it  is  a  sufficient 
answer  to  this  objection  to  say  that  the  United  States  do  not,  bj-  this 
inquisition  or  by  the  charter  to  the  Chesapeake  &  Ohio  Canal  Company, 
claim  any  right  of  propert}'^  in  the  soil.  Thej'  only  claim  to  exercise 
the  power  which  belongs  to  every  sovereign,  to  appropriate,  upon  just 
compensation,  private  property  to  the  making  of  a  highway,  whenever 
the  public  good  requires  it.'     4  Cranch,  C.  C  75,  80. 


1034  palairet's  appeal.  [chap.  vi. 

"  But  this  contention  can  scarcely  have  been  seriously  made  in  view  of 
the  explicit  language  of  the  Maryland  Act  in  its  second  section  :  '  That 
all  that  part  of  said  territory  called  Columbia,  which  lies  within  the 
limits  of  this  State,  shall  be,  and  the  same  is  hereb}',  acknowledged  to 
be  forever  ceded  and  relinquished  to  the  Congress  and  government  of 
the  United  States,  in  full  and  absolute  right  and  exclusive  jurisdiction, 
as  well  of  soil  as  of  persons  residing  or  to  reside  thereon,  pursuant  to  the 
tenor  and  effect  of  the  eighth  section  of  the  first  article  of  the  Constitu- 
tion of  government  of  the  United  States.'  Mattingly  v.  District  of 
Columbia,  97  U.  S.  687,  690 ;  Gibbons  v.  District  of  Columbia,  116 
U.  S.  404."  1 


PALAIRET'S   APPEAL. 

Supreme  Court  of  Pennsylvania.     1871. 

[67  Pa.  St.  479.] 

Februar}"  14,  1871.  Before  Thompson,  C.  J.,  Agnew,  Sharswood, 
and  Williams,  JJ.     Read,  J.,  at  Hisi  Drius. 

Appeal  from  the  decree  of  the  Court  of  Common  Pleas  of  Philadel- 
phia:  iSTo.  221,  to  January  Term,  1871. 

The  proceeding  was  commenced  February  24,  1871,  by  a  petition  in 
the  name  of  the  Commonwealth,  at  the  relation  of  John  Ganser 
against  John  G.  Palairet  and  others,  trustees,  &c.,  of  Mary  Ann 
Palairet,  under  the  Act  of  April  15,  1869,  Pamph.  L.,  1869,  p.  47, 
Purd.  1570,  which  is  as  follows :   [The  Act  is  given  in  a  note.-] 

1  See  ante,  pp.  348-364  —Ed. 

2  "  An  Act  to  provide  for  the  extinction  of  irredeemable  rents. 

"  Whereas,  there  were  formerly  reserved  or  created  in  Philadelphia  and  other 
parts  of  this  Commonwealth,  yearly  rents,  which  in  their  nature  or  by  lapse  of  time 
are  or  have  been  irredeemable  by  the  owners  of  the  land  whereout  they  issue  ;  in  con- 
sequence whereof  the  power  of  such  landowners  to  sell  or  mortgage  their  laud  is 
greatly  limited. 

"  And  whereas,  the  polic}^  of  this  Commonwealth  has  always  been  to  encourage  the 
free  transmission  of  real  estate,  and  to  remove  restrictions  on  alienation,  so  that  it  is 
and  is  hereby  declared  to  be  necessary  for  the  public  use  to  provide  a  method  of 
extinguishing  such  irredeemable  rents,  having  a  due  regard  for  private  rights  :  there- 
fore, — 

"  Section  1.  Be  it  enacted,  &c.,  That  it  shall  be  lawful  for  any  owner  of  land,  on 
or  out  of  which  any  irredeemable  rent  has  been  charged  or  reserved,  to  apply  by  peti- 
tion, in  the  name  of  this  Commonwealth,  at  his  own  relation,  to  the  Court  of  Com- 
mon Pleas  for  the  county  in  which  such  land  shall  be  situated,  for  an  order  on  the 
owner  of  such  rent,  to  show  cause  why  a  decree  for  the  extinguishment  thereof  should 
not  be  made  on  his  being  compensated  therefor,  in  the  manner  hereinafter  provided ; 
whereupon  the  court  shall  cause  a  citation  to  issue  to  the  owner  of  the  rent,  according 
to  the  practice  of  the  said  court ;  and  if  he  shall  be  unknown,  or  not  a  resident  of  the 
said  county,  the  court  shall  cause  notice  to  be  given  to  him  by  advertisement,  as  they 
shall  deem  advisable,  and  the  notice  so  given  shall  be  deemed  and  taken  to  be  actual 
service  for  all  purposes. 

"  Section  2.    On  the  return  of  such  citation,  or  after  publication  as  aforesaid,  if  the 


CHAP.  VI.]  PALAIRET's   APPEAL.  1035 

The  petition  set  forth  that  the  relator  was  seised  of  two  lots  of  land 
in  Philadelphia,  subject  to  three  irredeemable  ground-rents,  which  are 
now  owned  by  J.  G.  Palairet  and  others,  trustees  above  named. 

The  petition  pra3ed  for  — 

An  order  and  citation  against  the  defendants  to  show  cause  why  a 
decree  for  the  extinguishment  of  the  above-named  ground-rents  should 
not  be  made,  upon  their  being  compensated  therefor,  according  to  the 
terms  and  in  the  manner^et  forth  in  the  above  Act  of  Assembly. 

The  answer  of  the  defendants  admitted  that  they  were  seised  of  the 
three  irredeemable  ground-rents,  as  stated  in  the  petition,  and  submit- 
ted to  the  court  that  their  title  to  the  said  three  yearl}'  ground-rents,  so 
held  by  them  in  trust,  could  not  be  divested  or  taken  away  from  them, 
unless  the  same  should  be  required  by  the  Commonwealth  for  public 
use,  in  exercise  of  her  right  of  eminent  domain  ;  and  that  where  no 
public  right  is  involved,  and  the  question  was  merely  between  the  said 
John  Ganser,  as  owner  of  the  property,  and  themselves,  as  the  owners 
of  an  estate  or  encumbrance  thereon,  no  act  of  the  legislature  could 
divest,  or  at  all  affect  their  right  or  title  in  and  to  the  same. 

After  argument  the  Court  of  Common  Pleas  decreed  the  extinguish- 
ment of  the  ground-rents.  .  .  . 

The  respondents  appealed  to  the  Supreme  Court,  and  assigned  the 
decree  of  the  Court  of  Common  Pleas  for  error. 


owner  of  the  land  and  the  owner  of  the  rent  do  not  agree  on  the  terms  on  which  the 
former  shall  be  allowed  to  purchase  the  rent,  then  the  court  shall  cause  a  venire  to 
issue,  directed  to  the  sheriff,  requiring  him  to  summon  a  jury  of  twelve  disinterested 
freeholders  of  the  county,  who  sliall  assess  and  determine  the  damages  which  the  owner 
of  the  said  rent  will  suffer  by  tlie  compulsory  extinction  of  the  same,  which  shall  not  be 
estimated  at  less  than  twenty  years'  purchase  thereof ;  and  the  damages  being  so 
assessed,  and  the  inquest  confirmed  by  the  court,  it  shall  be  lawful  for  the  owner  of 
the  laud  to  pay  or  tender  to  or  for  the  use  of  the  owner  of  the  rent,  in  such  manner  as 
the  court  sliall  direct,  the  sum  so  found,  together  with  all  tiie  costs  of  the  proceedings  ; 
and  whereupon  the  court,  upon  due  evidence  of  such  payment  or  tender,  shall  enter  a 
judgment  that  the  said  rent  shall  thenceforward  be  taken  to  be  extinguished,  and  no 
action  thereafter  for  the  recovery  thereof  shall  be  brought  in  any  court  of  this  Com- 
monwealth. 

"  Section  3.  If  such  rent  shall  be  held  wholly  or  partly  by  any  person  under  any 
disability,  or  absent  from  the  country,  or  by  persons  for  successive  estates,  or  on  trust, 
then  the  court  shall  have  all  sucli  power  to  direct  in  what  way  tlie  said  damages,  so 
assessed,  shall  be  tendered,  paid  or  secured,  as  a  court  of  equity  could  have  in  the 
premises  ;  and  if  the  owner  of  the  rent  shall  be  unknown,  then  the  money  shall  be  paid 
into  court,  to  be  invested  in  the  loan  of  this  Commonwealth  to  the  use  of  such  owner ; 
and  if  no  claimant  shall  appear  therefor  within  tlie  space  of  ten  years  thereafter,  such 
loan  shall  be  transferred  by  the  State  treasurer  to  the  sinking  fund  provided  by 
law.  .  .  . 

"  Section  5.  That  if  the  petitioner  in  any  such  case  shall,  after  the  confirmation 
of  the  return  of  the  inquest,  fail  for  the  space  of  three  months  to  pay  or  tender  the 
damages  and  costs  aforesaid,  according  to  the  (firections  of  the  court,  it  shall  be  lawful 
for  the  court  thereupon,  at  the  option  of  tlie  respondent,  to  enter  a  judgment  for  the 
payment  of  such  damages  and  costs  by  the  petitioner,  to  be  enforced  by  execution,  as 
other  judgments  in  the  said  court,  or  else  to  dismiss  the  petition,  and  vacate  the  pro- 
ceedings thereon  at  the  petitioner's  costs." 


1036  PALAIREI'S  AITEAL.  [CHAP.  VL 

G.  TF.  Biddle  and  TF.  H.  Mawle,  for  appellants.     H.  Wharton,  for 
appellee. 

The   opinion  of  the  court  was  delivered  May  8,   1871,  b}'  Shars- 
WOOD,  J.    .    .    . 

It  is  contended  that  the  property  of  the  appellants  has  been  taken 
in  the  exercise  by  the  Commonwealth  of  her  right  of  eminent  domain, 
which  she  may  exercise  herself  or  confer  upon  corporations  or  indi- 
viduals. If  so,  as  it  is  conceded  that  full  provision  for  compensation 
is  made,  it  is  within  the  saving  of  that  other  section  of  the  Declara- 
tion of  Rights  —  *'  nor  shall  an}'  man's  property  be  taken  or  applied  to 
public  use,  without  the  consent  of  his  representatives  and  without  just 
compensation  being  made;"  Const.  Penua.,  Art.  IX.,  §  10.  No  doubt 
the  right  of  eminent  domain,  being  for  the  safety  and  advantage  of  the 
public,  overrides  all  rights  of  private  property.  But  for  what  public 
use  has  this  estate  of  the  appellants  been  taken  and  applied  ?  It  has 
been  contended,  as  the  preamble  of  the  Act  declares,  that  "  the  policy 
of  this  Commonwealth  has  always  been  to  encourage  the  free  transmis- 
sion of  real  estate,  and  to  remove  restrictions  on  alienation,  so  that  it 
is,  and  is  hereby  declared  to  be,  necessary  for  the  public  use  to  provide 
a  method  of  extinguishing  such  irredeemable  rents,  having  a  due  regard 
for  private  rights."  But  if  this  is  the  kind  of  public  use  for  which  a 
man's  property  can  be  taken,  there  is  practicall}-  no  limit  whatever  to  the 
legislative  power.  It  would  result  that  whenever  the  legislature  deem 
it  expedient  to  transfer  one  man's  propert}'  to  another  upon  a  valuation, 
they  can  effect  their  object.  What  that  department  of  the  government 
considers  and  pronounces  to  be  the  polic}'  of  the  Commonwealth,  the 
judicial  department  must  accept  as  such.  The  members  of  the  two 
bouses  with  the  executive,  are,  upon  all  questions  of  polic}",  the  exclu- 
sive exponents  of  the  will  of  the  people.  Let  us  test  the  principle  now 
involved,  bj"  a  case  more  extreme  than  that  before  us,  but  which  will 
be  experimentum  crucis.  If  we  can  show  that  a  principle  logicall}-  car- 
ried out  leads  to  an  absurdity*,  it  is  conclusive  against  it.  Suppose  then 
the  legislature  should  adopt  what  has  been  a  favorite  theory  with  man}- 
political  economists,  that  small  farms  are  injurious  to  the  community, 
prevent  the  full  development  of  the  agricultural  resources  of  a  country, 
and  ought  therefore,  as  speedil}'  as  possible,  to  be  united  and  formed 
into  large  ones.  Then  reciting  this  to  be  the  true  policy  of  the  State, 
let  them  provide  that  every  farm  of  less  than  one  hundred  acres  shall  be 
attached  to  and  become  the  property  of  the  adjoining  owner  of  a  larger 
farm  at  a  valuation  to  be  determined  by  a  jury.  When  the  King  of 
Samaria  coveted  the  little  vine3ard  of  Naboth  hard  by  his  palace,  that 
he  might  have  it  for  a  garden  of  herbs,  and  offered  to  give  him  a  better 
vineyard  than  it,  or  if  it  seemed  good  to  him  the  worth  of  it  in  money, 
he  was  met  by  the  sturdy  answer,  —  "The  Lord  forbid  it  me  that  I 
should  give  the  inheritance  of  my  fathers  unto  thee."  Would  any  one  be 
hardy  enough  to  stand  up  in  a  republican  country  and  claim  for  its  gov- 
ernment a  power  which  an  Eastern  monarch  dared  not  to  assume?     It 


CHAP.  VI.]  PALAIRET'S   APPEAL.  1037 

was  well  leniarked  by  Mr.  Justice  Gilchrist  in  the  Concord  Railroad  Co. 
V.  Greeley,  17  N.  H.  57,  that  "  even  if  the  legislature  should  declare 
that  an  Act  taking  the  property  of  A.  and  giving  it  to  B.  as  his  private 
propert}',  was  an  application  of  it  to  public  uses,  no  one  would  contend 
that  such  a  declaration  made  that  public  which  in  its  nature  and  object 
was  private."  It  is  not  necessary  to  define  what  is  a  public  use,  —  it 
is  quite  sufficient  to  say  that  the  object  as  set  forth  in  the  preamble  of 
this  Act  is  not  a  public  use  within  the  right  of  eminent  domain  of  the 
State.  Other  instances  may  be  mentioned  of  the  dangerous  extent  of 
this  principle,  should  it  be  judicially  approved,  that  the  declaration  of  a 
general  policy  will  constitute  a  valid  public  use.  In  the  course  of  the 
development  of  the  immense  mineral  resources  of  this  State,  it  has 
become  ver}*  common  to  separate  the  estate  in  the  mines  from  the 
estate  in  the  surface.  This  has  been  held  to  be  lawful  —  as  in  entire 
conformity  with  the  established  princii)les  of  the  common  law  of  Eng- 
land, which  is  the  substratum  of  our  system  of  jurisprudence.  It  may 
be  found,  however,  in  course  of  time  to  be  a  very  inconvenient  and 
even  perilous  state  of  things  —  more  so  than  an  intangible,  incorporeal 
hereditament,  such  as  a  ground-rent.  The  legislature  may  adopt  the 
policy  of  preventing  it,  and  may  well,  by  laws  acting  prospectiveh", 
prohibit  the  creation  of  such  separate  estates  in  the  same  land.  But 
how  as  to  existing  estates  which  have  been  lawfully  created  under  the 
sanction  of  the  law  and  the  decisions  of  this  court,  are  they  to  be  sub- 
ject to  the  legislative  fiat?  Can  an  Act  of  Assembly  compel  the  owner 
of  the  minerals  to  surrender  his  property  to  the  owner  of  the  soil  at  the 
valuation  of  a  jury  ?  Can  a  law  say  that  twelve  men  shall  determine  at 
what  price  I  shall  sell  my  property  to  another?  In  the  consideration 
of  the  practical  bearings  of  this  question,  we  must  strike  out  of  the  Act 
of  1869  the  provision  that  the  compensation  to  be  awarded  shall  not  be 
less  than  twenty  years'  purchase  of  the  rent.  If  this  is  a  legitimate 
taking  for  public  use,  that  clause  might  well  have  been  omitted.  When- 
ever property  is  so  taken,  all  that  is  necessary  is,  that  some  impartial 
tribunal  shall  estimate  the  damages  sustained  by  the  owner,  and  in  the 
case  of  any  corporate  body  or  individual  invested  with  such  privilege, 
that  such  corporation  or  individual  shall  make  compensation  or  give 
adequate  security  therefor  before  such  property  shall  be  taken  :  Const. 
Art.  VII.  §  4.  What  would  be  the  value  of  coal-mines  and  mineral  estates 
if  the  owners  could  be  deprived  of  them  at  any  time  to  be  selected  by 
the  surface  proprietor,  by  the  valuation  of  a  jury,  upon  the  principle 
that  private  property  may  be  taken  from  one  man  and  transferred  to 
another,  on  the  ground  that  it  is  the  policy  of  the  Commonwealth  to 
put  an  end  to  such  estates  separate  from  the  surface  of  the  soil  ? 
There  are  many  rights  of  way  resting  on  express  grant  —  bought  and 
paid  for  —  but  now  very  burdensome  and  annoying  to  the  owners  of 
the  land  over  which  they  pass  ;  can  they  be  blown  away  by  the  legisla- 
ture upon  this  same  plea?  I  say  nothing  of  private  roads  laid  out  by 
authority  of  law  and  paid  for,  nor  of  ways  resting  upon  prescription 


1038  palairet's  appeal.  [chap.  vi. 

and  lapse  of  time,  on  account  of  the  first  section  of  the  Act  of  April  21, 
1846,  Pamph.  L.  416,  which  gives  the  Courts  of  Quarter  Sessions  power 
to  vacate  such  roads  and  ways  without  compensation,  and  the  decision 
in  Stuber's  Road,  4  Casey,  199,  which  affirmed  the  constitutionality  of 
that  Act,  except  individually  to  express  my  surprise  that  the  same  learned 
judge  who  wrote  the  opinion  in  that  case,  when  he  came  to  decide 
Baggs's  Appeal,  7  Wright,  512,  did  not  advert  to  his  first  opinion.  It 
is  enough  for  the  present  purpose  to  say  that  the  decision  in  Stuber's 
Eoad  is  not  put  on  the  ground  of  the  exercise  of  the  right  of  eminent 
domain.  That  Act  excepts  private  roads  resting  upon  express  grant, 
the  evidence  of  which  is  still  in  existence  ;  and  apart  from  the  fact  that 
no  compensation  is  provided,  it  is  evident  that  private  property, 
though  derived  from  express  grant  or  contract,  is  not  therefore  exempt 
from  the  right  of  eminent  domain.  I  put  aside  the  decision  in  Stuber's 
Road,  as  resting  upon  grounds  peculiar  to  itself,  not  affecting  this  argu- 
ment. One  more  illustration  of  the  extent  to  which  the  principle  may 
be  carried  will  be  sufficient.  A  man  provides  by  his  will  an  annuity 
for  his  widow  for  her  life,  and  charges  it  on  his  lands,  or  if  he  dies 
intestate,  the  law  does  the  same  thing  on  partition  among  his  heirs. 
Here  is  an  encumbrance  of  the  same  character  as  a  ground-rent,  which 
though  not  perpetual,  ma}'  still  continue  for  an  indefinite  period,  —  the 
life  of  the  widow.  It  is  within  the  policy  recited  in  this  preamble  —  it 
is  an  impediment  to  the  free  transmission  of  real  estate,  and  a  restric- 
tion on  alienation  which  ought  to  be  removed  out  of  the  wa}'.  If  an 
act  should  be  passed  extinguishing  this  annuity  of  the  widow  on  a 
valuation  of  her  life  interest  —  even  though  it  were  provided  that  it 
should  not  be  less  than  the  value  fixed  for  such  an  annual  sum  by  the 
annuity  tables  —  would  it  not  shock  the  moral  sense  and  feeling  of  the 
entire  community?  Yet  wherein  does  that  case  differ  from  the  one 
before  us  except  in  immaterial  circumstances  ? 

It  is  said  that  the  Act  of  November  27,  1779,  1  Sm.  L.  479,  com- 
monl}'  called  the  Divesting  Act,  by  which  the  estates  of  the  proprie- 
taries were  vested  in  the  Commonwealth,  is  an  instance  in  which  pri- 
vate propert}'  was  taken  on  reasons  of  policy.  That  Act,  like  the  Revo- 
lution from  which  its  necessity  arose,  can  be  a  precedent  for  nothing 
in  the  ordinary  course  of  legislation.  It  is  well  vindicated  by  its  pre- 
amble, which  claims  that  the  rights  of  property  and  powers  of  govern- 
ment in  William  Penn  and  his  heirs  were  stipulated  to  be  used  and 
enjoj'ed  as  well  for  the  benefit  of  the  settlers  as  for  his  own  particular 
emolument,  and  that  these  rights  and  powers  could  no  longer  consist 
with  the  safety,  liberty  and  happiness  of  the  people.  It  is  by  no  means 
clear  that  the  Commonwealth,  on  the  principles  of  public  law,  had  not 
a  strict  legal  right  to  all  that  was  resumed,  and  that  the  compensation 
she  made  was  not  an  act  of  liberality,  as  indeed  it  is  declared  in  the 
Act,  to  be  in  "  remembrance  of  the  enterprising  spirit  which  distin- 
guished the  founder  of  Pennsylvania,"  as  well  as  in  consideration  ''  of 
the  expectations  and  dependence  of  his  descendants."  .  .  . 


CHAr.  Yi.]  palairet's  appeal.  1039 

It  has  also  been  pressed  upon  us  that  private  roads  as  well  as  lateral 
raih-oads  are  cases  parallel  with  the  Act  now  before  us,  as  in  them,  on 
mere  grounds  of  policy,  private  property  is  taken  for  a  private  use  on 
compensation  made.  As  to  private  roads,  they  originated  at  a  very 
early  period  by  an  Act  of  Assembly  of  February  20,  1735-1736,  Hall 
and  Sellers  188,  re-enacted  in  the  17th  section  of  the  Act  of  April  4, 
1802,  3  Sm.  L.  512,  and  incorporated  by  the  revisers  in  the  General 
Road  Law  of  June  13,  1836,  Pamph.  L.  555  ;  yet  it  was  not  until  the 
year  1851  that  the  question  of  the  constitutionality  of  these  Acts  was 
raised  before  this  court  in  Pocopson  Road,  4  Harris,  15,  a  case  from 
Chester  County.  The  point  seems  to  have  been  elaborately  argued 
by  Mr.  P.  F.  Smith,  for  the  appellant,  and  many  authorities  cited ;  but 
Mr.  Lewis,  for  appellee,  contented  himself  with  citing  Harvey  v. 
Thomas,  10  Watts,  63.  In  the  short  opinion  per  curiam,  affirming  the 
proceedings,  no  notice  whatever  was  taken  of  the  point.  In  some  of 
our  sister  States  similar  Acts  have  been  held  to  be  unconstitutional. 
Tai/lor  V.  Porter,  1  Hill,  140 ;  Clack  v.  White,  2  Swan  (Tenn.),  450; 
Dickey  v.  Tennison,  47  Mo.  373  ;  but  their  constitutionality  was  well 
vindicated  in  Hickman's  Case,  4  Harrington,  580,  in  which  it  is  said 
in  the  opinion  of  the  Supreme  Court  of  Delaware  :  "  It  is  a  part  of  the 
system  of  public  roads,  essential  to  the  enjoyment  of  those  which  are 
strictl}-  public ;  for  many  neighborhoods  as  well  as  individuals  would 
be  deprived  of  the  benefit  of  the  public  highway,  but  for  outlets  laid  out 
on  private  petition  and  at  private  cost,  and  which  are  private  roads  in 
that  sense,  but  branches  of  the  public  roads  and  open  to  the  public  for 
the  purposes  for  which  they  are  laid  out."  As  to  lateral  railroads,  the 
constitutionality  of  the  Act  of  May  5,  1832,  Pamph.  L.  501,  was  even- 
tually sustained  not  upon  the  ground  assumed  in  Harvey  v.  Thomas, 
10  ^yatts,  63,  but  upon  the  better  reason,  that  the  public  had  the  use 
of  them  for  the  purpose  for  which  they  were  used.  Hays  v.  Risher,  8 
Casey,  169;  Brown  y.  Corey,  7  Wright,  495;  Keeling  v.  Griffin,  6 
P.  F.  Smith,  307.  It  is  not  necessary  to  examine  those  cases  in  which, 
in  some  of  our  sister  States,  Acts  authorizing  mill-owners  to  flood  the 
lands  of  an  upper  riparian  proprietor,  on  compensation,  may  have  been 
held  good.  "  They  were  designed,"  says  Chief  Justice  Shaw, ' '  to  pro- 
vide for  the  most  useful  and  beneficial  occupation  and  enjoyment  of 
natural  streams  and  water  courses  where  the  absolute  right  of  each  pro- 
prietor to  use  his  own  lands  and  water  privileges  at  his  own  pleasure 
cannot  be  fully  enjoyed,  and  one  must  of  necessity  in  some  degree 
yield  to  the  other."  Fishe  v.  Framingham  Man.  Co.,  13  Pick.  68; 
Hazen  v.  Essex  Co.,  12  Cush.  475. 

I  pass  from  the  argument  that  this  Act  is  an  exercise  of  the  right  of 
eminent  domain.  I  have  given  more  particular  attention  to  it,  because 
it  is  evidently  the  ground  upon  which  the  lawmakers  themselves  placed 
their  right  to  pass  the  act  in  question.  That  respect  which  is  due  by 
this  court  to  the  co-ordinate  branch  of  government,  made  it  proper  that 
this  point  should  be  fully  examined  and  discussed. 


1040  palairet's  appeal.  [chap,  yi. 

If  this  Act  cannot  be  sustained  on  this  ground,  then  it  seems  clear 
that  it  impairs  a  contract,  and  is  therefore  prohibited  as  well  b}-  the 
Constitution  of  the  United  States,  Art.  I.  §  10,  as  by  the  Constitution 
of  this  Commonwealth,  Art.  IX.  §  17.  .  .  . 

Upon  the  whole,  then,  we  have  come  to  the  conclusion  that  the  Act 
of  April  15,  1869,  is  unconstitutional  and  void.  The  particular  provis- 
ions of  this  Act  seem  just  and  reasonable  ;  but  the}'  are  not  features 
which  affect  the  character  of  the  Act  as  contrary  to  the  fundamental 
law  —  the  lex  legum.  We  are  bound  to  look  at  the  principle  upon 
which  it  is  based,  and  its  logical  and  necessary  consequences.  As  it 
appears  to  us,  it  would  overthrow  the  most  valuable  barriers  which  are 
reared  against  legislative  tyrann}-,  and  make  all  property  to  be  held  by 
a  most  insecure  and  uncertain  tenure.  This  Act  may  be  but  an  enter- 
ing wedge.  Its  salutary  and  conservative  restrictions  may  be  repealed 
hereafter  without  touching  its  principle,  upon  which  rests  the  question 
of  its  constitutionality,  and  ever}-  man  will  then  hold  his  ground-rents, 

—  and  the  same  provision  may  be  extended  to  other  kinds  of  propert}*, 

—  upon  the  will  of  a  jury  in  determining  for  what  price  he  shall  be 
compelled  to  sell  them.  Judgment  reversed. 

Agnew,  J.  This  case  has  been  argued  as  if  the  ground-rent  owner 
had  been  deprived  of  his  property  by  a  taking  for  private  use,  contrary 
to  the  Constitution  of  the  State.  In  my  judgment  this  is  not  the  char- 
acter of  the  law  —  it  is  remedial  rather  than  aggressive.  .  .  . 

It  does  not  seek  to  take  the  ground-rent  from  its  owner  for  public  or 
for  private  use,  but  simply  to  transmute  an  annual  sum  of  money  into 
its  equivalent  sum  of  capital,  in  order  that  the  impolitic,  perpetual 
union  of  two  estates,  growing  from  a  single  stalk,  may  be  separated 
for  the  welfare  of  the  State.  Are  not  the  powers  of  government  ade- 
quate for  this?  In  thinking  and  speaking  of  the  power  of  eminent 
domain,  we  are  ver}'  apt  to  be  controlled  in  our  thoughts  by  the  com- 
monest mode  of  its  exercise,  to  wit,  the  taking  of  land  for  public  use. 
But  this  is  not  its  only  form.  Domain  here  means  dominion,  and  it  is 
eminent  because  of  its  high  control.  This  high  power  or  dominion  of 
the  State  is  not  confined  to  a  single  mode  of  exercise,  tliough  seldom 
seen  or  thought  of  in  others,  but  is  to  be  found  in  all  those  forms 
grouped  under  the  name  of  the  police  power  of  the  State  —  a  power 
exercised  for  the  welfare  of  the  people,  and  rendered  necessar}'  by  the 
circumstances  which  affect  the  common  good.  ...  I  think  the  law 
can  be  impugned  only  on  the  ground  that  it  impairs  the  validit}'  of  a 
contract ;  and  to  this  extent  I  agree  that  it  is  not  competent  for  the 
legislature  to  sever  the  ground-rent  from  the  land  to  which  it  is  attached 
b}'  its  contract  relation  as  between  the  parties  to  the  contract  and  their 
immediate  privies,  to  the  extent  that  it  is  in  the  power  of  men  to  create 
a  perpetuity,  but  no  farther.  Beyond  this,  to  carr}'  the  sanctity  of  a 
contract  is  to  make  the  act  of  two  individuals  rise  higher  than  the 
powers  of  government  and  the  interests  of  the  State,  and  to  dominate 


CHAP.  VI.]  LYNCH   V.    FORBES.  1041 

both  the  power  of  the  legislature  and  the  rights  of  the  people.  It  can- 
not be  that  the  contracts  of  a  past  generation  are  beyond  the  reach  of 
law  for  a  proper  pui'pose,  a  purpose  not  to  destroy,  but  to  change,  to 
suit  the  interests  of  the  State.  Otherwise  a  contract  would  stand  on  a 
higher  platform  than  that  of  the  people  to  change  their  form  of  govern- 
ment. A  change  of  the  State  constitution  would  effect  nothing,  for 
the  contract  standing  on  the  higher  ground  of  the  Federal  Constitution 
would  still  claim  its  protection,  and  thus  descending  on  unborn  genera- 
tions, would  cling  like  the  fatal  shirt  of  Nessus,  until  escheat  or  an  earth- 
quake should  end  it.  I  think,  therefore,  that  the  legislature  can  sever 
the  i-ent  from  the  land  by  a  fair  valuation  and  payment  in  money  in  the 
case  of  a  ground-rent  deed  all  of  whose  parties  are  dead  and  more  than 
twenty-one  years  have  elapsed  since  the  death  of  the  last  survivor.  But 
as  these  facts  do  not  appear  in  this  bill  and  answer,  the  judgment  should 
be  reversed.^ 


LYNCH  V.  FORBES. 
Supreme  Judicial  Court  of  Massachusetts.     1894. 

[161  Mass.  302.] 

Report  from  Superior  Court,  Norfolk  County ;  Justin  Dewey,  Judge. 
Case  reserved  from  Supreme  Judicial  Court,  Norfolk  County  ;  James 
M.  Morton,  Judge. 

^  As  to  a  public  purpose,  see  supra,  pp  901-916  ;  infra,  pp.  1209-1257. 

In  Savannah  v.  Hancock,  91  Mo.  54  (1886),  Black,  J.,  for  the  court,  said  :  "  Section 
20.  Article  2,  Constitution  of  1875,  provides  '  that,  whenever  an  attempt  is  made  to  take 
private  property  for  a  use  alleged  to  be  public,  the  question  whether  the  contemplated 
use  be  really  public  shall  be  a  judicial  question,  and,  as  such,  judicially  determined, 
without  regard  to  any  legislative  assertion  that  the  use  is  public'  As  this  is  a  new 
section,  not  found  in  any  of  the  former  constitutions  of  this  State,  it  may  be  well  to 
look  to  the  state  of  the  law  before  its  adoption.  ...  It  will  thus  be  seen  that  the  ques- 
tion whether  the  use  for  which  the  property  is  about  to  be  taken  is  a  public  use, 
has  already  been  regarded,  in  this  State,  as  a  judicial  (luestiou,  a  question  which  the 
courts  would  for  themselves  decide.  Notwithstanding  this,  it  is  undeniably  true,  that 
the  courts  were  disposed  to  defer  somewhat  to  a  legislative  declaration  upon  the  sub- 
ject. Hence  it  is  said,  if  the  legislature  has  declared  the  use,  or  purpose,  to  be  a 
public  one,  its  judgment  will  be  respected  by  the  courts,  unless  the  use  be  palpably 
private.  Dill.,  Mun.  Corp.  (3  ed.),  sec.  600 ;  Mills  on  Em.  Dom.,  sec.  10,  is  to  the  same 
effect.  Now  the  constitutional  provision  of  this  State,  before  quoted,  makes  it  the  duty 
of  the  courts  to  determine  whether  the  use  be  a  public  use,  or  not,  without  any  regard 
to  a  legislative  assertion  upon  the  subject.  They  are  freed  from  the  influence  of  any 
expressed  judgment  of  the  legislature  in  that  behalf,  and  enjoined  to  determine  the 
question,  wholly  regardless  of  what  that  branch  of  the  State  government  asserted  upon 
the  subject.  The  method,  however,  by  which  the  courts  determine  whether  the  use  is 
a  pul)lic  use,  remains  the  same  as  before.  Neither  the  Constitution,  nor  any  statute, 
requires  that  question  to  be  submitted  to  a  jury.  The  courts  will  decide  the  qiiestion 
vvitlKHit  the  aid  of  a  jury."     So  Consts.  of  Col.,  Miss.,  and  Washington.  —  Ed. 

VOL.  I.  —  6t) 


1042  LYNCH   V.   FOKBES.  [ciLVP.  VI. 

Action  by  Daniel  A.  Lynch  against  Fayette  F.  Forbes,  for  trespass 
to  real  estate.  Defendant  justitied  under  Acts  1872,  c.  343,  and  Acts 
1888,  c.  131,  authorizing  the  town  of  Brookline  to  take  land  for  the 
erection  and  maintenance  of  waterworks,  and  proved  that  the  de- 
fendant was  the  servant  and  agent  of,  and  acted  under  the  direction 
of,  the  selectmen  and  water  board  of  the  town,  and  was  the  super- 
intendent and  engineer  of  its  water  works.  The  court  refused  to  admit 
the  evidence  offered  by  the  plaintiff,  or  to  submit  the  evidence  therein 
referred  to  to  the  jury,  but  did  rule  that  the  question  as  to  whether  or 
not  the  town  had  exceeded  its  authority,  and  taken  more  land  than  it 
was  authorized  to  take,  or  any  land  not  within  the  authority  given  by 
said  Acts,  could  not  be  tested  in  this  suit ;  that  the  defendant  had 
shown  that  the  town  had  conformed  to  the  formal  requirements  of  the 
statute  as  to  method  of  taking  land,  and  that  defendant's  justifica- 
tion was  complete,  —  and  directed  a  verdict  for  the  defendant,  and,  at 
request  of  the  parties,  reported  the  case  to  the  Supreme  Judicial  Court 
for  determination.     Judgment  on  verdict  for  defendant. 

Bill  in  equity  by  Daniel  A.  Lynch  against  the  town  of  Brookline, 
praying  that  the  acts  of  the  town  in  taking  plaintiff's  land  be  decreed 
to  be  void,  and  for  other  relief.  The  case  was  reserved,  at  the  request 
of  the  parties,  for  the  full  court,  upon  the  bill  and  demurrer.  Bill  dis- 
missed. 

Geo.  Fred  Williams  and  Q.  W.  Anderson,  for  plaintiff.  M.  &  C. 
A.    Williams,  for  defendant. 

Morton,  J.  The  principal  questions  involved  in  these  two  cases  are 
the  same,  and,  by  agreement  of  parties,  they  were  argued,  and  are  to 
be  considered,  together.  The  plaintiff  contends,  in  both  cases,  that  the 
taking  was  unlawful;  and,  at  the  trial  of  the  case  in  trespass,  he 
offered  to  show  that  prior  to  the  taking  in  question  the  town  had  taken 
all  the  land  that  it  needed,  and  that  this  was  not  suitable  and  was  not 
necessary,  useful,  or  proper,  for  any  of  the  purposes  named  in  the 
Acts  under  which  it  was  taken.  The  plaintiff  concedes,  what  is  well 
settled,  that  the  question  whether  a  necessity  exists  for  the  taking  of 
private  property  for  a  public  use  is  a  legislative,  and  not  a  judicial, 
one.  He  does  not  deny  that  the  taking  of  land  for  waterworks  and  a 
water  supply  for  the  general  benefit  of  the  inhabitants  of  a  city  or 
town  is  a  taking  for  a  public  use ;  but  he  contends  that  wliere,  as  here, 
the  authority  is  given  "  to  take  .  .  .  any  land  or  real  estate  necessary," 
etc.,  the  question  of  necessity,  so  far  as  it  relates  to  the  land  actually 
taken,  is  one  of  fact,  to  be  settled  by  the  court  or  jury.  Such  has  not 
been  deemed  to  be  the  law  in  this  State,  though  it  is  said,  in  a  work  of 
established  authority,  that  the  Constitutions  of  some  of  the  States 
require  it  to  be  done.  Zund  v.  JVeic  Bedford,  121  Mass.  286  ;  Mistern 
M.  Co.  V.  Boston  &  M.  R.  Co.,  Ill  Mass.  125  ;  Borgan  v.  Boston,  12 
Allen,  223;  Talbot  v.  Hudson,  16  Gray,  417;  Cooley,  Const.  Lim. 
§  538,  note.  Tliere  is  no  constitutional  right  on  the  part  of  the  land- 
owners, in  this  State,  to  have  the  question  of  the  necessity  or  expe- 


CHAP.  YL]  CAKY   library  V.   BLISS   ET   AL.  1043 

dieiicy  of  the  taking  in  any  particular  instance  submitted  to  a  court  or 
juiy.  Holt  V.  iSomerville,  127  Mass.  411.  In  the  absence  of  any  pro- 
vision in  the  statutes  submitting  the  matter  to  a  court  or  jury,  the 
decision  of  the  question  lies  with  the  body  or  individuals  to  whom  the 
State  has  delegated  the  authority  to  take.  They  have  the  same  power 
as  the  State,  acting  tlirough  any  regularly  constituted  authority,  would 
have.  Fail  River  Iron  Works  v.  Old  Colony  &  F.  R.  Co.,  5  Allen, 
226  ;  People  v.  Smith,  21  N.  Y.  597  ;  Boom  Co.  v.  Patterson,  98  U. 
S.  406 ;  Railway  Co.  v.  Brow?i,  9  H.  L.  Cas.  246  :  Zeiois  v.  Roard, 
40  Ch.  Div.  55  ;  Cooley,  Const.  Lim.  §  538.  See  Lewis,  Em.  Dom. 
§  238,  note,  for  collection  of  cases.  Of  course,  neither  the  State  nor  its 
delegates  can  take,  under  the  guise  of  eminent  domain,  the  property  of 
A.  for  the  purpose  of  conveying  it  to  B.,  or  for  a  purpose  clearly  in 
excess  of,  or  at  variance  with,  the  powers  granted.  No  question  of 
good  faith,  however,  arises  here,  and  the  purpose  for  which  the  land 
was  taken  is  within  the  scope  of  the  Acts  authorizing  it.  The  testi- 
mony that  was  offered  was  therefore  rightly  excluded,  as  was  also  that 
offered  for  the  purpose  of  showing  that  the  town  was  obtaining  water 
from  land  taken  in  February,  1889,  and  that  a  part,  at  least,  of  the 
water  thus  taken  did  not  come  from  the  river  by  percolation.  The 
validity  of  the  taking  now  in  question  does  not  depend  on  the  conduct 
of  the  town  in  regard  to  another  and  an  earlier  taking. 

The  result  is  that  in  the  first  case  the  entry  must  be,  "  Judgment  on 
the  verdict,"  and,  in  the  second,  "Bill  dismissed,  with  costs  ;  "  and  it 
is  so  ordered. 

In  Cary  Library  v.  Bliss  et  al.,  151  Mass.  364  (1890),  the  town  of 
Lexington,  in  accepting  certain  propositions  from  Mrs.  Maria  Cary  for 
endowing  a  free  public  library  upon  certain  terms,  if  it  should  be  estab- 
lished by  that  town,  proceeded  to  establish  the  library,  and  the  trustees 
received  certain  gifts  from  her  and  other  persons  for  the  benefit  of  the 
institution.  Several  years  afterwards,  and  after  Mrs.  Cary's  death,  a 
statute  was  passed  purporting  to  incorporate  a  new  bod}-  (the  plaintiff), 
for  carrying  out  the  same  purposes,  with  the  assent  of  the  town  of  Lex- 
ington, giving  it  power  "  to  take  and  hold  .  .  .  the  funds  and  property 
now  held  by  the  trustees  of  Cary  Library,"  &c.  The  statute  went  on  to 
provide  that  "  any  person  sustaining  damages  by  such  taking  may  have 
his  damages  assessed,"  &c.  After  holding  this  statute  unconstitutional, 
as  impairing  the  obligation  of  contracts,  the  court  (Knowlton,  J.)  said  : 

"As  if  apprehensive  that  the  statute,  in  the  parts  already  considered, 
was  in  conflict  with  the  Constitution,  the  framers  of  the  Act  embodied 
in  it  a  provision  for  taking  the  property  under  the  right  of  eminent 
domain.  Of  this  property,  fifteen  hundred  dollars  was  money  deposited 
in  a  savings  bank  ;  and  there  were  two  promissory  notes  of  the  town 
of  Lexington,  amounting  to  eleven  thousand  dollars,  bearing  interest, 
and  payable  to  the  treasurer  of  the  board  of  trustees. 


1044  GARY   LIBRARY   V.   BLISS   ET   AL.  [cHAP.  YL 

' '  Property  can  be  taken  in  this  wa}'  only  in  the  exercise  of  tiic  para- 
mount right  of  the  government,  founded  on  a  public  necessity.  The 
question  has  been  somewhat  considered  whether  that  necessity'  can  ever 
extend  to  the  taking  of  mone}'.  In  Burnett  v.  Sacramento,  12  Cal. 
76,  Mr.  Justice  Field,  now  of  the  Supreme  Court  of  the  United  States, 
says :  '  Money  is  not  that  species  of  property  which  the  sovereign 
authority  can  authorize  to  be  taken  in  the  exercise  of  its  right  of  emi- 
nent domain.  That  right  can  be  exercised  onl3'  with  reference  to  other 
property  than  mone}',  for  the  property  taken  is  to  be  the  subject  of 
compensation  in  money  itself,  and  the  general  doctrine  of  the  authori- 
ties of  the  present  day  is,  that  the  compensation  must  be  either  made, 
or  a  fund  provided  for  it  in  advance.' 

"  In  Coole}'  on  Constitutional  Limitations  (4th  ed.)  656,  a  similar 
opinion  is  expressed,  and  language  to  the  same  effect  is  found  in 
People  v.  Brooklyn^  4  N.  Y.  419,  424.  There  ma}-  be  a  great  public 
exigenc3%  as  in  time  of  war,  which  will  authorize  the  government  to 
take  money  in  the  exercise  of  this  right.  Mitchell  v.  Harmony^  13 
How.  115,  128  ;  Williams  v.  Wilkerman,  44  Misso.  484  ;  Yost  v. 
Stout,  4  Cold.  205.  But  it  cannot  truly  be  said  that  the  taking  of 
money  by  a  private  corporation,  created  to  administer  a  public  charity, 
is  a  taking  of  propertv  for  public  use.  The  money  taken  must  be  paid 
for  in  money.  It  cannot  be  taken  unless  it  is  paid  for  in  advance,  or 
sufficient  provision  is  made  for  immediate  pavment,  which  provision 
must  be  in  money  or  in  that  which  is  deemed  its  equivalent.  There 
can  be  no  necessity'  for  such  a  taking.  In  its  nature  it  is  not  a  taking 
for  a  public  use.  There  can  be  a  taking  for  a  public  use  under  this 
power  onlv  wlien,  in  the  nature  of  the  case,  there  is  or  may  be,  a  pub- 
lic necessity  for  the  taking.  There  cannot  be  such  a  necessity  in  favor 
of  a  private  corporation,  which  must  provide  money  to  pa}'  for  monev. 
For  this  reason,  we  are  of  opinion  that  the  legislature  could  not  author- 
ize the  taking  of  this  property'  by  the  petitioner. 

"  The  only  statement  of  the  use  to  which  the  property  is  to  be  put 
is  found  in  the  provision  of  the  St.  of  1888,  c.  342,  §  5,  that  it  is 
'  to  be  held  and  applied  b}'  the  corporation  in  the  same  manner  as  if 
held  b}-  said  trustees.'  The  question  arises,  whether  taking  property 
from  one  party,  who  holds  it  for  a  public  use,  by  another,  to  hold  it  in 
the  same  manner  for  precisel}'  the  same  public  use,  can  be  authorized 
under  the  Constitution.  Can  such  a  taking  be  founded  on  a  public 
necessity?  It  is  unlike  taking  for  a  public  use  property-  which  is 
ah-eady  devoted  to  a  different  public  use.  There  ma}'  be  a  necessity  for 
that.  In  the  first  case,  the  propert}"  is  alread}'  appropriated  to  a  public 
use  as  completely  in  every  particular  as  it  is  to  be.  Can  the  taking  be 
found  to  be  for  the  purpose  which  must  exist  to  give  it  validity?  In 
every  case  it  is  a  judicial  question  whether  the  taking  is  of  such  a 
nature  that  it  is  or  ma}'  be  founded  on  a  public  necessity.  If  it  is  of 
that  nature,  it  is  for  the  legislature  to  say  whether  in  a  particular  case 
the  necessity  exists.     We  are  of  opinion  that  the  proceeding  authorized 


CHAP.  VI.]     CAST   PLATE   MANUFACTUKEKS   V.   MEREDITH    ET   AL.      1045 

by  the  statute  was  in  its  nature  merely  a  transfer  of  property  from  one 
party  to  another,  and  not  an  appropriation  of  propert}'  to  public  use, 
nor  a  taking  vvhicli  was,  or  which  could  be  found  by  the  legislature  to 
be,  a  matter  of  public  necessity.  West  River  Bridge  v.  Dix^  6  How. 
507  ;  Lake  Shore  tt*  Michigan  Southern  Railway  v.  Chicago  &  West- 
ern Indiana  liailroad,  97  111.  506  ;  Chicago  &  Northivestern  Mail- 
way  V.  Chicago  &  Ecanston  Railroad,  112  111.  589. 

*'  For  these  reasons,  a  majority  of  the  court  ax'e  of  opinion  that  the 
St.  of  1888,  c.  342,  is  not  in  conformity  with  the  Constitution  of  the 
United  States.  It  follows,  that  the  petitioner  has  no  title  to  the  prop- 
erty in  the  hands  of  the  trustees  of  the  Gary  Library,  and  that  the 
petition  must  be  dismissed.  Fetition  dismissed."  ^ 


THE  GOVERNOR  AND  COMPANY  OF  THE  CAST  PLATE 
MANUFACTURERS  v.    MEREDITH  et  al. 

King's  Bench,  1792. 

[4  Durnf.  ^  East,  794.] 

This  was  an  action  upon  the  case,  in  which  the  plaintiffs  declared, 
That  before  and  at  the  time  of  committing  the  grievances  mentioned, 
they  were  and  from  thenceforth  hitherto  have  been  and  still  are  pos- 
sessed of  a  certain  messuage,  &c.  and  a  certain  yard  or  piece  of  land, 
with  divers  (to  wit)  three  warehouses  erected  and  built  thereon,  situate 
on  the  north  side  of  High-Ground  Street,  in  the  parish  of  Christchurch 
in  Surrey  ;  and  also  of  a  certain  entrance  or  gateway  leading  from  the 
street  through  and  under  the  messuage  into  the  yard  or  piece  of  land  ; 

1  In  Hammett  v.  Philadelphia,  65  Pa.  St.  152  (1870),  Sharswood,  J.,  for  the  court, 
said :  "  It  has  been  said  by  Judge  Field,  of  California,  now  on  the  bench  of  the 
Supreme  Court  of  the  United  States,  that  '  money  is  not  that  species  of  property 
which  the  sovereign  authority  can  authorize  to  be  taken  in  the  exercise  of  its  right  of 
eminent  domain.  That  right  can  be  exercised  only  with  reference  to  other  property 
than  money,  for  the  property  taken  is  to  be  the  subject  of  compensation  in  money 
itself ;  and  the  general  doctrine  of  the  authorities  of  the  present  day  is,  that  the  com- 
pensation must  be  made,  or  a  fund  provided  for  it  in  advance.'  Burnett  v.  Sacramento, 
12  Cal.  76.  I  am  not  able,  and  do  not  feel  disposed  to  enter  the  lists  upon  such  a  ques- 
tion, but  it  does  seem  to  me  that  there  may  be  occasions  in  which  money  may  be  taken 
by  the  State  in  the  exercise  of  its  transcendental  right  of  eminent  domain.  Such 
would  be  the  case  of  a  pressing  and  immediate  necessity,  as  in  tlie  event  of  invasion 
by  a  public  enemy,  or  some  great  calamity,  as  famine  or  pestilence,  contributions  could 
be  levied  on  banks,  corporations,  or  individuals.  The  obligation  of  compensation  is 
not  immediate.  It  is  required  only  that  provision  should  be  made  for  compensation  in 
the  future.  Judge  Rnggles  confines  the  right  to  exact  money  by  virtue  of  the  eminent 
domain  to  the  case  where  it  is  for  the  use  of  the  State  at  large  in  time  of  war.  The 
People  ex  rel.  Griffin  v.  BrooUyn,  4  Com,st.  419.  I  cannot  see  that  there  is  any  such 
necessary  limitation.  The  public  necessity  which  gives  rise  to  it,  prevents  its  being 
restrained  by  any  limitations  as  to  either  subject  or  occasion." 

Compare  People  v.  Mayor  of  Brooklyn,  4  N.  Y.  419,  424.  — Ed. 


1046      CAST   PLATE    MANUFACTURERS   V.    MEREDITH    ET   AL.      [CIIAP.  VI. 

and  which  said  entrance  during  all  the  time  aforesaid,  until,  &c.  was 
used  and  of  right,  &c.  by  the  plaintiffs,  for  the  passing  and  repassing 
of  carts,  wagons,  and  other  carriages,  in  the  service  of  the  plaintiffs 
into  and  out  of  the  yard  or  piece  of  land  for  the  more  convenient  and 
beneficial  enjoyment  and  occupation  of  the  yard,  and  of  the  warehouses, 
&c.  yet  that  the  defendants  on,  &c.  wrongfully  and  injuriously  raised, 
&c.  the  said  street,  and  the  soil  and  pavement  thereof,  before  the  said 
entrance,  &c.  by  placing  great  quantities  of  wood,  &c.  upon  the  street, 
&c.  there,  to  a  much  greater  height  than  the  street  or  the  soil  and 
pavement  thereof  were  before  raised,  (to  wit)  to  the  height  of  four  feet 
more,  &c.  and  so  close  and  near,  &c.  to  the  entrance,  that  it  was  and 
still  is  thereby  greatly  blocked  up  and  obstructed,  insomuch  that  the 
carts,  &c.  employed  in  the  service  of  the  plaintiffs  have  been  and  still 
are  thereby  prevented  from  passing  and  repassing  through  the  entrance, 
and  the  plaintiffs  are  thereby  much  injured,  &c. 

The  defendants  pleaded  the  general  issue ;  and  at  the  trial  at  King- 
ston before  Gould,  J.  a  verdict  was  found  for  the  plaintiffs  with  £150 
damages,  subject  to  the  opinion  of  this  court  on  the  following  case. 

The  plaintiffs  were  possessed  of  the  premises  mentioned  in  the  decla- 
ration under  a  lease  for  ninety-five  years  from  Christmas,  1777.  The 
warehouses  standing  in  the  j-ard  have  been  used  b^-  them  since  they 
have  been  in  possession  for  the  depositing  and  keeping  of  plate-glass, 
which  is  a  commodity  of  large  value ;  and  very  brittle  in  its  nature. 
The  gateway  in  question  before  the  committing  of  the  grievance  was  of 
the  height  of  twelve  feet  and  one  inch,  from  the  old  pavement,  with 
which  the  street  in  question  had  been  formerly  paved ;  and  the  gateway 
was  used  for  the  purpose  of  admitting  wagons  into  the  3'ard,  loaded 
with  plate-glass,  that  the}'  might  be  unloaded  at  the  door  of  the  ware- 
houses. The  defendants,  who  acted  as  pavers  under  the  authority  of 
the  commissioners,  named  in  an  Act  passed  in  the  last  session,  for  pav- 
ing, &c.  Upper-Ground  Street  in  the  parish  of  Christchurch  in  Surrey, 
and  certain  other  streets,  &c.  raised  *  the  pavement  two  feet  and 
one  inch  higher  than  the  old  pavement.  The  gateway  in  the  centre  of 
the  arch  is  only  ten  feet  high  from  the  level  of  the  new  pavement,  so 
that  the  height  of  the  gateway  is  now  reduced  two  feet  and  one  inch. 
The  defendants  soon  after  the  passing  of  the  above  Act  of  Parliament, 
and  before  the  commencement  of  the  present  action,  in  order  to  execute 
the  powers  and  provisions  of  the  said  Act,  proceeded  to  take  the  level 
of  the  street,  in  order  to  its  being  paved  ;  and  for  that  purpose  they 
caused  a  straight  and  halt  line  to  be  drawn  in  the  front  of  the  houses  in 
the  street,  showing  the  level  and  height  of  the  new  Intended  pavement. 
And  about  three  months  afterwards  the  defendants  laid  the  ground 
according  to  such  level  and  agreeably  to  the  line  so  marked  out,  and 
paved  the  same,  which  now  makes  a  regular  inclined  plane  with  a  decli- 
nation of  only  one  foot  of  perpendicular  height  in  seventeen  feet  of 

1  By  sect.  13,  the  commissioners  were  empowered  to  cause  the  said  street,  &c  to  be 
paved,  repaired,  raised,  sunk,  or  altered,  &c. 


CHAP.  VI.]     CAST   PLATE    MANUFACTURERS    V.    MEREDITH   ET   AL.      1047 

length  ;  and  it  would  not  be  effectual  if  done  in  any  other  way  :  whereas 
in  the  original  state  the  declination  was  about  one  foot  in  twelve,  which 
was  a  very  unsafe  declivity  for  horses  and  carriages  going  up  or  down. 
The  line  so  made  was  necessary  and  proper ;  and  any  alteration  of  the 
inclined  surface  of  the  street  less  material  was  not  sufficient  to  render 
the  street  safe  for  carriages  passing  through.  In  order  to  admit  car- 
riages as  heretofore  it  will  be  necessary'  to  take  down  the  arch  and 
heighten  the  same.  The  case  then  stated,  that  by  these  means  the 
plaintiffs  are  deprived  of  the  use  of  the  gatewa}-  as  the}'  had  it  before, 
and  wagons  and  other  carriages  are  prevented  passing  to  their  ware- 
houses, and  are  obliged  to  be  unloaded  in  the  street.  It  was  also 
proved  that  the  plaintiffs  had  given  notice  to  the  defendants,  and  also 
to  the  commissioners,  that  unless  the  buildings  were  so  altered  as  to 
enable  the  plaintiffs  to  enjoy  their  warehouses  as  the}'  did  before  the 
Act  passed,  an  action  would  be  brought  against  them  for  a  satisfaction 
in  damages. 

Garrow,  for  the  plaintiffs,  relied  upon  the  case  of  Leader  v.  Moxon 
and  Others^  which  was  directl}'  in  point  with  the  present ;  and  estab- 
lished the  principle,  that  the  commissioners  under  such  an  Act  as  the 
present  are  liable  to  make  good  to  individuals  an}'  actual  damage  sus- 
tained by  their  acts.  And  this  is  founded  in  good  sense,  for  it  could 
never  be  supposed  to  be  the  intention  of  the  legislature  that  the  avenue 
to  one  man's  house  should  be  blocked  up  for  the  convenience  of  his 
neighbors  without  some  compensation. 

Fielding^  contra,  was  stopped  by  the  court. 

Lord  Kenyon,  Ch.  J.  If  this  action  could  be  maintained,  every 
turnpike  Act,  paving  Act,  and  navigation  Act,  would  give  rise  to  an 
infinity  of  actions.  If  the  legislature  think  it  necessary,  as  they  do  in 
many  cases,  they  enable  the  commissioners  to  award  satisfaction  to  the 
individuals  who  happen  to  suffer.  But  if  there  be  no  such  power  the 
parties  are  without  remedy,  provided  the  commissioners  do  not  exceed 
their  jurisdiction.  But  it  does  not  seem  to  me  that  the  commissioners 
acting  under  this  Act  have  been  guilty  of  any  excess  of  jurisdiction. 
Some  individuals  suffer  an  inconvenience  under  all  these  Acts  of  Parlia- 
ment ;  but  the  interests  of  individuals  must  give  way  to  the  accommo- 
dation of  the  public.  I  doubt  the  accuracy  of  the  report  of  the  case 
cited  from  "Wils.  ;  for  I  cannot  conceive  that  the  judges,  in  considering 
whether  or  not  the  action  could  be  supported,  laid  any  stress  on  the 
enormity  of  the  damage  sustained  by  the  plaintiff.  That  circumstance 
miglit  have  induced  the  jury  to  increase  the  damages,  if  the  action  could 
be  supported,  but  could  not  of  itself  give  a  cause  of  action  :  that  must 
have  depended  on  the  question,  whether  or  not  the  commissioners 
exceeded  their  jurisdiction. 

BuLLER,  J.  The  question  here  is,  whether  or  not  this  action  can  be 
maintained?  and  I  am  clearly  of  opinion  that  it  cannot,  because  a  par- 

1  3  Wils.  461,  vid.  1  Bl.  Rep.  924,  s.  c.     [See  ante,  673,  n.  —  Ed.] 


1048  CALLENDER    V.    MARSH.  [CHAP.  YI. 

ticular  remed}'  is  pointed  out  by  the  Act.^  If  there  had  been  no  clause 
in  the  Act  empowering  the  commissioners  to  give  satisfaction  to  tlie  party 
grieved,  I  am  bj-  no  means  satisfied  that,  on  the  broad  principle  stated  b}' 
the  plaintiffs'  counsel,  an}'  action  could  be  maintained.  There  are  many 
cases  in  which  individuals  sustain  an  injury,  for  which  the  law  gives  no 
action  ;  for  instance,  pulling  down  houses,  or  raising  bulwarks,  for  the 
preservation  and  defence  of  the  kingdom  against  the  king's  enemies. 
The  civil  law  writers  indeed  say,  that  the  individuals  who  suffer  have  a 
right  to  resort  to  the  public  for  a  satisfaction :  but  no  one  ever  thought 
that  the  common  law  gave  an  action  against  the  individual  who 
pulled  down  the  house,  «fec.  This  is  one  of  those  cases  to  which  the 
maxim  applies,  salus  jyojndi  su2)rema  est  lex.  If  the  thing  complained 
of  were  lawful  at  the  time,  no  action  can  be  sustained  against  the  party 
doing  the  act.  In  this  case  express  power  was  given  to  the  commis- 
sioners to  raise  the  pavement;  and,  not  having  exceeded  their  power, 
the}'  are  not  liable  to  an  action  for  having  done  it. 

Grose,  J.     The  clause  in  the  act  which  empowers  the  commission- 
ers to  award  satisfaction,  is  decisive  against  this  action. 

Postea  to  the  defendants. 


CALLENDER  v.   MARSH. 
Supreme  Judicial  Court  of  Massachusetts.     1823. 

[1  Pick:  418.1 

This  was  an  action  of  trespass  on  the  case  for  digging  down  the 
streets  by  the  plaintiff's  dwelling  house,  in  Boston,  and  taking  away 
the  earth,  so  as  to  )ay  bare  the  foundation  walls  of  the  house  and 
endanger  its  falling  ;  in  consequence  of  which  the  plaintiff  was  obliged, 
at  great  expense,  to  build  up  new  walls,  and  otherwise  secure  the  house, 
and  render  it  safe  and  convenient  of  access,  as  before. 

The  defendant  pleaded  the  general  issue,  and  filed  a  brief  statement, 
pursuant  to  the  statute,  in  which  he  set  forth  his  appointment  and 
qualification  as  surve3'or  of  the  highwa\'s  for  the  city  of  Boston,  the 
condition  of  the  street,  and  the  purposes  for  which  the  acts  complained 
of  were  done. 

At  the  trial  before  Parker,  C.  J.,  the  plaintiff  proved  the  digging 
down  of  the  streets,  as  stated  in  his  declaration,  and  gave  evidence  of 
the  trouble  and  inconvenience  which  he  had  suffered  in  consequence. 
His  house  was  built  about  twenty  years  ago,  the  streets  having  been 
previously  laid  out. 

'  The  46th  section  authorized  the  commissioners  "to  make  any  allowance,  or  pay 
part  of  the  expenses  incurred  by  the  proprietors  of  any  such  house  or  building,  in  re- 
moving any  of  the  obstructions,  nuisances,  or  annoyances,  as  aforesaid,  in  such  cases 
where  the  proprietors  should  or  might  be  materially  injured  on  account  of  the  pave- 
ment being  necessarily  raised  or  lowered,  and  whereby  such  cases  might  be  particu- 
larly entitled  to  some  compensation." 


CH.VP.  VI.]  CALLENDER   V.    MARSH.  1049 

The  defendant  proved,  by  the  certificate  of  the  city  clerk  (which 
evidence  was  not  objected  to),  that  he  was  appointed  one  of  the  sur- 
veyors of  highways  on  the  13th  of  May,  1822,  and  that  he  was  sworn 
into  office  on  the  17th  of  the  same  month.  Xo  limits  were  assigned  to 
the  surveyors  respectively  by  the  city  government.  The  defendant  also 
proved,  that  he  did  the  acts  complained  of  in  virtue  of  his  supposed 
authority  as  surveyor.  Before  he  began  the  digging,  he  consulted  with 
Babcock,  the  only  other  acting  surveyor  at  the  time,  and  after  the 
appointment  of  Cotton,  with  him  also ;  having  begun  the  work  before 
Cotton  was  appointed.  He  also  proved,  that  for  a  year  or  two  pre- 
ceding, propositions  had  been  made  to  the  selectmen  for  levelling  and 
digging  down  the  streets,  and  that  plans  and  levels  had  been  taken  for 
that  purpose,  witli  a  view  to  reduce  the  slope,  which  was  so  steep  as 
to  render  it  difficult  to  pass  up  and  down  the  streets  with  carts  and  car- 
riao-es.  No  order  of  the  selectmen  or  of  their  successors,  the  mayor 
ancf  aldermen,  on  tliis  subject  was  offered  in  evidence,  nor  did  it  appear 
that  either  of  those  boards  had  acted  thereon,  in  any  other  manner  than 
by  appointing  a  committee  to  take  care  of  the  streets.  This  commit- 
tee was  frequently  present  during  the  performing  of  the  acts  com- 
plained of,  and  approved  of  them  ;  and  the  bills  of  some  of  the  work- 
men were  rendered  to  the  city  officers  and  by  them  passed. 

A  verdict  was  taken  for  the  plaintiff,  subject  to  the  opinion  of  the 
whole  court. 

J.  T.  Austin,  for  the  defendant ;  Davis,  Solicitor  General,  and  Jicmd, 

for  the  plaintiff. 

The  opinion  of  the  court  was  delivered  at  the  following  November 
term,  by 

Parker,  C.  J.  .  .  .  The  counsel  for  the  plaintiff  have,  with  laudable 
diligence,  looked  into  the  civil  law,  to  see  what  course  was  pursued  in 
ancient  times  respecting  public  roads,  presuming  that  on  a  subject  of 
such  common  concern  the  principles  adopted  by  all  governments  in  all 
times  would  be  nearly  the  same  ;  and  although  our  own  statutes  are  to 
be  the  sole  guide  of  decisions  in  matters  altogether  of  a  local  nature, 
it  is  well  enough  to  see  whether  any  information  can  be  drawn  from  so 
ancient  a  source,  in  regard  to  the  use  and  meaning  of  terms  employed 
by  our  own  legislature. 

The  general  care  of  the  roads  was  in  the  ^diles ;  who  probably 
exercised  the  power  and  jurisdiction  which  is  given  by  our  statutes  to 
the  court  of  sessions.  These  appointed  subordinate  agents  for  the 
care  of  roads  within  the  city,  who  were  called  quatuor  viri  from  their 
number ;  and  to  the  duum  viri  was  given  the  care  of  the  roads  without 
the  city.  These  officers  probably  answered  to  the  character  of  our 
surveyors.  The  first  were  called  quatuor  viri,  viis  urhanis  curandis  ; 
the  second,  duum  viri,  viarum  puhlicarum  extra  urhem  ctcrutores. 
Their  duty  was  among  other  things  adcequdi'e,  to  level  the  highways, 
and  to  construct  bridges  when  necessary.  Each  individual  citizen  was 
oblif^ed  to  make  certain  repairs  near  his  own  house,  as  our  citizens  are 


1050  CALLENDER   V.   MARSH.  [cHAP.  VI. 

obliged  to  make  and  keep  in  repair  the  sidewalks.  The  interdict  which 
was  quoted  in  the  argument,  viz.  Interdictum  hoc  perj)etuo  dabitur,  et 
omnibus  et  in  orm^es^  &c.  related  to  private  persons,  not  to  an}-  of  the 
above-named  pubhc  officers.  Heinecc.  sec.  Ord.  Pand.  part.  1,  §  74; 
D.  1,  2,  2,  30  ;  D.  43,  tt.  10,  11,  19,  et  notis. 

No  inference  can  be  drawn  from  these  provisions  in  favor  of  the 
plaintiff  in  the  present  action,  as  it  does  not  appear  that  an}-  means 
were  provided  of  indemnifying  those  who  might  be  put  to  charge  or 
expense  in  consequence  of  the  necessary  repair  of  the  highways ;  nor 
does  it  appear  that  the  levelling  a  way  already  laid  out  was  a  subject 
of  adjudication  on  which  persons  bordering  on  the  road  were  parties, 
having  a  right  to  claim  compensation.  And  indeed  if  such  were  the 
provisions  of  the  Roman  law,  it  is  difficult  to  perceive  how  they  could 
be  introduced  into  ours  by  any  other  power  than  the  legislature.  We 
have  only  to  look  at  our  statutes,  and  we  think  they  explicitly  and 
clearly  give  the  power  to  the  surveyors,  which  was  exercised  by  the 
defendant   in  the  case  before  us. 

But  it  is  said,  if  such  be  the  construction  of  the  statute,  the  legisla- 
ture  exceeded  its  constitutional  powers,  and  that  the  defendant  there- 
fore cannot  justify  under  the  statute.  This  objection  is  founded  upon 
the  last  clause  in  the  10th  article  of  the  Declaration  of  Rights,  which 
provides  "that  whenever  the  public  exigencies  require  that  the  prop- 
erty of  any  individual  should  be  appropriated  to  i^ublic  uses,  he  shall 
receive  a  reasonable  compensation  therefor." 

There  has  been  no  construction  given  to  this  provision,  which  can 
extend  the  benefit  of  it  to  the  case  of  one  who  suffers  an  indirect  or 
consequential  damage  or  expense,  by  means  of  the  right  use  of  prop- 
erty already  belonging  to  the  public.  It  has  ever  been  confined,  in 
judicial  application,  to  the  case  of  property  actually  taken  and  appro- 
priated by  the  government.  Thus,  if  by  virtue  of  any  legislative  Act 
the  land  of  any  citizen  should  be  occupied  by  the  public  for  the  erec- 
tion of  a  fort  or  any  public  edifice  upon  it,  without  any  means  provided 
to  indemnify  the  owner  of  the  property,  the  title  of  the  owner  could  not 
be  divested  thereby,  and  he  might  maintain  his  action  for  possession, 
or  of  trespass,  against  those  who  are  instrumental  in  the  act ;  because 
such  a  statute  would  be  directly  contrary  to  the  above  cited  provision  ; 
and  as  no  action  can  be  maintained  against  the  public  for  damages,  the 
only  way  to  secure  the  party  in  his  constitutional  rights  would  be  to 
declare  void  the  public  appropriation.  It  is  upon  this  principle  that 
the  legislature  have,  in  the  general  law  respecting  highways,  and  in 
their  numerous  Acts  authorizing  the  making  of  turnpikes,  bridges, 
canals,  etc.,  provided  that  the  party,  whose  property  is  taken  to  carry 
into  effect  these  purposes,  shall  be  indemnified  and  have  secured  to 
him  an  eventual  trial  by  jury  on  the  question  of  damage,  if  no  com- 
promise shall  be  made  by  the  several  parties.  But  this  course  has 
been  confined  to  the  direct  loss  of  property  sustained  by  the  indi- 
vidual, and  such  expenses  as  are  necessarily  incident  to  the  very  act 
of  taking  it 


CHAP.  VI."]  '  CALLENDER   V.   MARSH.  1051 

The  streets  on  which  the  plaintiff's  house  stands  had  become  public 
propert}-  by  the  act  of  la3-ing  them  out  conformably  to  law,  and  the 
value  of  the  land  taken  must  have  been  either  paid  for,  or  given  to  the 
public,  at  the  time,  or  the  street  could  not  have  been  legally  established. 
Being  legally  established,  although  the  right  or  title  in  the  soil  remained 
in  him  from  whom  the  use  was  taken,  3'et  the  public  acquired  the  right, 
not  only  to  pass  over  the  surface  in  the  state  it  was  in  when  first  made 
a  street,  but  the  right  also  to  repair  and  amend  the  street,  and  for  this 
purpose,  to  dig  down  and  remove  the  soil  sufficiently  to  make  the  pas- 
sage safe  and  convenient.  Those  who  purchase  house-lots  bordering 
upon  streets  are  supposed  to  calculate  the  chance  of  such  elevations 
and  reductions  as  the  increasing  population  of  a  city  may  require,  in 
order  to  render  the  passage  to  and  from  the  several  parts  of  it  safe  and 
convenient,  and  as  their  purchase  is  always  voluntary,  they  may  indem- 
nify themselves  in  the  price  of  the  lot  which  they  buy,  or  take  the 
chance  of  future  improvements,  as  they  shall  see  fit.  The  standing 
laws  of  the  land  giving  to  surveyors  the  power  to  make  these  improve- 
ments, every  one  who  purchases  a  lot  upon  the  summit,  or  on  the 
decline  of  a  hill,  is  presumed  to  foresee  the  changes  which  public 
necessity  or  convenience  may  require,  and  may  avoid  or  provide  against 
a  loss. 

That  this  has  been  the  practical  construction  of  our  statute  we  can 
entertain  no  doubt ;  for  many  instances  must  have  occurred  within 
our  principal  towns,  of  streets  raised  or  reduced  in  such  manner  as  to 
occasion  expense  to  borderers,  and  no  claim  of  damages  has  ever  been 
heard  of;  and  in  the  country  towns  it  is  not  unusual  to  level  roads,  so 
as  to  oblige  the  owners  of  fields  to  rebuild  their  fences  or  stone-walls, 
and  no  complaint  has  been  made. 

There  are  cases,  without  doubt,  where  an  individual  may  suffer  by 
the  exercise  of  this  power,  and  thus  be  made  involuntarily  to  contri- 
bute much  more  than  his  proportion  to  the  public  convenience ;  but 
such  cases  seem  not  to  be  provided  for,  and  must  be  left  to  that  sense 
of  justice  which  every  communit}'  is  supposed  to  be  governed  by. 

A  fort  may  be  erected  on  public  ground  so  near  to  a  man's  dwelling- 
house  as  materially  to  reduce  its  rent  and  value ;  the  public  would  not 
be  bound  to  indemnify  the  suffering  party,  for  when  he  built  so  near  to 
unoccupied  ground,  which  the  public  had  a  right  to  occupy  for  any  pur- 
pose its  exigencies  might  require,  he  should  have  foreseen  the  possible 
purpose  to  which  it  might  be  applied,  and  should  have  guarded  against 
a  future  loss,  by  abstaining  from  building  tliere.  So  the  location  of 
school-houses  upon  public  land  may  materially  diminish  the  value  of  an 
adjoining  or  opposite  dwelling-house,  on  account  of  the  crowd  and 
noise  which  they  usually  occasion ;  but  it  cannot  be  imagined  that  the 
public  are  obliged  to  consult  the  convenience  of  the  individual  so  far 
as  to  abstain  from  erecting  the  school-house,  or  to  pay  the  owner  of 
the  dwelling-house  for  its  diminished  value.  These  are  cases  of  dam- 
num sine  injuria,  and  though  proper  for  the  favorable  interposition 


1052  CALLENDER  V.   MARSH.  [ciLVr.  VL 

of  the  community  for  whose  benefit  the  individual  suffers,  the}'  do  not 
give  a  right  to  demand  indemnity,  by  virtue  of  the  above  cited  article 
in  the  Declaration  of  Rights. 

The  case  of  highways  or  public  streets  is  analogous  ;  when  rightfully 
laid  out,  they  are  to  be  considered  as  purchased  by  the  public  of  him 
who  owned  the  soil,  and  b}-  the  purchase  the  right  is  acquired  of  doing 
everything  with  the  soil  over  which  the  passage  goes,  which  ma}'  render 
it  safe  and  convenient ;  and  he  who  sells  may  claim  damages,  not  only 
on  account  of  the  value  of  the  land  taken,  but  for  the  diminution  of  the 
value  of  the  adjoining  lots,  calculating  upon  the  future  probable  reduc- 
tion or  elevation  of  a  street  or  road  ;  and  all  this  is  a  proper  subject 
for  the  inquiry  of  those  who  are  authorized  to  lay  out,  or  of  a  jury,  if 
the  parties  should  demand  one.  And  he  who  purchases  lots  so  situ- 
ated, for  the  purpose  of  building  upon  them,  is  bound  to  consider  the 
contingencies  which  may  belong  to  them. 

Cases  apparently  hard  will  occur ;  the  present  is  such  a  one.  The 
plaintiff's  house  has  been  standing  twenty  years,  and  he  had  reason  to 
expect,  that  in  any  contemplated  improvement  in  the  streets  his  lia- 
bility to  expense  would  have  been  attended  to  by  the  city  authorities, 
who,  had  they  forbidden  the  surveyor  to  proceed,  even  if  they  had  no 
legal  right  to  restrain  him,  would  have  exposed  him  to  an  opinion  of 
the  jury  that  his  proceedings  were  unnecessary  and  wanton,  and  so 
subjected  him  to  damages ;  but  there  being  no  such  interposition,  on 
the  contrary,  the  other  surveyors  having  concurred  in  the  act,  the 
committee  of  the  board  of  aldermen  knowing  and  approving  it,  it  is 
impossible  for  us  to  find  the  surveyor  guilty  of  a  wrong ;  it  not  being 
denied  that  the  acts  done  have  rendered  the  streets  more  safe  and  con- 
venient than  they  were  before.  It  may  be  a  case  very  suitable  for  the 
consideration  of  the  city  authorities,  whether  according  to  the  practice 
in  like  cases  of  improvements  designed  for  the  general  good  neces- 
sarily creating  expense  to  individuals,  some  fair  indemnity  ought  not 
to  be  allowed  ;  but  of  this  they  are  the  judges.  If  it  is  not  now  within 
tlie  authority  of  the  city  officers,  it  is  certainly  worthy  consideration, 
whether  an  application  to  the  legislature  ought  not  to  be  made,  to 
authorize  them  to  indemnify  those  citizens  who  may,  in  the  necessary 
exercise  of  powers  used  for  public  improvement  or  convenience,  be 
made  indirectly  to  contribute  an  undue  proportion  for  tliose  purposes ; 
and  there  seems  to  be  no  good  reason  why  others,  whose  property  is 
enhanced  in  value  at  their  neighbor's  expense,  should  not  be  held  to 
furnish  part  of  the  indemnity.  If  the  reducing  or  raising  of  streets 
which  have  been  laid  out  for  a  definite  number  of  years,  and  on  which 
houses  have  been  erected,  should  be  made  a  matter  of  adjudication, 
like  that  of  altering,  widening,  or  turning  a  street,  subject  to  the  same 
provision  for  damages,  the  mischief  would  be  cured  ;  for  although,  theo- 
retically, all  this  may  be  considered  as  determined  when  the  street  is 
originally  laid  out,  yet  practically  there  may  be  cases  where  this  just 
provision  has  been  overlooked. 


CHAP.  VI.]  CALLENDER  V.   MARSH.  1053 

We  do  not  find  in  any  of  the  cases  cited,  or  in  an}'  authorities  pre- 
sented to  our  consideration,  an3thing  which  impugns  the  opinion  we 
have  adopted.  The  passages  from  Dalton  onh-  show  that  the  law  in 
respect  to  highways  and  the  duty  and  power  of  survejors  is  nearly  the 
same  in  England  as  with  us.  Without  doubt  our  statutes  were  framed 
with  reference  to  the  common  law  and  statutes  of  England.  When- 
ever a  new  road  or  way  is  to  be  laid  out,  or  an  existing  one  enlarged 
or  widened,  provision  is  made  for  indemnity.  The  inquiry  of  damages 
on  a  writ  of  ad  quod  damnum,  or  by  jury  summoned  by  the  quarter 
sessions,  is  applicable  only  to  such  cases.  So  by  our  statutes  the  com- 
pensation is  given,  when  a  road  is  laid  out,  or  turned,  or  altered,  or 
discontinued,  but  in  no  other  case  ;  and  this  compensation  is  for  the 
land  taken,  or  for  the  immediate  expense  consequent  upon  the  act. 
Levelling  a  road  is  not  anywhere  found  to  be  considered  an  alteration 
of  it ;  nor  do  we  find  that  the  injury  it  may  produce  has  been  compen- 
sated, unless  it  be  in  the  case  of  Leader  v.  3Ioxon,  3  Wils.  461,  which 
case  is  spoken  of  with  disapprobation  by  Lord  Kenyon  and  Mr.  Justice 
Duller  in  a  subsequent  case  in  4  D.  &  E.  794,  and  the  principle  of  it 
overruled.  Lideed  in  a  report  of  the  same  case  by  Sir  W.  Blackstone, 
vol.  2,  p.  92G,  it  is  stated  that  the  commissioners  had  grossl}'  exceeded 
their  authority  ;  which  seems,  according  to  this  last  report,  to  have  been 
the  principal  ground  of  the  decision. 

We  can  perceive  no  difference  in  the  principle  on  which  this  action 
is  founded  and  that  which  was  involved  in  the  case  of  Thurston  v. 
Hancock,  12  Mass.  Rep.  220  ;  and  the  decision  in  that  case  was  ap- 
proved of  and  adopted  by  the  Supreme  Court  of  New  York  in  the  case 
of  Panton  v.  Holland,  17  Johns.  Rep.  100. 

That  it  might  be  proper  for  the  legislature,  by  some  general  Act,  to 
provide  that  losses  of  the  kind  complained  of  in  this  suit  should  be 
compensated  by  the  town  or  city  within  which  improvements  may  be 
made  for  the  public  good,  or  by  the  owners  of  land  which  ma}'  ])e  par- 
ticularly benefited,  is  not  for  us  to  deny  ;  but  without  such  legislative 
provision  we  have  no  authority  upon  the  subject,  it  being  clear  that  by 
the  common  law,  as  well  as  by  our  statutes,  the  defendant  in  this  action 
is  not  liable  to  damages.^  In  no  case  can  a  [)erson  be  liable  to  an  ac- 
tion as  for  a  tort,  for  an  act  which  he  is  authorized  by  law  to  do :  and 
as  the  statute  authorizes  surveyors  to  amend  roads  and  streets  by  dig- 
ging them  down  and  building  them  up  wheie  necessary,  the  legislature 
not  being  prohibited  by  the  Constitution  from  enacting  such  a  statute, 
we  think  the  defendant  is  entitled  to  judgment. 

Verdict  set  aside  and  a  nonsuit  entered.^ 

1  The  legislature  acted  upon  this  suggestion.  See  St.  Mass.  1825,  c.  171,  s.  5,  Mass. 
Rev.  St.  c.  43,  s.  14,  and  Pub.  St.  Mass.  c.  49,  s.  14.  — En. 

-  And  so  Woodbury  v.  Beverli/,  153  Mass.  245;  Proctor  v.  Stone,  158  Mass.  564 
(1893) ,  Mon.  Nav.  Co.  v.  Coons,  6  W.  &  S.  101,  109  (1843)  ;  Brookes  v.  Cedar  Brook 
Co ,  82  Me.  1  (1889) ;  Ravenstem  v.  N.  Y.  L.  c^:  W.  R.  Co.,  136  N.  Y.  528  (1893).  In 
Cit'i  Council  V.  Maddox,  89  Ala.  181  (1890),  the  effect  of  a  change  in  the  State  Con- 
stitution is  stated.  Compare  Transp.  Co.  v.  Chicago,  99  U.  S.  635;  8. C.  i'n/ra,  p.  looi- 
Randolph,  Em.  Dom.  §  398.  — Ed. 


1054  O'CONNOR  V.   PITTSBURGH.  [CHAP.  VI. 


O'CONNOR  V.   PITTSBURGH. 
Supreme  Court  of  Pennsylvania.     1851. 

[18  Pa.  187.] 

Error  to  the  District  Court  of  Allegheny  County. 

This  was  an  action  of  trespass  on  the  case,  brought  bj'  the  Right 
Reverend  Michael  O'Connor,  Roman  Catholic  Bishop  of  Pittsburgh,  for 
the  use  of  the  Roman  Catholic  congregation  of  St.  Paul's  Church,  Pitts- 
burgh V.  The  Mayor,  Aldermen,  and  Citizens  of  Pittsburgh. 

The  action  was  brought  to  November  Term,  1849,  in  the  court  below, 
to  recover  damages  from  the  city  of  Pittsburgh  for  injuries  done  to  the 
Cathedral,  by  cutting  down  Grant  and  Fifth  streets,  in  that  cit}-.  The 
bishop  held  the  title  of  the  property  in  trust  for  the  Roman  Catholic 
congregation  of  St.  Paul's  Church,  Pittsburgh.  .  .  . 

The  juiy  returned  a  verdict  on  two  of  the  counts  in  the  declaration  in 
favor  of  the  plaintiff  for  the  sum  of  $4,000  damages  ;  notwithstanding 
which  LowRiE,  J.,  subsequently  entered  judgment  on  a  reserved  ques- 
tion for  the  defendants.  .  .  . 

Error  was  assigned,  inter  alia,  to  the  entry  of  the  judgment. 

The  case  was  argued  by  McGandless  and  Loomis,  for  the  plaintiff  in 
error.     iLuhn,  for  the  cit}'. 

The  opinion  of  the  court,  filed  November  24,  1851,  was  delivered  by 

Gibson,  C.  J.  We  have  had  this  cause  re-argued  in  order  to  dis- 
cover, if  possible,  some  way  to  relieve  the  plaintiff  consistently  with 
law ;  but  I  grieve  to  say  we  have  discovered  none.  To  the  Common- 
wealth here,  as  to  the  king  in  England,  belongs  the  franchise  of  every 
highway  as  a  trustee  for  the  public ;  and  streets  regulated  and  repaired 
by  the  authorit}^  of  a  municipal  corporation  are  as  much  highwa3's  as 
are  rivers,  railroads,  canals,  or  public  roads  laid  out  by  the  authority  of 
the  quarter  sessions.  In  England  a  public  road  is  called  the  king's 
highway ;  and  though  it  is  not  usually  called  the  Commonwealth's 
highway  here,  it  is  so  in  contemplation  of  law,  for  it  exists  only  by 
force  of  the  Commonwealth's  authority.  Every  railroad,  canal,  turn- 
pike, or  bridge  company  has  its  franchise  by  grant  from  the  State,  and 
consequently  with  its  original  qualities  and  immunities  adhering  to  it. 
Every  highway,  toll  or  free,  is  licensed,  constructed,  and  regulated  b}' 
the  immediate  or  delegated  action  of  the  sovereign  power ;  and  in 
ever}'  Commonwealth  the  people  in  the  aggregate  constitute  the  sov- 
ereign. But  it  is  the  prerogative  of  a  sovereign  to  be  exempt  from 
coercion  by  action  ;  for  jurisdiction  implies  superiority,  and  a  sovereign 
can  have  no  superior.  At  the  declaration  of  American  independence, 
prerogatives  which  did  not  concern  the  person,  state,  and  dignity  of 
the  king,  but  such  as  had  been  held  by  him  in  trust  for  his  subjects, 
were  assumed  b}-  the  people  here  and  exercised  immediatel}'  b}^  them- 
selves ;  among  the  rest,  unwisely  I  think,  the  prerogative  of  refusing 


CHAP.  YL]  O'CONNOR  V.   PITTSBURGH.  1055 

to  do  justice  on  compulsion.  TLiat  a  suit  cannot  be  maintained  against 
the  State  without  its  consent,  is  shown  by  tlie  statute  which  enabled 
Pennsylvania  claimants  to  sue  the  State  for  the  value  of  the  lands  ceded 
to  Connecticut  claimants  within  the  seventeen  townships  in  Luzerne 
County.  But  this  prerogative  would  be  unavailing  if  it  could  not  protect 
the  agents  whom  the  Commonwealth  has  necessarily  to  employ.  It  was 
applied  to  the  protection  of  a  private  corporation  in  the  Moiiongahela 
XavigatioH  v.  Coons,  and  Henry  v.  The  Allegheny  Bridge  ;  in  which  it 
was  held  that  a  chartered  company  to  improve  the  navigation  of  a  pub- 
lic highway,  or  to  build  a  bridge,  is  not  answerable  for  consequential 
damages ;  "and  it  was  applied  to  the  protection  of  a  municipal  corpora- 
tion in  Green  v.  The  Borough  of  Reading,  The  Mmjor  v.  Randolph,  and 
the  Philadelphia  and  Trenton  Bail  road ;  to  which  may  be  added  every 
decision  on  the  subject  in  our  sister  States,  except  the  decisions  in 
Ohio,  which,  however  founded  in  natural  justice,  are  not  founded  in  the 
law  which  prevails  elsewhere. 

Yet  it  must  be  admitted  that,  while  it  is  inequitable  to  injure  the 
property  of  an  individual  for  the  benefit  of  the  many,  it  would  be  im- 
possible for  a  corporation  to  bear  the  pressure  of  successive  common- 
law  actions  for  the  continuance  of  a  nuisance,  each  verdict  being  more 
sevei-e  than  the  preceding  one.  The  modification  of  the  remedy  would 
be  for  the  legislature,  which  can  turn  compensation  for  a  permanent 
detriment  into  the  price  of  a  prospective  license  ;  but  to  attain  com- 
plete justice,  every  damage  to  private  property  ouglit  to  be  compen- 
sated by  the  State  or  corporation  that  occasioned  it,  and  a  general 
statutory  remedy  ought  to  be  provided  to  assess  the  value.  The  con- 
stitutional provision  for  the  case  of  private  property  taken  for  public 
use,  extends  not  to  the  case  of  property  injured  ov  destroyed;  but  it 
follows  not  that  the  omission  may  not  be  supplied  by  ordinary  legisla- 
tion. No  property  was  taken  in  this  instance  ;  but  the  cutting  down  ol 
■  the  street  consequent  on  the  reduction  of  its  grade  left  the  building 
useless,  and  the  ground  on  which  it  stood  worth  no  more  than  the 
expense  of  sinking  the  surface  of  it  to  the  common  level.  The  loss  to 
the  congregation  is  a  total  one,  while  the  gain  to  holders  of  property 
in  the  neighborhood  is  immense.  The  legislature  that  incorporated 
the  city  never  dreamt  that  it  was  laying  the  foundation  of  such  injus- 
tice ;  but,  as  the  charter  stands,  it  is  unavoidable. 

Judgment  affirmed} 

1  In  O'Brien  v.  Philadelphia,  150  Pa.  589  (1892),  in  a  like  case,  the  court, 
Sterrett,  J.,  said  :  "  If  any  regard  is  to  he  had  for  the  constitutional  mandate  [Const. 
1874,  Art.  xvi.  s.  8]  that  'municipal  and  other  corporations  .  .  .  shall  make  just  com- 
pensation  for  property  taken,  injured,  or  destroyed  by  the  construction  or  enlargement 
of  their  works,  highways,  or  improvements,'  we  are  at  a  loss  to  see  how  the  learned 
judge  could  do  otherwise  than  decide  the  reserved  question  as  he  did.  Nobody  con- 
versant  with  the  history  of  the  constitutional  provision  above  quoted  can  entertain  any 
doubt  that  it  was  intended  to  provide,  inter  aha,  for  the  class  of  cases  of  which  O'Con- 
nor V.  Pittsburgh,  18  Pa.  187,  is  a  conspicuous  example.  It  has  uniformly  been  so  re- 
garded from  the  date  of  its  adoption  until  the  present  time.  ...  In  Oijden  v.  Phila- 


1056  PEAUT  ET  AL.  V.   MEEKER.  [cHAP.  VL 

In  Peart  et  at  v.  Meeker  (45  La.  Ann.),  12  Southern  Rep.  490 
(1893),  in  reversing  a  judgment  for  the  plaintiff,  who  complained  of  the 
acts  of  the  defendant,  President  of  a  Levee  District,  in  locating  and  con- 
structing a  line  of  levee  on  the  Red  River,  the  court  (Fenmer,  J.)  said  : 
"  The  quantum  of  damages  is  admitted  between  the  parties,  and  the 

delphia,  143  Pa.  430,  the  claim  was  for  damages  caused  by  grading  North  Street. 
After  stating  that  the  undisputed  facts  were  '  that  the  first  grade  .  .  .  was  establislied 
on  the  city  plau  in  1871,  but  nothing  was  done  on  the  ground  until  1887,'  our  Brother 
Mitchell  says  .  '  For  the  establishment  of  the  grade  of  1871  there  was  no  right  of  action. 
O'Connor  v.  Pittsburgh,  18  Pa.  187;  Philadelphia  v.  Wright,  100  Pa.  235.  Therefore 
the  Statute  of  Limitation  could  not  begin  to  run  from  that  date.  But  the  Consti- 
tution of  1874,  Article  xvi.  s.  8,  gave  a  right  to  owners  to  have  compensation  for  prop- 
erty injured,  as  well  as  for  property  taken  by  municipal  and  other  corporations  iu  the 
construction  or  enlargement  of  their  works. '  " 

In  Smith  v.  Washington,  20  How.  13.5,  148  (1857),  the  defendant  city  was  sued  in  an 
action  on  the  case  to  recover  damages  for  an  alteration  of  the  grade  of  the  street  on 
which  the  plaintiff  had  his  dwelling-house  In  sustaining  a  judgment  of  the  Circuit 
Court  of  the  United  States  for  the  District  of  Columbia  in  favor  of  the  defendant,  the 
court  (Grier,  J.)  said:  "  Having  performed  this  trust,  confided  to  them  by  the  law, 
according  to  the  best  of  their  judgment  and  discreti6n,  without  exceeding  the  jurisdic- 
tion and  authority  vested  in  them  as  agents  of  the  public,  and  on  laud  dedicated  to 
public  use  for  the  purposes  of  a  highway,  they  have  not  acted  '  unlawfully  or  wrong- 
fully,' as  charged  in  the  declaration.  They  have  not  trespassed  on  the  plaintiff's  prop- 
erty, nor  erected  a  nuisance  injurious  to  it,  and  are,  consequently,  not  liable  to 
damages  where  they  have  committed  no  wrong,  but  have  fulfilled  a  duty  imposed  on 
them  by  law  as  agents  of  the  public.  The  plaintiff  may  have  suffered  inconvenience 
and  been  put  to  expense  in  consequence  of  such  action ;  yet,  as  the  act  of  defendants 
is  not  '  unlawful  or  wrongful,'  they  are  not  bound  to  make  any  recompense.  It  is 
what  the  law  styles  damnum  absque  injuria.  Private  interests  must  yield  to  public 
accommodation  ;  one  cannot  build  his  house  on  the  top  of  a  hill  in  the  midst  of  a  city, 
and  require  the  grade  of  the  street  to  conform  to  his  convenience  at  the  expense  of 
that  of  the  public.  The  law  on  this  subject  is  well  settled,  both  in  England  and  this 
country.  The  cases  are  too  numerous  for  quotation ;  a  reference  to  one  or  two 
more  immediately  applicable  to  the  questions  arising  in  this  case  will  be  sufficient. 

"  In  Callender  v.  Marsh,  1  Pick.  417,  the  defendant,  as  surveyor  of  the  highways, 
was  charged  with  digging  down  a  street  in  Boston,  so  as  to  lay  bare  the  foundations 
of  plaintiff's  house,  and  endanger  its  falling.  The  authority  under  wliich  he  acted  was 
given  by  a  statute  which  required  '  that  all  highways,  townways,  etc.,  should  be  kept  in 
repair  and  amended  from  time  to  time,  that  the  same  may  be  safe  and  convenient  for 
travellers.'  '  This  very  general  and  exclusive  authority,'  say  the  court, '  would  seem  to 
include  everything  which  may  be  needed  towards  making  the  ways  perfect  and  com- 
plete, either  by  levelling  them  where  they  are  uneven  and  difficult  of  a.scent,  or  raising 
them  where  they  should  be  sunken  and  miry.'  It  was  held,  also,  that  the  law  does 
not  give  a  right  to  compensation  for  an  indirect  or  consequential  damage  or  expense, 
resulting  from  a  right  use  of  property  belonging  to  the  public. 

"  In  Green  v.  The  Borough  of  Reading,  9  Watts,  282,  the  defendants,  by  virtue 
of  their  authority  to  '  improve  and  repair,'  graded  the  street  in  front  of  plaintiff's 
house  five  feet  higher  than  it  had  been  before,  and  it  was  held  that  the  corporation 
was  not  liable  to  an  action  for  any  consequential  injury  to  plaintiff's  property  by 
reason  of  such  improvement  or  change  of  grade  in  the  public  street. 

"In  the  case  of  O'Connor  v.  Pittsburgh,  18  Penn.  Rep.  187,  a  church  had  been  built 
according  to  the  direction  of  the  city  regulator,  and  by  a  grade  established  in  1829. 
Afterwards,  in  pursuance  of  an  ordinance,  the  grade  of  the  street  was  reduced  seven- 
teen feet ;  the  church  had  to  be  taken  down  and  rebuilt  on  a  lower  foundation,  at  a 
damage  of  $4,000.    The  authority  given  to  the  city  was  '  to  improve,  repair,  and  keep 


CHAP.  VI.]  PEART  ET   AL.   V.   MEEKER.  1057 

sole  question  before  us  is  the  legal  liability  of  defendant.  Whatever 
ma}'  be  the  law  elsewhere,  we  consider  the  law  of  Louisiana  too  well 
settled  to  admit  of  further  dispute  to  the  following  effect :  That  under 
article  665  of  our  Civil  Code  ripa,rian  property  on  navigable  rivers  in 
this  State  is  subject  to  a  servitude  or  easement  imposed  by  law  for  the 
public  or  common  utility,  authorizing  the  appropriation  by  the  govern- 
ment, under  proper  laws,  of  the  space  required  for  the  making  and 
repairing  of  levees,  roads,  and  other  public  works ;  that  the  State  is 
charged  with  the  administration  of  this  public  servitude  ;  that  in  locat- 
ing and  building  levees  she  does  not  expropriate  the  property  of 
the  citizen,  but  lawfully  appropriates  it  to  a  use  to  which  it  is  subject 
under  the  title  itself;  that  in  so  doing  she  acts,  not  under  the  power  of 
eminent  domain,  but  in  the  exercise  of  the  police  power ;  that  laws, 
constitutional  or  statutory,  concerning  the  expropriation  of  private 
property  for  public  use,  and  requiring  adequate  compensation  therefor, 
have  no  application  to  property  legitimately  required  for  levee  purposes, 
and  that  private  injury  resulting  from  the  legitimate  exercise  of  this 
legal  right  is  damynun  absque  injuria,  to  which  the  individual  must 
submit  as  a  sacrifice  to  the  public  safet}'  and  welfare.  Huch  v.  City  of 
Neiv  Orleans,  43  La.  Ann.  275,  9  South.  Rep.  473  ;  Bass  v.  State,  34 
La.  Ann.  494 ;  State  v.  Maginnis,  26  La.  Ann.  558  ;  Cash  v.  Whit- 
imrth,  13  La.  Ann.  401  ;  Duhose  v.  Commissioners,  11  La.  Ann.  165  ; 
Police  Jury  Y.  Bozman,  11  La.  Ann.  94;  Zenory.  Concordia,  7  La. 
Ann.  150.  It  is  useless  to  quote  from  these  decisions.  They  are 
familiar  to  the  profession,  and  their  tenor,  as  above  stated,  is  unam- 
biguous, harmonious,  and  emphatic.  They  were  rendered  under  the 
regime  of  constitutions  which  prohibited  the  taking  of  private  property 
for  public  purposes  without  compensation;  and,  however  broad  and 
emphatic  may  be  the  same  prohibition  in  our  existing  constitution,  it 
had  not  either  the  intention  or  effect  to  repeal  Article  665  of  the  Civil 
Code,  or  to  bring  within  its  grasp  the  lawful  appropriation  of  property 
for  levee  purposes.  On  the  contrary,  the  Constitution  itself  charges 
the  General  Assembly  with  the  duty  of  maintaining  a  levee  system, 
authorizes  the  creation  of  levee  districts  under  the  administration  of  com- 
missioners to  be  appointed  or  elected,  and  grants  specified  powers  of  tax- 
ation for  this  purpose.  Const,  arts.  213-216.  In  the  execution  of  these 
powers  and  duties,  the  Red  River,  Atchafalaya  &  Bayou  Boeuf  Levee 
District  was  created  by  Act  79  of  1890,  amended  and  re-enacted  by  Act 
46  of  1892,  and  the  defendant  commissioners  were  appointed.  .  .  . 
The  Constitution  itself  (Article  214),  in  authorizing  the  appointment  of 
commissioners  for  levee  districts,  expressly  declares  that  they  '  shall  in 

in  order  the  streets,'  etc.  The  court  say,  '  "We  had  this  case  re-argued  in  order  to  dis- 
cover, if  possible,  some  way  to  relieve  the  plaintiff  consistently  with  law,  but  grieve 
to  say  we  can  find  none.  The  law  is  settled,  not  only  in  Pennsylvania,  but  by  every 
decision  in  the  sister  States,  except  one.' 

"  We  are  of  opinion,  therefore,  that  the  instructions  given  by  the  court  below  on 
these  points  were  correct,  and  affirm  their  judgment."  —  Ed. 
VOL.  I. —67 


1058  PEART    ET    AL.   V.    xMEEKER.  [CHAP.  VI. 

the  method  and  manner  to  be  provided  by  law,  have  supervision  of  the 
erection,  repair,  and  maintenance  of  the  levees  in  said  districts.' 
These  commissioners  were  therefore  bound,  under  an  express  constitu- 
tional mandate,  to  exercise  their  functions  exclusively  '  in  the  method 
and  manner '  prescribed  by  law.  /The  law  confined  their  powers  to  the 
construction,  maintenance,  and  repair  of  such  levees  only  as,  '  in  the 
opinion  of  the  Board  of  State  Engineers,  will  protect  said  levee  district 
from  overflow,'  and  further  devolves  upon  the  State  Engineers  the 
exclusive  authority  and  duty  '  to  survey  and  locate,  repair  or  remove 
and  change  all  levees,'  and  further  charges  said  engineers  with  the  full 
'  responsibility  of  all  such  location.' 

"  Tlie  evidence  in  the  case  fully  establishes  that  the  levee  complained 
of  is  built  on  the  line  surveyed,  located,  approved  by  the  State  Engi- 
neers. .*.  .  What  was  the  board  to  do?  The  levee  was  an  impor- 
tant one,  involving  the  protection  of  an  extensive  region  from  over- 
flow. Under  the  mandates  of  law  above  referred  to  its  dut}-  was 
clear  and  manifest  to  build  the  levee  on  the  line  located  by  the  State 
Engineers,  who  are  charged  with  the  authority,  dut3',  and  responsibility 
of  making  such  location.  It  is  difllcult  to  understand  how  this  corpora- 
tion can  incur  liability  for  performing  the  plain  duty  imposed  on  it  by 
law,  or  how,  in  any  event,  the  corporate  funds  could  be  used  in  satis- 
faction of  such  liabilitjv "^Tt  is  clear  that  the  commissioners,  even  if 
they  desired  to  do  so,  could  not,  under  section  11,  devote  the  corpo- 
rate funds  to  the  satisfaction  of  plaintiff"s  claim,  without  violating  the 
law,  and  the  judicial  power  could  not  be  invoked  to  compel  them  to  vio- 
late the  law.  To  hold  otherwise  would  be  to  authorize  such  oflScers  to 
create  unwarranted  debts  against  this  corporation,  which  is  a  mere 
functionary  of  the  State,  and  for  their  payment  to  divert  public  funds 
from  the  purposes  to  which  they  are  lawfully  and  exclusively'  dedicated. 
AYhatever  be  the  rights  of  plaintiff,  and  whatever  be  her  remedies  for 
their  vindication,  the  latter  cannot  possibly  take  the  shape  of  an  action 
of  damages  against  this  corporation.  The  law  under  which  the  oflScers 
of  this  corporation  and  the  State  Engineers  have  acted  is  a  valid  law, 
and  nothing  done  in  the  proper  execution  of  its  mandates  can  give  rise 
to  any  action  of  damages.  If  such  an  action  exists,  it  must  arise  from 
acts  of  these  officers  in  violation  of  the  authority  conferred  upon  them. 
This  brings  the  case  within  the  dilemma  propounded  in  Bass'  Case, 
where  we  said  :  '  The  dilemma  seems  irresistible  :  Either  the  Board  of 
Engineers,  the  public  agents  of  the  State,  have  acted  within  the  scope 
of  their  mandate  and  authorit}',  or  they  have  not.  If  they  have,  then, 
as  the}'  have  carried  out  a  valid  law,  neither  they  nor  the  State  can  be 
held  responsible.  If  they  have  acted  beyond  that  scope,  their  principal 
cannot  be  made  responsible  for  their  unauthorized  act,  and  they  alone 
are  chargeable.'  J^ass  v.  State,  34  La.  Ann.  494.  For  the  reasons 
heretofore  indicated  we  think  the  corporate  liability  of  this  levee  district 
is  governed  by  the  same  rules  which  apply  to  the  State  herself.  If 
there  is  any  liability  for  damages  it  rests  on  the  ofllcers  individually 


CHAP.  VI.]  PEART  ET  AL.  V.    MEEKER.  1059 

who  have  acted  in  excess  of  their  authority,  and  under  the  law  in  this 
case    which  we  have  heretofore  quoted,  it  seems  quite  clear  that,  as 
between  tliese  commissioners  and  the  State  Engineers,  the  hitter  alone 
would  be  charged  with  whatever  responsibility  might  result  from  the 
improper  location   of  the  levees.     We  need  not  advert  to  the  strong 
shield  of  protection  which  the  law  extends  over  public  officers  charged 
with  discretionarv  duties,  and  which  exempts  them  from  liabihty  for 
honest  errors,  and  except  in  clear  cases  of  oppression  and  injustice; 
and  it  is  only  proper  to  say  that  nothing  in  this  record  indicates  any 
but  honest  motives  and  conscientious  action  on  the  part  of  all  the  ixibiic 
officers  concerned.     It  is  undoubtedly  the  duty  of  the  public  officers 
charcred  by  the  State  with  the  execution  of  its  police  power,  to  make  no 
crrearer  sacrifice  of  private  rights  than  the  public  welfare  demands.     In 
several  cases  this  court  has  said  that  power  so  conferred  is  not  arbitrary, 
and  that  the  citizen  is  not  without  remedy  to  subject  it  to  judicial  con- 
trol in  proper  cases.     We  are  not  called  upon  in  this  case  to  consider 
this  question  further  than  to  say  that  the  present  action  of  damages 
a-ainst  this  levee  district  is  not  an  appropriate  remedy,  and  cannot  be 
sustained      It  is  therefore  decreed  that  the  judgment  appealed  from 
be  reversed,  and  that  plaintiff's  demand  be  rejected,  at  her  costs    in 
both  courts."  ^ 

1  The  exact  scope  and  limitations  of  property  rights  "^^y- «^^«"'-«^' f  JfJ^  ™^*^; 
riallv  in  different  States.  Compare  the  doctrine  of  the  Appropriation  of  Water,  m 
Jhe  Padfi  and  adjacent  States,  ty  which  a  permanent  right  to  runumg  wa  er,  even  as 
atin^t  riparian  oiners,  is  acpiirVl  by  actual  prior  appropriation  to  mm^ng  or  any 
oUier  useful  purposes      See  Black's  edition  of  Pomeroy's  W  ater  Rights 

l"  mL  v.  Lharr,  2  Idaho,  716,  720  (1890),  Beattv,  C.  J    for  the  court,  said: 
"  The  important  question,  for  the  settlement  of  which  this  appeal  was  chiefly  brought 
is  wha    i    any,  rU^hts  the  appellant  has  to  any  of  that  water  as  a  riparian  propne  o  • 
Hi!    aim  is  /ot  based  upon  prior  or  any  appropriation  under  our  territorial  laws  bu 
upm  the  fact  that  the  sTream  in  question  flows  by  its  natural  channel  through  J 
Lnds  ■  hence  that  he  is  entitled  to  the  use  thereof  allowed  by  the  common  law.     This 
doc    ine  of     iparian  proprietorship   in  water  as  against  prior  appropriation  has  been 
very  often  diseased.  Lulnearly  always  decided  the  same  way  by  almost  every  appel- 
ate court  between  Mexico  and  the  Biitish  possessions  and  from  tl-^horesof  daePac  fie 
to  the  eastern  slope  of  the  Rocky  mountains,  as  well  as  by  the  Supreme  Court  of  the 
Un' ted  Static      But  for  the  fact  that  it  has  elsewhere  repeatedly  appeared  m  the  same 
Jourt,  it  would  seem  surprising  that  it  should  now  be  seeking  another  -  "Jion  m  this 
While  there  are  questions  growing  out  of  the  water  laws  and  rights  not  fully  ad  udi 
cat  d  this  phantom  of  riparian  rights,  based  upon  facts  like  tho.se  in  this  case,  has  been 
so  often  decided  adversely  to  such  claim,  and  in  favor  of  the  prior  appropria  ion  that 
h^maxm,' first  in  time,  first  in  right,'   should  be  considered  the  settled  law  here. 
meSo^not  it  is  a  beneficent  rule,  it  isthe  lineal  descendant  of  the  law  of  necessi^^y^ 
When    from   among   the   most  energetic  and  enterprising  classes  of    he  ea.t,  that 
elormous    ide  of  enfigration  poured  into  the  west,  this  was  found  an  arid  land,  which 
:  Id  be  utilized  as  an  agricultural  country,  or  made  valuable  for  its  ^f ;  -^>-  ^^^^ 
n^P  of  its  streams  of  water.     The  new  inhabitants  were  without  law,  but  they  q"ic^'.V 
;:  o/ni  ed    haHach  u,an  should  not  be  a  law  unto  himself.     Accustomed,  as  they  had 
been  to  obedience  to  the  laws  they  had  helped  make,  as  the  settlements  increa  ed  to 
Lhln^ies  a    justified  organization,  they  established  their  local  customs  and  rules 
o     hergo'^rnment  in  the  use  of  water  and  land.     They  found  a  new  condition  of 
Hi  's     The  u  e  of  water  to  which  they  had  been  accustomed,  and  the  laws  conoeru- 


1060  PUMPELLY   V.   GREEN   BAY   COMPANY.  [CHAP.  VI. 


PUMPELLY  V.   GREEN   BAY  COMPANY. 
Supreme  Court  of  the  United  States.     1871. 

[13  Wall.  166.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Wisconsin  ;  the  case  being  thus  : 

The  Constitution  of  Wisconsin  ordains  that  "  the  property  of  no  per- 
son shall  be  taken  for  public  use  without  just  compensation  therefor." 

With  this  provision  in  force  as  fundamental  law,  one  Pumpelly,  in 
September,  1867,  brought  trespass  on  the  case  against  the  Green  Ba}- 
and  Mississippi  Canal  Co.  for  overflowing  640  acres  of  his  land  b}' 
means  of  a  dam  erected  across  Fox  River,  the  northern  outlet  of  Lake 
Winnebago,  b}-  which,  as  the  declaration  averred,  the  waters  of  the 
lake  were  raised  so  high  as  to  forcibl}'  and  with  violence  overflow  all 
his  said  land,  from  the  time  of  the  completion  of  the  dam  in  1861  to 
the  commencement  of  this  suit ;  the  water  coming  with  such  a  vio- 
lence, the  declaration  averred,  as  to  tear  up  his  trees  and  grass  by  the 
roots,  and  wash  them,  with  his  hay  b^-  tons,  away,  to  choke  up  his  drains 
and  fill  up  his  ditches,  to  saturate  some  of  his  lands  witi)  water,  and  to 

ing  it,  had  no  application  here.  The  demand  for  water  thev  found  greater  than  the 
supph",  as  is  the  uufurtuuate  fact  still  all  over  this  arid  region.  Instead  of  attempting 
to  divide  it  among  all,  thus  making  it  unprofitable  to  any,  or  instead  of  applying  the 
common-law  rijmrian  doctrine,  to  which  they  had  been  accustomed,  they  disregarded 
the  traditions  of  the  past,  and  established  as  the  only  rule  suitable  to  their  situation 
that  of  'prior  appropriation^  This  did  not  mean  that  the  first  appropriator  could  take 
all  he  pleased,  but  what  he  actually  needed,  and  could  properly  use  without  waste. 
Thus  was  established  the  local  custom,  which  pervaded  the  entire  west,  and  became 
the  basis  of  the  laws  we  have  to-day  on  that  subject.  Very  soon  these  customs 
attracted  the  attention  of  the  legislatures,  where  they  were  approved  and  adopted,  and 
next  we  find  them  undergoing  the  crucial  test  of  judicial  investigation.  As  far  back 
as  1855,  the  Supreme  Court  of  California,  in  Irwm  v.  Phillips,  5  Cal.  145,  and  in 
Tartar  v.  Mining  Co.,  Id.  397,  distinctly  held  that  the  prior  appropriator  of  water 
sliould  hold  it  against  the  riparian  claim  of  the  owner  of  land  through  which  it  flowed, 
and,  also,  that  in  all  branches  of  industry  the  prior  appropriator  of  land,  water,  and 
easements  would  be  protected  Not  only  had  such  become  the  law  by  custom,  by  the 
legislative  will,  and  the  decisions  of  the  courts,  without  dissent,  but  the  general  gov- 
ernment, for  many  years,  without  protest,  acquiesced  in  such  occupation  and  use  of  its 
lands  and  waters  by  its  citizens,  while  valuable  properties  and  industries  were  building 
upon  this  principle.  To  put  the  question  beyond  uncertainty,  to  approve  and  adopt 
what  already  existed  as  the  common  law  of  the  west,  the  Congress,  by  its  Act  of  July 
26,  1866,  §  9,  provided  '  that  whenever,  by  priority  of  possession,  rights  to  the  use  of 
water  for  mining,  agriculture,  manufacturing,  or  other  purposes  have  vested  and 
accrued,  and  the  same  are  recognized  and  acknowledged  by  the  local  customs,  laws, 
and  the  decisions  of  courts,  the  possessors  and  owners  of  such  vested  rights  shall  be 
maintained  and  protected  in  the  same.'  It  will  be  observed  that  the  act  is  based  upon 
the  existence  of  local  customs,  laws,  and  decisions  of  courts.  It  is  not  necessary  that 
all  these  conditions  shall  exist  for  the  protection  of  the  right ;  but,  as  held  in  Baseij 
v.  Gallaqher,  20  Wall.  684,  the  existence  of  either  condition  is  sufficient." 

Compare  Stoivell  v.  Johnson  et  al.,  7  Utah  215,  Strickler  v.  Col.  Springs,  25  Pac.  Rep. 
(Col.)  313. —  Ed. 


CHAP.  VI.]  PUMPELLY  V.   GREEN   BAY   COMPANY.  1061 

dirt}'  and  injure  other  parts  b}'  bringing  and  leaving  on  them  deposits 
of  sand,  and  otherwise  greatly  injuring  him.  The  canal  company 
pleaded  six  pleas,  of  which  the  second  was  the  most  important,  but  of 
which  the  fourth  and  sixth  may  also  be  mentioned. 

This  second  plea  was  divisible,  apparently,  into  two  parts. 

The  first  part  set  up  (quoting  it  entire)  a  statute  of  Wisconsin  Ter- 
ritorv,  approved  March  10th,  1848,  by  which  one  Curtis  Reed  and  his 
associates  were  authorized  to  construct  a  dam  across  Fox  River,  the 
northern  outlet  of  Winnebago  Lake,  to  enable  them  to  use  the  waters 
of  the  river  for  hydraulic  purposes.  .  .  . 

A  general  demurrer  to  these  three  pleas  being  overruled  by  the 
court,  the  plaintiff  brought  the  case  here. 

Jlessrs.  B.  J.  Stevens  and  H.  L.  Palmer,  in  support  of  the  ruling 
below. 

Messrs.  J.  M.  Gillet  and  D.  Taylor,  contra. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court.  .  .  . 

As  we  are  of  opinion  that  the  statute  did  not  authorize  the  erection  of 
a  dam  which  would  raise  the  water  of  the  lake  above  the  ordinal'}-  level, 
and  as  the  plea  does  not  deny  that  the  dam  of  the  defendant  did  so 
raise  the  water  of  the  lake,  we  must  hold  that,  so  far  as  the  plea  relies 
on  this  statute  as  a  defence,  it  is  fatally  defective. 

But  this  same  plea  further  alleges  that  the  legislature  of  Wisconsin, 
after  it  became  a  State,  projected  a  system  of  improving  the  navigation 
of  the  Fox  and  Wisconsin  rivers,  which  adopted  the  dam  of  Reid  and 
Dot}',  then  in  process  of  construction,  as  part  of  that  system  ;  and  that, 
under  that  Act,  a  board  of  public  works  was  established,  which  made 
such  arrangements  with  Reid  and  Doty  that  the}'  continued  and  com- 
pleted the  dam ;  and  that  by  subsequent  legislation,  changing  the 
organization  under  which  the  work  was  carried  on,  the  defendants 
finally  became  the  owners  of  the  dam,  with  such  powers  concerning  the 
improvement  of  the  navigation  of  the  river  as  the  legislature  could  con- 
fer in  that  regard.  But  it  does  not  appear  that  any  statute  made  pro- 
vision for  compensation  to  the  plaintiff,  or  those  similarly  injured,  for 
damages  to  their  lands.  So  tliat  the  plea,  as  thus  considered,  presents 
substantially  the  defence  that  the  State  of  Wisconsin,  having,  in  the 
progress  of  its  system  of  improving  the  navigation  of  the  Fox  River, 
authorized  the  erection  of  the  dam  as  it  now  stands,  without  any  pro- 
vision for  compensating  the  plaintiff  for  the  injury  which  it  does  him, 
the  defendant  asserts  the  right,  under  legislative  authority,  to  build  and 
continue  the  dam  without  legal  responsibility  for  those  injuries. 

And  counsel  for  the  defendant,  with  becoming  candor,  argue  that 
the  damages  of  which  the  plaintiff  complains  are  such  as  the  State  had 
a  right  to  inflict  in  improving  the  navigation  of  the  Fox  River,  without 
making  any  compensation  for  them. 

This  requires  a  construction  of  the  Constitution  of  Wisconsin ;  for 
though  the  Constitution  of  the  United  States  provides  that  private 
property  shall  not  be  taken  for  public  use  without  just  compensation,  it 


1062  PUMPELLY   V.    GREEN    BAY    COMPANY.  [cHAP.  YI. 

is  well  settled  that  this  is  a  limitation  on  the  power  of  the  Federal  gov- 
ernment, and  not  on  the  States.  The  Constitution  of  Wisconsin,  how- 
ever, has  a  provision  almost  identical  in  language,  viz.,  that  "  the 
property  of  no  person  shall  be  taken  for  public  use  without  just  compen- 
sation therefor."  ^  Indeed  this  limitation  on  the  exercise  of  the  right  of 
eminent  domain  is  so  essentially  a  part  of  American  constitutional  law 
that  it  is  believed  that  no  State  is  now  without  it,  and  the  only  question 
that  we  are  to  consider  is  whether  the  injur}'  to  plaintiff's  property,  as 
set  forth  in  his  declaration,  is  within  its  protection. 

The  declaration  states  that,  by  reason  of  the  dam,  the  water  of  the  lake 
was  so  raised  as  to  cause  it  to  overflow  all  his  land,  and  that  the  over- 
flow remained  continuously  from  the  completion  of  the  dam,  in  the  year 
1861,  to  the  commencement  of  the  suit  in  the  3'ear  18G7,  and  the  nature 
of  the  injuries  set  out  in  the  declaration  are  such  as  show  that  it  worked 
an  almost  complete  destruction  of  the  value  of  the  laud. 

The  argument  of  the  defendant  is  that  there  is  no  taking  of  the  land 
within  the  meaning  of  the  constitutional  provision,  and  that  the  damage 
is  a  consequential  result  of  such  use  of  a  navigable  stream  as  the  gov- 
ernment had  a  right  to  for  the  improvement  of  its  navigation. 

It  would  be  a  very  curious  and  unsAtisfactorj'  result,  if  in  construing 
a  provision  of  constitutional  law,  alvyays  understood  to  have  been 
adopted  for  protection  and  securit}'  to  the  rights  of  the  individual  as 
against  the  government,  and  which  has  received  the  commendation  of 
jurists,  statesmen,  and  commentators  as  placing  the  just  principles  of 
the  common  law  on  that  subject  beyond  the  power  of  ordinary  legisla- 
tion to  change  or  control  them,  it  shall  be  held  that  if  the  government 
refrains  from  the  absolute  conversion  of  real  property  to  the  uses  of 
the  public  it  can  destro}'  its  value  entirely,  can  inflict  irreparable  and 
permanent  injury  to  an}'  extent,  can,  in  effect,  subject  it  to  total  de- 
struction without  making  an}'  compensation,  because,  in  the  narrowest 
sense  of  that  word,  it  is  not  taken  for  the  public  use.  Such  a  construc- 
tion would  pervert  the  constitutional  provision  into  a  restriction  upon 
the  rights  of  the  citizen,  as  those  rights  stood  at  the  common  law, 
instead  of  the  government,  and  make  it  an  authority  for  invasion  of 
private  right  under  the  pretext  of  the  public  good,  which  had  no  war- 
rant in  the  laws  or  practices  of  our  ancestors,  .  .  . 

[Here  follows  a  statement  of  Sinnickson  v.  Johnson,  2  Harrison, 
129  ;  and  Gardner  v.  Newburgh,  2  Johns.  Ch.  162  {ante,  pp.  979  and 
986,  with  quotations  from  them.] 

If  these  be  correct  statements  of  the  limitations  upon  the  exer- 
cise of  the  right  of  eminent  domain,  as  the  doctrine  was  understood 
before  it  had  the  benefit  of  constitutional  sanction,  by  the  construction 
now  sought  to  be  placed  upon  the  Constitution  it  would  become  an 
instrument  of  oppression  rather  than  protection  to  individual  rights. 

But  there  are  numerous  authorities  to  sustain  the  doctrine  that  a 

1  See  supra,  p.  956,  note.  —  Ed. 


CHAP.  YI.]  PUMPELLY   V.   GREEN   BAY   COMPANY.  1063 

serious  interruption  to  the  common  and  necessar}-  use  of  property  may 
bej.  fnThe  language  of  Mr.  Angell,  in  his  work  on  water-courses,  equiv- 
alent to  the  taking  of  it,  and  that  under  the  constitutional  provisions  it 
is  not  necessar}'  that  the  land  should  be  absolutely  taken.  Angell  on 
Water-courses,  §  4G5  a ;  Hooker  v.  New  Haven  and  Northampton 
Co.,  14  Connecticut,  146  ;  Howe  v.  Granite  Bridge  Co.,  21  Pickering, 
344;  Canal  Appraisers  v.  The  People.,  17  Wendell,  604;  Lackland 
V.  North  3Iissoiiri  Railroad  Co.,  31  Missouri,  180  ;  Stevens  v.  Pro- 
prietors of  Middlesex  Canal,  12  Massachusetts,  466.  And  perhaps 
no  State  court  has  given  more  frequent  utterance  to  the  doctrine  that 
overflowing  land  by  backing  water  on  it  from  dams  built  below  is  within 
the  constitutional  provision  than  that  of  Wisconsin.  In  numerous  cases 
of  this  kind  under  the  Mill  and  Mill-dam  Act  of  that  State  this  question 
has  arisen,  and  the  right  of  the  mill-owner  to  flow  back  the  water  has 
been  repeatedly  i)laced  on  the  ground  that  it  was  a  taking  of  private 
property  for  public  use.  It  is  true  that  the  court  has  often  expressed 
its  doubt  whether  the  use  under  that  Act  was  a  public  one,  within  the 
meaning  of  the  Constitution,  but  it  has  never  been  doubted  in  an}'  of 
those  cases  that  it  was  such  a  taking  as  required  compensation  under 
the  Constitution.  Pratt  v.  Brown,  3  Wisconsin,  613  ;  Walker  v. 
Shepardson,  4  Id.  511;  Fisher  v.  Horicon  Iron  Co.,  10  Id.  353; 
Newell  V.  Smith,  15  Id.  104  ;  Goodall  v.  City  of  Milwaukee,  5  Id.  39  ; 
Weeks  v.  City  of  Milvmukee,  10  Id.  242.  As  it  is  the  Constitution  of 
that  State  that  we  are  called  on  to  construe,  these  decisions  of  her 
Supreme  Court,  that  overflowing  land  by  means  of  a  dam  across  a 
stream  is  taking  private  property,  within  the  meaning  of  tliat  instru- 
ment, are  of  special  weight  if  not  conclusive  on  us.  And  in  several  of 
these  cases  the  dams  were  across  navigable  streams. 

It  is  difficult  to  reconcile  the  case  of  Alexa?ider  v.  3filwaukee,  16 
Wisconsin,  248,  with  those  just  cited,  and  in  its  opinion  the  court 
seemed  to  feel  the  same  difficulty.  They  assert  that  the  weight  of 
authority  is  in  favor  of  leaving  the  party  injured  without  remed}'  when 
the  damage  is  inflicted  for  the  public  good,  and  is  remote  and  conse- 
quential. There  are  some  strong  features  of  analogy  between  that  case 
and  this,  but  we  are  not  prepared  to  say,  in  the  face  of  what  the  Wis- 
consin Court  had  previously  decided,  that  it  would  hold  the  case  before 
us  to  come  within  the  principle  of  that  case.  At  all  events,  as  the 
court  rests  its  decision  upon  the  general  weight  of  authority  and  not 
upon  anything  special  in  the  language  of  the  Wisconsin  bill  of  rights, 
we  feel  at  liberty  to  hold  as  we  do  that  the  case  made  by  the  plaintiflTs 
declaration  is  within  the  protection  of  the  constitutional  principle 
embodied  in  that  instrument. 

We  are  not  unaware  of  the  numerous  cases  in  the  State  courts  in 
which  the  doctrine  has  been  successfull}'  invoked  that  for  a  consequen- 
tial injury  to  the  property  of  the  individual  arising  from  the  prosecution 
of  improvements  of  roads,  streets,  rivers,  and  other  highways,  for  the 
public  good,  there  is  no  redress  ;  and  we  do  not  deny  that  the  principle 


1064  EATON   V.    BOSTON,   CON  CORD,    ETC.    RAILROAD.       [CHAP.  VI 

is  a  sound  one,  in  its  proper  application,  to  man}-  injuries  to  property' 
so  originating.  And  when,  in  the  exercise  of  our  duties  here,  we  shall 
be  called  upon  to  construe  other  State  constitutions,  we  shall  not  be 
unmindful  of  the  weiglit  due  to  the  decisions  of  the  courts  of  those 
States.  But  we  are  of  opinion  that  the  decisions  referred  to  have  gone 
to  the  uttermost  limit  of  sound  judicial  construction  in  favor  of  this 
\  principle,  and,  in  some  cases,  beyond  it,  and  that  it  remains  true  that 
where  real  estate  is  actually  invaded  by  superinduced  additions  of 
water,  earth,  sand,  or  other  material,  or  b}^  having  an}'  artificial  struc- 
ture placed  on  it,  so  as  to  effectually  destroy  or  impair  its  usefulness, 
it  is  a  taking,  within  the  meaning  of  the  Constitution,  and  that  this 
proposition  is  not  in  conflict  with  the  weight  of  judicial  authority  in 
this  country,  and  certainly  not  with  sound  principle.  Beyond  this  we 
do  not  go,  and  this  case  calls  us  to  go  no  further. 

We  are,  therefore,  of  opinion  that  the  second  plea  set  up  no  valid 
defence,  and  that  the  demurrer  to  it  should  have  been  sustained. 

[A  discussion  of  the  fourth  and  sixth  pleas  is  omitted,  as  not  ma- 
terial to  the  subject  in  hand.] 

Judgment  reversed,  and  the  case  remanded  to  the  Circuit  Court  for 
further  proceedings  not  inconsistent  with  this  opinion.^ 


EATON  V.  THE  BOSTON,   CONCORD,  AND  MONTREAL- 

RAILROAD. 

Supreme  Judicial  Court  of  New  Hampshire.     1872. 

[51  iV.  H.  504.] 

Actions  on  the  case,  against  the  Boston,  Concord,  &  Montreal  Rail- 
road,—  one  brought  by  Ezra  B.  Eaton,  the  other  by  Milo  Aiken,  to 
recover  damages  done  during  the  freshet  of  October,  1869,  to  their 
respective  farms  in  Wentworth,  and  alleged  to  have  been  occasioned 
b}'  the  construction  of  the  defendants'  railroad. 

The  defendants  were  duly  incorporated  by  legislative  authority,  and 
constructed  their  road  across  the  farms  of  the  plaintiffs  during  the 
years  1849,  1850,  and  1851, — the  road  having  been  previously  sur- 
veyed and  located.     Damages  were  duly  appraised  and  paid. 

Eaton,  on  March  24,  1851,  after  the  construction  of  the  road,  gave 
the  defendants  a  warranty  deed  of  that  part  of  his  farm  on  which  the 
road  is  located,  and  on  the  same  day  executed  the  following  release : 

"  I,  the  subscriber,  do  hereb}-  acknowledge  that  I  have  received  of 
the  Boston,  Concord,  &  Montreal  Railroad  the  sum  of  two  hundred 
and  seventy-five  dollars,  in  full  for  the  amount  of  damages  assessed  to 

1  See  Mills  et  al.  v.  U.  S.,  46  Fed.  Rep.  738.  —Ed. 


CIUP.  VI.]       EATON   V.    BOSTON,   CONCORD,   ETC.    K.VILEOAD.  1065 

™e  bv  the  raiUoaa  commissioners  of  the  State  of  New  Hampsliii-e,  in 
ro'.u  notion  with  the  selectmen  of  Wentworth,  on  aeeountof  the  ay.ng 
onto  tie  said  Boston,  Concord,  &  Montreal  Railroad  tUrongh  and 
over  myland  ;  and  I  do  hereby  release  and  discharge  the  said  corpora- 

"°liS:fNov:,X'7,  1849,  gave  the  defendants  a  warranty  deed 
of  Vl  at  P^rt  of  his  farm  on  which  the  road  is  located  Sa,d  deed  con- 
t-  inrthe  ollowmg  clause:  "  And  in  consideration  aforesa.d,  I  hereby 
J  sesak  corporation  from  all  damages,  direct  or  consequcnUal,  by 
;  r,  of te  co,',structing,  maintaining,  and  using  their  r-hoad  o„  and 
over  the  land  Uerebv  conveyed,  and  through  my  sa.d  land.  This  le- 
kase,  and  that  e.eJuted  by  Eaton,  were  printed,  save  names,  amounts, 
&c    which  were  inserted  in  blanks  left  for  that  purpose. 

Northcrh  of  the  plaintiffs'  farms,  which  consist  of  meadow  lands 
Ivit  on  Bakers  Ei«r,  there  is  a  narrow  ridge  of  land,  some  wen  y- 
fi  e  fee  or  more  in  height,  extending  from  the  high  lands  on  he  ^-t 
westerly  to  said  river,  completely  protectmg  said  meadows  fiom  the 
Tffect  of  floods  and  freshets  in  said  river.  Said  ridge  is  atou  twen  y 
rods  wide  upon  the  top,  and  a  small  part  of  it  in  width  ,s  included  in 
r;:intiff'Aike.s,lim-t^^^^^^^^^^^^ 

^r^tsTo  rjoVsl    Aike'it's^TLr  :tSis  ridge  L  defendants, 
[n  con  trueto..  their  road,  made  a  deep  cut,  through  which  the  waters 
of  s!"d  i™er  in  floods  and  freshets  sometimes  flowed  ;  and  the  damages 
sued  to   were  occasioned  by  the  waters  flowing  through  said  cut,  and 
ZtZ  sand  and  -ravel  ai  d  stones  upon  said  Aiken's  farm,  and  over 
rndlcfosTi   to  a  ,d  upon  the  farm  of  said  Eaton.    The  plaintiffs  claim 
tl°at  the  defendants  a.-e  liable  for  the  damages  so  occasioned,  although 
they  may  I  ave  constructed  their  road  at  said  cut  with  due  care  and  pru- 
dence    The  defendants  say  that  they  are  not  so  liable      The  defend- 
ants  daim  that,  under  the  circumstances  of  this  case,  the  corporation 
a?e  notTable  fir  any  damages  accruiug  U,  the  plaintiffs  from  a  proper 
construction  of  their  road,  and  that  in  constructing  the  same  they  were 
only  bound  to  do  it  in  the  usual  manner,  and  so  as  to  make  the  owners 
of  adio  nin..  land  reasonably  safe,  and  with  ordinary  care  and  prudence, 
fnd  tiat  thly  were  not  bound  to  preclude  the  possibility  of  damage  by 

"tT:  p1ru":ruhatthe  foregoing  questions  be  determined  by 
the  court,  and  that  afterwards  either  party  may  have  a  trial  by  jury  if 
desired,  without  prejudice  from  anything  herein  contained 

Unon  the  foregoing  facts  appearing,  and  the  parties  having  stated 
the?  positions  a^d  claims,  the  cou.t,  pro  forma,  ruled  that  the  plain- 
ti^  would  be  entitled  to  recover  snch  damages  as  have  been  caused 
hem  in  consequence  of  the  defendants'  cutting  away  the  "<'g«=  i";*  » 
the  Blaintiffs'  farms,  and  thereby  letting  the  river  in  times  of  freshet 
rm.  toongh  this  cilt  and  damage  the  plaintiffs'  land ;  to  which  ruling 
the  defendants  excepted. 


1066  EATON   V.   BOSTON,   CONCORD,   ETC.   RAILROAD.       [CHAP.  VL 

Carpenter  and  Flanders,  for  the  plaintiffs.  H.  Bingham,  JBur- 
roivs,  and  Page,  for  the  defendants. 

Smith,  J.     Eaton's  case  will  be  considered  first. 

It  is  virtually'  conceded  tliat,  if  the  cut  through  the  ridge  had  been 
made  b}-  a  private  land-owner,  who  had  acquired  no  rights  from  the 
plaintiff  or  from  the  legislature,  he  would  be  liable  for  the  damages 
sought  to  be  recovered  in  this  action.  It  seems  to  be  assumed  that 
the  freshets  were  such  as,  looking  at  tlie  history  of  the  stream  in  this 
respect,  might  be  "  reasonably  expected  occasionally  to  occur."  The 
defendants  removed  the  natural  barrier  which  theretofore  had  completely 
protected  the  plaintiff's  meadow  from  the  effect  of  these  freshets ;  and, 
for  the  damages  caused  to  the  plaintiff  in  consequence  of  such  removal, 
the  defendants  are  confessedly  hable,  unless  their  case  can  be  distin- 
guished from  that  of  the  private  land-owner  above  supposed.  Such  a 
distinction  is  attempted  upon  two  grounds,  ^  fifsl^  that  the  plaintiff 
has  already  been  compensated  for  this  damage,  it  being  alleged  that 
the  defendants  have,  by  negotiation,  or  by  compulsorj-  proceedings,  pur- 
chased of  the  plaintiff  the  right  to  inflict  it ; .second,  that  the  defend- 
ants are  acting  under  legislative  authorit}',  by  virtue  of  which  the}-  are 
entitled  to  inflict  this  damage  on  the  plaintiff  without  an}-  liabilit}'  to 
compensate  him  therefor. 

In  support  of  the  first  ground,  the  defendants  rely  upon  the  plain- 
tiff's release,  and  upon  the  appraisal  of  damages  under  the  statute. 

The  release  does  not  supp<irt  the  defendants'  claim.  The  plaintiff 
released  the  defendants  from  damages  on  account  of  the  laying  out  of 
the  railroad  through  and  over  his  land.  The  damages  which  the  court 
ruled  that  the  plaintiff  would  be  entitled  to  recover  were  not  occasioned 
by  the  laying  out  of  the  road  over  the  plaintiff's  land,  but  b}-  the  con- 
struction of  the  road  over  the  land  of  other  persons.  B<iQ  Delaware  & 
Raritan  Canal  Co.  v.  Lee,  2  Zabriskie,  243.  The  ruling  was,  that  the 
plaintiff  could  recover  such  damages  as  have  been  caused  him  in  con- 
sequence of  the  defendants'  cutting  away  the  ridge  north  of  the  plain- 
tiff's farm.  .  .  . 

The  defendants'  first  position  is,  that  the  plaintiff  has  alreadj-  re- 
ceived compensation  for  this  damage.  This  position  the  court  have  now 
overruled.  The  defendants'  next  position  is,  that  the  plaintiff  is  not 
legall}'  entitled  to  receive  any  compensation,  but  is  bound  to  submit  to 
the  infliction  of  this  damage  without  an}-  right  of  redress.  The  argu- 
ment is  not  put  in  the  precise  words  we  have  just  used,  but  that  is 
what  we  understand  them  to  mean.  The  defendants  say  that  the  legis- 
lative charter  authorized  them  to  build  the  road,  if  they  did  it  in  a  pru- 
dent and  careful  manner ;  that  they  constructed  the  road  at  the  cut 
with  due  care  and  prudence ;  and  that  the}-  cannot  be  made  liable  as 
tort-feasors  for  doing  what  the  legislature  authorized  them  to  do.  This 
involves  two  propositions :  first,  that  the  legislature  have  attempted  to 
authorize  the  defendants  to  inflict  this  injur}'  upon  the  plaintiff  without 
making  compensation ;  and  second,  that  the  legislature  have  power  to 


CHAP.  VI.]       EATON   V.   BOSTON,   CONCORD,   ETC.   RAILROAD.  1067 

confer  such  authority.  There  are  decisions  which  tend  to  show  tliat 
the  charter  should  not  be  coustrued  as  evincing  any  legislative  inten- 
tion to  authorize  this  injury,  or  to  shield  the  defendants  from  liability 
in  a  common-law  action.  Tinsjnan  v.  lielcidere  Delaware  li.  H.  Co., 
2  Dutcher  N.  J.  148;  Sinnickson  v.  Johnson,  2  Harr.  N.  J.  129; 
Hooker  v.  New  Haven  &  Northampton  Co.^  14  Conn.  14G  ;  Fletcher 
V.  Auburn,  &  Syracuse  Ji.  R.  Co.,  25  Wendell,  462 ;  JJrown  v. 
Cayuga  S  Susquehanna  H.  H.  Co.,  12  N.  Y.  (2  Kernan),  48G,  p.  491. 
See,  also,  Eastman  v.  Company,  44  N.  II.  143,  p.  160;  Ilooksett  v. 
Company,  44  N.  H.  105,  p.  110  ;  Company  v.  Goodale,  46  N.  H.  53, 
p.  57;  Barrows,  J.,  in  Lee  v.  Pembroke  Iron  Co.,  bl  Maine,  481, 
p.  488.  But  we  propose  to  waive  inquiry  on  this  point,  and  to  consider 
only  the  correctness  of  the  second  proposition,  or,  in  other  words,  the 
question  of  legislative  power. 

The  defendants  cannot  claim  protection  under  an  implied  power, 
where  an  express  power  would  be  invalid  :  the  legislature  cannot  do 
indirectl}'  what  the}'  cannot  do  directly*.  Unless  an  express  provision 
in  the  charter,  authorizing  the  infliction  of  this  injury  without  making 
compensation,  would  be  a  valid  exercise  of  legislative  power,  the  de- 
fendants cannot  successfull}'  set  up  the  plea  that  the  injury  was  neces- 
saril}'  consequent  upon  the  exercise  of  their  chartered  powers,  and 
therefore  impliedlj'  authorized.  The  defence,  then,  really  presents  this 
question  :  Have  the  legislature  power  to  authorize  the  railroad  corpora- 
tion to  divert  the  waters  of  the  river,  by  removing  a  natural  barrier,  so 
as  to  cause  the  waters  "  sometimes  in  floods  and  freshets"  to  flow  over 
the  plaintiff's  land,  "  carrying  sand,  gravel,  and  stones  "  upon  his  farm, 
without  making  any  provision  for  his  compensation? 

Although  the  Constitution  of  this  State  does  not  contain,  in  any  one 
clause,  an  express  provision  requiring  compensation  to  be  made  when 
private  property  is  taken  for  public  uses,  yet  it  has  been  construed  by 
the  courts,  in  view  of  the  spirit  and  tenor  of  the  whole  instrument,  as 
prohibiting  such  taking  without  compensation  ;  and  it  is  understood  to 
be  the  settled  law  of  the  State,  tliat  the  legislature  cannot  constitu- 
tionally authorize  such  a  taking  without  compensation.  Piscataqua 
Bridge  v.  N  H.  Bridge,'  7  N.  H.  35,  pp.  66,  70;  Perley,  C.  J.,  in 

1  The  language  here  referred  to  is  as  follows-  "That  franchise,  as  we  have  said,  is 
property  '  No  part  of  a  mau's  property  shall  be  taken  from  him  or  apj)lied  to  public 
uses,  without  his  own  consent,  or  that  of  the  representative  body  of  the  people.'  N.  H. 
Bill  of  Rights,  Art.  12.  This  has  always  been  understood  necessarily  to  include,  as  a 
matter  of  right,  and  as  one  of  the  first  principles  of  justice,  the  further  limitation,  that 
in  case  his  property  is  taken  without  his  consent,  due  compensation  must  be  provided. 
1  Black.  Com.  139;  2  Johns.  C.  R.  166;  Gardner  \.  Village  of  Neu-hur(]h,  and  author- 
ities there  cited.  It  is  not  supposed  here  that  even  the  consent  of  the  representative 
body  of  the  people  could  give  authority  to  take  the  property  of  individual  citizens  for 
highways,  bridges,  ferries,  and  other  works  of  internal  improvement,  without  the 
assent  of  the  owner,  and  without  any  indemnity  provided  hy  law.  Such  a  power 
would  be  essentially  tyrannical,  and  in  contravention  of  other  articles  in  the  Bill  of 
Rights."  —  Parker,  J.,  for  the  court,  in  Prop'rs  of  Piscataqua  Bridge  v.  N.  H.  Bridge 
et  al.,  ubi  supra.  —  Ed. 


1063  EATON   V.   BOSTON,   CONCORD,   ETC.   KAILROAD,       [CHAP.  VI. 

Petition  of  Mount  Washington  Road  Co.,  35  N.  H.  134,  pp.  141,  142  ; 
Sargent,  J.,  in  Eastman  v.  Anioskeag  Manuf.  Co.^  44  N.  H.  143, 
p.  160;  State  \.  Frayiklin  Falls  Co.,  49  N.  H.  240,  p.  251.  The 
counsel  for  the  defendants  have  not  been  understood  to  question  the 
correctness  of  this  interpretation  of  the  Constitution. 

The  vital  issue  then  is,  whether  the  injuries  complained  of  amount 
to  a  taking  of  the  plaintiff's  property,  within  the  constitutional  mean- 
ing of  those  terms.  It  might  seem  that  to  state  such  a  question  is  to 
answer  it ;  but  an  examination  of  the  authorities  reveals  a  decided  con- 
flict of  opinion.  The  constitutional  prohibition  (which  exists  in  most, 
or  all,  of  the  States)  has  received,  in  some  quarters,  a  construction 
which  renders  it  of  comparatively  httle  worth,  being  interpreted  much 
as  if  it  read  :  "  No  person  shall  be  divested  of  the  formal  title  to  prop- 
erty without  compensation,  but  he  ma}'  without  compensation  be  de- 
prived of  all  that  makes  the  title  valuable."  To  constitute  a  "  taking 
of  propert}',"  it  seems  to  have  sometimes  been  held  necessary  that  there 
should  be  "  an  exclusive  appropriation,"  "  a  total  assumption  of  pos- 
session," "  a  complete  ouster,"  an  absolute  or  total  conversion  of  the 
entire  property,  "  a  taking  of  the  property  altogether."  These  views 
seem  to  us  to  be  founded  on  a  misconception  of  the  meaning  of  the 
term  "  property,"  as  used  in  the  various  State  constitutions. 

In  a  strict  legal  sense,  land  is  not  "  propeit}',"  but  the  subject  of 
property.  The  term  "  property,"  although  in  common  parlance  fre- 
quentl}'  applied  to  a  tract  of  land  or  a  chattel,  in  its  legal  signification 
"  means  only  the  rights  of  the  owner  in  relation  to  it."  "  It  denotes 
a  right  .  .  .  over  a  determinate  thing."  "  Property  is  the  right  of  any 
person  to  possess,  use,  enjoy,  and  dispose  of  a  thing."  Selden,  J.,  in 
Wynehamer  v.  The  People,  13  N.  Y.  378,  p.  433  ;  1  Blackstone  Com. 
138  ;  2  Austin  on  Jurisprudence,  3d  ed.,  817,  818.  If  property  in 
land  consists  in  certain  essential  rights,  and  a  ph^-sical  interference  with 
the  land  substantially  subverts  one  of  those  rights,  such  interference 
"  takes,"  joro  tanto,  the  owner's  "property."  The  right  of  indefinite 
user  (or  of  using  indefinitely)  is  an  essential  quality  or  attribute  of 
absolute  propert}',  without  which  absolute  propert}-  can  have  no  legal 
existence.  "  Use  is  the  real  side  of  property."  This  right  of  user 
necessarily  includes  the  right  and  power  of  excluding  others  from  using 
the  land.  See  2  Austin  on  Jurisprudence,  3d  ed.,  836  ;  Wells,  J.,  in 
Walker  v.  0.  C.  W.  E.  P.,  103  Mass.  10,  p.  14.  From  the  very 
nature  of  these  rights  of  user  and  of  exclusion,  it  is  evident  that  they 
cannot  be  materially  abridged  without,  ipso  facto,  taking  the  owner's 
"  property."  If  the  right  of  indefinite  user  is  an  essential  element  of 
absolute  property  or  complete  ownership,  whatever  physical  interfer- 
ence annuls  this  right  takes  "  property,"  although  the  owner  may  still 
have  left  to  him  valuable  rights  (in  the  article)  of  a  more  limited  and 
circumscribed  nature.  He  has  not  the  same  property  that  he  fonneilj- 
had.  Then,  he  had  an  unlimited  right ;  now,  he  has  only  a  limited 
right.     His  absolute  ownership  has  been  reduced  to  a  qualified  owner- 


CHAP,  VI.]       EATON   V.    BOSTON,   CONCORD,   ETC.    RAILROAD.  1069 

ship.  Restricting  A's  unlimited  right  of  using  one  hundred  acres  of 
land  to  a  limited  right  of  using  the  same  land,  may  work  a  far  greater 
injury  to  A  than  to  take  from  him  the  title  in  fee-simple  to  one  acre, 
leaving  him  the  unrestricted  right  of  using  the  remaining  ninety-nine 
acres.  Nobody  doubts  that  the  latter  transaction  would  constitute  a 
"  taking  of  property."     Why  not  the  former? 

If,  on  the  other  hand,  the  land  itself  be  regarded  as  "  property,"  the 
practical  result  is  the  same.  The  purpose  of  this  constitutional  prohi- 
bition cannot  be  ignored  in  its  interpretation.  The  fraraers  of  the  Con- 
stitution intended  to  protect  rights  which  are  worth  protecting ;  not  , 
mere  empty  titles,  or  barren  insignia  of  ownership,  which  are  of  no 
substantial  value.  If  the  land,  "in  its  corporeal  substance  and  entity,"  v 
is  "  propert}-,"  still,  all  that  makes  this  property  of  any  value  is  the 
aggregation  of  rights  or  qualities  which  the  law  annexes  as  incidents 
to  the  ownership  of  it.  The  constitutional  prohibition  must  have  been 
intended  to  protect  all  the  essential  elements  of  ownership  which  make 
"  property  "  valuable.  Among  these  elements  is,  fundamentally,  the 
right  of  user,  including,  of  course,  the  corresponding  right  of  excluding 
others  from  the  use.  See  Comstock,  J.,  in  Wynehamer  v.  The  People, 
13  N.  Y.  378,  p.  396.  A  physical  interference  with  the  land,  which 
substantially  abridges  this  right,  takes  the  owner's  "  property  "  to  just 
so  great  an  extent  as  he  is  thereby  deprived  of  this  right.  "  To  de- 
prive one  of  the  use  of  his  land  is  depriving  him  of  his  land  ;  "  for,  as 
Lord  Coke  said  :  "  What  is  the  land  but  the  profits  thereof  ?  "  Suther- 
land, J.,  in  Peoi:>le  v.  Kerr,  37  Barb.  357,  p.  399  ;  Co.  Litt.  4  h.  The 
private  injury  is  thereby  as  completely  effected  as  if  the  land  itself  were 
"  physically  taken  away." 

The  principle  must  be  the  same  whether  the  owner  is  wholly  deprived 
of  the  use  of  his  land,  or  only  partially  deprived  of  it ;  although  the 
amount  or  value  of  the  property  taken  in  the  two  instances  ma)*  widely 
differ.  If  the  railroad  corporation  take  a  strip  four  rods  wide  out  of  a 
farm  to  build  their  track  upon,  they  cannot  escape  paying  for  the  strip 
by  the  plea  that  they  have  not  taken  the  whole  farm.  So  a  partial,  but 
substantial,  restriction  of  the  right  of  user  maj*  not  annihilate  all  the 
owner's  rights  of  property  in  the  land,  but  it  is  none  the  le«s  true  that 
a  part  of  his  property  is  taken.  Taking  a  part  "  is  as  much  forbidden 
by  the  Constitution  as  taking  the  whole.  The  difference  is  only  one  of 
degree  ;  the  quantum  of  interest  may  vary,  but  the  principle  is  the 
same."  See  6  Am.  Law  Review,  197-198  ;  Lawrence,  J.,  in  N'evins  v. 
City  of  Peoria,  41  Illinois,  502,  p.  511.  The  explicit  language  used 
in  one  clause  of  our  Constitution  indicates  the  spirit  of  the  whole  in- 
strument. "  No  part  of  a  man's  property  shall  be  taken.  ..."  Con- 
stitution of  N.  H.,  Bill  of  Rights,  article  12.  The  opposite  construction 
would  practically  nullify  the  Constitution.  If  the  public  can  take  part 
of  a  man's  property  without  compensation,  they  can,  by  successive  tak- 
ings of  the  different  parts,  soon  acquire  the  whole.  Or,  if  it  is  held 
that  the  complete  divestiture  of  the  last  scintilla  of  interest  is  a  taking 


1070  EATON   V.    BOSTON,   CONCORD,   ETC.    RAILROAD.       [<1IAI'.  VI. 

of  the  whole  for  which  conipensation  must  be  made,  it  will  be  eas}-  to 
leave  the  owner  an  interest  in  the  land  of  infinitesimal  value. 

The  injury  coinphiincd  of  in  this  case  is  not  a  mere  personal  incon- 
venience or  annoyance  to  the  occupant.  Two  marked  characteristics 
distinguish  this  injury  from  that  described  in  many  other  cases.  First, 
it  is  a  physical  injury  to  the  land  itself,  a  physical  interference  with  tlic 
rights  of  property,  an  actual  disturbance  of  the  plainlilfs  possession. 
Second,  it  woulil  clearly  be  actionable  if  done  by  a  private  person  with- 
out legislative  authority.  The  damngc  is  "  consequential,"  in  the  sense 
of  not  following  immediately  in  point  of  time  upon  the  act  of  cutting 
through  the  ridge,  but  it  is  what  Sir  William  Erie  calls  "  consequen- 
tial damage  to  the  actionable  degree."  See  Jirand  v  //.  A-  C.  li.  Co.^ 
Law  Reports,  2  Queen's  Bench,  223,  p.  249.  These  occasional  inunda- 
tions may  produce  the  same  effect  in  preventing  the  plaintiff  from 
making  a  beneficial  use  of  the  land  as  would  be  caused  b}'  a  manual 
asportation  of  the  constituent  materials  of  the  soil.  Covering  the  land 
with  water,  or  with  stones,  is  a  serious  interruption  of  the  plaintitTs 
right  to  use  it  in  the  ordinary  manner.  If  it  be  said  that  the  plaintitf 
still  has  his  land,  it  may  be  answered,  that  the  face  of  the  land  does 
not  remain  unchanged,  and  that  the  injury  may  result  in  taking  away 
part  of  the  soil  ("  and.  if  this  may  be  done,  the  j)laintifrs  dwelling- 
house  may  soon  follow  ")  ;  and  that,  even  if  the  soil  remains,  the  plain- 
tiff may,  by  these  occasional  submergings,  be  deprived  of  the  profits 
which  would  otherwise  grow  out  of  his  tenure.  "  His  dominion  over 
it,  his  power  of  choice  as  to  the  uses  to  which  he  will  devote  it,  are 
materially  limited."  Brinkerhoff,  J.,  in  Reeves  v.  IVeasurer  of  Wood 
Count}/,  8  Ohio  St.  333,  p.  34 G. 

The  nature  of  the  injury  done  to  the  plaintiff  may  also  be  seen  b}' 
adverting  to  the  nature  of  the  right  claimed  by  the  defendants.  The 
primary  purpose  of  the  defendants  in  cutting  through  the  ridge  was  to 
construct  their  road  at  a  lower  level  than  would  otherwise  have  been 
practicable.  But,  although  the  cut  was  not  made  "  for  the  purpose  of 
conducting  the  water  in  a  given  course"  on  to  the  plaintiff's  land,  it 
has  that  result ;  and  the  defendants  persist  in  allowing  this  excavation 
to  remain,  notwithstanding  the  injury  thereby  visibl}-  caused  to  the  plain- 
tiff. ,  Rather  than  raise  the  grade  of  their  track,  they  insist  upon  keep- 
ing open  a  canal  to  conduct  the  flood-waters  of  the  river  directly  on  to 
the  plaintiffs  land.  If  it  be  said  that  the  water  came  naturall}'  from 
the  southerly  end  of  the  cut  on  to  the  plaintiff's  land,  the  answer  is, 
that  the  water  did  not  come  naturally  to  the  southerly  end  of  the  cut. 
It  came  there  by  reason  of  the  defendants'  having  made  that  cut.  In 
consequence  of  the  cut,  water  collected  at  the  southerly  boundary  of 
the  ridge,  north  of  the  plaintiff''s  farm,  which  would  not  have  been  there 
if  the  ridge  had  remained  in  its  normal  and  unbroken  condition. 
They  have  "  so  dealt  with  the  soil "  of  the  ridge,  that,  if  a  flood  came, 
instead  of  being  held  in  check  by  the  ridge,  and  ullimntely  getting  away 
by  the  proper  river  channel  without  harm  to  the  plaintiff,  it  flowed 


CHAP.  VI.]       EATON   V.   BOSTON,   CONCORD,   ETC.    RAILROAD.  1071 

throimh  where  the  ridge  once  was  on  to  the  plaintiff's  land.     "  Could  the 
defendants  say  they  were  not  liable  because  they  did  not  cause  the  rain 
to  fall,"  which  resulted  in  the  freshet;  or  because  the  water  ''came 
there  by  the   attraction  of  gravitation?"      See  Bramwell,  Baron,  in 
>Smith  V.  Fletcher,  Law  Reports,  7  Exchq.  305,  p.  310.     If  the  ridge 
still  remained  in  its  natural  condition,  could  the  defendants  pump  up  the 
flood-water  into  a  spout  on  the  top  of  the  ridge,  and  thence,  by  means 
of  the  spout,  pour  it  directly  on  to  the  plaintiffs  land?     If  not,  how 
can  thev  maintain  a  canal  through  which  the  water  by  the  force  of  gravi- 
tation will  inevitably  find  its  way  to  the  plaintiff's  land?     See  Ames, 
J.,   in  Shipley  v.   Fiftt/  Associates,   106  Mass.   194,   pp.   199,  200; 
Chapman,  C.  J.,  in  Salisbury  v.  Herchenroder,  106  Mass.  458,  p.  460. 
To  turn  a  stream  of  water  on  to  the  plaintiff's  premises  is  as  marked 
an  infringement  of  his  proprietary  rights  as  it  would  be  for  the  defend- 
ants to  go  upon  the  premises  in  person  and  "  dig  a  ditch,  or  deposit 
-upon  thc°m  a  mound  of  earth."     See  Lawrence,  J.,  in  Nevins  v.  City 
of  Peoria,  41   Illinois,  502,  p.  510;  Dixon,  C.  J.,  in  Pettigreio  v.  Vil- 
lage  of  Evan sv ilk,  '2b  Wisconsin,  223,  pp.  231,  236.     The  defendants 
may,  perhaps,  regret  that  they  cannot  maintain  their  track  at  its  pres- 
ent level  without  thereby  occasionally  pouring  flood-water  on  to  the 
land  of  the  plaintifl".     Indeed,  the  passage  of  this  water  through  the  cut 
may  cause  some  injury  to  the  defendants'  road  bed.     But  the  advan- 
tages of  maintaining  the  track  at  the  present  grade  outweigh,  in  the 
deTendants'  estimation,  the  risk  of  injury  by  water  to  themselves  and 
to  the  plaintiff.     In  asserting  the  right  to  maintain  the  present  condi- 
tion of  things  as  to  the  cut,  the  defendants  necessarily  assert  the  right 
to  produce  all  the  results  which  naturally  follow  from  the  existence  of 
the  cut.     In  effect,  they  thus  assert  a  right  to  discharge  water  on  to  the 
plaintiff's  land.     Such  a  right  is  an  easement.     A  right  of  "  occasional 
flooding"  is   just  as   much   an  easement  as  a  right  of  "permanent 
submerging  ;  "  it  belongs  to  the  class  of  easements  which  "  are  by  their 
nature  intermittent—  that  is,  usable  or  used  only  at  times."     See  God- 
dard's  Law  of  Easements,  125.     If  the  defendants  had  erected  a  dam 
on  their  own  land  across  the  river  below  the  plaintiff's  meadow,  and  by 
means  of  flash-boards  thereon  had  occasionally  caused  the  water  to  flow 
back  and  overflow  the  plaintiff's  meadow  so  long  and  under  such  cir- 
cumstances as  to  give  them  a  prescriptive  right  to  continue  such  flow- 
age,  the  right  thus  acquired  would  unquestionably  be  an  "easement." 
The  right  acquired  in  that  case  does  not  differ  in  its  nature  from  the 
right  now  claimed.     In  the  former  instance,  the  defendants  flow  the 
plaintiff's  land  by  erecting  an  unnatural  barrier  below  his  premises.     In 
the  present  instance,  they  flow  his  land  by  removing  a  natural  barrier  on 
the  land  above  his  premises.     In  both  instances,  they  flow  his  land  by 
making  "  a  non-natural  use  "  of  their  own  land.     In  both  instances, 
they  do  an  act  upon  their  own  land,  the  effect  of  which  is  to  restrict  oi' 
burden  the  plaintiff's  ownership  of  his  land  (see  Leconfeld  v.  Loyisdale, 
Law  Reports,  5  Com.  Pleas,  657,  p.  696) ;  and  the  weight  of  that  burdeo 


1072  EATON   V.   BOSTON,   CONCORD,    ETC.    RAILROAD.       [cilAJ'.  VI. 

is  not  necessarily  dependent  upon  the  source  of  the  water,  whether  from 
below  or  above.     See  Bell,  J.,  in  I'illotsoti  v.  /Smith,  32   N.  II.  90, 

pp.  95-90.  In  both  instances  they  turn  water  upon  tlie  plaintiff's  land 
*'  which  does  not  flow  naturally  in  that  place."  If  the  right  ac<juired  in 
the  former  instance  is  an  easement,  equally  so  must  be  the  right  claimed 
in  the  latter.  If,  then,  the  claim  set  up  by  the  defendants  in  this  case 
is  well  founded,  an  easement  is  already  vested  in  them.  An  easement 
is  property,  and  is  within  the  protection  of  the  constitutional  [»r()hibi- 
tion  now  under  consideration.  If  the  defendants  have  a<(inired  tins 
easement,  it  cannot  be  taken  from  them,  even  for  the  public  use,  without 
compensation.  But  the  right  acquired  by  the  defendants  is  subtracted 
from  the  plaintiff's  ownership  of  the  land.  Whatever  interest  the 
defendants  have  acquired  in  this  respect  the  plaintiff  has  lost.  If  what 
they  have  gained  is  property,  then  what  he  has  lost  is  property.  If  the 
easement,  when  once  acquired,  cannot  be  taken  from  the  defendants 
without  compensation,  can  the  defendants  take  it  from  the  plaintiff  in 
the  first  instance  without  compensation  ?  Sec  Brinkerhoff,  .1..  ufn  sup.  ; 
Selden,  J.,  in  Williams  v.  .V.  }':  Central  R.  R.,  16  N.  Y.  97,  p.  109. 
An  easement  is  all  that  the  railroad  corporation  acquire  when  they 
locate  and  construct  their  track  directly  over  a  man's  land.  The  fee 
remains  in  the  original  owner.  Blake  v.  Rich,  34  N.  H.  282.  Yet 
nobody  doubts  that  such  location  and  construction  is  a  "  taking  of 
property,"  for  which  compensation  must  be  made.  .Sec  Redfield,  J.,  in 
Hatch  v.  Vt.  Central  R.  R.,  25  Vt.  40,  p.  GG.  What  ditference  does  it 
make  in  principle  whether  the  plaintiff's  land  is  encumbered  with  stones, 
or  with  iron  rails?  whether  the  defendants  run  a  locomotive  over  it, 
or  flood  it  with  the  waters  of  Baker's  River?  See  Wilcox,  J.,  in  March 
V.  P.  d  C.  R.  R.,  19  N.  H.  372.  p.  380;  Walworth,  Chan.,  in  Canal 
Com'rs  &  Canal  Appraisers  v.    The  People,  5  Wendell.  423,  p.  452. 

If  it  should  be  held  that  the  legislature  had  conferred  a  valid  author- 
ity upon  the  defendants  to  make  this  cut,  if  necessary  to  the  construc- 
tion of  the  railroad,  or  if  made  with  care  and  skill,  the  question  of 
necessity  or  of  care  would  become  material,  and  might  have  to  be 
decided  by  a  jurv.  See  Johnson  v.  Atlantic  &  tSt.  Z  h'.  Co.,  35  N.  H. 
569  ;  Estahrooks  v.  P.  &  S.  R.  Co.,  12  Cush.  224  ;  Mellen  v.  Western 
M.  a.,  4  Gray,  301;  Curtis  v.  Eastern  R.  i?.,  14  Allen,  55  ;  same 
case,  98  Mass.  428.  But  in  the  view  now  taken,  these  questions  are 
immaterial.  The  defendants  are  not  held  lia))le,  as  in  some  other  cases, 
because  their  acts  were  unnecessar}',  or  unskilful,  and  hence  not  within 
the  contemplation  of  the  charter.  They  are  held  liable,  irrespective  of 
any  negligence  on  their  part,  on  the  ground  that  it  was  beyond  the 
power  of  the  legislature  to  authorize  the  infliction  of  this  injury  on 
the  plaintiff,  without  making  provision  for  his  compensation. 

We  think  that  here  has  been  a  taking  of  the  plaintiff's  property ; 
that,  as  the  statutes  under  which  the  defendants  acted  make  no  pro- 
vision for  the  plaintiff's  compensation,  they  afford  no  justification  ;  that 
the  defendants  are  liable  in  this  action  as  wrong-doers ;  and  that  the 


CHAP.  VI.]   EATON  V.    BOSTON,  CONCORD,  ETC.  RAILROAD.       1073 

ruling  of  the  court  was  correct.  These  conclusions,  which  are  sup- 
ported by  authorities  to  which  reference  will  soon  be  made,  seem  to  us 
so  clear,  that,  if  there  were  no  adverse  authorities,  it  would  be  un- 
necessary to  prolong  the  discussion  of  this  case.  But,  as  there  are 
respectable  authorities  which  are  in  direct  conflict  with  these  conclu- 
sions, it  has  been  thought  desirable  to  examine  some  argumei\ts  which 
have,  at  various  times,  been  advanced  in  support  of  the  opposite  view. 

In  some  instances,  as  soon  as  it  has  been  made  to  appear  that  there 
is  a  legislative  enactment  purporting  to  authorize  the  doing  of  the  act 
complained  of,  the  complaint  has  been  at  once  summarily  disposed  of 
b}'  the  curt  statement  "  that  an  act  authorized  by  law  cannot  be  a 
tort."  This  is  begging  the  question.  It  assumes  the  constitutionality 
of  the  statute.  If  the  enactment  is  opposed  to  the  Constitution,  it  is 
"  in  fact  no  law  at  all."  "  The  term  unconstitutional  law.  in  American 
jurisprudence,  is  a  misnomer,  and  implies  a  contradiction."  ''The  will 
of  the  legislature  is  only  law  when  it  is  in  harmony  with,  or  at  least  is 
not  opposed  to,  that  controlling  instrument  which  governs  the  legisla- 
tive body  equally  with  the  private  citizen."  Cooley's  Constitutional 
Limitations,  1st  ed.,  pp.  3,  4.  The  error  in  question  originates  in  a 
"  fallacy  of  reference."  It  arises  from  following  English  authorities, 
without  adverting  to  the  immense  difference  between  the  practically 
omnipotent  powers  of  the  British  Parliament  and  the  comparatively 
limited  powers  of  our  State  legislatures,  acting  under  the  restrictions 
of  written  constitutions.  Parliament  is  the  supreme  power  of  the 
realm.  It  is  at  once  a  legislature  and  a  constitutional  convention.  1 
De  Tocqueville's  Democracy  in  America,  Reeves's  Translation,  2d  Am. 
ed.,  80.  Parliament  can  "  do  everything  that  is  not  naturally  impos- 
sible; "  and  what  it  does  *'no  authority  on  earth  can  undo."  1  Black- 
stone's  Com.  161  ;  4  Coke's  Inst.  36.  A  State  legislature,  on  the  other 
hand,  "  is  powerless  when  it  attempts  to  pass  the  limits  prescribed  by 
the  Constitution."  See  Cooley's  Const.  Lim.,  1st  ed.,  45,  46.  In 
England,  whenever  it  appears  that  the  act  complained  of  was  author- 
ized by  a  parliamentary  statute,  the  court  are  perfectly  justified  in  dis- 
missing the  complaint,  on  the  ground  that  the  act  was  "  authorized  by 
law."  In  this  country,  when  it  appears  that  the  legislature  have  gone 
through  the  form  of  enacting  a  statute  purporting  to  authorize  the  act 
complained  of,  the  further  inquiry  remains,  whether  the  legislature 
had  the  constitutional  power  to  pass  such  a  statute.  If  they  had  not, 
then  their  enactment  is  not  "  law,"  and  can  afford  no  justification. 
The  error  of  blindly  following  English  authorities,  as  to  the  justifica- 
tion afforded  b}'  statutor}'  enactments,  has  repeatedly  been  exposed. 
Swan,  J.,  in  Crawford  v.  The  Village  of  Delaware,  7  Ohio  St.  459, 
pp.  466,  477 ;  Maison,  Senator,  in  Bloodgood  v.  Mohawk  &  Hudson 
Railroad  Co.,  18  Wendell,  9,  pp.  29-31  ;  Archer,  C.  J.,  in  Barron  v. 
Mayor  of  Baltimore,  2  Amer.  Jurist,  210;  Smith,  J.,  in  Goodallv. 
City  of  Milwaukee,  5  Wisconsin,  32,  pp.  38,  45  ;  Cooley's  Const.  Lim., 
Ist  ed.,  85  ;  and  see,  also,  Angell  on  Watercourses,  6th  ed.,  sec.  461 ; 
VOL.  I.  —  68 


1074  EATON   V.   BOSTON,   CONCORD,   ETC.    RAILROAD.       [cHAl'.  VI, 

Siitberlantl,  J.,  in  People  v.  Kerr,  37  Barb.  357,  pp.  412,  415  ;  1  licdf. 
on  Railways,  4th  eci,  232. 

The  error  in  the  argument  just  coniniented  u[)on,  uiay,  perhaps,  be 
summed  up  in  the  statement,  that  it  eonfounds  the  legisUiture  witii  the 
constitutional  convention.  Closely  allied  to  this  is  the  error  of  con- 
founding the  legislature  with  the  Supreme  Court.  It  seems  to  have 
been  contended  that  the  legislature  is  competent  to  determine  whether 
a  franchise  will  be  injurious  to  other  interests,  and  that  it  is  to  be  pre- 
sumed, after  a  legislative  grant,  "  that  there  is  no  just  claim  for  result- 
ing damages  which  lias  not  been  provided  for."  See  American  Law 
Magazine,  vol.  1,  No.  1,  April,  1843,  58-GO.  This  assumes  both  the 
omniscience  and  omnipotence  of  the  legislature.  If  the  legislators 
themselves  are  to  finally'  decide  whether  they  have  transcended  their 
constitutional  powers,  "then,"  in  the  words  of  Daniel  Webster,  ''the 
Constitution  ceases  to  be  a  legal  and  becomes  only  a  moral  restraint 
upon  the  legislature."  It  "  is  admonitory  or  advisory  only,  not  legally 
binding.  .  .  ."  Speech  on  the  lndei)endence  of  the  Judiciary,  quoted 
in  Cooley's  Const.  Lim.,  1st  ed.  46,  note  I.  It  is  now  universally 
conceded  to  be  the  province  and  duty  of  the  judiciary  to  pass  upon 
the  constitutionalitv  of  statutes  ;  but  it  is  to  be  regretted  that  some 
courts  have  manifested  excessive  reluctance  to  pronounce  statutes  un- 
constitutional. *■'  Whatever  respect  may  be  due  to  the  legislature,  that 
due  to  the  Constitution  is  still  greater."  Lawrence,  J.,  in  Bunn  v.  The 
People,  45  Illinois,  397,  p.  419.  The  result  has  sometimes  been  "to 
sacrifice  the  individual  to  the  community."  See  Sedgwick  on  Damages, 
5th  ed.,  121,  122.  "It  is  not,"  said  Mr.  Sedgwick,  "an  agreeable 
observation  to  make,  but  I  believe  it  cannot  be  denied,  that  the  pro- 
tection afforded  b}'  the  English  government  to  property  is  much  more 
complete  in  this  respect  than  under  our  system,  although  Parliament 
claims  to  be  despotically  supreme,  and  although  we  boast  our  submis- 
sion to  constitutional  restrictions.  .  .  ."  Sedgwick  on  Stat,  and  Const. 
Law,  523,  524,  note.  Parliamentary  Acts,  at  the  present  time,  usually 
contain  carefully  drawn  clauses,  scrupulously  providing  for  the  indem- 
nity of  those  who  are  liable  to  be  injured  by  the  exercise  of  the  powers 
granted  by  the  Act.  In  this  country  it  too  often  happens  that  the 
legislature  neglect  to  carefuU}'  perforin  this  duty,  and  the  failure  of  the 
courts  to  pronounce  the  Act  unconstitutional  leaves  the  injured  part}' 
without  remedy.  In  view  of  the  '•  form  that  the  constitutional  provision 
has  assumed,"  in  the  hands  of  some  courts,  "  it  must,"  said  the  same 
author,  "  be  admitted  that  in  practice  our  constitutional  guarantees 
are  very  flexible  things.  .  .  ."     Sedgwick  on  Stat,  and  Const.  Law,  534. 

It  is  said  that  "  if  the  legislature  is  competent  to  furnish  the  reraed}-, 
there  is  no  denial  of  justice,  though  no  action  can  be  sustained  at  law." 
1  Amer.  Law  Magazine,  April,  1843,  57.  Leave  to  applj-  to  a  future 
legislature  for  an  act  of  indemnity  is  not  the  "certain  remed}' "  to 
which  (by  Article  14  of  the  Bill  of  Rights)  every  subject  is  entitled 
"  for  all  injuries  he  may  receive  ...  in  his  property."     Besides,  "is 


CHAP.  VI.]       EATON   V.    BOSTON,   CONCORD,   ETC.   RAILROAD.  1075 

the  obligation  to  make  him  compensation  any  stronger  upon  a  future 
legislature  than  it  was  on  that  one  by  whose  authority  his  property  has 
been  taken  ;  "  and  if  they  have  "  failed  to  make  a  constitutional  pro- 
vision for  his  compensation,"  "what  assurance  can  he  have"  that  any 
future  legislature  will  do  so?  "  It  was,  however,  to  place  the  rights  of 
property  upon  higher  grounds  than  the  mere  legislative  sense  of  justice 
and  equit}',  that  tliis  prohibition  upon  legislative  power  was  embodied 
in  tiie  bill  of  rights."  Moore,  J.,  in  Bufalo  B.  B.  &  C.  B.  IL  Co.  v. 
Ferris,  26  Texas,  588,  p.  602.  .  .  . 

It  is  familiar  law  that  "  where  an  agent  exceeds  his  authority,  what 
he  does  within  it  is  valid,  if  that  part  be  distinctly  severable  from  the 
remainder."  1  Parsons  on  Contracts,  4th  ed.,58.  The  same  principle 
applies  to  the  exercise  b}-  tlie  legislature  of  the  power  delegated  to  them 
by  the  Constitution.  No  sound  argument  can  be  founded  upon  the 
hardship  to  the  grantees  of  not  receiving  all  that  the  legislature  under- 
t(;ok  to  convey  to  them.  Conceding  that  the  grantees,  by  assuming  the 
performance  of  the  duties  required  of  them  by  the  charter,  have  paid  a 
full  consideration  for  all  -the  privileges  which  the  charter  purported  to 
convey  to  them,  how  does  their  case  differ  from  that  of  other  unfortu- 
nate persons  who  have  purchased  propert}-  of  an  irresponsible  party  who 
had  no  right  to  sell?  Is  the  fact  that  the  purchaser  paid  a  full  consid- 
eration to  the  wrongful  vendor  allowed  to  divest  the  title  of  the  true 
owner?  Yet,  upon  what  other  theory  can  it  be  said  (1  Amer.  Law 
Magazine,  75)  that  "  we  cannot  look  bej-ond  the  charter  itself  to  deter- 
mine the  duties  and  liabilities  of  the  grantee  "? 

It  is  said  that  a  land-owner  is  not  entitled  to  compensation  where 
the  damage  is  merely  "consequential."  The  use  of  this  term  "  conse- 
quential damage  "  "  prolongs  the  dispute,"  and  "  fntroduces  an  equivo- 
cation which  is  fatal  to  any  hope  of  a  clear  settlement."  It  means 
both  damage  which  is  so  remote  as  not  to  be  actionable,  and  damage 
which  is  actionable.  Sometimes  it  is  used  to  denote  damage  which, 
though  actionable,  does  not  follow  immediate!}-,  in  point  of  time,  upon 
the  doing  of  the  act  complained  of;  what  Erie,  C.  J.,  aptly  terms 
"  consequential  damage  to  the  actionable  degree."  Brand  v.  H.  & 
C.  JR.  Co.,  Law  Reports,  2  Queen's  Bench,  223,  p.  249.  It  is  thus  used 
to  signify  damage  which  is  recoverable  at  common  law  in  an  action  of 
case,  as  contradistinguished  from  an  action  of  trespass.  On  the  other 
hand,  it  is  used  to  denote  a  damage  which  is  so  remote  a  consequence 
of  an  act  that  the  law  affords  no  remedy  to  recover  it.  The  terms 
"remote  damages"  and  "consequential  damages  ""are  not  neces- 
sarily synonymous,  or  to  be  indifferentl}'  used.  All  remote  damages 
are  consequential,  but  all  consequential  damages  are  b}'  no  means 
remote."  Sedgwick  on  Damages,  5th  ed.,  56.  When,  then,  it  is  said 
that  a  land-owner  is  not  entitled  to  compensation  for  "  consequential 
damage,"  it  is  impossible  either  to  affirm  or  deny  the  correctness  of  the 
statement  until  we  know  in  what  sense  the  phrase  "  consequential 
damage  "  is  used.     If  it  is  to  be  taken  to  mean  damage  which  would 


107G  EATON   V.    BOSTON,   CONCORD,    ETC.    RAILKOAD.       [CMAJ-.  VI, 

not  have  been  actionable  ut  common  law  if  done  by  a  private  iiuliviilual, 
tlie  prupuHilion  i.s  correct,  'i'lie  cuiistittitiuiial  reslriclitjn  was  tlesigned 
"  not  to  give  new  rights,  but  to  protect  those  already  existing."  I'ierce 
on  Am.  K.  U.  Law,  173  ;  and  see  iCickctt  v.  JJirtcCum,  tt'c,  of  Mttro- 
jwlitan  Railway  Co.,  Law  Reports,  2  House  of  Lords,  175,  pp.  188, 
189,  IDG.  IJut  this  does  not  concern  the  i)reseiit  case,  where  it  is  vir- 
tually conceded  that  the  injury  would  have  l)een  actionable  if  done  by 
a  private  individual  not  acting  under  statutory  authorit}'.  If,  upon  the 
otlier  hand,  the  phrase  is  used  to  describe  damage,  which,  though  not 
following  immediately  in  point  of  lime  upon  the  doing  of  the  act  com- 
l)laincd  of,  is  nevertheless  actionable,  tiiere  seems  no  go<xl  reason  for 
establishing  an  arbitrary  rule  that  such  damage  can  in  no  event  amount 
to  a  "  taking  of  property." 

The  severity  of  the  injury  ultimately  resulting  from  an  act  is  not 
always  in  inverse  proportion  to  the  lapse  of  time  Itetween  the  doing  of 
the  act  and  the  production  of  the  result.  Heavy  damages  are  recov- 
ered in  case  as  well  as  in  trespass.  The  question  whether  the  injury 
constitutes  a  '' taking  of  property"  must  depend  on  its  effect  upon 
proprietary  rights,  not  on  the  length  of  time  necessary  to  produce  that 
effect.  If  a  man's  entire  farm  is  permanently  submerged,  is  the  dam- 
age to  him  any  less  because  the  submerging  was  only  the  "  consequen- 
tial "  result  of  another's  act?  It  has  been  said  "  that  a  nuisance  by 
flooding  a  man's  land  was  originally  considered  so  far  a  species  of 
ouster,  that  he  might  have  had  a  remedy  for  it  by  assize  of  novel  dis- 
seisin ;  "  but  if  it  be  conceded  that  at  present  the  only  common  law 
remedy  is  by  an  action  on  the  case,  that  docs  not  change  the  aspect  of 
the  constitutional  (lueslion.  The  form  of  action  in  which  the  remedy 
must  be  scnight  cannot  be  decisive  of  the  (piestion  whether  the  injury 
falls  within  the  constitutional  prohibition.  ''  We  are  not  to  suppose 
that  the  framors  of  the  Constitution  meant  to  entangle  their  meaning 
in  the  mazes"  of  the  refined  technical  distinctions  by  which  the  com- 
mon-law system  of  foinis  of  action  is  "  i)eri)lexed  and  encumbered." 
Such  a  test  would  be  inapplical^le  in  a  large  proportion  of  the  States, 
where  the  distinction  between  trespass  and  case  has  been  annihilated 
by  the  abolition  of  the  old  forms  of  action.  We  are  not  alone  in  the 
opinion  that  the  phrase  ''  consequential  ilamage  "  has  been  misa[)plied 
in  some  of  the  discussions  on  this  constitutional  question;  —  see  the 
criticisms  of  Miller,  J.,  in  Punipelly  v.  Green  Bay  Company,  13  Wal- 
lace U.  S.  1G6,  p.  180 ;  Paine,  J.,  in  Alexander  v.  City  of  Milwaukee, 
IG  Wisconsin,  247,  p.  2')8  ;  Sutherland,  J.,  in  People  v.  Kerr,  37  Harb. 
357,  pp.  403,408;  —  and  we  think  that  the  confusion  thus  engendered 
"will  account  for  some  erroneous  decisions.  If  this  most  ambiguous 
expression  is  to  be  used  at  all  in  this  connection,  the  meaning  attached 
to  it  should  always  be  clearly  defined,  as  is  done  in  Pierce  on  Am. 
Railroad  Law,  173. 

It  may  perhaps  be  urged  that  a  decision  in  favor  of  the  plaintiff  will 
give  rise  to  a  multiplicity-  of  suits  b}'  other  claimants,  many  of  whom 


CHAP.  VI.J       EATON   V.    BOSTON,   CONCORD,    ETC.    RAILROAD.  1077 

have  sustained  no  substantial  damage.  But  this  affords  no  ground  for 
denying  redress  to  this  phvintiff,  who  has  clearly  sustained  a  substantial 
injury.  Nor  will  the  present  decision  be  a  precedent  in  future  cases 
differing  iu  their  nature  from  the  one  before  us.  The  answers  given 
by  other  courts  to  similar  objections  are  quite  decisive.  Ld.  Den- 
man,  C.  J.,  in  Regina  v.  Eastern  Counties  Railway  Co.,,  2  Queen's 
Bench,  347,  pp.  3G2,  363  ;  Montague  Smith,  J.,  in  Brand  v.  //.  &  C. 
Railway  Co.,,  Law  Reports.  2  Queen's  Bench,  223,  p.  245  ;  Parker,  C. 
J.,  in  Boston  &  Roxbury  Mill  Corp.  v.  Gardner,  2  Pick.  33,  pp.  38, 
39.  .  .  .  [Here  follows,  at  considerable  length,  a  learned  classification 
and  consideration  of  the  cases,  ending  with  those  designated  as  "  the 
highway  grade  cases."     The  opinion  closes  as  follows  :] 

By  the  foregoing  review  of  authorities,  it  appears  that  the  number  of 
actual  decisions  in  irreconcilable  conflict  with  the  present  opinion  is 
much  smaller  than  has  sometimes  been  supposed,  and  that,  in  a  large 
proportion  of  the  cases  cited,  the  application  of  the  principles  here  main- 
tained would  not  have  necessitated  the  remlitionof  a  different  judgment 
from  that  which  the  courts  actually  rendered  in  those  cases. 

Thus  far  Eaton's  case  alone  has  been  under  consideration.  The  only 
difference  between  Eaton's  case  and  Aiken's  case  arises  from  the  fact 
that  a  small  part  of  the  ridge  is  included  in  Aiken's  farm,  while  none 
of  it  is  on  the  farm  of  Eaton.  This  difference  does  not  affect  the  pres- 
ent inquiry,  wiiich  relates  solely  to  the  correctness  of  the  ruling  at  the 
trial.  The  court  did  not  rule  that  Aiken  could  recover  the  damages 
occasioned  to  him  hy  the  entire  cut  through  the  ridge.  The  ruling  was 
carefully  limited  to  ''  such  damages  as  have  been  caused"  the  plaintiffs 
"  in  consequence  of  the  defendants'  cutting  away  the  ridge  north  of  the 
plaintiffs'  farms."  If  any  damage  was  caused  to  Aiken  bv  the  defend- 
ants' removing  any  portion  of  that  "  small  part"  of  the  ridge  which  was 
included  in  his  farm,  he  is  not  entitled  to  recover  for  it  under  this 
ruling.  So  far,  tlien,  as  the  correctness  of  tlie  ruling  is  concerned, 
Aiken's  case  stands  on  the  same  legal  principle  as  Eaton's.  Under 
this  ruling  it  will  be  for  a  jury  to  sa}-  how  much  of  tiie  injury  to  Aiken's 
meadow  was  occasioned  by  the  removal  of  that  part  of  the  ridge  which 
was  north  of  Aiken's  farm. 

In  both  cases  the  exception  is  overruled.  As  the  defendants  elect 
trial  by  juiy,  the  order  must  be,  Case  discharged.^ 

1  Of  this  strong  anJ  closely  reasoned  judgment,  it  has  been  said  that,  "  The  leading 
case  upon  the  subject,  and  the  one  which  has  contributed  more  than  any  other  toward 
briu.iring  about  the  cbanire  referrerl  to  in  the  last  section  is  Eaton  v  B.  C.  <^  M.  R.  R. 
Co.,  51  N.  H.  504."  Lewis,  Em.  Domain,  s.  58  (Chicago,  1888).  The  change  here 
referred  to  is  one  thouL^ht  by  Mr.  Lewis  to  have  taken  place  "  within  the  last  twenty 
years,"  the  nature  of  which  is  sufficiently  indicated  in  the  opinion. 

"  That  the  flowing  of  lands  against  the  owner's  consent,  and  without  compensation, 
is  a  taking  of  his  property  in  violation  of  that  provision  of  our  Constitution,  and  that  of 
most  or  all  the  American  States,  which  prohibits  the  taking  of  property  without  com- 
pensation, is  a  proposition  which  seems  to  me  so  self-evident  as  hardly  to  admit  of  illus- 
tration by  any  example  which  can  be  made  clearer;  and  which  therefore  can  hardly 


1078  EATON   V.    BOSTON,   CONCORD,    ETC.    KAILROaD.       [cHAP.  VL 

need  the  support  of  authorities.  But  see  Hooker  v.  New  Haven  and  Xorthampton  Co., 
14  Conn.  146;  Rowe  v.  Granite  Drhlije  Corp.,  21  Pick.  344;  AVf//is  v.  City  of  Peoria, 
41  111.  502,  510;  Pettigrew  v.  Villaye  of  Evnnsville,  25  Wis.  223,  231,  235;  Pumpel'.y  v. 
Green  Bay  Co.,  13  Wallace,  166.  But  tlie  most  satisfactory  and  Lest  cuusidercd  ca«e 
which  cau  be  found  iu  the  books  upon  this  subject,  which  exaniiues,  claHsitiea,  and 
analyzes  nearly  all  the  cases,  and  iu  the  conclusions  of  wliicli  I  wiudly  ajjree,  is  that 
ol  Eaton  v  B.  C  <j-  M.  li.  R.  C«.,  51  N.  II.  504-535."—  Grand  Hapids  B,omtng  Co. 
V.  Jarvis,  30  Mich.  321  (1874),  Christiancy,  J.,  for  the  court. 

See  the  elaborate  affirniation  of  this  case  in  Thompson  v.  Androscoggin  Riv.  Imp.  Co., 
54  N.  H.  545  (1874).  Compare  Weaver  v.  Miss.  tV  Ram  River  Boom  Co  ,  28  Minn. 
534,  538  (1881) ;  Janesville  v.  Carpenter,  77  Wis.  288  (1890)  ;  Anderson  v.  Henderson, 
124  111.  164;  Randolph,  Em.  Dom.  s.  429;  Atty.-Gen.  v.  Tomline,  14  Ch.  Div  58 
(1880);  Head  v.  Amosk.  Co.,  supra,  pp  767-768  ;  Turner  v.  Xi/e,  supra,  p.  893  ;  iriY- 
liams  V.  Nelson,  23  Pick.  141  ;  see  also  Strong,  J.,  for  the  court,  in  Transport.  Co.  v. 
Chicago,  infra,  p   1082;  and  Earl,  J.,  dissenting,  in  Story  v.  El.  Ri/.  Co.,  infra,  p   1105. 

It  will  be  observed  that  the  judgment  in  the  principal  case  may  rest  upon  other 
grounds  than  those  on  which  the  court  puts  it. 

The  question  of  whether  property  has  been  taken  under  the  power  of  eminent 
domain  is,  indeed,  a  question  of  substance,  it  is  not  a  mere  matter  of  names,  or  of  the 
alleged  or  nominal  ground  on  which  the  legislature  assumes  to  act.  It  seems  that  it 
should  make  no  difference  under  wliat  head  of  legislative  power  it  is  sought  to  justify 
an  act,  e.  g.,  under  the  so-called  pulice  power  or  ta.xation,  —  if  there  be,  in  realitv,  and 
upon  a  large  and  just  consideration  of  the  matter,  a  taking,  divesting,  or  destruction 
of  property  by  the  State  for  public  purposes,  compensation  must  be  made.  Such  a 
doctrine,  however,  is  to  be  applied  with  a  recognition  of  well  known  exceptions  and 
qualifications,  in  full  view  of  tliat  historical  conception  of  the  meaning  of  a  taking 
of  property  for  public  purposes,  as  contrasted  with  the  usual  operations  of  public 
authority,  not  thought  of  as  requiring  compensation,  which  may  be  gathered  from  the 
established  practices  of  all  civilized  governments,  and  particularly  of  our  own  an- 
cestors, and  which  is  illustrated  in  such  a  ca.se  as  Com.  v.  A'ger,  7  Cush.  53  {supra, 
p.  693),  or  Com.  v.  Teu-ksbury,  11  Met.  55.  See  supra,  p.  699  and  note.  Compare  also 
Mugier  v.  Kansas,  \2Z  U.  S.  623  {supra,  p.  782) ;  and  Miller  v.  Horton,  152  Mass.  540.  A 
comparison,  in  the  last  case,  of  the  dissenting  opinion  with  that  of  the  court  will  illus- 
trate the  true  nature  of  tlie  inquiry  in  such  cases  and  the  difficulties  of  the  subject.  In 
reasoning  on  such  questions  there  is  danger  in  assuming  that  the  framers  of  our  con- 
stitutions used  language  in  the  definite  and  exact  sense  re.ached  by  modern  analysis. 
It  is  moreover  never  to  be  forgotten  that  much  in  our  constitutions  is  addressed  to 
legislatures  and  not  at  all  to  courts ;  that  much  injustice,  in  the  way  among  other 
ways,  of  not  making  compensation  where  it  should  be  given,  for  injuries  suffered  from 
acts  of  the  executive  and  the  legislature  is  beyond  the  reach  of  courts.  See  supra, 
pp.  151-154. 

Compare  what  is  said  in  "  Origin  and  Scope  of  the  American  Doctrine  of  Con- 
stitutional Law  "  (Little  and  Brown,  1893),  26  et  seq.,  in  discussing  tlie  meaning  of  the 
rule  that  laws  are  not  to  be  set  aside  as  unconstitutional  unless  they  are  so  beyond 
a  reasonable  donbt :  "  In  such  a  work  there  can  be  no  permanent  or  fitting  modus  vivendi 
between  the  different  departments  unless  each  is  sure  of.  the  full  co  operation  of  the 
others,  so  long  as  its  own  action  conforms  to  any  reasonable  and  fairly  permissible 
view  of  its  constitutional  power.  The  ultimate  arbiter  of  what  is  rational  and  permis- 
sible is  indeed  always  the  courts,  so  far  as  litigated  cases  bring  tlie  question  before 
them.  This  leaves  to  onr  courts  a  great  and  stately  jurisdiction.  It  will  only  imperil 
the  whole  of  it  if  it  is  sought  to  give  them  more.  Thev  must  not  step  into  the  shoes 
of  the  law-maker,  or  be  unmindful  of  the  hint  that  is  found  in  the  sagacious  remark  of 
an  English  bishop  nearly  two  centuries  ago,  quoted  lately  from  Mr  Justice  Holmes  :  — 
'  Whoever  hath  au  absolute  authority  to  interpret  any  written  or  spoken  laws,  it  is  he 
who  is  truly  the  law-giver,  to  all  intents  and  purposes,  and  not  the  person  who  first 
wrote  or  spoke  them.'  ...  If  what  I  have  said  be  sound,  it  is  greatly  to  be  desired 
that  it  should  be  more  emphasized  by  our  courts,  in  its  full  significance.     It  has  been 


CHAP.  VI.]  KOCH   V.    DELAWARE,   ETC.    RAILROAD.  1079 


KOCH   V.   DELAWARE,    &c.   RAILROAD   COMPANY. 
Sdfkeme  Court  of  New  Jersey.     1891. 

[53  N.  J.  Law,  256.] 

Ox  demurrer  to  declaration.  Argued  at  November  Term,  1890, 
before  Beasley,  Chief  Justice,  and  Justices  Dixon  and  Magie. 

For  the  plaintiff,  McDermit  and  Maker.  For  the  demurrants,  Bedle, 
Muirheid^  and  McGee. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  declaration  complains  of  damages 
arising  from  the  flooding  of  her  lands  by  an  act  of  the  defendant  alleged 
to  be  illegal. 

The  lands  so  injured  are  described  as  adjoining  a  certain  stream  of 
water  called  Ned's  Creek,  which  empties  into  a  contiguous  creek,  known 
as  Kiiigsland's  Creek,  and  that  the  premises  in  question  were  drained 
and  kept  dry,  until  the  grievance  complained  of,  by  means  of  a  sluice 
at  the  mouth  of  the  last-named  stream. 

These  allegations  do  not  appear  to  have  any  relation  to  the  case, 
except  to  show,  with  unnecessary  particularity,  tliat  antecedently  to  the 
tort  complained  of,  the  plaintiffs'  premises  had  not  been  subject  to  any 
water}'  influx.  No  complaint  is  made  of  any  interference  with  the 
sluice  or  creeks  thus  in  a  measure  described. 

The  declaration  then  proceeds  to  the  graramen  of  the  supposed  cause 
of  action.  Briefly  it  is  thus  stated  :  That  by  a  certain  Act  of  the  Leo^is- 
lature,  the  same  being  a  supplement  to  "  An  Act  to  incorporate  the 
Kingsland  and  Saw  Mill  Company,"  a  certain  tract  of  land  is  described, 
the  northerly  side  of  which  abuts  upon  the  line  of  the  Boonton  branch 

often  remarked  that  private  right.s  are  more  respected  by  the  legislatures  of  some 
countries  which  have  no  written  constitution  than  by  ours.  No  doubt  our  doctrine  of 
constitutional  law  has  had  a  tendency  to  drive  out  questions  of  justice  and  right, 
and  to  fill  the  mind  of  legislators  with  thoughts  of  mere  legality,  of  what  the  Consti- 
tution allows.  And  moreover,  even  in  the  matter  of  legality,  they  have  felt  little 
responsibility;  if  we  are  wrong,  they  say,  the  courts  will  correct  it.  Meantime  they 
and  the  people  whom  they  represent,  not  being  thrown  back  on  them.selves,  on  the 
responsible  e.xercise  of  their  own  prudence,  moral  sense,  and  honor,  lose  much  of  what 
is  best  in  the  political  experience  of  any  nation,  and  they  are  belittled  as  well  as 
demoralized.  If  what  I  h.ave  been  .saying  is  true,  the  safe  and  permanent  road  towards 
reform  is  that  of  impressing  upon  our  people  a  far  stronger  sense  than  they  have  of 
the  great  range  of  possible  mi.'schief  that  our  system  leaves  open,  and  must  leave  open 
to  the  legislatures,  and  of  the  clear  limits  of  judicial  power ,  so  that  responsibility  m.ay 
be  brought  sharply  home  where  it  belongs.  The  checking  and  cutting  down  of  legis- 
lative power  by  numerous  detailed  prohibitions  in  the  Constitution,  cannot  be  accom- 
pli.shed  without  making  the  government  petty  and  incompetent.  This  process  has 
already  been  carried  much  too  far  in  some  of  our  States.  Under  no  svstem  can  the 
power  of  courts  go  far  to  save  a  people  from  ruin ;  our  chief  protection  lies  elsewhere. 
If  this  be  true,  it  is  of  the  greatest  public  importance  to  put  the  matter  in  its  true 
light."  —  Ed. 


1080  KOCH    V.    DELAWARE,    ETC.    RAILROAD.  [CIIAI'.  VL 

of  the  Morris  and  Essex  Railroad  Company,  and  that  the  plaintiffs' 
premises  are  a  part  of  the  tract  so  set  forth.  Tiien  follows  an  aver- 
ment that  by  another  provision  of  the  statute  refirred  to  it  is  enacted, 
"  that  it  shall  not  be  lawful  to  make  any  opening  through  the  cause- 
way or  roadbed  of  the  Boontoa  branch  of  the  Morris  and  Essex  Kail- 
road  Company,  whereby  any  overflow  or  tide-water  from  the  meadows 
lying  beyond  the  same  shall  be  discharged  upon"  the  tract  of  huul  just 
mentioned. 

The  tort  laid  to  the  defendant  is,  that  it  "  unlawfully  made  an  open- 
ing through  the  causeway  or  roadbed  of  the  Boonton  branch,  and 
thereby  caused  the  plaintiffs'  lands  to  be  overflowed  by  the  tide-water." 

These  statements  can  have  but  a  single  meaning.  Tlu-y  denote  that 
the  plaintiffs'  lands  are  protected  from  the  incoming  of  tide-water  by 
the  artificial  structure  described  as  the  causeway  of  the  railroad,  and  the 
wrong  done  is,  that  the  defendant  has,  in  part,  removed  that  dam. 

It  is,  consequently,  plain,  that  the  phiinlitls,  in  order  to  show  a 
suable  wrong,  must  make  it  evident  that  they  have  a  legal  right  to 
insist  on  the  maintenance  of  the  railroad  structure  in  question  It  is 
not  sufficient  for  them  to  show  that  they  will  sustain  a  detriment  by  its 
removal ;  the  ground  of  their  action  is,  and  must  be,  a  di'itrivation  of  a 
right  that  tiic  law  secures  to  them  ;  and,  therefore,  if  they  cannot 
require  the  keeping  up  of  this  embankment,  they  cannot  complain,  in  a 
court  of  law,  of  its  destruction  or  its  impairment,  whether  such  act  be 
done  by  its  owner  or  by  a  stranger  as  an  act  of  trespass. 

And  this  seems  to  be  the  theory  u|)on  which  the  present  pleading  baa 
been  composed.  The  plaintiffs'  legal  right  to  the  unimpaired  existence 
of  this  defensive  roadway,  so  beneficial  t(j  their  pro[>eity,  is  described  in 
the  declaration  as  emanating  from  the  legislative  prohiljilion  against 
any  persons  making  an  opening  in  it.  As  the  language  of  the  Act  is 
plain  to  that  effect,  there  can  be  no  doubt  of  the  validity  of  this  reliance 
of  the  plaintiffs,  if  the  Act  itself  be  sustainable. 

And  this  seems  to  me  to  be  the  flaw  in  the  plaintiffs'  case ;  the  stat- 
ute appears  to  be  destitute  of  all  semblance  of  legality.  It  is  a  private 
Act,  and  it  is  not  shown  that  it  has  even  been  accepted  by  the  corporate 
body  for  whose  benefit  it  was  designed.  It  arbitrarily  forbids  the 
Boonton  branch  railroad  to  make  use  of  its  roadway  in  a  particular 
manner  —  that  is,  to  remove  it  at  its  pleasure,  in  whole  or  in  part. 
This  is  not  within  the  competency  of  legislation.  It  is  not  perceived 
how  the  law-maker  can  direct  this  corporate  bodv  to  forever  refrain  from 
removing  a  roadbed  constructed  by  it  on  its  own  property.  The  legis- 
lature, by  its  edict,  cannot  burden  the  land  of  the  railroad  for  the  ben- 
efit of  other  property. 

Inasmuch,  therefore,  as  this  statute  cannot  be  sustained,  the  plain* 
tiffs'  supposed  cause  of  action  has  no  basis. 

The  defendant  is  entitled  to  judgment  on  the  demurrer. 


CHAP.  VI.]  TRANSPORTATION    CO.   V.   CHICAGO.  1081 

In  Transportation  Co.  v.  Chicago,  99  U.  S.  635  (1878),  on  error  to  the 
Circuit  Court  oftiie  United  States  for  the  Northern  District  of  lUinois, 
Strong,  J.,  for  the  court  said  :  "  We  are  of  opinion  tiiat  no  error  has  been 
shown  in  this  record,  though  the  assignments  are  ver}'  numerous.  The  ac- 
tion was  case  to  recover  damages  for  injuries  alleged  to  have  been  sus- 
tained by  the  plaintiffs  in  consequence  of  the  action  of  the  city  authorities 
in  constructing  a  tunnel  or  passageway  along  the  line  of  La  Salle  Street 
and  under  the  Chicago  River,  where  it  crosses  that  street.  The  plaintiffs 
were  the  lessees  of  a  lot  bounded  on  the  east  by  the  street,  and  on  the 
south  by  the  river,  and  the  principal  injury  of  which  they  complain  is, 
that  by  the  operations  of  the  city  they  were  deprived  of  access  to  their 
premises,  both  on  the  side  of  the  river  and  on  that  of  the  street,  during 
the  prosecution  of  the  work.  It  is  not  claimed  that  the  obstruction 
was  a  permanent  one,  or  that  it  was  continued  during  a  longer  time 
than  was  necessary  to  complete  the  improvement.  Nor  is  it  contended 
that  there  was  unreasonable  delay  in  pushing  the  work  to  completion, 
or  that  the  coffer-dam  constructed  in  the  river,  extending  some  twenty- 
five  or  thirty  feet  in  front  of  the  plaintiff's  lot,  was  not  necessary,  indeed 
indispensable,  for  the  construction  of  the  tunnel. 

"The  case  has  been  argued  on  the  assumption  that  the  erection  of 
the  coffer-dam,  and  the  necessary  excavations  in  the  street,  constituted 
a  public  nuisance,  causing  special  damage  to  the  plaintiffs,  beyond  those 
incident  to  the  public  at  large,  and  hence,  it  is  inferred,  the  city  is  re- 
sponsible to  them  for  the  injurious  consequences  resulting  therefrom. 
The  answer  to  this  is  that  the  assumption  is  unwarranted.  That  cannot 
be  a  nuisance,  such  as  to  give  a  common-law  right  of  action,  which 
the  law  authorizes.  We  refer  to  an  action  at  common  law  such  as  this 
is.  A  legislature  may  and  often  does  authorize  and  even  direct  acts 
to  be  done  which  are  harmful  to  individuals,  and  which  without  the 
authority  would  be  nuisances  ;  but  in  such  a  case,  if  the  statute  be  such 
as  the  legislature  has  power  to  pass,  the  acts  are  lawful,  and  are  not 
nuisances,  unless  the  power  has  been  exceeded.  In  such  grants  of 
power  a  right  to  compensation  for  consequential  injuries  caused  by  the 
authorized  erections  may  be  given  to  those  who  suffer,  but  then  the 
right  is  a  creature  of  the  statute.  It  has  no  existence  without  it.  If 
this  were  not  so,  the  suffering  party  would  be  entitled  to  repeated 
actions  until  an  abatement  of  the  erections  would  be  enforced,  or 
perhaps  he  might  restrain  them  by  injunction.  .  .  . 

"It  is  immaterial  whether  the  fee  of  the  street  was  in  the  State  or 
in  the  city  or  in  the  adjoining  lot-holders.  If  in  the  latter,  the  State 
had  an  easement  to  repair  and  improve  the  street  over  its  entire  length 
and  breadth,  to  adapt  it  to  eas}'  and  safe  passage. 

"It  is  undeniable  that  in  making  the  improvement  of  which  the 
plaintiffs  complain  the  city  was  the  agent  of  the  State,  and  perform- 
ing a  public  duty  imposed  upon  it  by  the  legislature  ;  and  that  persons 
appointed  or  authorized  by  law  to  make  or  improve  a  highway  are  not 
answerable  for  consequential  damages,  if  they  act  within  their  jurisdic- 


2082  TRANSPORTATION    CO.    V.    CHICAGO.  [cilAP.  VL 

tion  and  with  care  and  skill,  is  a  doctrine  almost  universally  accepted 
alike  in  England  and  in  this  country.  It  was  asserted  umjualifiedlv  in 
2^1.6  Governor  and  Cot/ij)a/ti/  of  tlie  British  Cast- J 'late  Manufacturers 
V.  Meredith^  4  Durnf.  &  E.  TDi  ;  in  JSuttoa  v.  Clur/cc,  G  Taun.  28  ;  and 
in  Boidton  v.  Crowther,  2  Barn.  &  Cres.  703.  It  was  asserted  in  Green 
V.  The  Borou(jh  of  Heading,  9  Watts  (Pa.),  382  ;  O'  Vo)niijr  v.  ritts- 
buryh,  18  Pa.  St.  187;  in  Cullender  \.  3Iarsh^  1  Pick.  (Mass.)  418;  as 
well  as  by  the  courts  of  numerous  other  States.  It  was  asserted  in 
Smith  V.  The  Corporation  of  Washinyton  (20  How.  13a),  in  this 
court;  and  it  has  been  held  by  the  Supreme  Court  of  Illinois.  The 
decisions  in  Ohio,  so  far  as  we  know,  are  the  solitary  exceptions. 
The  doctrine,  however  it  may  at  times  appear  to  be  at  variance  with 
natural  justice,  rests  upon  the  soundest  legal  reason.  The  State  holds 
its  highwa3S  in  trust  for  the  public.  Improvements  made  by  its  direc- 
tion or  by  its  authority  are  its  acts,  and  the  ultimate  responsibility,  of 
course,  should  rest  upon  it.  But  it  is  the  prerogative  of  the  Stale  to 
be  exempt  from  coercion  by  suit,  except  by  its  own  consent.  Tiiis 
prerogative  would  amount  to  nothing  if  it  does  not  protect  the  agents 
for  improving  highways  which  the  State  is  compelled  to  employ.  The 
remedy,  therefore,  for  a  consequential  injury  resulting  from  the  State's 
action  through  its  agents,  if  there  be  any,  must  be  that,  and  that  only, 
which  the  legislature  shall  give.  It  does  not  exist  at  common  law. 
The  decisions  to  which  we  have  referred  were  made  in  view  of  Magna 
Charta  and  the  restriction  to  be  found  in  the  constitution  of  every 
State,  that  private  property  shall  not  be  taken  for  public  use  without 
just  compensation  being  made.  But  acts  done  in  the  proper  exercise 
of  governmental  powers,  and  not  directly  encroaching  upon  private 
properly,  though  their  consequences  may  impair  its  use,  are  universally 
held  not  to  be  a  taking  within  the  meaning  of  the  constitutional  pro- 
vision. They  do  not  entitle  the  owner  of  such  property  to  compensa- 
tion from  the  State  or  its  agents,  or  give  him  any  right  of  action.  This 
is  supported  by  an  immense  weight  of  authority.  Those  who  are  curi- 
ous to  see  the  decisions  will  find  them  collected  in  Cooley  on  Consti- 
tutional Limitations,  page  542  and  notes.  The  extremest  qualification 
of  the  doctrine  is  to  be  found,  perhaps,  in  PumpoUy  v.  Green  Bay 
Company,  13  Wall.  166,  and  in  Eaton  v.  Boston,  Concord,  &  Montreal 
Bailroad  Co.^  51  N.  H.  504.  In  those  cases  it  was  held  that  perma- 
nent flooding  of  private  property  may  be  regarded  as  a  "  taking."  In 
those  cases  there  was  a  physical  invasion  of  the  real  estate  of  the 
private  owner,  and  a  practical  ouster  of  his  possession.  But  in  the 
present  case  there  was  no  such  invasion.  No  entry  was  made  upon 
the  plaintiffs'  lot.  All  that  was  done  was  to  render  for  a  time  its  use 
more  inconvenient. 

"  The  present  Constitution  of  Illinois  took  effect  on  the  8th  of  August, 
1870,  after  the  work  of  constructing  the  tunnel  had  been  substantially 
completed.  It  ordains  that  private  property  shall  not  be  '  taken  or 
damaged  '  for  public  use  without  just  compensation.    This  is  an  exten* 


CHAP.  VI.]  CHICAGO   V.   TAYLOR.  1083 

sion  of  the  common  provision  for  the  protection  of  private  property. 
But  it  has  no  application  to  tliis  case,  as  was  decided  by  the  Supreme 
Court  of  the  State  in  Cluca'jo  v.  Mumsey,  recently  decided,  and  re- 
ported in  Chicago  Legal  News,  vol.  x.  p.  333,  87  111.  348.  That  case 
also  decides  that  the  city  is  not  liable  for  consequential  damages  result- 
ing from  an  improvement  made  in  the  street,  the  fee  of  which  is  in  the 
city,  provided  the  improvement  had  the  sanction  of  the  legislature.  It 
also  decides  that  La  Salle  Street  is  such  a  street,  and  declares  that  a 
recovery  of  such  damages  by  an  adjacent  lot-holder  has  been  denied 
by  the  settled  law  of  the  State  up  to  the  adoption  of  the  present  Con- 
stitution. There  would  appear,  therefore,  to  be  little  left  in  this  case 
for  controversy."  ^ 


CHICAGO   V.   TAYLOR. 
Supreme  Court  of  the  United  States.     1887. 

[125  U.  S.  161.] 

Trespass  ox  the  case.  Judgment  for  plaintiffs.  Defendant  sued 
out  this  writ  of  error  [to  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Illinois.]  The  case  is  stated  in  the  opinion  of  the 
court. 

Mr.  Frederick  S.  Winston  and  Mr.  John  W.  Green,  for  plaintiff  in 
error.  Mr.  George  A.  Follcuisbee  and  Mr.  Thomas  M.  Hoyne,  for 
defendants  in  error. 

Mr.  Justice  Harlav  delivered  the  opinion  of  the  court. 

This  action  was  brought  by  Moses  Taylor,  as  owner  of  an  undivided 
interest  in  a  lot  in  Chicago,  having  sixty  feet  front  on  Lumber  Street, 
one  hundred  and  fifty  feet  on  Eighteenth  Street,  and  three  hundred  feet 
on  the  South  Branch  of  Chicago  River,  to  recover  the  damages  sus- 
tained by  reason  of  the  construction,  by  that  citv,  of  a  viaduct  on  Eigh- 
teenth Street,  in  the  immediate  vicinity  of  said  lot.  The  city  did  this  work 
under  the  power  conferred  by  its  charter  "■  to  lay  out,  establish,  open, 
alter,  widen,  extend,  grade,  pave,  or  otherwise  improve  streets,  alleys, 
avenues,  sidewalks,  wharves,  parks,  and  public  grounds,  and  vacate 
the  same,"  and  "  to  construct  and  keep  in  repair  bridges,  viaducts,  and 
tunnels,  and  to  regulate  the  use  thereof."  It  appears  that  the  con- 
struction of  the  viaduct  was  directed  by  special  ordinances  of  the  city 
council. 

For  many  years  prior  to,  as  well  as  at,  the  time  this  viaduct  was  built, 
the  lot  in  question  was  used  as  a  coal-yard,  having  upon  it  sheds,  ma- 
chinery, engines,  boilers,  tracks,  and  other  contrivances  required  in  the 
business  of  buying,  storing,  and  selling  coal.  The  premises  were  long 
so  used,  and  they  were  peculiarly  well  adapted  for  such  business. 
There  was  evidence  before  the  jury  tending  to  show  that,  by  reason  of 

1  See  City  Council  v.  Maddox,  89  Ala,  181  (1890).  — Ed. 


1034  CHICAGO    V.    TA\'LOU.  [CIIAF.  VL 

the  construction  of  the  viaduct,  the  actual  market  value  of  tlie  lot,  for 
tlie  purposes  for  which  it  was  specially  adapted,  or  for  any  other  purpose 
for  which  it  was  likely  to  be  used,  was  nuiterially  diminished,  access  to 
it  from  Eighteenth  Street  being  greatly  obstructed,  and  at  some  points 
practically  cut  off;  and  that,  as  a  necessary  result  of  this  work,  the  use 
of  Lumber  Street,  as  a  way  of  api)roach  to  the  coal-yard  by  its  occu[)ant3 
and  buyers,  and  as  a  way  of  exit  for  teams  carrying  coal  from  the 
yard  to  customers,  was  seriously  impaired.  There  was  also  evidence 
tending  to  show  that  one  of  the  results  of  the  construction  of  the  viaduct, 
and  the  approaches  on  either  side  of  it  to  the  bridge  over  Chicago 
River,  was,  that  the  coal-yard  was  often  flooded  with  water  running  on 
to  it  from  said  approaches,  whereby  the  use  of  the  premises  as  a  place 
for  handling  and  storing  coal  was  greatl}'  interfered  with,  and  often 
became  wiiolly  impracticable. 

On  behalf  of  the  city  there  was  evidence  tending  to  show  that  the 
plaintiff  did  not  sustain  any  real  damage,  and  that  the  inconveniences 
to  occupants  of  the  premises,  resulting  from  the  construction  and  main- 
tenance of  the  viaduct,  were  common  to  all  other  persons  in  the  vicin- 
it}",  and  could  not  be  the  basis  of  an  individual  claim  for  damages 
against  the  city. 

There  was  a  verdict  and  judgment  against  the  city.  The  court  below 
having  refused  to  set  aside  the  judgment  and  grant  a  new  trial,  the  case 
has  been  brought  here  for  review  in  respect  to  errors  of  law  which,  it  is 
contended,  were  committed  in  the  admission  of  incompetent  evidence, 
in  the  refusal  of  instructions  asked  by  the  city,  and  in  the  charge  of  the 
court  to  the  jury. 

Before  noticing  the  assignments  of  error  it  will  be  well  to  ascertain 
what  principles  have  been  announced  by  this  court  or  by  the  Sui)reme 
Court  of  Illinois  in  respect  to  the  liability  of  municipal  or  other  cor- 
porations in  that  State,  for  damages  resulting  to  owners  of  private 
property  from  the  alteration  or  improvement,  under  legislative  author- 
it}-,  of  streets  and  other  pul)lic  highways. 

By  the  Constitution  of  Illinois,  adopted  in  1818,  it  was  provided  that 
no  man's  property  shall  "  be  taken  or  applied  to  public  use  without  just 
compensation  being  made  to  him."  Art.  XIII.  §  11.  While  this  Con- 
stitution was  in  force  Chicago  commenced,  and  substantially  completed, 
a  tunnel  under  Chicago  River,  along  the  line  of  La  Salle  Street,  in  that 
cit}'.  It  was  sued  for  damages  b\'  the  Northern  Transportation  Com- 
panj',  owning  a  line  of  steamers  running  between  Ogdensburg,  New  York, 
and  Chicago,  and  also  a  lot  in  the  latter  city,  with  dock  and  wharfage  priv- 
ileges, the  principal  injury  of  which  it  complained  being  that,  during  the 
prosecution  of  the  work  b}'  the  cit}',  it  was  deprived  of  access  to  its 
premises,  both  on  the  side  of  the  river  and  on  that  of  the  street.  This 
court — in  Trafisportation  Co.  v.  Chicago,  99  U.  S.  635,  641  —  held 
that  in  making  the  improvement  of  which  the  plaintiff  complained  the 
city  was  the  agent  of  the  State,  performing  a  public  duty  imposed  by 
the  legislature;  and  that  '*  persons  appointed  or  authorized  by  law  to 


CHAP.  VI.]  CHICAGO   V.    TAYLOR.  1085 

make  or  improve  a  highwa}-  are  not  answerable  for  consequential  dam- 
ages, if  tbey  act  within  their  jurisdiction,  and  with  care  and  skill,  is  a 
doctrine  almost  universally  accepted,  alike  in  England  and  in  this  coun- 
try," —  citing  numerous  cases,  among  others  Smith  v.  Corporation  of 
Washington^  20  How.  \'6h.  "  The  decisions  to  which  we  have  re- 
ferred," the  court  continued,  "  were  made  in  view  of  Magna  Charta, 
and  the  restriction  to  be  found  in  the  Constitution  of  every  State,  that 
private  propert}'  shall  not  be  taken  for  public  use  without  just  compen- 
sation being  made.  But  acts  done  in  the  proper  exercise  of  govern- 
mental powers,  and  not  directl}'  encroaching  upon  private  property, 
though  their  consequences  ma}'  impair  its  use,  are  universally  held  not 
to  be  a  taking  within  the  meaning  of  the  constitutional  provision.  The}' 
do  not  entitle  the  owner  of  such  property  to  compensation  from  the 
State  or  its  agents,  or  give  him  an}'  right  of  action."  This  view,  the 
court  further  said,  was  not  in  conflict  with  the  doctrine  announced  in 
Pxirtxpelly  v.  Green  Bay  Co.,  13  Wall.  1G6,  which  was  a  case  of  the 
permanent  flooding  of  private  property,  a  physical  invasion  of  the  real 
estate  of  the  private  owner,  a  practical  ouster  of  his  possession. 

In  City  of  Chicago  v.  Rumsey,  87  Illinois,  348,  363,  the  Supreme 
Court  of  Illinois,  upon  a  full  review  of  previous  decisions,  and  espe- 
cially referring  to  Moses  v.  Pittsburg,  Fort  Wayne,  &  Chicago  li.  Ji. 
Co.,  21  Illinois,  516  ;  Roberts  v.  Chicago,  26  Illinois,  249  ;  JIurphy  v. 
Chicago,  29  Illinois,  279  ;  Stone  v.  Fairbury,  Pontiac,  and  N'orth- 
western  Pailroad  Co.,  68  Illinois,  394  ;  Stetson  v.  The  Chicago  and 
Fofin-fton  Ruilroad  C<>.,  75  Illinois,  74  ;  and  Chicago^  Burlington^ 
and  Qiii)icy  Railroad  Co.  v.  McGinnis,  79  Illinois,  269,  held  it  to  have 
been  the  settled  law  of  that  State,  up  to  the  time  of  the  adoption  of  the 
Constitution  of  1870,  that  there  could  be  "no  recovery  by  an  adjacent 
property-holder,  on  streets  the  fee  whereof  is  in  the  city,  for  the  merely 
consequential  damages  resulting  from  the  character  of  the  improvements 
made  in  the  streets,  provided  such  improvement  has  the  sanction  of  the 
legislature." 

But  the  present  case  arose  under,  and  must  be  determined  with  refer- 
ence to,  the  Constitution  of  Illinois  adopted  in  1870,  in  which  the  pro- 
hibition against  the  appropriation  of  private  property  for  public  use, 
without  compensation,  is  declared  in  different  words  from  those  em- 
ployed in  the  Constitution  of  1848.  The  provision  in  the  existing 
Constitution  is,  that  "  private  property  shall  not  be  taken  or  damaged 
for  public  use  without  just  compensation."  An  important  inquiry  in 
the  present  case  is  to  the  meaning  of  the  word  "damaged"  in  this 
clause. 

The  earliest  case  in  Illinois  in  which  this  question  was  first  directly 
made  and  considered,  is  Rigney  v.  City  of  Chicago,  102  Illinois,  64, 
74,  80.  That  was  an  action  to  recover  damages  sustained  by  the  plaintiflf 
by  reason  of  the  construction  by  Chicago  of  a  viaduct  or  bridge  along 
Ilalstead  Street  and  across  Kinzie  Street,  in  that  city,  some  220  feet 
west  of  his  premises,  fronting  on  the  latter  street.     There  was  no  claim 


1086  CHICAGO   V.    TAYLOR.  [ciIAP.  VI. 

that  the  plaintiflf's  possession  was  disturbed,  or  that  any  direct  physical 
injury  was  done  to  his  premises  by  the  structure  in  question.  Hut  the 
complaint  was,  that  his  coniuiunieution  with  Ilalstead  Street,  by  way 
of  Kinzie  Street,  had  been  cut  oil",  whereby  he  was  deprived  of  a  pub- 
lic right  enjoyed  by  him  in  connection  with  his  premises,  and  an  injury 
inflicted  upon  him  in  excess  of  that  sustained  by  the  public.  For 
that  special  injury,  in  excess  of  the  injury  done  to  others,  he  brought 
suit.  The  trial  court  i)ereniptorily  instructed  the  jury  to  find  for  the 
city,  holding,  in  effect,  tliat  the  fee  of  the  streets  being  in  the  city, 
there  could  be  no  recovery  for  the  obstruction  of  which  the  plaintiff 
complained. 

That  judgment  was  reversed,  an  elaborate  opinion  being  delivered, 
reviewing  the  principal  cases  under  the  Constitution  of  1848,  and  re- 
ferring to  the  adjudications  in  the  courts  of  other  States  upon  the 
general  question  as  to  what  amounts  to  a  taking  of  private  property  for 
public  use  within  the  meaning  of  such  a  provision  as  that  contained  in 
the  former  Constitution  of  Illinois.  After  alluding  to  the  decisions  of 
other  State  Courts  to  the  effect  that  such  a  provision  extended  only  to 
an  actual  appropriation  of  property  by  the  State,  and  did  not  embrace 
consequential  injuries,  although  what  was  done  resulted,  substantially, 
in  depriving  the  owner  of  its  use,  the  Supreme  Court  of  Illinois  re- 
viewed numerous  cases  determined  by  it  under  the  Constitution  of  1848. 
Nevins  v.  City  of  Peoria,  A\  Illinois,  502,  decided  in  18G6 ;  Gillam 
V.  Madison  Coioiti/  liailroad,  49  Illinois,  484  ;  Citij  of  Aurora  v.  Gil- 
lett,  56  Illinois,  132  ;  Aurora  v.  Raed,  o7  Illinois,  29  ;  City  of  Jackson- 
ville V,  Lambert,  G2  Illinois,  519  ;  Toledo,  Wabash,  ttc.  liailroad  v. 
Morrison^  71  Illinois,  G16.  It  says:  "  Whatever,  therefore,  may  be 
the  rule  in  other  States,  it  clearly  appears  from  this  review  of  the  cases 
that  previous  to,  and  at  the  time  of  the  adoption  of  the  present  Consti- 
tution, it  was  the  settled  doctrine  of  this  court  that  any  actual  physical 
injury  to  private  property  by  reason  of  the  erection,  construction,  or 
operation  of  a  public  improvement  in  or  along  a  public  street  or  high- 
wa}-,  whereb}'  its  appropriate  use  or  enjoyment  was  materially  inter- 
rupted, or  its  value  substantially  impaired,  was  regarded  as  a  taking  of 
private  property,  within  the  meaning  of  the  Constitution,  to  the  extent 
of  the  damages  thereby  occasioned,  and  actions  for  such  injuries  were 
uniforml}-  sustained." 

Touching  the  provision  in  the  Constitution  of  1870,  the  court  said 
that  the  framers  of  that  instrument  evidently  had  in  view  the  giving  of 
greater  security  to  private  rights  by  giving  relief  in  cases  of  hardship 
not  covered  bj'  the  preceding  Constitution,  and  for  that  purjjose  ex- 
tended the  right  to  compensation  to  those  whose  property  had  been 
"  damaged"  for  public  use;  that  the  introduction  of  that  word,  so  far 
from  being  superfluous  or  accidental,  indicated  a  deliberate  purpose  to 
make  a  change  in  the  organic  law  of  the  State,  and  al)olished  the  old 
test  of  direct  physical  injury  to  the  coi-jms  or  subject  of  the  property 
affected.     The  new  rule  of  civil  conduct,  introduced  by  the  present 


CHAP.  VI.]  CHICAGO   V.   TAYLOR.  1087 

Constitution,  the  court  adjudged,  required  compensation  in  all  cases 
where  it  appeared  "  there  has  been  some  physical  disturbance  of  a 
right,  either  public  or  private,  which  the  plaintiff  enjoys  in  connection 
with  his  property,  and  which  gives  to  it  an  additional  value,  and  that 
by  reason  of  such  disturbance  he  has  sustained  a  special  damage  with 
respect  to  his  property  in  excess  of  that  sustained  by  the  public  gener- 
ally." The  Chief  Justice  concurred  in  the  judgment,  and  in  the  general 
views  expressed  b}'  the  court,  holding  that  wliile  the  owner  of  a  lot  on  a 
street  held  it  subject  to  the  right  of  the  public  to  improve  it  in  any  ordi- 
nar}'  and  reasonable  mode  deemed  wise  and  beneficial  by  the  proper 
public  functionaries,  he  was  entitled,  under  the  Constitution  of  1870,  to 
compensation  in  case  of  a  sudden  and  extraordinary  change  in  the 
grade  of  the  street  or  highway,  whereby  the  value  of  his  property  is  in 
fact  impaired.     Three  of  the  justices  of  the  State  court  dissented. 

As  we  understand  the  previous  cases  of  Pekin  v.  Brereton^  67  Illi- 
nois, 477;  Pekin  v.  Winkel^  11  Illinois,  56;  Shawneetown  v.  Mason, 
82  Illinois,  337  ;  Elfjin  v.  Eaton,  83  Illinois,  535  ;  and  Stack  v.  St.  Louis, 
85  Illinois,  377,  —  all  of  which  arose  under  the  present  Constitution  of 
Illinois, — they  proceeded  upon  the  same  grounds  as  those  expressed 
in  RIgney  v.  Chicago,  although  in  no  one  of  them  did  the  court  dis- 
tinctly declare  how  far  the  present  Constitution  differed  from  the 
former  in  respect  to  the  matter  now  before  us. 

At  the  same  term  when  Rigney's  case  was  decided,  the  State  court 
had  occasion  to  consider  this  question  as  presented  in  a  somewhat  dif- 
ferent aspect.  The  Union  Building  Association  owned  a  building  and 
lot  three  and  a  half  blocks  from  a  certain  part  of  La  Salle  Street  in 
Chicago,  which  the  city  proposed  to  close  up,  and  permit  to  be  occupied 
by  the  Board  of  Trade  with  its  building.  As  the  streets  adjacent  to 
the  plaintiff's  property  were  to  remain  in  the  same  condition  as  to 
width,  etc.,  that  they  were  in  before,  and  as  the  closing  up  of  a  portion 
of  La  Salle  Street  would  not,  in  any  degree,  interfere  with  access  to  its 
lot,  or  with  the  use  and  enjoyment  of  it,  it  was  held  that  there  was  no 
special  or  particular  injury  done  for  which  an  action  would  lie  against 
the  city.  That  case  was  distinguished  from  Rigney  v.  Chicago  in  this, 
that  in  the  latter  case  the  court  held  that  "  proj)crty-holders  bordering 
upon  streets  have,  as  an  incident  to  their  ownership  of  such  property,  a 
right  of  access  by  way  of  the  streets,  which  cannot  be  taken  away  or 
materially  impaired  by  the  city,  without  incurring  legal  liability  to  the 
extent  of  the  damages  therel)y  occasioned."  City  of  Chicago  v.  Union 
Duilding  Associatioyi,  102  Illinois,  379,  397. 

In  Chicago  &  Western  huliana  Railroad  \.  Ayres,  106  Illinois,  518, 
the  court —  all  the  justices  concurring  — observed  :  "It  is  needless  to 
say  our  decisions  have  not  been  harmonious  op  this  question,  but  in  the 
case  of  Rigney  v.  City  of  Chicago,  102  Illinois,  64,  there  was  a  full 
review  of  the  decision  of  our  courts,  as  well  as  the  courts  of  Great  Brit- 
ain, under  a  statute  containing  a  provision  similar  to  the  provision  in 
our  Constitution.     The  conclusion  there  reached  was,  that  under  this 


1088  CHICAGO   V.   TAYLOR.  [cUaP.  VL 

constitutional  provision  a  recover}'  may  be  bad  in  all  cases  wliere  pri- 
vate property  bas  sustained  a  substantial  damage  by  tlie  making  and 
using  an  improvement  tliat  is  public  in  its  cbaracter,  —  that  it  does  not 
require  that  the  damage  shall  be  caused  by  a  trespass,  or  an  actual 
physical  invasion  of  the  owner's  real  estate,  but  if  the  construction  and 
operation  of  the  railroad  or  other  improvement  is  the  cause  of  the  dam- 
age, though  consequential,  the  party  may  recover.  We  reganl  that 
case  as  conclusive  of  this  question.  Tlie  case  of  Pittsburg  <{•  Fort 
Wayne  Railroad  Co.  v.  Reich,  101  Illinois,  157,  is  in  point  on  this 
question  of  damages,  and  the  case  of  City  of  Chicago  v.  Union  Build- 
ing Association,  102  Illinois,  37*J,  also  reviews  the  authorities  and 
approves  the  doctrine  in  Rigney  v.  Chicago,  supra.  These  cases,  there- 
fore, overrule  the  doctrines  of  the  earlier  cases."  Our  attention  has 
not  been  called  to,  nor  are  we  aware  of  any  subsequent  decision  of  the 
State  court  giving  tlie  Constitution  of  1870  an  interpretation  ditferent 
from  that  indicated  in  Rifjney  \.  Chicago^  unii  Chicago,  d'C.  Railroad 
Co.  v.  Ayres.  We  concur  in  that  interpretation.  The  use  of  the  word 
"  damaged  "  in  the  clause  providing  for  compensation  to  owners  of  pri- 
vate property,  appropriated  to  public  use,  could  have  been  with  no 
other  intention  than  that  expressed  by  the  State  court.  Such  a  change 
in  the  organic  law  of  the  State  was  not  meaningless.  But  it  would 
be  meaningless  if  it  should  be  adjudged  that  the  Constitution  of  1870 
gave  no  additional  or  greater  security  to  private  property,  sought  to  be 
appropriated  to  public  use,  than  was  guaranteed  by  the  former 
Constitution. 

The  charge  to  the  jury  by  the  learned  judge  who  presided  at  the  trial 
gave  effect  to  the  principles  announced  in  the  foregoing  cases  arising 
under  the  present  Constitution  of  Illinois.  It  covered  every  vital  ques- 
tion in  the  case,  in  language  so  well  guarded  that  the  jury  could  not 
■well  have  misunderstood  the  exact  issue  to  be  tried,  or  the  proper 
bearing  of  all  the  evidence.  So  far  as  the  special  requests  for  instruc- 
tions in  behalf  of  the  city  contained  sound  propositions  of  law  they  were 
fully  embodied  in  the  charge  to  the  jury. 

In  behalf  of  the  city  it  was  contended  that,  if  liable  at  all,  it  was  only 
liable  for  such  damage  as  was  done  to  the  market  value  of  the  property 
by  rendering  access  to  it  difficult  or  inconvenient.  The  court  said,  in 
substance,  to  the  jury  that  the  flooding  of  the  lot  by  water  running 
down  upon  it  from  the  approaches  to  the  viaduct  was  an  element  of 
damage  which  they  might  consider ;  though  if  such  flooding  merel}' 
caused  inconvenience  to  the  occupant  in  the  conduct  of  his  business, 
such  as  his  coal  getting  wet,  or  its  becoming  more  difficult  to  keep  his 
scales  properly  adjusted,  these  were  not  elements  of  impairment  to  the 
value  of  the  propert}'  for  purposes  of  sale.  The  jury  were  also  instructed 
that  although  the  occupant  may  have  found  it  difficult  to  haul  coal  out 
of  the  lot,  and  although  it  may  have  been  much  more  unprofitable  to 
conduct  the  business  of  selling  coal  at  this  lot,  that  did  not  weigh  upon 
the  question  as  to  the  value  of  the  lot  in  the  market.     Other  obser- 


CHAP.  VI.]  CHICAGO    V.   TAYLOR.  1089 

vations  were  made  to  the  jury,  but  the  court,  in  different  forms  of  ex- 
pression, said  to  them  that  the  question  was,  whether,  b}'  reason  of  the 
construction  of  the  via(Uict,  the  value,  that  is,  the  marliet  price,  of  the 
property  had  been  diminished.  The  scope  of  the  charge  is  fairly  indi- 
cated in  the  following  extract:  "  The  real  question  is,  has  the  value  of 
this  property  to  sell  or  rent  been  diminished  by  the  construction  of  this 
viaduct?  It  may  be  that  it  can  no  longer  be  used  for  the  purposes  of  a 
coal-yard,  or  for  an}'  purpose  for  which  it  has  heretofore  been  used,  but 
that  would  not  be  material  if  it  can  be  rented  or  sold  at  as  good  a  price 
for  other  purposes,  except  that  if  the  proof  satisfies  you  that  an}'  of  the 
permanent  improvements  put  on  the  lot  for  the  particular  business  which 
has  been  heretofore  carried  on  there,  and  for  which  it  was  improved, 
have  been  impaired  in  value,  or  are  not  worth  as  much  after  this  via- 
duct was  built  and  the  bridge  was  raised  as  before,  and  you  can  from 
the  proof  determine  how  much  these  improvements  are  damaged,  the 
plaintiff  would  be  entitled  to  recover  for  such  damage  to  the  improve- 
ments, —  that  is  to  say,  this  lot  I)eing  improved  for  a  specific  purpose,  if 
the  proof  satisfies  you  that  it  can  no  longer  be  rented  or  used  for  that 
purpose,  and  that  thereby  these  improvements  have  been  lost  or  im- 
paired in  value,  then  the  impairment  of  value  to  these  improvements  is 
one  of  the  elements  of  damage  which  the  plaintiff  is  entitled  to  have 
considered  and  passed  upon  and  included  in  his  damage." 

It  would  serve  no  useful  purpose  to  examine  in  detail  all  the  requests 
for  instructions,  and  compare  them  with  the  charge,  or  discuss  the 
questions  arising  upon  exceptions  to  the  admission  of  evidence.  After 
a  careful  (-onsideration  of  all  the  propositions  advanced  for  the  cit}',  we 
are  unable  to  discover  any  substantial  error  committed  to  its  prejudice. 
It  ma}'  be,  as  suggested  by  its  counsel,  that  the  present  Constitution  of 
Illinois,  in  regard  to  compensation  to  owners  of  private  property  "dam- 
aged "  for  the  pul)lic  use,  has  pj-oveil  a  serious  obstacle  to  municipal 
improvements  ;  that  the  sound  policy  of  the  old  rule,  that  private  prop- 
erty is  held  subject  to  any  consequential  damages  that  may  arise  from 
the  erection  on  a  public  highway  of  a  lawful  structure,  is  being  con- 
stantly vindicated  ;  and  that  the  constitutional  provision  in  question 
is  "a  handicap"  upon  municipal  improvement  of  public  highways. 
And  it  may  also  be,  as  is  suggested,  doubtful  whether  a  consti- 
tutional convention  could  now  be  convened  that  would  again  incor- 
porate in  the  organic  law  the  existing  provision  in  regard  to  indirect  or 
consequential  damage  to  private  property  so  far  as  the  same  is  caused 
by  public  improvements.  We  dismiss  these  several  suggestions  with 
the  single  observation  that  they  can  be  addressed  more  properly  to 
the  people  of  the  State  in  support  of  a  proposition  to  change  their 
Constitution. 

We  perceive  no  error  in  the  record,  and  the  judgment  is 

Affirmed} 

1  See  also  Osborne  v.  Mo  Pnc.  Ry.  Co.,  147  U.  S.  248  (1893)  ;  Jaclcson  v.  Chic.  ^c. 
By.  Co.,  41   Fed.  Rep.  656  (West.  D.  Mo   1890)  ;  Peel  v.  Atlanta,  85  Geo.  138  (1890),- 
VOT..  I  —  69 


1090  PHILADELPIII-V    AND   TUENTON    KAILKOAD    CASE.        [ciIAI'.  VI. 

In  the  Case  of  the  PldladtlpJua  and  Trent  >n  Itailroad  Cu7npany, 
6  Wharton,  25,43  (1840),  iu  considering  a  statute  purporting  to  auth- 
orize the  corijonitiun  to  construct  and  operate  its  road  in  public  highways 
and  providing  no  con)pensation,  the  court  (Gibson,  C.  J.)  said  :  ''  The 
remaining  exception  is  more  iniportant,  because  it  calls  in  question,  for 
specific  reasons,  the  validity  of  the  statute  which  is  the  foundation  of 

Tex.  ^-c.  Rif.  Co.  V.  Meadows,  73  Tex.  32;  MrMtihon  v.  St.  Louis,  ^-c.  Ry.  Co.,  41  I.a. 
Aun.  827;  Omaha  R.  R.  Co.  v.  Janecek,  30  Neb  276  (1890)  ,  Gnniesrille,  <Jf.  A'.  Co.  v. 
Hall,  78  Tex.  169  (1890)  ;  Smith  v.  St.  Joseph,  27  S.  W.  Hep.  (Mo.  1894). 

Iu  Hot  S/jri)i>/s  R.  R  Co.  V.  IVilltamson,  136  U.  S.  121,  129  (1890),  L.\m.\r,  J.,  for 
the  court,  said  :  "  It  is  proper  to  add  that  we  coiu-ur  iii  the  view  taken  of  thi.s  case  by 
the  iSupreine  Court  of  Arkans;us.  That  court  held  that  the  Act  of  Congress  granting  the 
right  of  way  to  the  defeu(hiut  company  over  the  strip  of  land  upon  wliicli  its  road  wa.s 
to  be  operated  (which  in  this  case  was  along  the  line  of  Benton  Street,  an  original 
street  in  the  town  of  Hut  Springs,  and  used  as  such  at  the  time  of  the  passage  of  the 
Act)  carried  with  it  tlic  riglit  to  construct,  maintain,  and  operate  its  line  of  railroad 
therein,  and  to  appropriate  such  right  as  a  location  for  its  turn-table  and  depots,  and  for 
any  other  purpose  necessary  to  tlie  oj)eration  of  its  road ;  but  that  it  was  e(jually  clear, 
under  the  provisions  of  the  present  Constitution  of  the  State  of  Arkansas,  that  if,  in  tlio 
exercise  of  that  riglit,  the  j)roperty  of  an  adjoining  owner  was  damaged  in  the  use  and 
enjoyment  of  the  street  upon  which  the  road  was  located,  such  owner  would  be  entitled 
to  recover  such  damages  from  the  company.  It  further  held  tliat  the  contention  of  the 
plaintiff  iu  error  that  the  Act  of  Congress  invested  it  with  an  absolute  title  to  the  street 
along  which  its  road  was  located,  and  exempted  it  from  any  liability  for  couse<iuential 
damages  resulting  to  an  abutting  owner  from  the  laying  of  its  track  in  a  proper  and 
skilful  manner,  was  founded  ujion  cases  arising  under  the  familiar  constitutional  re- 
striction that  private  property  shall  not  be  taken  for  public  use  without  compensation, 
which  decisions  generally  turned  upon  the  ijuestion,  what  is  a  lakiw/,  within  the  mean- 
ing of  such  provision  ?  That  tlie  Constitution  of  that  State  of  1878,  which  provides 
that  '  private  property  shall  not  be  taken,  ajjpropriated,  or  damaged  for  public  use 
without  just  compensation,'  has  changed  tliat  rule  ,  tiiat  ail  the  decisions  rendered 
under  similar  constitutional  provisions  concur  in  holding  tliat  the  use  of  a  street  by  a 
railroad  company  as  a  site  for  its  track,  umler  legislative  or  municipal  authority,  when 
it  interferes  witii  the  rights  of  adjoining  laijd-owners  to  the  use  of  the  street,  as  a 
means  of  ingress  and  egress,  subjects  tlie  railroad  company  to  an  action  for  damages, 
on  account  of  the  diminution  of  the  value  of  the  property  caused  by  such  use  ,  and, 
lastly,  that  even  conceding  the  autiiority  of  the  town  of  Hot  Springs  to  pass  tlie  ordi- 
nance authorizing  the  company  to  construct  and  maintain  the  railroad  embankment, 
track,  and  turn-table  complained  of,  it  cannot  impair  the  constitutional  right  of  the 
defendant  iu  error  to  compensation. 

"  We  think  those  views  are  sound  and  in  accordance  with  the  decisions  of  this  court 
in  Penns>ilvania  Railrond  Conipnni/  v.  Miller,  132  U.  S.  75,  and  Xew  York  Elevated  Rail- 
road V.  Fifth  Nat.  Bank;  decided  May  5,  1890,  135  U.  S.  432." 

Compare  Citi/  of  Pueblo  v.  Strait,  36  Pac.  Rep.  700  (Col.  May,  1894).  In  this  case 
Hayt,  C.  J.,  for  the  court,  said  -.  "  The  insertion  of  the  word  '  damaged  '  first  appears 
in  the  amended  Constitution  of  Illinois,  adopted  in  1870.  It  has  since  been  incor- 
porated into  the  constitutions  of  West  Virginia,  Pennsylvania,  Arkansas,  Missouri, 
Alabama,  Nebraska,  Texas,  Georgia.  California,  Colorado,  Kentucky,  Montana,  and 
the  Dakotas."  A  previous  case  in  Colorado  is  cited,  in  which  the  court  "was  of  opin- 
ion that  it  [this  provision]  was  a  recognition  of  a  new  right  of  action  not  necessarily 
known  to  the  common  law ;  and  this  principle  has  been  recognized  since  in  several  of 
the  cases  supra." 

In  Omaha  v.  Kramer,  25  Neb.  489,  492  (1889),  the  court  (Maxwell,  J.),  after 
criticising  the  decision  in  Pa.  R.  R.  Co.  v.  Marchant,  119  Pa.  541,  said  ;  "  Section  21, 
Article  I.  of  the  Constitution  of  this  State  provides  that  '  the  property  of  no  person 


CHAP.  VI.]       PHILADELPHI.V    AND   TRENTON    R.ULROAD   CASE.  1091 

tlie  proceeding,  and  which  is  said  to  be  unconstitutional  because  it 
impairs  the  obligation  of  contracts  ;  b}*  violating  the  chartered  rights  of 
the  districts  of  Spring  Garden  and  the  Northein  Liberties  ;  l)y  violating 
the  contract  under  which  the  right  of  passage  is  assured  to  the  inhabi- 
tants of  this  particular  street ;  b}'  taking  the  property'  of  the  street 
without  compensation  to  the  districts  or  individual  proprietors ;  and  by 
monopolizing  the  street  in  derogation  of  the  public  and  private  uses  to 

shall  be  taken  or  damaged  for  public  use  without  just  compensation  therefor.'  The 
section  above  taken,  except  the  words  'or  damaged,'  was  in  the  Constitution  of  1867. 
Under  that  Constitution,  if  any  portion  of  a  person's  real  estate  was  taken  for  public 
use,  he  could  recover  all  the  damages  sustained  by  the  taking ;  but  if  none  of  his  real 
estate  was  taken  for  public  use  he  could  recover  nothing,  although  his  property  had 
been  greatly  damaged  l)y  such  use.  The  provision,  therefore,  is  remedial  in  its 
nature,  and  the  well-known  rule  that,  in  the  construction  of  remedial  statutes,  three 
points  are  to  be  considered,  viz.,  the  old  law,  the  mischief,  and  the  remedy,  and  so  to 
construe  the  Act  as  to  suppress  the  mischief  and  advance  the  remedy,  is  to  be  applied. 
1  Blackstoue  Com.  87.  Applying  this  rule  to  the  provision  in  question,  and  it  em- 
braces all  damages  which  affect  the  value  of  a  person's  property,  and  includes  cases 
like  that  under  consideration.  In  other  words,  the  words  'or  damaged,'  in  Sec.  21, 
Art.  I.  of  the  Constitution,  inclmle  all  actual  damages  resulting  from  the  exercise  of 
the  right  of  eminent  domain  wiiich  diminish  the  market  value  of  private  property. 
Reardon  v.  6'au  Fninrisro,  68  Cal.  492 ;  Atlanta  v.  Green,  67  (ia.  386  ;  C.  ^-  W.  I.  li. 
Co.v.  Ai/res,  106  111.  .511  ;  Rigne;/  v.  Chicago,  102  Id.  64;  St.  L.,  \\,^  T.  H.  R.  R.  Co. 
V.  Haller,  82  Id.  208  ;  Hot  Springs  R.  R.  Co.  v.  Williamson,  45  Ark.  429 ;  Gottschalk 
V.  C.  B.  Sf'  Q.  R.  Co.,  14  Neb  550;  Schaller  v.  Omaha,  2.3  Id.  325. 

"  The  fact  that  damages  are  consequential  will  not  preclude  a  recovery,  if  the  con- 
struction and  operation  of  the  public  improvement  is  the  cause  of  the  injury  ;  and  it  is 
not  necessary  that  the  damages  be  caused  by  trespass  or  an  actual  physical  invasion  of 
the  owner's  real  estate.  The  test  is :  Exclmling  general  benefits,  is  the  property  in 
fact  damaged  ?     If  so,  the  owner  is  entitled  to  compensation. 

"It  is  not  within  the  scope  of  the  authority  of  the  law-making  department  of  the 
government  to  take  the  property  of  A  and  give  it  to  B,  even  if  B  has  the  riglit  to 
condemn  property  for  public  use.  This  being  so,  it  is  equally  beyond  the  power 
of  such  department  to  confer  the  right  on  B  to  damage  or  destroy  the  property  of  A 
without  making  compensation  therefor.  The  right  of  the  legislature  to  authorize  the 
taking  of  private  property  for  public  use  is  ba.sed  on  the  condition  that  an  equivalent 
in  value  be  paid  to  the  owner.  If  property  is  diminisiied  in  actual  value  by  reason  of 
a  public  improvement,  it  is  to  the  extent  of  tiie  diminution  taken  for  public  use,  as 
much  so  as  if  it  was  directly  appropriated.  The  cases  differ  in  regard  to  the  mode  of 
appropriation  only.  In  the  one  case  all  the  property  is  taken,  wliile  in  the  other  it  is 
taken  only  to  the  extent  that  it  is  diminished  in  value,  and  in  either  case  the  owner  is 
entitled  to  be  compensated  for  his  loss.  Laws  are  m.ade  to  protect  private  rights,  and 
not  to  destroy  them,  the  only  exception  being  where  a  party  l)y  his  own  fault  has  for- 
feited the  same.  By  protecting  and  enforcing  tlie  rights  of  each  individual,  the  rights 
of  all  are  respected  and  secured,  and  the  humblest  jtenson  made  to  feel  that  he  can  suf- 
fer no  wrong  to  his  estate  without  receiving  adequate  redress.  Constitutional  guaran- 
tees  are  of  little  avail  unless  carried  out  in  the  spirit  in  which  they  were  framed,  and 
DO  plea  of  public  benefits  should  be  permitted  to  impoverish  the  owner  of  private  prop- 
erty, or  override  a  plain  constitutional  inhibition.  If  the  public  desire  to  erect  works 
for  public  use,  then  the  public  — the  party  benefited  —  must  bear  the  burden,  while 
each  owner  of  private  property,  as  one  of  the  public,  in  some  of  the  modes  provided  by 
law,  must  pay  his  share  of  the  indebtedness  or  expense,  and  thus  the  burdens  are 
equ.alized.  The  judginent  of  the  District  Court  is  reversed,  and  the  cause  remanded 
for  further  proceedings.  Reversed  and  remanded." 

But  see  Randolph,  Eminent  Domain,  s.  154.  —  Ed. 


1002      PHILADELPHIA  AND  TRENTON  RAILROAD  CASE.   [CHAI'.  VL 

wliicli  It  had  been  applied.  This,  perhaps,  is  the  substance  of  all  these 
inultifurioiis  specifications. 

"  Wtiat  is  the  dominion  of  the  piililic  over  such  a  street?  In  England, 
a  highway  is  the  property  of  the  king  as  parens  patrif^,  or  universal 
trustee  ;  in  Pennsylvania,  it  is  the  property  of  the  pCQXtle.  pnt  nf  n  pn^- 
ticular  district^  but  of  the  wliole  State  ;  who,  constituting  ns^  t]\oy  i](\. 
the  legitimate  sovereign,  may  dispose  of  it  by  their  represcntative&T-jwid 
at  their  pleasure.  Highways,  therefore,  bein^;^  universally  the  property 
of  the  State,  are  subject  to  its  absolute  direction  and  cojitrol.  An 
exclusive  right  of  icrriage  across  a  navigable  stream,  which  is  a  public 
highway,  is  grantable  only  by  it ;  and  the  navigation  of  the  stream  may 
be  impeded  or  broken  up  by  it  at  its  pleasure.  In  tlie  construction  of 
her  system  of  improvements,  Pennsylvania  has  acted  on  this  principle. 
Her  dams  across  her  principal  rivers  to  feed  her  canals,  have  injured  if 
they  have  not  destroyed  the  descending  navigation  by  the  natural 
channels  ;  and  this  without  a  suspicion  of  want  of  constitutional  power. 
The  right  of  passage  by  land  or  by  water,  is  a  franchise  wiiich  she  holds 
in  trust  for  all  her  citizens,  but  over  wliich  she  holds  despotic  sway,  the 
remedy  for  an  abuse  of  it  being  a  change  of  rulers,  and  a  consequent 
change  of  the  law.  No  person,  natural  or  corporate,  has  an  exclusive 
interest  in  the  trust,  unless  she  has  granted  it  to  him.  Her  right 
extends  even  to  the  soil,  being  an  equivalent  for  the  six  percent,  thrown 
into  every  public  grant  as  compensation  for  what  may  be  reclaimed  for 
roads  ;  and  she  has  acted  on  the  basis  of  it ;  for  though  damages  for 
special  injuries  to  improvements  have  been  allowed  by  the  general  road 
laws,  nothing  has  been  given  for  the  use  of  the  ground.  This  prin- 
ciple was  broadly  asserted  in  The  Commomcealth  v.  Fisher,  1  Penns. 
Rep.  466. 

"  Such  being  a  highway  as  a  subject  of  legislative  authority,  in  what 
respect  is  a  street  in  an  incorporated  town  to  be  distinguished  from  it? 
A  municipal  corporation  is  a  separate  community  ;  and  hence  a  notion 
that  it  stands  in  relation  to  its  streets  as  the  State  stands  In  relation  to 
the  highways  of  its  territory.  That  would  make  it  sovereign  within  its 
precincts  —  a  consequence  not  to  be  pretended.  The  owner  of  a  tojyn 
plot  lavs  Quf  hi-i?  fftr^f^fT  f^g  bn  spps  fit,  or  the  owner  of  ground  in  an 
incorporated    town    d'^dlffitpg   i«-   ^r.  pnKHn    imp    ng    ^   street;    b"ut    It 

follows  not,  th.it.  thp  dnmininn  nf  fhp  Sfnfp  I'c    not    inctKintly    n<-tflfhpf1    trt 

it  The  general  road  law  extends  to  every  incorporated  town  from 
which  it  is  not  excluded  by  provision  of  the  charter ;  and  the  statute 
book  is  full  of  special  Acts  for  opening,  widening,  altering,  or  vacating 
streets  and  alleys  in  Philadelphia  and  our  other  cities.  Were  it  not  for 
the  universality  of  the  public  sovereignty,  the  public  lines  of  communi- 
cation, by  railroads  and  canals,  might  be  cut  by  the  authority  of  every 
petty  borough  through  which  they  pass  ;  a  doctrine  to  which  Pennsyl- 
vania cannot  submit,  and  which  it  would  be  dangerous  to  urge.  It 
would  bp.  strange^  thprpfore,  were  the  streetaLJif  an  incorporated  town^ 
not  public  highways,  subject  ppihaps  tr>  pnrpnmtP  rpgfilptmn  for  pur- 


CHAP.  Yl.]        PUILADELl'illA   AND   TilOTON    KAILKOAD   CASE.  1093 

poses  of  grading,  airMn^^_aiid ^a\ju£j_butju^      also  to  the  paia> 
iBmrnniulIioritv  olLlke   le)>.i  sin  turn  in  tl>^  regulation  of  their  usej^ 
caniageTTruiTcSIo^Q^^^"^  "^  locomotion  yet  to  be  mvented,  and  this_ 
^hout  distinct'k^b^wej3n_the   inhabit^ltsancL  their  Jello^^^^ 
eUewbci-e.  JTThe  docttiue  was  carried  to  its  extent  in  Rung  v.  Shoen- 
6(^rr/e/-,  2  Watts,  23,  in  which  it  was  affirmed  that,  though  a  city  has  a 
qualified  property  in  its  public  squares,  it  holds  them  as  a  trustee  for 
tlie  public  for  whose  use  the  ground  was  originally  left  open  ;  and  that 
the  enjoyment  of  them  is  equally  free  to  all  the  inhabitants  of  the  Com- 
monwealth, subject  to  regulations  not  inconsistent  with  the  grant.     In 
Jiarter  v.  The  Commonwealth,  3  Penns.Rep.  251),  it  was  madvertently 
said  that  the  title  to  the  soil  of  a  street  is  in  the  corporation,  whose 
ri-^ht  to  improve  it  for  purposes  which  conduce  to  the  public  enjoyment 
0°  it,  is  exclusive  and  paramount  to  the  right  of  an  inhabitant.     The 
point  was  only  incidentally  involved,  and  consequently  not  very  partic- 
ularly co^idered ;  but  the  question  of  title,  involving,  as  it  has  done, 
no  more  than  the  bounds  of  the  grant,  has  lain  between  the  grantor  and 
the  crrantee,  or  those  deriving  title   from   them.     In  no  case  has  title 
been  claimed    bv    the   corporation.     In    the    Union   Burial    (xround 
Company  v.  Eobinson,  5  Whart.  18,  in  which  the  point  was  elaborately 
argued,  the  contest  was  betwixt  the  grantor  and  a  purchaser  from  the 
grantee;  and  though  the   cause  was   eventually   decided   on   another 
ground,  the  court  inclined  to  think,  on  the  authority  of  many  decisions, 
that  the  title  to  the  street,  even  had  it  been  opened,  would  have  remained 
in  the  grantor ;  and  such  ai)pears  to  be  the  i)rinciple  of  Klrkham  v. 
Shiirp,  1  Whart.  Rep.  323.     The  'legal  title  to  the  ground,  therefore, 
remains  in  him  who  owned  it  before  the  street  was  laid  out ;  but  even 
that  is  an  immaterial  consideration  ;  for  an  adverse  right  of  soil  could 
not  impair  the  public  right  of  way  over  it,  or  prevent  the  legislature 
from  modifying,  abridging,  or  enlarging  its  use,  whether  the  title  were 
in  the  corporation  or  a  stranger.     I  take  it  then_that.  the  regulation  of  a 
yh;ee1^is  {riven  to  a  (corporation  onlTfQiijC^pQl^PJm^Qses^ndsiil^^ 
to  the  paramount,  niithoritv  of  tlio  Stnto  in  rosppct,  toais^general  ^\A 
moTP  evtended  uses  :  and  that  there  would  have  been  no  invasion  of 
chartered  rights  in  this  instance,  even  did  either  of  these_districts  stand  m. 
a  relation  to  the  public  which  would  impart  to  its  charter  the  qualities 
of  n,  f-oni[)'^'^-t 

"  What  then  is  the  interest  of  an  individual  inhabitant  as  a  subject  of 
compensation  under  the  constitutional  injunction  that  private  property 
be  not  taken  by  a  corporation  for  public  use  without  it?  Even  agreeing 
that  his  ground  extends  to  the  middle  of  the  street,  the  public  have  a 
right  of  way  over  it.  Neither  the  part  used  for  the  street,  nor  the  part 
occupied  by  himself,  is  taken  away  from  him  ;  and  as  it  was  dedicated 
to  public  use  without  restriction,  he  is  not  within  the  benefit  of  the 
constitutional  prohibition,  which  extends  not  to  matters  of  mere  annoy- 
ance. The  injury  of  wbiob  hP  can  complain,  is  not  direct,  ))llt  QOnse- 
riMPntinl.     Tt.  mnsists  fithf  '"  ^"  ob-<t.niction  of  hia  rii^ht  of  passage, 


1094  PHILADELPHIA    AND   TUENTuN    UAlLUuAD    CASE.        [(JIlAl'    VL 

wliicb  is  personal ;  or  in  a  depreciation  of  jjis  propert;^  by  decreasiiig 
the  enjoyment  of  it ;  but  no  part  of  it  isJLaken  from  him  and  amjum,,.! 
by  the  eoniptiiiy.  The  pruliibition,  even  when  it  precluded  a  seizure  of 
private  property  immediately  by  the  State,  was  not  largely  interpreted, 
nor  was  there  reason  that  it  should  be,  as  ample  compensation  was 
obtained  from  her  sense  of  justice  without  it.  The  sulferers  were  over- 
paid, and  this  sort  of  aggression  was  always  courted  as  a  favor.  liut 
though  she  usually  compensated  consequential  ilamage,  it  was  of  favor, 
not  of  right.  Nor  diil  she  always  make  such  compensation.  In  one 
well-known  instance  she  destroyed  a  ferry  by  cutting  off  access  to  the 
shore,  without  provision  for  the  sufferer  ;  and  in  Th<>  Vommomomllh 
V.  liiddtr,  1  Fenns.  Kep.  4G7,  damages  were  uuavailingly  claimed  from 
her  for  Hooding  a  spring  by  a  dam.  Tiie  clause  in  thjLammdeJXon-- 
stitution  which_jinrrnw.s  the  former  pi-nhibition  t'^  n  tnking  '^^  [Tivitf 
property  fur  a  puljlic  use  by  a  corixHation,  is  to  nc.-ive  tliP  ^M.n..  f,>... 
struction  ;  the  word  •  takiniiJ.  Uin^f  intripieted  In  iiii-.-iii.  ^Im+g— tUe- 
property  altogether  ;  not  a  c()iis((|iifiitiMl  injury  tn  it  wlii.l.  is  auoikijig 
aUill.  For  compen-salioii  of  tjie  latter,  the  citizen  must  (hpiMid  m\  ihn 
lorecast  and  justice  of  tlie  legi^haureT 

"  On  the  subject  of  the  next  spi-cification,  it  seems  scarce!}-  necessary 
to  say  that  monoi)olies  are  not  prohibited  by  the  Constitution  ;  and  that 
to  abolish  them  would  destroy  many  of  our  most  useful  institutions. 
Every  grant  of  privileges,  so  far  as  it  goes,  is  exclusive  ;  and  every 
exclusive  privilege  is  a  monojjoly.  Not  only  is  every  railro.nd.  turn- 
pike, or  canal  such,  but  every  bank,  college,  hospital,  asylum,  or  church, 
is  a  monopoly ;  and  the  ten  thousand  beneGcial  societies  incorpo- 
rated by  the  executive  on  the  certificates  of  their  legality,  l)y  the  attor- 
ney-general and  judges  of  the  Supreme  Court,  are  all  monopolies. 
Nor  does  it  seem  more  necessary  to  remark,  on  the  subject  of  the  con- 
cluding specifications  of  exception  to  the  confirmation  of  the  reiKjrt  b}' 
the  associate  judges  of  the  sessions  alone,  that  the  approval  was  an  act 
of  the  court ;  and  that  they  were  competent  to  hold  it. 

"  Proceedings  affinned.^^  ^ 

^  Compare  1  Hnre.  Am.  Const.  Law.  371,  378-.'?80,  Struthrrs  v.  Dunkirk-,  Str.  Jii/.  Co., 
87  Pa.  28'J  (1878).  In  Borowjh  nf  Millmle  v.  Everrp-pen  liy.  Co.,  131  Pa.  1,22,23 
(1889),  the  court  (Green,  ,I.)  cited  the  ca.se  of  the  Phil.  ;^-  Trenton  Ry.  Co.  as  "the 
leading  case  upon  this  subject,"  and  quoted  with  apf>roval  the  following  langu.ige  of 
Black,  C  .!.,  in  Com.  v.  R.  R.  Co.,  27  Pa.  354  :  "The  riglit  of  the  supreme  legislative 
power  to  anthorize  the  building  of  a  railroad  on  a  street  or  other  public  higliway  is  not 
now  to  be  doubted.  ...  If  such  conversion  of  a  public  street  to  purposes  for  which  it 
was  not  originally  designed  does  operate  severely  upon  a  portion  of  the  people,  the 
injury  must  be  borne  for  the  sake  of  the  far  greater  good  which  results  to  the  public 
from  the  cheap,  easy,  and  rapid  conveyance  of  persons  and  property  by  railway.  .  .  .  ' 
The  right  of  a  company,  therefore,  to  build  a  railroad  on  the  streets  of  a  city,  depends, 
like  the  lawfulness  of  all  its  other  acts,  upon  the  terms  of  its  charter.  Of  cour.se,  when 
the  power  is  given  in  express  words,  there  can  be  no  dispute  aboat  it.  It  may  also  be 
given  by  implication."  —  Ed. 


CHAP.  VL]      story   V.   NEW   YORK   ELEVATED   RAILROAD   CO.  1095 


STORY   V.  THE  NEW  YORK  ELEVATED  RAILROAD 
COMPANY. 

New  York  Colut  of  Appeals.     1882. 

[90  N.   Y.  122.] 

Appeal  from  judgment  of  the  General  Term  of  the  Court  of  Common 
Pleas  in  and  for  the  cit}'  and  county  of  New  York,  entered  upon  an 
order  made  November  10,  1879,  which  affirmed  a  judgment  in  favor 
of  defendant,  entered  upon  a  decision  of  the  court  on  trial  at  Special 
Term. 

This  action  was  brought  to  restrain  defendant  from  constructing  its 
road  in  that  portion  of  Front  Street,  in  the  city  of  New  York,  opposite 
plaintiffs  premises.  .  ,  .  [Here  follows  a  statement  of  the  plaintiff's 
title  to  his  lots,  consisting  mainh'  of  extracts  from  certain  deeds.] 

The  trial  court  found  the  following  facts  among  others  : 

"  Sixth.  That  the  railway  of  the  defendants,  as  proposed  to  be 
constructed  on  Front  Street,  will  cause  no  substantial  or  material 
impediment  to  the  passage  of  persons,  animals,  and  vehicles  in  and 
along  the  street,  and  but  slight  obstruction  to  the  light  or  air  from  the 
street. 

"  Tliirteenth.  That  the  title  of  the  plaintiff  and  of  his  grantors  of 
his  said  premises  was  derived  from  the  grantees  under  the  said  grants 
from  the  city  in  some  cases  by  devise,  in  some  by  inheritance,  and  in 
some  by  conveyance  ;  and  tliat  in  all  the  descriptions  the  premises 
are  described  as  bounded  in  front  on  Front  Street. 

"  Fourteenth.  That  Front  Street  occupies  the  strip  of  land  which  in 
the  said  grants  is  mentioned  as  Water  Street,  and  that  prior  to  the 
execution  of  the  grants,  that  street  was  projected  across  the  lots  thereby 
granted  and  conveyed. 

"  Fifteenth.  That  shortly  after  the  execution  of  the  said  grants,  the 
water  lots  therein  described  were  filled  in  by  the  grantees  or  those 
claiming  under  or  through  them  ;  that  by  them  Front  Street  was  erected 
and  made,  and  tliat  presumabl}-,  it  was  erected  and  made  as  directed  by 
one  of  the  surveyors  of  the  cit}-. 

"  Sixteenth.  That  upon  plaintiff's  said  premises  is  erected  a  ware- 
house, occupying  the  entire  front  and  four  stories  high  ;  and  that  since 
his  occupation  he  has  used  the  same  for  his  office,  and  for  the  sale  of 
the  merchandise  in  which  he  deals. 

"  Seventeenth.  That  Front  Street,  for  the  length  of  the  block  in 
front  of  the  plaintiff's  said  premises,  is  a  street,  of  the  width  about 
fort\'-five  feet ;  that  the  street-wa}-  between  the  curbstones  is  about 
twenty-four  feet  wide  ;  that  on  the  southed}'  side  from  the  curbstone  to 
the  building  is  about  eleven  feet ;  that  on  the  northerly  side  from  the 


1096  STORY  V.  ^■E^v  yokk  elevated  uailuoad  CO.     [chap,  vl 

curbstone  to  the  builtlings  is  about  ten  feet ;  and  that  of  the  .space 
between  tbe  curbstuue  and  the  buildings  about  four  and  one-half  feel 
is  used  for  the  stoops  and  entrances  to  areas,  and  the  residue  for 
sidewalk. 

*■'  JEighteenth.  That  the  defendants  propose  to  construct  an  elevated 
railroad  through  Front  Street,  in  front  of  the  plaintitfs  premises,  to 
extend  from  the  Battery  to  the  Harlem  Kiver ;  that  the  general  mode 
of  construction  in  Front  Street,  consists  of  a  series  of  columns  about 
fifteen  inches  square,  fourteen  and  one- half  feet  high,  placed  about 
five  inches  inside  the  edge  of  the  sidewalk,  and  carrying  cioss-girders, 
which  support  four  sets  of  longitudinal  girders,  upon  which  are  i)laced 
cross-ties  for  three  sets  of  rails  for  a  steam  railroad  ;  that  the  trans- 
verse girders  are  thirty-nine  inches  deep,  the  longitudinal  girders  thirty- 
three  inches  deep  ;  that  the  cars  which  the  defendants  propose  to  run 
over  such  railroad  will  have  bodies  eleven  feet  high  above  the  tracks  ; 
that  the  cars  in  running  will  project  about  two  feet  over  the  sidewalk 
on  either  side  of  the  street ;  that  they  will  reach  to  within  about  nine 
feet  of  the  plaintiff's  premises ;  and  that  the  defendants  propose  to  run 
trains  as  often  as  once  in  every  three  minutes  and  at  rates  of  speed  as 
high  as  eighteen  or  twenty  miles  an  hour. 

"^  Nineteejith.  That  the  plaintitl's  premises  occupy  the  southeasterly 
corner  of  Front  and  Moore  streets,  and  that  the  defendants  propose  to 
put  one  of  their  columns  at  that  corner  on  the  line  of  Moore  Street,  and 
inside  the  curb  line. 

"  Twentieth.  That  the  said  elevated  railroad  structure  will  to  some 
extent  obscure  the  ligiit  of  the  abutting  premises  opposite  to  it ;  that 
the  passing  trains  will  also  to  scnne  extent  obstruct  such  light,  and  give 
to  the  light  a  flickering  character,  which  would  be  to  some  extent  ob- 
jectionable for  business  purposes,  when  an  uninterrupted  light  was 
neressarv,  and  to  some  extent  impair  the  general  usefulness  of  plain- 
tilTs  premises. 

"  7\re})t)/ -first.  That  the  line  of  columns  abridges  the  sidewalk,  and 
correspondingly  interferes  with  the  street,  as  a  thorouglifare,  where  such 
columns  are  located  thereon. 

"  Tioenty-second.  That  the  fronts  of  the  abutting  buildings  would 
be  exposed  to  observation  from  passengers  in  the  passing  trains,  and 
the  privacy  of  those  in  the  second  or  upper  stories  of  the  premises 
invaded. 

''  Twenty-third.  That  the  structure  as  proposed  in  Front  Street 
also  will  fill  so  much  of  the  carriage-way  of  the  street  as  is  about  fifteen 
feet  above  the  road-wa}." 

Also,  that  the  board  of  aldermen  of  the  cit}'  had,  by  resolution  duly 
adopted,  given  its  consent  for  the  construction  and  operation  of  its  road 
through  Front  Street. 

John  E.  Parsons  and  Wm.  31.  Evarts,  for  appellant.  Joseph  II. 
Choate.  for  property  owners.  Julian  T.  Daries  and  Roger  Foster,  for 
Caso  and  others.     David  Dudley  Field,  for  respondent.  .  .  . 


CHAP.  VI.]       STOKY   V.   NEW    YORK   ELEVATED   RAILROAD   CO.  1097 

Tkacv  J.  The  principal  question  to  be  determined  in  this  ease  is, 
has  the  plaintitrs  property  been  taken  for  public  use  within  the  meaning 
of  the  Constitution  of  this  State  .•*  „    ,       ,     j     r 

The  plaintiff  cluims  that  by  the  true  construction  of  the  deeds  from 
the  elt)  to  his  original  grantors,  the  bed  of  Front  (then  Water)  Street 
was  included  in  the  grant,  and  that  he  is  now  the  owner  of  the  fee  of 
one-half  of  the  bed  of  Front  Street  in  Iront  of  his  lots.  But  if  this  claim 
be  not  sustained,  then  he  insists  that,  in  the  original  grants  of  he 
premises  in  question,  the  city  of  New  York  covenanted  with  his 
grantors  tliat  Front  Street  should  be  and  remain  an  open  street  forever. 
That  this  covenant,  being  for  the  benefit  of  the  abutting  lands  is  one 
running  with  the  land,  and  the  right  or  privilege  secured  tliereb)-  con- 
stitutes  pioperty  within  the  meaning  of  article  1,  section  G  of  the 
Constitution,  which  provides  that  -  private  property  shall  not  be  taken 
for  public  use  witliout  just  compensation."   ...  ,    ,  „  „ 

The  trial  court  finds  that  the  grantees  made  and  constructed  the 
several  streets  mentioned  in  the  grant,  and  that  the  plaintiff  is  now  the 
owner  of  said  lots  upon  which  -is  erected  a  warehouse  occupying 
the  entire  front,  ami  four  stories  high."  The  defendant  insis  s,  and  the 
trial  court  found,  that,  by  the  true  construction  of  the  deed  tlie  bed  of 
Front  Street  was  excepted  therefrom,  and  never  passed  to  the  plaintiff  s 

original  grantors.   ...  .  ,     .,  i.  v.  i^„ 

Issunan-  tlie  construction  placed  upon  the  grant  by  the  court  below 
to  be  correct.  We  have  to  consider  the  effect  of  such  a  covenant  in  a 
grant  of  land  made  by  a  municipal  corporation  having  authority  to  lay 
out  and  open  streets,  and  to  acquire  lands  for  that  purpose.  .  .  . 

These  cases  are  directly  in  point,  and  it  follows  that,  by  the  law  of 
this  State  as  interpreted  and  held  by  its  highest  courts  for  the  last  fifty 
years,  without  criticism  or  doubt,  the  grantees  of  the_citX^by  force  of 
their  -rant,  acquired  the  right  toJiav^FronjZS550-opt  forever  as  a 

pin^iifitr^;uriT;nr^^  the  common 

fcTas  the  servient  teueinJIarandJj^^  UKi-domi-- 

nant  tenement.     SudiseiWgWti^^ 

biinjTirrsirniraHn^^ 

lT^)laintiir  as  lhe;gjiir^fiilclUo^  ^"  easement  ja-pi:apx^', 

within  the  meanuTg^^jf  theCgjiitiUition,.c^^  Jl^is  was 

expressly  adjudicalJrrnrTlTir^court  in  the  case  of  Arnold  v.  Ihe 
Hudson  River  Railroad  Company  (55  N.  Y.  GGl).  Arnold  owned  a 
nail  factory,  together  with  the  right  to  take  a  certain  quantity  of  water 
from  a  creek,  and  to  convey  it  over  or  under  the  surface  of  intervening 
lands  to  such  factory  to  propel  machinery.  For  this  purpose  he  built 
a  trunk  about  six  feet  above  the  surface,  through  which  the  water  was 
conveyed.  In  1850,  the  defendant,  having  acquired  title  to  a  portion 
of  the  intervening  lands,  constructed  tracks  thereon,  removed  the  por- 
tion of  the  trunk  over  said  surface  without  Arnold's  knowledge,  and 
constructed  another  trunk  under  the  lands,  through  which  the  water 
was  conveyed  and  then  raised  by  a  penstock  into  the  old  trunk  near 


1098  STORY   V.    NEW    YORK    ELEVATED    RAILROAD   CO,       [CHAI'.  VL 

the  factory.  IlthI,  by  the  concurrence  of  all  the  judges  voting,  that 
Arnold's  easement  was  property  within  the  meaning  of  Article  1, 
section  C,  of  the  Constitution,  and  therefore  could  not  —  nor  could  any 
portion  of  it  —  be  taken  for  public  use  without  compensation. 

In  Doyle  v.  Zord  (64  N.  Y.  432;  21  Am.  Rep;  G29),  this  court 
held  that  a  lessee  of  a  store  had  an  easement  for  the  purpose  of  light 
and  air,  in  a  yard  attached  to  the  building.  In  >Sij(h  Are.  Ji.  li.  Co. 
V.  Kerr  et  al.  (72  N.  Y.  330),  this  court  also  held  that  an  easement  in 
a  public  street  may  be  condemned  and  taken  for  public  use. 

The  next  question  to  be  considered  is,  has  the  plaintilfs  property 
been  taken  by  the  defendant,  within  tiie  meaning  of  the  Constitution  of 
this  State?  To  constitute  such  a  taking  it  is  sullicient  that  the  person 
claiming  compensation  has  some  right  or  privilege,  secured  by  grant,  ia 
the  property  a])propriatcd  to  the  i)ublic  use,  which  right  or  privilege  is 
destroyed,  injured,  or  abridgetl  by  such  appropriation.  Has  the  plain- 
tiff's easement  in  Front  Street  been  destroyed,  or  injured,  by  the 
appropriation  of  the  street  to  the  uses  of  the  defendant's  road?  As  we 
have  seen,  the  plaintitT  acquired  nothing  more  than  a  v\*i}il  to  h.ivc  th<> 
street  kept  as  a  public  street,  and  this  must  be  tU-onicd  -Lu-J)f  lnliL 
subject  to  the  power  of  the  Icn-jslaturi;  to  rc|;ulate  and  (.rontinl  tl^^ 
public  uses  of  the  street. 

This  brings  us  to  the  question  whether  the  occupation  of  the  street  b}' 
the  defendant's  road  is  compatible  with,  or  destructive  of  its  use  as  a 
public  street. 

Front  Street  is  about  forty-five  feet  in  width,  the  road-way  between 
the  curbstones  being  about  twenty-four  feet  wide. 

The  trial  court  has  found  as  a  fact  tliat  the  defendant's  road  is  to  be 
constructed  upon  a  series  of  columns  about  fifteen  inches  square,  four- 
teen and  a  half  feet  high,  placed  about  five  inches  inside  the  edge  of 
the  sidewalk  and  carrying  cross  girders,  which  supi)ort  four  sets  of 
longitudinal  girders,  upon  which  are  placed  cross  ties  for  three  sets 
of  rails  for  a  steam  railroad  ;  that  the  girders  are  thirty-nine  inches 
deep ;  the  longitudinal  girders  thirty-three  inches  deep  ;  that  the  line 
of  columns  abridges  the  sidewalk  and  correspondingly  interferes  with 
the  street  and  thoroughfare  where  such  columns  are  located  thereon. 

That  the  structure  as  proposed  on  Front  Street  will  fill  so  much  of 
the  carriage-way  of  the  street  as  is  about  fifteen  feet  above  the  road- 
waj'.  The  effect  of  such  structure  the  court  finds  will  be  to  some  extent 
to  obscure  the  light  of  the  abutting  premises  opposite  to  it,  and  will  to 
some  extent  impair  the  general  usefulness  of  the  plaintiff's  premises 
and  depreciate  their  value. 

Can  the  street  be  lawfully  appropriated  to  such  a  structure  without 
making  compensation  to  the  plaintiff  for  his  easement  therein?  This  is 
a  question  of  power.  If  the  legislature  has  power  to  authorize  such  a 
structure,  without  compensation,  its  exercise  cannot  be  regulated  by 
the  courts.  If  one  road  may  be  authorized  to  be  constructed  upon  two 
series  of  iron  columns  placed  in  the  street,  another  may  be  authorized 


CHAP.  VI.]      STORY   V.   NEW   YORK    ELEVATED   RAILROAD   CO.  1099 

to  be  supported  upon  brick  columns,  or  upon  brick  arches  spanning  the 
street.  If  a  superstructure  may  be  authorized  which  spans  the  entire 
carriage-way  at  fifteen  feet  above  the  bed  of  the  street,  one  may  be 
authorized  which  spans  the  entire  street,  from  building  to  building, 
thus  excluding  light  and  air  from  the  street  and  from  the  property 
abutting  thereon.  Thus  an  open  street  would  be  converted  into  a 
covered  way,  and  so  filled  with  columns  or  other  permanent  structures 
as  to  be  practically  impassable  for  vehicles.  The  city  undertook  and 
agreed  with  the  plaintiff's  grantors  that  Front  Street,  when  constructed 
by  them,  should  forever  thereafter  continue  and  be  kept  as  a  public 
street  in  like  manner  as  other  streets  of  the  same  cit}'  now  are  or  law- 
fully ought  to  be.  This  fixes  with  definiteuess  and  precision  the  char- 
acter of  the  street  which  the  parties  to  the  contract  intended  to  secure. 
AsjUc-jotljcr  otrooto  -oiLihecity  were,  or  lawfully  ought  to  be,  so  this 
street  was  to  be  ;  it  was  to  be  an  open  street;  one  which  would  furnish 
light  and  air  to  the  abutting  propcrtv.  and  a  free  and  unobstructed . 
passage  to  the  inhabitants  of  the  city.  A  covenant  to  keep  a  strip  of^ 
land  open  as  a  public  street  forever  is  ^  pnvr-nMiit  pot  to  build  thereon. 
and  brings  this  case  directly  within  the  principle  of  the  cases  oi  Hills X\ 
M'dhtr,  The  Trustees  of  Waiertoicfi,  and  White  v.  Cowen  and  B(jf)(j^ 
and  the  Phoenix  Ins.  Co.  v.  The  Continental  Ins.  Co.  ^hilfi 
the  legislature  may  regulate  the  uses  of  the  street  as  a  ali:££lj_jt_ 
has,  we  think,  no  {)o\ver  to  authorize  a  structure  theifion  which  is  sub;- 
versive  ol,  and  repugnanj  to  tlip  '^g^'s  f^f  tiio  g^ropj[,_a3  an  open  public, 
street.  Whether  a  particular  structure  authorized  by  the  legislature  is 
consistent  or  inconsistent  with  the  uses  of  the  street  as  a  sti-ff  t.  must.  \\^ 
largely  a  fiuestioii  (jt  lact  depending  uijoixtll*^  upturn  nnd  nlmmptpr  pf 
the  structure  aulliorizt-t]. 

The  court  below  found  that  the  series  of  iron  columns  abridges  the 
street,  and  the  superstructure  erected  thereon  obscures  the  light  to 
the  adjoining  premises,  and  depreciates  the  value  of  the  plaintifTs 
property. 

The  extent  to  which  plaintiff's  property  is  ap[)ropriated  is  not  mate- 
rial ;  it  cannot,  nor  can  any  part  of  it,  be  appropriated  to  the  public  use 
without  compensation. 

We  think  such  a  structure  closes  the  street  pro  tanto  and  thus 
directly  invades  the  plaintiff's  easement  in  the  street  as  secured  by  the 
gi-ant  of  the  city. 

Whatever  view  be  taken  of  the  facts  of  this  branch  of  the  case,  the 
same  result  must  be  reached.  If  the  title  to  the  bed  of  the  street 
passed  to  the  grantees  of  the  cit}',  then  the  public  acquired  a  mere 
easement  in  the  street,  resulting  from  its  dedication  to  public  use,  the 
easement  resting  upon  the  express  covenant  of  the  owner  of  the  fee 
that  the  street  shall  be  kept  as  a  public  street  forever.  The  fee 
remained  in  the  owner  making  the  dedication,  and  he  having  sold  lots 
abutting  upon  the  street,  the  purchaser,  as  we  have  already  seen, 
obtained  a  perpetual  right  of  wa^'  over  the  space  called  a  street  to  the 


1100  STOKY   V.  ^EW    YOUK   liLLVATED    KAlLKOAD   CO.       [cilAl-.  VL 

full  extent  of  its  dimensions.  Wbetber  the  bed  of  tUe  street  was 
excepted  from  the  giant  of  the  city,  und  the  title  thereof  never  vested 
in  the  grantees,  or  whetlier  the  bed  of  the  street  was  included  in  the 
grunt  anil  passed  to  such  grantees,  is  of  little  importance,  as  in  either 
event  the  plaintitt"  has  a  private  easement  of  a  right  of  way  in  the  street, 
coupled  with  an  express  covenant  that  the  entire  space,  marked  on  the 
ma[)  as  Front  Street,  shall  forever  be  kept  as  a  public  street. 

The  defendant's  railroad,  as  authorized  by  the  legislature,  directly 
encroaches  upon  the  plaintitfs  easement  and  appropriates  his  property 
to  the  uses  and  purposes  of  the  corporation.  This  constitutes  a  taking 
of  property  for  public  use.  It  follows  that  such  a  Uiking  cannot  be 
authorized  excei)t  upon  condition  that  the  defendant  makes  compensa- 
tion to  the  plaintiff  for  the  i)roperty  thus  taken. 

The  conclusion  here  reached  is  not  in  conflict  with  the  determination 
of  this  court  in  the  cases  of  T/te  People  v.  KeiT  (27  N.  Y.  188),  Kel- 
Untjer  v.  Forty-Second  St.,  etc.,  li.  R.  <'o.  (50  Id.  200),  and  other  sim- 
ilar cases. 

We  agree  with  Church,  Ch.  J.,  in  the  case  last  cited,  that  "  it  is 
not  quite  clear  as  to  what  was  intended  to  be  decided  by  the  court  in 
2^he  People  v.  Jxerr,  relative  to  the  rights  of  abutting  owners."  .  .  . 

By  the  Act  of  1813  the  city  acquired  the  fee  in  the  street,  in  trust, 
however,  for  a  particular  public  use.  Conceding  that  this  trust  is  for 
the  benefit  of  the  abutting  owner,  as  well  as  for  the  public,  the  only 
right  which  he  has  in  the  street  is  the  right  to  insist  that  the  trust  be 
faithfulh'  executed.  So  long  as  the  street  is  kept  open  as  a  public 
street,  the  abutting  owner  cannot  comi)lain.  The  question  presented 
in  the  case  of  People  v.  .Kerr,  was  whether  the  particular  structure 
there  authorized  was  inconsistent  with  the  continued  use  of  the  streets 
as  open  public  streets  of  the  city.  'Whether  it  was  or  not  was  a  ques- 
tion of  fact  dependent  upon  the  nature  and  character  of  the  structure 
there  involved.  The  court  found  and  determined  that  it  was  not  incon- 
sistent with  the  public  use  of  a  public  street,  but  was  in  aid  of  such 
uses. 

And  in  KeUinger  v.  Tlie  Forty-second  Street,  etc.,  R.  R.  Co.  (50 
N.  Y.  206),  this  court  limits  the  decision  in  the  case  of  The  People  v. 
Kerr,  to  a  "simple  declaration  that  the  legislative  authority  to  con- 
struct a  railroad  on  the  surface  of  the  street  without  a  change  of  grade 
was  a  legitimate  exercise  of  the  power  of  regulating  the  use  of  public 
streets  for  public  uses." 

The  question  whether  the  abutting  owners  upon  streets  opened  under 
the  Act  of  1813  had  the  right  to  prevent  their  being  converted  to  a  use 
destructive  of  their  existence  as  public  streets  was  not  deemed  b}"  the 
court  to  be  involved  in  that  case.  .  .  . 

Had  the  Act  in  that  case  authorized  the  corporations  to  take  perma- 
nent and  exclusive  possession  of  portions  of  the  street,  to  build  sidings, 
and  to  permanently  occupy  them  with  rows  of  cars  standing  in  front  of 
the  stores  and  residences  of  abutting  owners,  and  to  erect  permanent 


CHAP.  VI.]      STORY   V.   NEW   YORK   ELEVATED   RAILROAD   CO.  1101 

depot  buildings  within  the  limits  of  the  streets  for  the  accommodation 
of  their  passengers,  we  cannot  doubt  that  a  ditferent  result  would  have 
been  reached  in  that  case.  The  fact  that  a  particular  structure  is 
found  to  be  consistent  with  the  uses  of  a  street  is  no  evidence  that  a 
different  structure  is  not  inconsistent  with  such  uses.  The  conclusion 
reached  in  the  present  case  is  based  upon  the  character  of  the  structure 
here  involved.  The  language  of  Wright,  J.,  in  The  Peojyle  v.  Kerr^ 
that  the  abutting  owners  have  no  property,  estate,  or  interest  in  land 
forming  the  bed  of  the  street  in  front  of  their  respective  premises  to  be 
protected  by  the  right  of  eminent  domain,  must  be  construed  with  ref- 
erence to  the  point  thus  being  considered.  This  court  had  held  in  the 
case  of  Williams  v.  The  New  York  Central  7?.  72.  Co.  (16  N.  Y.  107), 
that  wliere  the  public  had  acquired  a  mere  right  of  way  over  the  land 
of  another,  the  laying  down  of  railroad  tracks  and  constructing  a  steam 
railroad  in  the  street  of  a  city  was  an  enlargement  of  the  use  as  under- 
stood and  contemplated  by  the  parties  at  the  time  the  land  was 
acquired,  and  imposed  an  additional  burden  upon  the  fee,  and  that 
such  Act  could  not  be  authorized  without  compensation  to  the  owner. 

This  case  was  cited  and  relied  upon  in  support  of  the  claim  of  the 
abutting  owners  ;  but  the  answer  was  that  the  abutting  owners  did  not 
own  the  fee  of  the  street;  that  such  fee  being  in  the  public,  the  legis- 
lature might  lawfully  appropriate  it  to  any  public  use  consistent  with 
the  trust  for  which  it  was  held,  notwithstanding  such  use  of  a  street 
ma}"  not  have  been  known  or  contemplated  at  the  time  the  land  was 
acquired.  Having  parted  with  the  fee,  the  abutting  owner  could  not 
maintain  trespass  or  waste,  and  against  an  Act  which  did  nothing  more 
than  to  impose  an  additional  burden  upon  the  fee,  he  could  not  invoke 
the  inhibition  of  the  Constitution  that  private  property  shall  not  be 
taken  for  public  use  without  compensation.  Thus  understood,  we  think 
the  language  of  Wright,  J.,  not  subject  to  criticism,  and  furnishes  no 
support  to  the  claim  now  made  that  the  owner,  whose  lands  were  taken 
and  are  now  held  in  trust,  to  be  appropriated  and  used  as  open  public 
streets  forever,  has  no  standing  in  court  to  insist  that  the  trust  shall  be 
kept  and  that  the  streets  shall  not  be  destroyed.   . 

That  this  trust  created  by  the  Act  of  1813  was  intended  to  be  for  the 
benefit  of  the  abutting  owner,  as  well  as  for  the  public,  we  cannot 
doubt.  City  property  has  little  or  no  value  disconnected  from  the 
streets  upon  which  it  abuts.  The  opening  of  a  city  street  makes  the 
property  abutting  thereon  available  for  the  purposes  of  trade  and  com- 
merce, and  greatly  enhances  its  value.  The  Act  of  1813  proceeds 
upon  the  assumption  of  this  well-known  fact,  and  the  damages  sus- 
tained by  reason  of  the  taking  were  assessed  in  view  of  the  trust 
assumed  by  the  public,  that  such  lands  were  to  be  kept  as  open  public 
streets  forever.  The  public  did  not  assume  to  take  the  lands  in  fee- 
simple  absolute,  but  took  and  paid  for  a  lesser  estate ;  and,  in  pur- 
suance of  the  theory  of  the  statute  that  the  abutting  owner  has  a  special 
interest  in  the  street,  the  cost  of  the  lands  was  immediatelv  assessed 


1102  STORY   V.   NEW    YOKK   ELEVATED   RAILROAD   CO.       [ciLVP.  VL 

back  upon  the  abutting  property.  All  tlie  owner  has  ever  received  for 
the  lands  taken  under  this  Act  is  the  benefit  accruing  to  his  ainitting 
propeit}-  by  reason  of  the  trust  for  which  the  lands  are  held.  Having 
surrendered  his  land  in  consideration  of  the  trust  assumed  by  the  pub- 
lic, if  the  trust  can  now  be  abrogated  and  the  streets  surrendered  to 
the  uses  and  purposes  of  a  railroad  corporation,  it  follows  that,  by  in- 
direction, private  property  may  be  taken  for  public  use  against  the  con- 
sent of  the  owner,  and  without  compensation. 

We  have  examined  the  other  cases  cited  by  the  learned  counsel  for 
the  respondent,  and  in  none  of  them  do  we  find  authority  for  the  claim 
here  made.  The  case  of  The  Transportation  Compani/  v.  Chicago 
(99  U.  8.  635),  is  not  in  point.  The  injury  there  complained  of  was 
necessarily  done  in  the  extension  of  a  city  street.  The  interruption 
was  temjiorary,  ceasing  with  the  completion  of  the  work.  This  case  is 
decided  upon  the  elementary  principle  that  the  public  have  a  right  to 
make  such  use  of  the  land  taken  for  a  street  as  may  be  deemed  neces- 
sary for  its  proper  construction,  repair,  or  maintenance.  Within  this 
power  is  included  the  right  to  fix  the  grade  of  the  street,  and  to  change 
such  grade  from  time  to  time  as  the  necessities  of  the  public  may 
require  ;  but,  whether  the  grade  be  elevated  or  depressed,  it  is  still  a 
public  street,  to  which  the  public  have  the  right  of  free  access,  subject 
to  such  police  regulations  as  may  be  adopted  by  the  public  authority 
having  charge  and  control  of  the  same. 

The  argument  has  been  pressed  upon  our  attention  with  great  aljility 
that  as  railroads,  like  streets,  are  intended  to  facilitate  trade  and  com- 
merce, and  lands  taken  for  either  are  taken  for  public  use,  the  legisla- 
ture may,  in  its  discretion,  appropriate  the  public  streets  of  our  cities 
to  the  use  of  railroad  corporations,  and  this  without  reference  to  the 
form  of  their  structure  or  the  extent  of  the  injury  wrought  upon  prop- 
erty abutting  thereon.  This  is  a  startling  proposition,  and  one  well  cal- 
culated to  fill  the  owners  of  such  property  with  alarm.  It  cannot  be  that 
the  vast  property  abutting  on  the  streets  of  our  great  cities  is  held  by 
80  feeble  a  tenure.  This  court  has  repeatedly  held  that  such  a  rule  has 
no  application  where 'the  abutting  owner  owns  the  fee  of  the  bed  of  the 
street;  and  we  are  of  npiniop  fhnf  in  rnop^  whpro  flip  public  hfis  fnkpn 
the  fee,  but  in  fyn^t  tn  })p  noorl  nq  n  pnhljp  ctroot.  nn  ctfrpcturc  upon  the 
street  can  be  authori/ed  tlmt  is  infoncti^tpnr  with  tiio  /-r^ntinnpri  .icjp  ^f 
the  same  as  an  open  pnl^llr'  gti-PPt — Tho  r.KiirrfifinM  \n  preserve  it  as 
an  open  street  rests  in  contract  written  in  the  statute  under  which  the 
lands  were  taken  and  which  may  not  be  vinlnfed  by  the  exf^roARP.  of  any 
legislative  di»^'''p^''^"  \VH<»^o-<-or  force  the  argument  may  have  as 
applied  to  railroads  built  upon  the  surface  of  the  street,  without  change 
of  grade,  and  where  the  road  is  so  constructed  that  the  public  is  not 
excluded  from  any  part  of  the  street,  it  has  no  force  when  applied  to  a 
structure  like  that  authorized  in  the  present  case.  The  answer  to  the 
argument  is  that  lands  taken  for  a  partionlflr  publ''^  "s^  r^onnnf  ho 
aj^propriatcd  to  a  liiflFerent  use  without  further  compensation  ;  that  the 


CHAP.  VI.]      STORY   V.    NEW   YORK   ELEVATED   RAILROAD   CO.  1103 

autlini-ity  nttompfr'i]  fn  ho  conferred  by  the  legislature  upon  thfi_ defend- 
ant to  take  exchisive  possession  of  portions  of  the  public  street,  and 
to  erect  a  series  of  iron  columns  on  either  side  thereoiV-tipon  which  a 
superstructure  is  to  be  erected  spunuing  tiie  street  and  filling  the  road- 
way at  fifteen  feet  above  the  surface,  thus  excluding  light  and  air  from 
the  adjoining  premises,  jg^^vfr  attempt  to  appropriate  the  street  to  a  use 
essentially  inconsistent  with  that  of  a  public  street,  and  in  respect  to 
tlie  land  in  question  violates  tlie  covenant  of  the  city  made  With  the 
plaintiff's  grantors,  and  in  rf-spof.t.  t.o  lands  acquired  under  the ^ct 
of  1813  violates  the  trust  for  which  such  lands  are  held  for  public  use. 

The  argument  drawn  from  the  great  benefit  which  these  roads  have 
conferred  upon  the  city  of  New  York  can  have  but  little  weight  in 
determining  the  legal  question  presented  in  this  case.  No  doubt  these 
roads  have  added  much  to  the  aggregate  wealth  of  the  cit}'  of  New 
York,  and  have  greatly  promoted  the  convenience  of  its  citizens ;  but 
the  burden  of  so  great  a  public  improvement  cannot  rightfully  be  cast 
upon  a  few  of  its  citizens,  bv  appropriating  their  propert\'  to  the  public 
^e,  without  compensation.  The  inhibition  found  in  the  Constitution 
against  the  right  of  the  sovereign  to  appropriate  private  property  to 
public  use  without  making  compensation  therefor  was  intended  to  secure 
all  citizens  alike  against  being  compelled  to  contribute  unequally  to  the 
public  burdens. 

We  are  of  opinion  that  the  law  under  which  the  defendant  is  incor- 
porated authorizes  it  to  acquire  such  property  as  may  be  necessary  for 
its  uses  and  purposes,  upon  making  compensation  therefor.  This  was 
substantially  determined  in  the  Matter  p/  Xeio  York  Elevated  Rail- 
road (7U  N.  Y.  327)  ;    Gilbert  Elecated  Railway  Co.  (Id.  361). 

We  have  reached  in  this  case  the  following  conclusions : 

First.  That  the  plaintiff,  by  force  of  the  grant  of  the  city,  made  to 
his  grantors,  has  a  right  or  privilege  in  Front  Street,  which  entitles  hira 
to  have  the  same  kei)t  open  and  continued  as  a  public  street  for  the 
benefit  of  his  abutting  propert}-. 

Second.  That  this  right  or  privilege  constitutes  an  easement,  in  the 
bed  of  the  street,  which  attaches  to  the  abutting  property  of  the  plain- 
tiff, and  constitutes  private  property,  within  the  meaning  of  the  Consti- 
tution, of  which  he  cannot  be  deprived  without  compensation. 

T/drd.  That  such  a  structure  as  the  court  found  the  defendant  was 
about  to  erect  in  Front  Street,  and  which  it  has  since  erected,  is  incon- 
sistent with  the  use  of  Front  Street  as  a  pul)lic  street. 

Fourth.  That  the  plaintiff's  property  has  been  taken  and  appro- 
priated by  the  defendant  for  public  use  without  compensation  being 
made  therefor. 

Fifth.  That  the  defendant's  acts  are  unlawful,  and  as  the  struc- 
ture is  permanent  in  its  character  —  and,  if  suffered  to  continue,  will 
inflict  a  permanent  and  continuing  injury  upon  the  plaintiff  —  he  has 
the  right  to  restrain  the  erection  and  continuance  of  the  road  by  in- 
junction. 


1104  STORY   V.    NEW   YORK   ELEVATED    RAILROAD   CO.       [cilAl'.  VL 

Sixth.  That  the  statutes  under  wliich  the  dcfi-ndant  is  organized 
authorize  it  to  acquire  such  property  as  niay  he  necessary  for  its  con- 
struction and  operation  hy  the  exercise  of  the  right  of  eminent  domain. 

Seventh.  The  injunction  prohiliiting  the  continuance  of  the  road  in 
Front  Street  should  not  he  issued  until  the  defendant  has  had  a  reason- 
able time  after  this  decision  to  acquire  the  plaintiff's  property  hy  agree- 
ment, or  by  proceedings  to  condemn  the  same. 

P2arl,  J.  (dissenting).  At  the  threshold  of  this  case  is  presented  the 
inquiry  whether  the  plaintitT's  lot  extends  to  the  centre  of  Front  Street. 
I  think  it  does  not.   .  .  . 

For  a  long  time  anterior  to  the  date  of  the  deed  Front  Street  had 
become  like  tlie  other  streets  of  the  city,  and  had  been  maintained  and 
kept  in  repair  l)y  the  city.  It  owned  the  fee  of  nearly  all  the  streets 
within  its  limits,  and  it  must  have  been  the  common  practice  of  con- 
veyancers to  exclude  the  streets  from  the  grants  of  adjoining  lots  b}' 
confining  measurements  to  the  margin  of  the  streets.  Heading  the 
precise  measurements  in  plaintilT's  deed,  in  the  light  of  these  circum- 
stances I  think  there  is  little  ground  for  dispute  that  his  grantors 
intended  to  limit  their  grant  to  the  margin  of  the  street,  and  that  such 
intent  should  have  effect  is  shown  by  the  authorities  above  cited. 

Therefore  as  the  plaintiff  did  not  own  any  of  the  soil  in  Front  Street, 
it  matters  not  where  the  title  to  it  rested.  As  to  him.  it  may  be  treated 
as  if  it  were  in  the  city,  and  I  shall  so  treat  it  in  the  further  discussion 
of  this  case. 

Whatever  private  rights  then  the  plaintiff  has  in  this  street  are  such 
and  such  only  as  belong  to  him  as  an  abutter  upon  the  street.  Such 
rights  as  he  has  in  common  with  the  public  generally  cannot  be 
enforced  in  this  action  or  in  any  other  action  in  his  name.  It  is  not 
disputed  that  to  maintain  this_action  the  plaintiff  must  show  that  in 
violation  of  tlip  Acts  iindpr  wlii ch  til e  defendan t  was  organized,  and  of 
the  Constitution.  ^^  privntp  property"  of  the  plaintiff  Jias  been  taken^ 
without  compensation.  It  is  not  siifBcient  for  him  _to  sliow  that  he  ia 
injm-pd  or  suffers  damage  from  the  construction  or  operation  of  defend- 
ant's railway,  or  that  his  adjoining  property  is  dcteriorat('d_ i n  value. 
He  must  show  that  his  private  property  is  in  some  proper  sense  taken, 
and  to  this  effect  are  nearly  all  the  authorities  in  this  country,  except 
in  States  where  provision  is  made  in  the  Constitution  or  laws  that 
compensation  shall  be  made  for  property  damaged  or  injuriously 
affected,  as  well  as  for  property  taken.  In  Sedgwick  on  Statutory  and 
Constitutional  Law,  519.  the  learned  author,  speaking  of  the  constitu- 
tional provision  which  prohibits  the  taking  of  private  propert}'  for 
public  use  without  compensation,  says:  "It  seems  to  be  settled  to 
entitle  the  owner  to  protection  under  this  clause  the  property  must  be 
actually  taken  in  the  physical  sense  of  the  word,  and  that  the  proprietor 
is  not  entitled  to  claim  remuneration  for  indirect  or  consequential  dam- 
ages, no  matter  how  serious  or  how  clearly  and  unquestionably  resulting 
from  the  exercise  of  the  power  of  eminent  domain."    In  Dillon  on  Mu- 


CHAP.  VI.]       STORY   V.    NEW   YORK    ELEVATED   RAILROAD   CO.  1105 

nicipal  Corporation,  §  784,  it  is  said  tliat  "  although  the  adjoining  prop- 
erty may  be  injured,  still  it  is  not,  in  a  constitutional  sense,  taken  for 
public  use."  In  Transportation  Co.  v.  Chicago  (99  U.  S.  635),  Judge 
Strong  said  that  "  acts  done  in  the  proper  exercise  of  governmental 
powers  and  not  directly  encroaching  upon  private  property,  though  their 
consequences  may  impair  its  use,  are  universally  held  not  to  be  a  taking 
within  the  meaning  of  the  constitutional  provision.  They  do  not  entitle 
the  owner  of  such  property  to  compensation  from  the  State  or  its 
agents,  or  give  him  an}'  right  of  action.  This  is  supported  by  an 
immense  weight  of  authority."  In  O'Connor  v.  Pittshurgli  (18  Penn. 
St.  187),  it  was  held,  after  two  arguments  of  the  case  and  much  con- 
sideration, that  the  constitutional  provision  for  the  case  of  private  prop- 
erty taken  for  public  use  extends  not  to  the  case  of  property  injured 
or  destroyed.  See,  also,  the  cases  of  Hatch  v.  The  Vermont  Central 
R.  R.  Co.  (25  Vt.  49),  and  Richardson  v.  The  Vermont  Central  R. 
R.  Co.  (Id.  473),  where  will  be  found  a  very  learned  discussion  of  the 
subject  and  man}'  observations  quite  applicable  to  this  case.  The  same 
rule  is  laid  down  in  RadcHjff^s  Executors  v.  The  Mayor,  etc.,  of  Brook- 
lyn (4  X.  Y.  195).  It  was  there  sup()orted  by  such  cogent  reasons 
and  full  citation  of  authorities  as  to  place  it  beyond  question  in  this 
State,  and  it  has  received  the  uniform  sanction  of  our  courts. 

Our  attention  is  called  to  two  cases  {Pumpelly  v.  Green  Bay  Co..,  13 
Wall.  IGG;  and  Eitton  v.  The  B.  C.  &  M.  R.  R.  51  N.  H.  504;  12 
Am.  Rep.  147),  which  are  supposed  to  take  a  new  departure  in  the 
construction  of  the  constitutional  provision  we  are  now  considering. 
They  are  spoken  of  in  the  subsequent  case  of  Transportation  Co.  v. 
Chicago  as  "  the  extremest  qualification  of  the  doctrine  "  to  be  found  ; 
they  hold  that  permanent  flooding  of  private  property  may  be  regarded 
as  a  "  taking,"  and  thus  they  may  be  justified  on  the  ground  that  there 
was  a  physical  invasion  of  the  real  estate  of  the  private  owner  and  a 
practical  ouster  of  his  possession. 

We  should  not  be  embarrassed  by  any  subtle  meaning  to  be  given  to 
the  word  ''  property"  in  the  constitutional  provision.  The  broad  mean- 
ing sometimes  given  to  it  by  law  writers  whose  definitions  are  more  apt 
to  confuse  than  enlighten,  or  a  meaning  which  can  be  evolved  only  by 
philologists  and  etymologists,  was  probably  not  in  the  minds  of  the 
framers  of  our  Constitution  ;  they  must  be  supposed  to  have  used  the 
word  in  its  ordinary  and  popular  signification,  as  representing  some- 
thing that  can  be  owned  and  possessed  and  taken  from  one  and  trans- 
ferred to  another.  In  popular  parlance  there  is  a  distinction  between 
taking  property  and  injuring  property.  If  the  word  is  to  have  the 
broad  meaning  given  to  it  by  Austin  and  certain  German  and  French 
Civilians,  to  whose  definitions  our  attention  has  been  called,  then  it 
would  include  every  interference  with  and  injury  or  damage  to  land  by 
which  its  use  and  enjoyment  become  less  convenient  or  valuable.  Such 
a  sense  has  never  been  given  to  it  or  countenanced  in  any  decision 
involving  the  constitutional  provision  as  to  taking  private  property.  If 
VOL.  I.  —  70 


1106  STOUY   V.   NEW    YOIiK    ELEVATED    KAILUOAD   CO.       [cilAl'.  VL 

the  word  is  to  have  such  a  broad  signification,  then  it  was  useless  to 
]novide  in  the  English  Land  Clausuo  Act  of  1845,  that  compensation 
should  be  made  for  land  taken  not  only,  but  also  for  laud  "  inju- 
riously affected,"  and  in  the  Constitution  and  laws  of  some  of  the 
States  that  compensation  shall  be  made  for  both  land  taken  and  land 
damaged. 

I  do  not  deem  it  necessary  to  define  precisely  what  property  rights 
abutting  owners  have  in  the  streets  of  the  city  of  New  York  adjoining 
their  lots.  I  will  assume,  without  deciding  it,  that  the  streets  cannot 
be  absolutely  closed  against  their  consent  without  some  compensation 
to  them  ;  for  the  limitations  upon  the  power  of  the  legislature  in  refer- 
ence to  closing  streets  have  not  been  precisely  determined  in  this  State. 
{Brooklyn  Park  Comtii'rs  v.  Armstrong,  45  N.  Y.  234  ;  G  Am.  Kep. 
70;  Coster  v.  Mayor,  etc.,  43  N.  Y.  3'J'J  ;  Ftariny  v.  Incin,  55  Id. 
486.)  If  the  |)luintiff  has  an  unqualified  private  easement  in  Front 
Street  for  light  and  air  and  for  access  to  his  lot,  then  such  easement 
cannot  be  taken  or  destroyed  without  compensation  to  him.  (Arnold 
V.  The  Hudson  R.  H.  li.  Co.,  55  N.  Y.  CGI.)  But  whatever  right  an 
abutter,  as  such,  has  in  the  street  is  subject  to  the  paramount  authority 
of  the  State  to  regulate  and  control  the  street  for  all  the  purposes  of  a 
street,  and  to  make  it  more  suitable  for  the  wants  and  convenience  of 
the  public.  The  grade  of  a  street  may,  under  authority  of  law,  be 
changed,  and  thus  great  damage  may  be  done  to  an  abutter.  The  street 
may  be  cut  down  in  front  of  his  lot  so  that  he  is  deprived  of  all  feasible 
access  to  it,  and  so  that  the  walls  of  his  house  may  fall  into  the  street, 
and  yet  he  will  be  entitled  to  no  compensation  {Radclij^"s  Executors 
V.  The  Mayor,  etc.,  supra;  O'Connor  v.  Pittsburgh,  supra;  Calhn- 
der  v.  3Iar.<;h,  1  Pick.  418)  ;  and  so  the  street  may  be  raised  in  front 
of  his  house  so  that  travellers  can  look  into  his  windows  and  he  can 
have  access  to  his  house  only  through  the  roof  or  upper  stories,  and  all 
light  and  air  will  be  shut  away,  and  yet  he  would  be  without  any 
remedy-.  The  legislature  may  prescribe  how  streets  shall  be  used,  as 
such,  by  limiting  the  use  of  some  streets,  or  the  parts  of  streets,  to 
pedestrians  or  omnibuses,  or  carriages,  or  drays,  or  by  allowing  them 
to  be  occupied  under  proper  regulations  for  the  sale  of  hay,  wood,  or 
other  produce.  It  may  authorize  shade  trees  to  be  planted  in  them, 
which  will  to  some  extent  shut  out  the  light  and  air  from  the  adjoining 
houses.  Streets  cannot  be  confined  to  the  same  use  to  which  they  were 
devoted  when  first  opened.  The}-  were  opened  for  streets  in  a  city 
and  may  be  used  in  any  way  the  increasing  needs  of  a  growing  city 
may  require.  They  may  be  paved  ;  sidewalks  may  be  built ;  sewer, 
water,  and  gas  pipes  may  be  laid  ;  lamp-posts  may  be  erected,  and 
omnibuses  with  their  noisy  rattle  over  stone  pavements,  and  other  new 
and  strange  vehicles  may  be  authorized  to  use  them.  All  these  things 
may  be  done  and  they  are  still  streets,  and  used  as  such.  Streets  are 
for  the  passage  and  transportation  of  passengers  and  property.  Sup- 
pose the  legislature  should  conclude  that  to  relieve  Broadway  in  the  city 


CHAP.  VI.]      STORY   V.   NEW   YORK    ELEVATED    RAILROAD   CO.  1107 

of  New  York  from  its  burden  of  travel  and  traffic  it  was  necessar}-  to 
have  an  underground  street  below  the  same ;  can  its  authority  to 
authorize  its  construction  be  doubted?  And  for  the  same  purpose 
coukl  it  not  authorize  a  way  to  be  made  fifteen  feet  above  Broadwaj' 
for  the  use  of  pedestrians  ?  When  the  streets  become  so  crowded  with 
veliicles  that  it  is  inconvenient  and  dangerous  for  pedestrians  to  cross 
from  one  side  to  another,  can  it  be  doubted  that  the  legislature  could 
authorize  them  to  be  bridged,  so  that  pedestrians  could  pass  over  them, 
and  that  it  could  do  this  without  compensation  to  the  abutting  owners, 
whose  light  and  air  and  access  might  to  some  extent  be  interfered 
with  ?  Those  imprnvomonts  would  not  be  a  destruction  of  or  a  depar- 
ture  from  the  use  to  which  the  land  was  dedicated  when  the  street  was 


opened ;  bui  iticy  w^ouid  render  the  street  more  useful  for  the  v^' 
purpose  tor  which  it  was  made,  to  wit :  travel  and  transportation,  yf 
b}'  these  improvements  the  abuttin<y  owners  were  injured,  they  would 
have  no  constitutional  right  to  compensation,  for  the  reason  that  np 
property  would  bG  tilken  anU  the  injury  would  be  merely  consequential .\ 
And  It  ttie  public  authorities  could  make  these  improvements^  then  the 
legislature  could  undoubtedly-  authorize  them  to  be  made  by  quasi  pub- 
lic corporations,  orp^anized  for  the  purpose,  as  it  can  authorize  plank: 
road  and  turnpike  companies  to  take  possession  of  highways  and  take 
toll  froip  tJin'i"  " ''^  11^9  tinm 

So  in  process  of  time  railways  came  to  be  used  for  transportation  of 
persons  and  property ;  and  a  controversy  soon  arose  whether  they 
could  be  constructed  in  the  streets  of  cities  without  compensation  to 
the  abutting  owners.  It  was  determined  that  they  could  not,  when 
such  owners  owned  the  fee  of  the  street.  (  Wager  v.  The  Troy  Union 
11.  R.  Co.y  2.)  N.  Y.  o2G  ;  Craig  v.  Tlie  Rochester  City  &  Brighton 
R.  E.  Co.,  39  Id.  404.)  But  where  they  do  not  own  the  fee  they  are 
entitled  to  no  compensation,  as  no  private  property  is  taken  from  them 
within  the  meaning  of  the  Constitution.  That  this  is  the  rule  was 
distinctly  recognized  in  the  two  cases  last  cited  and  was  adjudicated 
in  the  cases  of  The  People  v.  Kerr  (27  N.  Y.  188),  and  Kellinger 
V.  The  Forty  Second- Street,  etc.,  R.  R.  Co.  (50  Id.  206).  In  the 
case  of  The  People  v.  Kerr,  there  was  uncontradicted  proof  that  the 
construction  and  operation  of  the  railway  in  the  street  would  cause 
serious  damage  to  the  owners  of  adjoining  property,  and  that  such 
property  would  be  depreciated  in  value  from  twenty  to  twenty-five  per 
cent,  and  the  court  found  that  the  construction  and  operation  of  the 
railway  "  would  be  a  material  interference  with  and  injury  to  the  use 
and  enjoyment  of  the  lots  fronting  on  said  street  in  such  manner  and  to 
such  extent  that  the  same  would  constitute  a  continuous  private  nui- 
sance to  the  plaintiffs  "  as  owners  of  adjoining  lots ;  and  yet  it  held 
that  the  abutting  owners  were  not  entitled  to  compensation.  It  was 
adjudged  that  the  construction  of  a  city  railroad  upon  the  surface  of 
the  street  was  an  appropriation  to  public  use ;  that  the  street  was 
under  the  unqualified  control  of  the  legislature,  and  that  any  appro- 


1108  STORY   V.    NEW   YORK   ELEVATED    RAILROAD   CO.       [(HAI'.  VL 

priation  of  it  to  a  public  use  by  legislative  authority  was  not  a  taking 
of  private  propeit\'  so  as  to  require  compensation  to  tbe  city  or  abut- 
ting owners.  The  decision  seems  to  have  been  based  upon  the  broad 
ground  that  the  legishiture  could  authorize  the  laud  iu  the  street  which 
had  been  taken  for  or  dedicated  to  a  public  use  to  be  devoted  to  any 
public  use  whatever.  But  even  if  it  did  not  go  so  far  as  this,  it  cannot 
be  disputed  that  it  went  so  far  as  to  hold  that  the  legislature  could 
authorize  the  streets  to  be  devoted  to  any  public  use  uot  inconsistent 
with  their  use  as  streets. 

In  Kellinger  v.  The  Street  Mailway  Co.  the  case  of  The  People  v. 
Kerr  was  approved,  and  it  was  held  that  the  owners  of  property 
adjoining  a  street  iu  the  city  of  New  York,  laid  out  under  the  Act  of 
1813,  have  an  easement  in  the  street  in  common  with  the  whole  people 
to  pass  and  repass  and  also  to  have  free  access  to  their  premises,  but 
that  the  mere  inconvenience  of  such  access  occasioned  by  the  lawful  use 
of  the  street  by  a  railroad  is  not  the  subject  of  an  action  ;  and  that  a 
complaint  alleging  that  defendant  laid  its  track  so  near  the  sidewalk  in 
front  of  the  plaintiffs  premises  as  not  to  leave  sulticient  space  for  a  vehi- 
cle to  stand,  and  that  he  and  his  family  were  thereby  incommoded  in 
leaving  and  returning  to  tiieir  residence,  and  the  rental  value  of  his 
premises  was  greatly  depreciated,  did  not  contain  a  cause  of  action. 
Church,  Ch.  J.,  speaking  of  the  case  of  The  J^tople  v.  Kerr,  said : 
"  It  clearly  holds  that  the  abutting  owners  had  no  property  in  the 
street,  which  was  taken  for  the  railroad,  for  which  they  were  entitled 
to  compensation." 

The  decisions  in  these  two  cases  were  in  no  degree  based  upon  the 
fact  that  the  railways  were  constructed  upon  the  surface  of  the  streets. 
It  can  make  no  difference  in  principle  whether  the  railway  be  on  the 
surface  or  above  or  below  the  surface  so  long  as  it  serves  the  same 
public  purpose,  to  wit :  the  transportation  of  persons  and  property. 
The  principle  lying  at  the  foundation  of  these  cases,  stated  most  favor- 
ably to  the  plaintiff,  is  that  a  railway  was  simply  a  new  mode  of  using 
the  streets  for  the  purpose  for  which  they  were  originally  made,  and 
that  if  the  new  use  produced  any  greater  inconvenience  or  injury  to  the 
.abutting  owners  than  the  old  use,  it  was  damuum  absque  injuria. 
Nor  did  these  cases  proceed  upon  any  distinction  between  horse  rail- 
ways and  those  upon  which  steam  is  the  motive-power.  If  the  legisla- 
ture could  authorize  a  railway  to  be  operated  in  any  street  by  horse 
power,  it  certainly  must  have  the  same  right  to  allow  it  to  be  operated 
by  steam,  electricity,  or  any  other  motive-|)ower.  As  stated  by  the 
learned  author  of  Thompson  on  Highways,  400,  "The  distinction  be- 
tween horse  railroads  and  those  on  which  steam  is  the  motive  power  is 
not  made  b}'  any  of  the  cases  in  the  Court  of  Appeals,  but  is  expressly 
denied  by  some  of  them,  and  is  in  conflict  with  the  reasoning  and  prin- 
ciple of  all  of  them."  In  Wager  v.  Troy  Union  M.  li.  Co..,  Smith, 
J.,  writing  the  prevailing  opinion,  said  :  "  It  is  true  that  the  actual  use 
of  the  street  by  the  railroad  may  not  be  so  absolute  and  constant  as  to 


CHAP.  VI.]       STOIIY   V.    NEW    YOKK    ELEVATED    KAILKOAD   CO.  1109 

exclude  the  public  from  its  use.  With  a  single  track,  and  particularly 
if  the  cars  used  ui)On  it  were  propelled  b}-  horse-power,  the  interruption 
of  the  public  easement  in  the  street  might  be  very  trilling  and  of  no 
practical  consequence  to  the  public  at  large.  But  this  consideration 
cannot  affect  the  question  of  right  of  property  or  of  the  increase  of  the 
burden  upon  the  soil.  It  would  present  simply  a  question  of  degree  in 
respect  to  the  enlargement  of  the  easement,  and  would  not  affect  the 
principle."  In  the  same  case,  Sutherland,  J.,  in  his  dissenting  opin- 
ion, said  :  "In  this  case  the  railroad,  I  assume,  was  intended  to  be  and 
was  operated  b}^  steam.  I  cannot  see  how  that  affects  the  question  of 
power."  In  Craig  v.  Hochester  City,  etc.,  R.  II.  Co.  (supra). 
Miller,  J.,  writing  the  opinion,  said:  "I  am  at  a  loss  to  see  any 
apparent  distinction  in  the  application  of  the  rule  between  cases  where 
steam-power  is  employed  and  those  cases  where  the  road  is  operated  by 
horse-power."  Judge  Dillon,  in  his  excellent  work  on  Municipal  Cor- 
porations, vol.  2,  §  .577,  says:  "  Where  the  fee  of  the  street  is  in  the 
municipality  in  trust  for  the  public,  or  in  the  public,  the  control  of  the 
legislature  is  supreme,  and  it  may  authorize  or  delegate  to  municipal 
bodies  the  power  to  authorize  either  class  of  railways  to  occup}'  streets 
•without  providing  for  compensation  either  to  the  municipalit}'  or  to  the 
adjoining  lot-owners."  In  Cooley's  Constitutional  Limitations,  555, 
the  learned  author,  speaking  of  the  appropriation  of  the  street  to  the 
use  of  all  kinds  of  railroads,  sa3's :  "  A  strong  inclination  is  apparent 
to  hold  that,  when  the  fee  in  the  public  way  is  taken  from  the  former 
owner,  it  is  taken  for  any  public  use  whatever  to  which  the  public 
authorities,  with  the  legislative  assent,  may  see  fit  afterward  to  devote 
it  in  furtherance  of  the  general  purpose  of  the  original  appropriation, 
and  if  this  is  so,  the  owner  must  be  held  to  be  compensated  at  the  time 
of  the  original  taking  for  an}'  such  possible  use ;  and  he  takes  his 
chances  of  that  u^e  or  any  change  in  it  proving  beneficial  or  deleterious 
to  any  remaining  propert}'  he  may  own  or  business  he  may  be  engaged 
in,"  and  "  when  land  is  taken  or  dedicated  for  a  town  street  it  is  un- 
questionably appropriated  for  all  the  ordinary  purposes  of  a  town 
street,  not  merely  the  purposes  to  which  such  streets  were  formerly 
applied,  but  those  demanded  by  new  improvements  and  new  wants." 

I  think  1  have  now  sufficiently  demonstrated  that  the  legislature  may 
authorize  a  surface  railwa}'  operated  by  any  motive-power  to  be  con- 
structed in  i)ublic  streets,  and  that  when  the  abutting  owners  do  not 
own  the  fee  of  the  streets  the}'  cannot  claim  any  compensation  for  any 
inconvenience  or  injury  caused  them  in  the  construction  and  operation 
of  the  railway,  provided  the  street  still  remains  open  and  practicable 
for  the  ordinary  use  of  the  public ;  and  I  am  entirel}'  unable  to  see  why 
the  reasoning  and  authorities  which  lead  to  this  conclusion  do  not  lead 
to  the  further  conclusion  that  railways  operated  above  the  surface  of 
the  street  may  be  authorized  upon  the  same  terms.  An  elevated  rail- 
way is  only  a  new  mode  of  using  the  streets  for  the  transi)ortation  of 
persons  and  property.     It  is  not  a  change  or  subversion  of  the  use  for 


1110  STORY   V.    NEW   YOKK   ELEVATED    UAILKoAD   CO.       [t.llAL  VI. 

wliifh  the  streets  were  originally  openeil  ami  laid.  The  time  came 
when  the  iuereusiiig  business  anil  p(>i)iilation  of  the  city  of  New  York 
made  the  surface  railroads  a  necessity.  The  time  has  now  come  when 
the  convenience  and  the  wants  of  a  vast  city  make  this  new  mo<le  of 
travel  and  transiwrtation,  if  not  a  necessity,  at  least  a  great  conven- 
ience ;  and  the  devotion  of  the  streets  to  the  use  of  the  elevated  rail- 
ways was  only  in  furtherance  of  the  trust  and  purpose  for  which  the 
soil  of  the  streets  was  originally  dedicated  or  taken.  If  the  surface 
railways  were  raised  up  fifteen  feet  in  the  streets  and  used  for  the  same 
purpose  for  which  they  are  now  used,  could  not  an  Act  of  the  Legisla- 
ture make  them  lawful  structures  without  compensation  to  the  abutting 
owners?  As  relates  to  the  question  of  legislative  power,  what  differ- 
ence could  it  make  whether  a  railway  remained  upon  the  surface  or 
was  raised  up?  Are  the  elevated  railways  unlawful  elevated  fifteen 
feet  above  the  surface  of  the  streets,  while  they  would  be  lawful  lowered 
to  the  surface  of  the  streets?  The  legislature  in  regulating  any  street 
could  build  an  embankment  fifteen  feet  high  and  then  authorize  a 
surface  railroad  to  be  built  U[)on  that,  to  be  operated  by  any  motive 
power,  and  the  noise  and  dust  and  interruption  of  air  and  light,  and 
disturbance  of  privacy  might  be  much  greater  tlian  is  caused  by  an 
elevated  railway.  Instead  of  building  an  embankment  and  thus  raising 
the  street,  the  legislature  could  authorize  the  wliolc  travel  of  the  street 
to  be  carried  above  the  surface  upon  an  elevated  road  by  all  the  vehi- 
cles used  for  the  transportation  of  persons  and  property,  and  the  abut- 
ting owners  could  have  no  legal  or  constitutional  ground  of  complaint. 
This  is  so  because  the  fee  which  the  city  owns  in  its  streets  extends 
indefinitely  upward  and  downward,  and  the  space  above  as  well  as  the 
space  below  a  street  may  be  utilized  for  street  purposes. 

I  have  not  claimed  that  the  legislature  could,  without  compensation 
to  abutting  owners,  authorize  a  street  in  the  city  of  New  York  to  be 
absolutely  closed  or  wholly  and  exclusively  appropriated  to  the  use  of 
a  railroad.  There  are  authorities  which  would  tend  to  uphold  such  a 
claim.  I  do  not  affirm  or  deny  the  validity  of  such  a  claim.  I  leave 
the  question  of  the  right  to  exercise  that  more  extensive  legislative 
authority  under  tlie  Constitution  to  be  determined  in  some  future  case 
wherein  it  shall  be  involved.  It  is  suflRcient  to  determine  now  that  the 
legislature  may  constitutionally,  without  compensation  to  abutting 
owners,  devote  the  streets  of  a  great  city  to  any  use  which  is  not  in- 
consistent with  the  use  for  which  the}*  were  opened  or  dedicated. 

Front  Street,  adjoining  the  plaintifTs  lot,  is  not  closed  by  this  elevated 
railwa}',  but  it  remains  an  open  public  street.  The  finding  of  the  court 
is  that  it  "will  cause  no  substantial  or  material  impediment  to  the 
passage  of  persons,  animals,  or  vehicles  in  and  along  the  street,  and 
but  slight  obstruction  to  the  light  or  air  from  the  street."  "We  must 
take  this  case  as  the  trial  court  has  found  it  and  not  assume  a  case 
such  as  the  imagination  can  paint.  The  stream  of  traffic  and  travel 
with  no  material  diminution  can  flow  through  Front  Street  as  freely  &s 


CHAP.  VI.]       STORY   V.    NEW   YORK   ELEVATED   RAILROAD   CO.  1111 

be.''ore  the  construction  of  the  railway.  If  it  be  a  question  of  fact 
whether  the  street  is  in  some  sense  closed  b}'  the  defendant's  structure, 
then  the  trial  court  must  be  deemed  to  have  found  the  fact  in  favor  of 
the  defendant. 

fi^  St?ni"  '•^"^v-'iy  npprated  upon  the  surface  of  one  of  the_strc£t&-iii 
_the  city  of  New  York  would  probably  be  much  more  damaging  than  an 
elevated  railway,  and_J'et,  as  I  have_shown.  it  could  undoubtcdlyi-be 
authorized  without  compensation^ to  abutting  owners;  and  it  isJmpQSai- 
ble  for  me  to  ijci^ive  uuPirwriaTreasoiTing  or  theorY-Lt_Qa n  be  claimed, 
That  abuttnlgowners  who  have  iio  riglits  tii)on_the_.siirf.ic^  of  a  street 
for  which  tlicy  can  claim  compensation,  yet  have  such  rights  when  the 
railway  is  elevated  above  the  surface.  Thcy_have_no  easement  upon  or_ 
over  the  surf>r-P  uliifh  (cannot  be  interlerecTwith  and  gi;eatljMmpaimI 
under  legislative  authority  without  compensation,  -nnd  vet  it  is  claimed 
That  they  have  an  easement  somewhere  up  in_tbe_^itiwliich  is  under  the 
constitutional  protection  as  private  i5rop3rtyr~Whcre  do  these  aerial 
rights  come  from  ?  They  do  not  rest  upon  any  grant,  and  as  the  doc- 
trine of  ancient  lights  has  no  footing  in  this  country,  they  cannot  rest 
upon  prescription.  Buildings  may  be  erected  upon  a  street  so  high  and 
in  such  a  way  as  to  shut  out  liglit  and  air  from  an  adjoining  building. 
Tliey  may  be  erected  so  as  to  cast  tlieir  shadows  across  tlie  street  upon 
houses  there  standing  and  yet  no  riglit  or  easement  is  invaded.  It  can- 
not be  doubted  that  the  legislature  could  authorize  surface  railways  to 
be  operated  witii  double-decked  cars  fifteen  feet  high  and  thus  cause 
nearly  all  the  inconvenience  to  the  abutting  owners  of  an  elevated  rail- 
way, and  yet  it  must  be  conceded  that  under  the  authorities  the  abut- 
ting owners  would  have  no  legal  cause  of  complaint. 

Light  and  air  are  mere  incidents  and  accidents  of  a  street.  Streets 
are  not  constructed  and  maintained  to  furnisli  them.  They  come  from 
a  street  because  the  street  exists,  and  when  the  street  disappears  it  is 
difficult  to  perceive  how  any  right  to  them  in  an  abutting  owner  sur- 
vives. But  as  I  have  before  said,  it  is  sufficient  now  to  determine  that 
if  there  can  be  any  such  thing  in  a  street  as  an  easement  for  light  and 
air,  it  is  subordinate  to  all  the  uses  and  burdens  to  which  a  street  maj'' 
be  subjected  by  the  paramount  authority  of  the  legislature. 

I  am  led  to  this  conclusion  by  principles  fairly  to  be  deduced  from 
decided  cases  which  are  binding  upon  this  court  as  authority.  I  cannot 
perceive  how  tliis  case  can  be  determined  in  favor  of  the  plaintiff  with- 
out substantially  overruling  the  cases  of  The  People  v.  Kerr,  and 
Kellinger  v^  The  Street  Raihoay  Co.  In  The  Matter  of  the  Gilbert 
Elevated  Jlailway  Co.  (70  N.  Y.  361),  Church,  Ch.  J.,  said  that  "the 
principles  adjudicated  in  these  cases  will  be  regarded  as  obligatory 
upon  this  court  in  deciding  future  cases."  In  the  case  of  Kellinger  v. 
The  Street  Railway  Co.,  the  same  learned  judge,  speaking  of  the  case 
of  The  People  v.  Kerr,  said  :  "  We  should  feel  bound  to  adhere  to 
this  decision  and  its  necessary  legal  results,  even  if  we  doubted  its 
soundness,  because  large  sums  of  money  have  been  expended  upon  the 


1112  STOUY   V.    NEW    YOKK   ELEVATED    UAILliOAD   CO.       [cilAl'.  VL 

faith  of  it,  antl  in  many  obvious  ways  it  has  become  a  rule  of  iJiopeity 
which  should  never  be  abrogated,  except  for  the  most  cogent  reasons." 
And  more  than  four  hundied  years  before  these  utterances  a  k-arned 
English  judge  said:  '•  If  we  judge  against  former  judgments  it  is  a 
bad  example  to  the  barristers  and  students  of  law  ;  they  will  not  have 
any  faith  in  or  give  any  credit  to  their  books."  (Year  Book,  33  Hen. 
VI.  41.) 

It  is  sufficient  to  sav  of  the  Elevated  Railway  cases  rci)orted  in  70 
N.  Y.,  that  the  questions  we  are  to  determine  in  this  case  were  not 
there  involved.  It  was  there  determined  that  provision  was  made  in 
the  Rapid  Transit  Acts  for  compensation  for  an}'  rights  of  private 
property  which  the  abutting  owners  had  in  the  streets  of  the  cit}'.  But 
whether  they  had  such  rights  or  not  was  intentionally  and  expressly 
left  an  open  question. 

T|he  plaintiff  and  many  other  abutters  npon  the  streets  throuLdi  which 
this  elevated  railway-  is  constructed  undoulttcdly  suffer  great  dauKurc 
from_[ts^ operation  and  have  the  light  to  com|)lain  of  the  injustice  done 
them  ;  \n\l  they  must  seek  their_rciii'''ly  f'y  np^ii-uliiig,  not,  tn  iho  c(im±a, 
biit  to  the  legislature,  and  if  they  fail  there,  by  appealing  tojlie  jieople 
jvho  makejegislaturcs.  That  is  the  final  api)eal  open  to  ever}' citizen 
who  suffers  injustice  under  the  forms  of  the  Constitution  and  the  laws. 
The  legislature  undoubtedly  has  ample  power  to  compel  the  defendant 
yet  to  make  compensation  to  abutting  owners  for  all  the  damage  done 
them,  and  arrest  the  exercise  of  its  franchise,  if  it  shall  refuse  to  make 
such  compensation.  (3Io)i07)ffahtki  A\ic.  Co.  v.  Coon,  G  Penn.  St. 
379.)  The  power  which  it  possesses  under  the  Constitution  and  the 
laws  to  alter  or  repeal  the  charters  of  corporations  includes  the  abso- 
lute right  to  regulate  the  exercise  of  corporate  franchises,  and  to  pre- 
scribe the  terms  and  conditions  upon  which  the}'  may  continue  to  be 
exercised.  (Albcoiij  Noi-thern  Hnilroad  Co.  v.  Broicnell,  24  N.  Y. 
345.) 

I  will  close  this  discussion  by  quoting  the  language  of  a  very  learned 
jurist  in  Hatch  v.  The  Vermont  Central  liailroad  Co. :  "  In  the 
absence  of  all  statutory  provision  to  that  effect,  no  case  and  certainly 
no  principle  seems  to  justif;v  the  subjecting  a  person,  natural  or  artifi- 
cial, in  the  prudent  pursuit  of  his  own  lawful  business,  to  the  payment 
of  consequential  damage  to  others  in  their  property  or  l)usiness. 
This  always  happens  more  or  less  in  all  rival  pursuits,  and  often  where 
there  is  nothing  of  that  kind.  One  mill  or  one  store  or  school  often 
injures  another.  One's  dwelling  is  undermined  or  its  lights  darkened 
or  its  prospect  obscured  and  thus  materially  lessened  in  value  by  the 
erection  of  other  buildings  upon  lands  of  other  proprietors.  One  is 
beset  with  noise  or  dust  or  other  inconvenience  by  the  alteration  of  a 
street,  or  more  especially  by  the  introduction  of  a  railway,  but  there  is 
no  redress  in  any  of  these  cases.  The  thing  is  lawful  in  the  railroad 
as  much  as  in  the  other  cases  supposed.  These  public  works  come  too 
near  some  and  too  remote  from  others.     They  benefit  many  and  injure 


CHAP.  VI.]       STORY   V.    NEW   YORK   ELEVATED    RAILROAD   CO.  1113 

some.  It  is  not  possible  to  equalize  the  advantages  and  disadvantages. 
It  is  so  with  everything  and  always  will  be.  Those  most  skilled  in 
these  matters,  even  empirics  of  the  most  sanguine  pretensions,  soon 
find  their  philosophy  at  fault  in  all  attempts  at  equalizing  the  ills  of 
life.  The  advantages  and  disadvantages  of  a  single  railway  could  not 
be  satisfactorily  balanced  by  all  the  courts  of  the  State  in  forty  years ; 
hence  the\'  must  be  left,  as  all  other  consequential  damage  and  gain  are 
left,  to  balance  and  counterbalance  themselves  as  they  best  can." 

The  judgment  should  be  affirmed. 

For  reversal,  Andrew's,  Ch.  J.,  Rapallo,  Danforth,  and  Tracy,  J  J. 
For  affirmance,  Miller,  Earl,  and  Finch,  JJ. 

Judgment  reversed. 

[The  opinion  of  Danforth,  J.,  concurring,  and  the  dissenting  opinions 
of  Miller,  J.,  and  Fixcn,  J.,  are  omitted.  The.  opinions  of  Dan- 
forth, J.,  and  Tracy,  J.,  are  each  entitled  b}'  the  reporter  "  Opinion 
of  the  court."  This  title  seems  to  belong,  properl}',  onlj^  to  the  last. 
The}'  take  substantial)}'  the  same  ground,  but  the  former  also  holds  that 
the  plaintiff  had  the  fee  of  the  street.*] 

1  See  Randolph,  Em.  Dom.  ss.  404,  416.  Compare  Fulton  v.  Short  Route  Ri/.  Co., 
85  Ky.  640  (1887).     Sperb  v.  Met.  El.  Ry.  Co.,  32  N.  E.  Rep.  1050  (N.  Y.  Jany.  1893). 

In  Lahr  v.  Metrop.  Elev.  R;/.  Co.  104  N.  Y.  268  (1887),  the  court  (Ruger,  C.  J.) 
said :  "  This  action  is  the  sequel  of  the  Story  case  {Story  v.  N.  Y.  EL  R.  R.  Co.,  90 
N.  Y.  122),  and  its  defence  seems  to  have  been  conducted,  upon  the  theory  of  securing 
a  re-examination  of  the  (jucstions  then  decided,  and  in  case  th.at  effort  should  prove 
fruitless,  of  liinidng  and  restricting  as  mucli  as  possible,  their  logical  effect. 

"  The  endeavor  to  secure  a  re  examination  of  the  doctrines  of  that  case  must  fail, 
since  the  decision  there  made  embodied  the  deliberate  judgment  of  the  court,  pro- 
nounced after  the  most  careful  and  thorough  consideration,  and  after  two  arguments 
at  the  bar,  ma<le  by  most  eminent  counsel,  had  apparently  exhausted  the  resources  of 
learning  and  reason  in  the  discussion  of  the  (juestions  presented. 

"  It  would  be  tlie  occasion  of  great  public  injury,  if  a  determination  thus  made  could 
be  inconsiderately  unsettled  and  suffered  again  to  become  the  subject  of  doubt,  and 
theme  of  renewed  discussion. 

"  The  reasons  advanced  by  the  able  counsel  for  the  appellant  to  induce  us  to  recon- 
sider that  case,  seem  to  us  to  be  insufficient  to  render  it  wise  or  expedient  to  do  so. 
The  doctrine  of  the  Story  case  therefore,  although  pronounced  by  a  divided  court,  must 
be  considered  as  stare  decisis  upon  all  questions  involved  therein,  and  as  establishing 
the  law,  as  well  for  this  court  as  for  the  people  of  the  St.ate,  whenever  similar  questions 
may  be  litigated. 

"  Wherever,  therefore,  the  principles  of  that  case  logically  lead  ns  we  feel  constrained 
to  go,  and  give  full  effect  to  the  rule  therein  stated,  that  abutters  upon  public  streets  in 
cities  are  entitled  to  such  damajos.  .is  thev  may  have  snstaineil  bv  reason  of  a  diversion 
of  the  street,  from  the  use  for  which  it  was  originally  taken,  and  its  illegal  appropria- 
tion to  other  and  inconsistent  uses. 

"The  case  is  not  only  authority  upon  the  questions  which  it  expressly  decides,  but 
also  upon  all  such  as  logically  come  witliin  the  principles  therein  determined. 

"  It  is  therefore  unueces.sary  to  enter  into  a  general  discussion  of  those  questions, 
but  after  restating  such  propositions  as  seem  to  be  controlling  in  this  case,  we  shall 
simply  refer  to  some  alleged  distinctions  between  the  present  case  and  the  Story 
case.     We  hold  that  the  Story  case  has  definitely  determined  : 

"  First.  That  an  elevated  railroad,  in  the  streets  of  a  city,  operated  by  steam-power 
and  constructed  as  to  form,  equipments,  and  dimensions  like  that  described  in  the 


1114  STORY   V.   NEW   YORK   ELEVATED   RAILROAD   CO.      [ciIAP.  VL 

Story  case,  is  a  perversion  of  the  use  of  the  street  from  tho  purposes  orij^iiially 
desigued  for  it,  and  is  a  use  which  iieitlier  the  city  autliorities  nor  the  k•^i^*hltu^e  can 
legalize  or  sanction,  without  providing  compensation  for  the  injury  inthiteil  uj)on  the 
property  of  abutting  owners. 

"  Second.  That  abutters  upon  a  public  street  claiming  title  to  their  premises  by  grant 
from  the  municipal  authorities,  whicli  contains  a  covenant  tliat  a  street  to  be  laid  out 
iu  front  of  such  property,  sliall  forever  thereafter  coutiime  f<jr  tlie  free  and  comm(jn 
passage  of,  and  as  public  streets  and  ways  for  tho  inhabitants  of  said  city,  and  all 
others  passing  and  returning  through  or  by  the  same,  in  like  manner  as  the  other 
streets  of  tlie  same  city  now  are  or  lawfully  ought  to  be,  accjuire  an  e:usement  in  the 
bed  of  tiie  street  for  ingress  and  egress  to  and  from  their  j)reiiiises,  ami  also  for  the 
free  and  uninterrupted  passage  and  circulation  of  liglit  and  air  tiirough  and  over  such 
street  for  the  benefit  of  property  situated  thereon. 

"  Third.  That  tlie  ownersiup  of  sucli  easement  is  an  interest  in  real  estate,  constitu- 
ting property  within  tlie  meaning  of  tiiat  term,  as  used  in  the  Constitution  of  the  'State, 
and  re(iuires  compensation  to  be  made  therefor,  before  it  can  lawfully  be  taken  from 
its  owner,  for  public  use. 

"  Fourth.  That  the  erection  of  an  elevated  railroad,  the  use  of  which  is  intended  to 
be  permanent,  in  a  public  street,  and  upon  which  cars  are  projjeUed  hy  steam-engines, 
generating  giis,  steam,  and  smoke,  and  distributing  iu  tlie  air  cinders,  dust,  ashes,  and 
other  noxious  and  ileleterious  substances,  and  interrupting  the  free  p.issage  of  light 
and  air  to  and  from  adjoining  jjremiscs.  constitutes  a  taking  of  the  easement,  and  its 
appropriation  by  the  railroad  corporation,  rendering  it  liable  to  the  abutters  for  the 
damages  occasioned  by  suili  taking. 

"  The  jury  in  this  case,  under  the  instructions  of  the  court,  have  found,  upon  evi<lence 
which  justifies  tlie  finding,  that  the  structure  of  the  defendant  in  i\mity  Street,  in 
connection  with  the  running  of  cars  thereon,  proi)elled  by  steam  engines  with  the  con- 
sequences naturally  flowing  therefrom,  constitutes  an  employment  of  the  street  for 
purposes  not  originally  designed  and  a  perversion  of  its  use,  from  legitimate  street 
purposes.  .  .  . 

"  The  logical  effectofthe  decision  in  the  Stor^-  casej3jo_a!iJI0iiaLmc  tlie -Constitu- 
tion, as  to  i>])oratc  as  a  restriction  upon  the  letrislative  power  over  the  public  streets 
opened  under  the  Act  of  181.3,  and  confine  its  exercise  to  such  lc;;islation.  as  shall 
authori7,o  their  use  for  .ttrect  purposes  alone.  Whenever  any  other  use  is  altempfed 
to  be  authorized,  it  exceeds  its  con.stitutional  authority.  Statutes  relating  to  pulilic 
streets  which  attempt  to  authorize  their  use  for  additional  street  u.ses.  are  obviously 
within  the  power  of  the  legislature  to  enact,  but  (luestions  arising  under  such  legisla- 
tion are  inapplicable  to  the  questions  here  involved. 

"  Such  are  the  cases  in  respect  to  changes  of  grade  ;  the  use  of  a  street  for  a  surface 
horse  railroad  ;  the  laying  of  sewers,  gas,  and  water  |)i}ies  beneath  the  soil ;  the  erection 
of  street  lamps  and  hitching  posts,  and  of  poles  for  electric  lights  u.sed  for  street 
lighting.  All  of  these  relate  to  street  uses  sanctioned  as  such  by  their  obvious  pur- 
pose, and  long  continued  usage,  and  authorize<l  by  the  appropriation  of  land  fur  a 
public  street.  .  .  . 

•'  But  a  single  question  of  any  importance  remains  to  be  discussed,  and  that  refers  to 
the  claim  made,  that  the  defendant  is  not  liable  for  the  oper.ation  of  its  trains,  and  the 
consecjuences  flowing  therefrom,  in  respect  to  the  manufacture  and  distribution  in  the 
air  of  gas,  smoke,  steam,  dust,  cinders,  ashes,  and  other  unwholesome  and  deleterious 
substances  from  its  locomotives  and  trains,  as  they  move  to  and  fro  over  its  tracks. 

"  We  have  been  unable  to  see  any  reason  why  the  defendant  should  not  be  lialde  for 
the  injury  thus  occasioned,  provided  the  evidence  establi.shed  the  fact  that  they  were 
destructive  of  the  easements  of  light,  air,  and  access  belonging  to  the  plaintiff. 

"  It  follows  necessarily  from  the  proposition  that  a  permanent  strnctnrn  crprtpA  in  a. 
street,  interriipting  to  any  CObsiderable  extent  the  pa.'j.sa^e  of  light,  .and  nir  to  ifljfiKmii- 
premises,  works  the  destruction  of  easements  for  such  purposes:  that  apy  '"''i'ien^  of 
the  structure  wnicn  necessarily  increases  and  aggravates  the  irj^'^y  mne*-  Ho  .^nhjay^  «-^ 
the  same  rule  of  damage^ 


CHAP.  VI.]       STORY   V.   NEW   YORK   ELEVATED   RAILROAD   CO.  1115 

"  No  partial  justification  of  the  damages  inflicted  by  an  unlawful  structure,  and  its 
unlawful  use,  can  l)e  preilicated  upon  the  circumstance,  that  under  other  conditions 
and  through  a  lawful  exercise  of  authority,  some  of  the  consequences  complained  of, 
might  have  been  produced  without  rendering  their  perpetrator  liable  for  damages. 

"  The  structure  iiere,  aud  its  intended  use,  cannot  be  separated  and  dissected,  and  it 
must  be  regarded  in  its  entirety  in  considering  the  effect  which  it  produces  upon  the 
property  of  the  abutter.  However  the  damage  may  be  inflicted,  provided  it  be  effected 
by  an  unlawful  use  of  the  street,  it  constitutes  a  trespass  rendering  the  wrong-doer 
liable  for  the  conseciueuces  of  his  acts. 

"  The  legislature,  as  w'e  haveseeu,  had  uo  power  to  authorize  the  street  to  be  used 
for  an  elevated  steam  railroadTaiKr  that  want  of  authority  extends  to  every  incident 
necessary  to  make  the  road^n  j)£eratiy£_jelfivated  steam  railroad,  which  occasions  in- 
'|urv  to  the  rights  of  ahutt'ers  nn  the  st.re(>t.  {Bait.  ^-  Pot.  li.  R.  Co.  v.  Fifth  Bap.  Ch., 
108  U.  S.  317,  329.)   .  .  . 

"Andrews  and  Danfortii,  JJ.,  concur.  Rapallo,  J.,  took  no  part.  Earl  and 
Finch,  JJ.,  concur  in  result,  handing  down  the  following  memorandum  : 

"  Earl  and  Finch,  JJ.,  not  being  able  to  concur  in  all  the  views  e.xpressed  in  the 
foregoing  opinion,  concur  in  the  result  on  the  authority  of  the  Story  case  (90  N.  Y. 
122)  ;  deeming  it  necessary  to  add  that,  while  they  are  unwilling  to  e.xtend  the  scope 
of  the  decisi(jn  in  that  case  beyond  its  fair  import,  yet  in  their  opinion  it  gives  to 
abutting  i)W"'''"^  ""^y  diimnnrps  fur  tlie  construction  and  operation  of  the  railway  in 
front  of  their  premises,  resulting  from  the  taking  orJiTestruction  of  thei£  street  ease- 
ments of  light,  air,  ana  access,  and  toi*  SHCh  damages  to  their  adjoinhig  property  as 
are  necessarily  caused  by  such  taking  and  destruction  :  that  tlie  abutters  cannot  recover 
damages  to  or  upon  their  abutting  property  caused  jy  the  lawful  operation  of  the 
road,  and  not  by  the  deprivation  ot  destruction  ot  thcTr  easements  in  the  street ;  that 
tliere  can  be  no  recovery  for  any  thing  done  by  the  railway  in  the  street  except  as  it 
deprives,  or  tends  to  dei>rive,  the  abutters  of  the  easements  mentioned,  and  that  they 
believe  these  principles  were  not  violated  upon  the  trial  of  this  action.  Judgment 
affirmed." 

In  Fohes  V.  The  Rome,  Watertoivn,  S,-  Ogd.  R.  R.  Co.,  121  N.  Y.  505  (1890)  the 
plaintiff,  as  owner  of  real  estate  in  Syracuse  bounded  by  the  side  line  of  Franklin 
Street,  brouglit  an  action  to  restrain  the  defendant  from  interference  with,  and  occupa- 
tion of,  his  easement  of  light,  air,  and  access  in  and  to  that  street,  by  the  maintenance 
and  operation  of  its  steam  railway  therein,  and  to  recover  past  damages  suffered  by 
him  from  .such  maintenance  and  operation. 

In  reversing  a  judgment  below  in  favor  of  the  plaintiff,  the  court  (Peckham,  J.) 
after  citing  Drake  v.  Hudson  Riv.  R.  R.  Co.,  7  Barb  508,  Williams  v.  iV.  Y.  C.  R.  R. 
Co.,  16  N.  Y.  97,  Wager  v.  T.  U.  R.  R.  Co..  25  N.  Y.  526,  and  People  v.  Kerr,  27 
N.  Y.  188,  said:  "  I  think  there  is  no  authority  in  this  court  which  holds  that  there  is 
any  difference  between  a  railroad  operated  by  horse-power  and  one  operated  by  the 
power  of  steam  in  the  streets  of  a  city.  If  the  legislature  can  authorize  the  one,  it 
can,  under  the  same  circumstances,  authorize  the  other.  I  refer  to  railroads  on  the 
same  grade  as  the  street  itself,  and  where  the  chief  difference  lies  in  the  different 
motive  powers  which  are  used. 

"  In  Craig  v.  R.  R.  C.  ^  B.  R.  Co.  (39  N.  Y.  404),  it  wa.s  held  that  the  owner  of  a 
lot  on  a  street,  who  owned  the  fee  thereof  subject  only  to  the  public  easement  for  a 
street,  was  entitled  to  compensation  for  the  new  and  additional  burden  upon  the  land 
so  used  as  a  street,  by  the  erection  of  even  a  horse  railroad  thereon.  In  this  case, 
Judge  Miller  .said  he  saw  no  distinction  in  the  application  of  the  rule  between  cases 
of  steam  and  cases  of  horse-power. 

"  In  Keliinger  y.  F.  S.  S.  Sf  G.  S.  F.  R.  R.  Co.  (50  N.  Y.  206),  it  was  held  that  one 
who  did  not  own  the  fee  of  the  street,  could  not  recover  damages  for  inconvenience 
of  access  to  his  adjoining  lands  caused  by  the  lawful  erection  of  a  street  railroad 
through  the  street. 

"  By  these  last  two  decisions,  it  is  seen,  that  to  construct  even  a  horse  railroad  in  a 
city  street,  is  to  place  a  new  and  additional  burden  upon  the  laud,  the  right  to  do 


IIIG  STOltY   V.   NEW    YOKK    ELEVATED   KAILUOAD    CO.       [ril.vr.  VI. 

which  does  not  exist  by  reason  of  the  pfcneral  rij^lit  of  |»a.s.sage  through  the  utreet,  but 
if  ilic  aiijuiiiiug  owner  of  land  is  not  the  owner  of  the  fee  in  the  street,  and  tlio  rail- 
road company  lias  obtained  the  proper  authority,  he  h;w  n<j  riglit  to  cornjfensatiou  for 
sucli  added  burden,  nor  to  complain  of  such  use  so  lonj^  as  it  is  not  exclu«ive  or  exces- 
sive. The  same  reasoning  appliis,  a.s  we  have  seen,  iu  the  r;iiie  of  a  steam  .surface 
railroad.  Such  a^uiji'  id'  thu  jtiiAt.i  would  Im  an  Mdiliri""-il  l.ifrden  npnii  t.h<-  l:u|di  and 
of  course,  if  the  ad/uinin'j;  owner  liinl  tiili-  in  tic  tu  the  ci-iitre  ..f  the  .street,  yuliject 
only  to  tiie  public  fiii-rill' "'^^i  '"■  ^'■■"d-l  l'-»^'-  :>  ri.rlit  .if  .'titiiiii  .-us  hild  liy  tlic  \Villi:imB 
and  other  cases,  while  it'   lie  did   imt    mi  smli    riflit.  wimlil   t-vist   in    liis   f.nnr   m.-r.-ly 

Liecau.se  it  was  a  steam  instc:iil  .if  :l  Imr.si-  iMiln):Ld  which  wns  t..  I.i-  ■ >t  i-iiitml      'I'he 

authority  ot  tlie  law  and  the  consent  of  the  city  would  be  enough  to  auiimri/.e  the 
building  of  either,  and  the  difference  between  the  steam  and  the  horse  railmad  would 
not  be  one  of  such  a  nature  as  to  re(|uire  (jr  permit  any  difference  in  the  decision  of 
the  two  cases.  If  the  use  of  either  liecame  unrea-sonable,  excessive,  or  exclusive,  or 
such  as  would  not  leave  the  passage  of  the  street  substantially  free  and  unolistructed, 
then  such  excessive,  improper,  or  unreasonable  use  would  be  enjoined,  and  the  adjoin- 
ing owner  would  be  entitled  to  recover  damages  sustained  by  him  therefrom,  iu  his 
means  of  access,  etc.,  to  his  land.  Mahiidij  v.  li.  II.  It.  Co,  (91  N.  Y.  149).  In 
Washitiglon  Veiiifteri/  v.  P.  P.  ^-  V.  I.  li.  II.  Co.  (G8  N.  Y.  591.  at  593),  Atxlrews,  J., 
assumes  the  right  of  the  legislature  to  authorize  the  construction  of  a  railro.ad  on  a 
street  without  exacting  comi)ensation  from  the  corporation  authorized  to  construct  it, 
to  the  owners  of  adjoining  land,  provided  such  owners  did  not  own  the  fee  iu  the 
street.  The  statute  in  the  ca.se  citctl  jicrmitted  the  u.se  of  .steam  on  some  portion  of 
this  road,  so  that  Judge  Andrews'  remarks  were  not  confined  to  horse  railroads. 

"  A.esuming  that  the  jilaintiff  had  no  title  whatever  to  the  land  in  the  street  through 
which  the  defendant  laid  its  rails  and  ran  its  trains  under  h'gislative  and  municii»al 
authority,  I  think  it  clear  that  prior  to  the  decision  of  this  court  in  the  JStory  ca.se  (90 
N.  Y.  122)  he  had  no  cau.se  of  action  against  the  defendant  based  uinnj  any  alleged 
taking  of  the  plaintiff's  jmjperty  or  ca.scment  by  defendant.  If  its  user  of  the  street 
became  excessive  or  exclusive,  and  hence  degenerated  into  a  nuisance,  the  ])laintiff 
had  another  remedy.  The  claim  is  now  made  that  the  Story  case  (su/ira),  and  those 
cases  which  followed  and  are  founded  ujjon  it,  so  far  altered  the  law  as  to  permit  a 
recovery  iu  all  cases  where  the  easement  of  the  adjoining  Itjt-owncr,  through  the  build- 
ing and  operation  of  the  roa<l,  is  injuriously  affected  by  any  deprivation  or  diminution 
of  light,  air,  or  access  to  his  lot,  even  though  he  do  not  own  the  fee  to  the  centre  of 
the  .street;  and,  where  such  injury  occurs,  it  is  claimed  that  the  property  of  '.he  owner 
in  his  easement  of  light,  air,  or  access  has  been  taken  to  a  greater  or  less  extent,  and 
compensation  is  guaranteed  to  him  therefore  by  the  Constitution. 

"  It  was  not  intended  in  the  Storv  ca.sc  to  overrule  or  cliaiKrp  thn  l.iw  in  rep.ird  tt^ 
steam  snrff'co  milmnrls  Tlie  case  embodied  the  ajjplicatiou  of  wliat  w.xs  regarded  as 
well  established  principTfes^  law  to  a  new  combination  of  facts,  such  f.acts  amount- 
ing, as  was  determined,  to  auJtb§olute  and  permanent  ol)struction  in  a  portion  of  the 
public  street,  and  in  a  total  and  e??^^sive  use  of  such  portion  by  the  defendaut,  and 
such  permanent  obstruction  and  total  anl^Gjcclusive  use,  it  was  further  hehl,  amounted 
to  a  taking  of  some  portion  of  the  plaintiff's  c?t!««4JH'iit  in  the  street  for  the  purpose  of 
furnishing  light,  air,  and  access  to  his  adjoining  RHv^This  absolute  an<l  permanent 
obstruction  of  the  street,  and  this  total  and  exclusive  us^*~*»£^a|iortion  thereof  by  the 
defendant  were  accomplished  by  the  erection  of  a  structure  for  th«s^vated  railroad  of 
defendant,  which  structure  is  fully  descrihed  in  the  case  as  re|)orte(T?^The  structure, 
bv  the  mere  fact  of  its  existence  in  the  street,  permanently  and  at  every  rnfinifnt  "f 
the  dav  took  awav  from  the  jdaintiff  some  portion  of  the  light  and  air  which  other- 
wise would  have    J-Pnohpf]    |iim.  and    m    n    dpcrrAn    vort-  ippropj-at.lp,   iiitprfprpd   w\t\\    and 

took  awav  from  him  his  facility  of  access  to  his  lot :  ^\ch  interference  not  being  inter- 
mittent and  caused  by  the  temporary  use  of  the  street  by  the  passfi^je^of  the  vehicles  of 
the  defendant  while  it  was  operating  its  road  through  the  st;;e^  but  caused  by  the 
iron  posts  and  by  the  superstructure  imposed  thereon,  and  °,<i°'^'"g  <'"'•  p^Try  Tnompnt 
of  the  df  ^'  ^ifif'  "'";^'<'  Such  a  permanent,  total,  exclusive,  and  absolute  appropriation 
of  a  portion  of  the  street  as  this  structure  amounted  to,  was  held  to  be  illegal  and 


CHAP.  VI.]      STORY   V.    NEW   YORK   ELEVATED   RAILROAD   CO.  1117 

wholly  beyond  any  legitimate  or  lawful  use  of  a  public  street.  The  taking  of  the 
property  of  the  plaintiff  in  tiiat  case  was  held  to  follow  upon  the  penuaiieut  and  exclu- 
sive nature  of  t]ie-appropriation  by  the  defendant  of  the  public  street  or  of  some  por- 
tion thereof.  ^  that  ajipropriation  b^d  hefin  hehl  Icjral,  an^jngrely  conseiiMe"liiU 
damage  to  thel^^Jivner  of  the  adjoinint:  lot,  not  having  any  title  to  the  street.  wojM 
Ha"ve  furnislied  no  ground  for  an  action  against  the  defendantl\  It  was  just  at  this 
point  that  the  disagreement  existed  between  the  members  of  tltts  court  in  the  Story 
case.  The  judge  who  wrote  one  of  tlie  dis.seuting  opinions  did  not  think  that  the  facta 
presented  any  different  principle  from  that  of  an  onlinary  steam  surface  railroad 
operating  its  road  through  the  streets  of  a  city  under  the  authority  of  the  legislature 
and  of  the  municipality,  in  a  c;xse  where  the  adjoining  lot  owner  did  not  own  the  fee 
in  the  street.  The  character  of  tlie  structure,  and  all  the  facts  incident  thereto,  were 
regarded  by  him  as  simply  resulting  in  an  additional  burden  upon  the  street,  some- 
what greater  in  degree  it  is  true  than  a  steam  surface  railroad,  but  still  it  was  such  a 
use  of  the  street  as  the  legislature  might  permit,  and  the  legislature  having  in  fact 
granted  it  such  power,  the  use  of  the  street  was,  therefore,  legal,  and  the  defendant 
was  not  responsible  for  the  incidental  damage  resulting  to  one  whose  property  was 
not  in  fact  takeu  within  the  meaning  of  the  constitutional  provision,  and  the  defendant 
did  him,  therefore,  no  actionable  injury.  The  other  dissenting  judges  were  of  the 
same  opinion. 

"  A  majority  of  the  court,  however,  saw  in  the  facts  existing  in  tliat  case  what  was 
regarded  as  a  plain,  pal])able,  and  permanent  misappropriation  of  the  street,  or  some 
portion  of  it,  to  the  exclusive  u.se  of  the  defendant  corporation,  and  as  resulting  from 
it  the  court  held  that  tiiere  was  a  taking  of  property  belonging  to  the  plaintiff  with- 
out compensation,  which  no  legislature  could  authorize  or  legalize.  But  this  taking, 
it  cannot  be  too  frequently  or  strongly  asserted,  resulted  from  the  absolute,  exclusive, 
and  permanent  character  of  the  appropriation  of  the  street  by  the  structure  of  the 
defendant.  There  is  no  hint  in  either  of  the  prevailing  opinions  in  the  Story  case  of 
any  intention  to  interfere  with  or  overrule  the  prior  adjudications  in  this  State  upon 
the  subject  now  under  discussion,  as  to  the  steam  surface  railroads.  In  the  Story  case 
it  was  argued  that  no  real  distinction  in  principle  existed  between  a  steam  surface  and 
an  elevated  railroad  resting  on  such  a  structure  as  was  proved  in  that  case.  This 
court,  however,  made  the  distinction,  and  the  two  prevailing  opinions  are  largely  taken 
up  with  arguments  going  to  show  the  distinction  was  obvious,  material,  and  important, 
and  was  so  real  and  tangible  in  fact  as  to  call  for  a  different  judgment  than  would 
have  been  proper  and  a])propriate  in  the  case  of  the  ordinary  steam  surface  railroad 
such  as  the  Drake  case  was. 

"Judge  Tracy,  in  the  Story  case,  said  that  the  conclusion  therein  reached  was 
based  upon  the  character  of  the  structure,  and  that  the  language  of  Judge  Wright  in 
the  Kerr  case  (snpm),  where  he  a.sserted  that  the  abutting  owners  had  no  property  or 
estate  in  the  land  forming  the  bed  of  the  street  in  front  of  their  premi.ses,  must  be 
construed  with  reference  to  the  point  then  considered.  In  another  portion  of  his  opin- 
ion Judge  Tracy  said  that  no  structure  upon  the  street  can  be  authorized  which  is 
inconsistent  with  the  continued  use  of  the  street  as  a  public  street  He  also  added 
that,  whatever  force  the  argument  may  have  as  applied  to  railroads  built  upon  the 
surface  of  the  street,  without  change  of  grade,  and  where  the  road  is  so  constructed 
that  the  public  is  not  excluded  from  any  part  of  the  street,  it  has  no  force  when  applied 
to  a  structure  like  that  authorized  in  the  present  case.  This,  he  says,  is  an  attempt  to 
appropriate  the  street  to  a  use  essentially  inconsistent  with  that  of  a  public  street,  and 
hence  illegal.  He  does  not  pretend  ^h.^|.  the  onlif-ary  at-o^^r»  r-^\\m-:,i\  \^\,\  cm  the  sama 
grade  as  the  street,  and  not  exclndinfr  nthorg  fmm  jf^^  iitf<>  ;^ppw^p»^yfmr-t4in  titunnt-  t-n  n 
use  essentially  or  at  all  inconsistent  with  that  of  a  public  street.  The  use  may  be  an 
additional  burden  laid  upon  the  street,  but  nevertheless  it  i;^  anrh  a  ii.ie  as  is  entirely 
r.pnawt»j))j  •^Y'^h  its  contirnoil  mr  as  ;(  pnhliV  i^t.rppt- 

"Judge  Danforth  in  his  opinion,  views  the  structure  in  much  the  same  light.  He 
cites  the  ca,se  of  Corninfj  v.  Lowerre  (6  Johns.  Ch.  4.39),  where  Chancellor  Kent  re- 
strained the  defendant  by  injunction  from  obstructing  Vesey  Street  in  New  York  city 
by  building  a  house  thereon,  and  he  says  that  the  railroad  structure  designed  by  the 


1118  STORY   V.   NEW   YORK    ELEVATED    RAILROAD   CO.      [cHAP.  VL 

defendant  for  the  street  opposite  the  plaintiff's  premise?  is  liabie  to  tlio  same  objec- 
tion, that  is,  it  is  as  permanent  in  its  character  ami  exclusive  in  its  possession  of 
that  portion  of  the  street,  as  was  the  defendaut's  buildiuij  in  the  case  cited.  He 
further  says  that  the  street  railway  cases  are  in  no  resi)ect  iu  coutiict  with  the  doctrine 
auuouuced  iu  his  opinion.  Other  citations  might  be  made  froiu  both  opinions  of  those 
most  learned  and  able  judges,  but  enough  has  been  shown  to  enable  us  to  sav  with 
entire  correctness  that  there  was  no  intention  in  deciding  the  Ste-v  case  *o  reverse  or 
overrule  the  cases  iu  regard  to  steam  surface  railroads  which  have  been  al'-eady  cited. 
Those  cases  include  just  such  a  case  as  is  the  one  at  bar. 

"  Following  the  Story  comes  the  Lahr  case  ( 104  N.  Y.  2GS),  and  tiic  princip'er  decided 
in  the  former  were  reiterated  in  the  latter  c;ise.  It  is  dilBcult  to  see  that  any  enlarged 
rule  as  to  awarding  damages  in  that  class  of  cases  has  been  definitely  announced  ia 
the  Lahr  case.  The  general  rule  to  be  ad(jpted  was  agreed  upon  by  the  parties  and 
involved  an  award  once  for  all.  The  particular  damage  which  the  defendant  was  liable 
for,  growing  out  of  the  existence  of  the  defendant's  structure,  w;is  held  by  three  of 
the  five  members  of  the  court  then  voting  to  embrace  such  an  injury  or  inconvenience 
as  was  incidental  to  the  use  thereof.  Two  of  the  five  meml>ers  were  in  favor  of  a 
more  restricted  rule,  and  they  agreed  simply  iu  the  result  which  affirmed  the  judgmeni 
of  the  court  below. 

"Then  came  the  Drucker  case  (106  N.  Y  157),  and  in  it  the  principle  was  announced, 
as  stated  in  the  head  note,  that  iu  awarding  damages  it  was  proper  to  prove  and  take 
into  consideration  as  elements  of  damages  the  impairment  of  plaintiff's  easement  oi 
light  caused  by  the  road  itself,  and  passage  of  trains,  and  tlie  interference  with  the 
convenience  of  access  caused  by  the  drippings  of  oil  and  water.  This  was  held  as  a  fait 
result  from  a  holding  that  the  structure  was  an  illegal  one,  and  to  the  e.xteiit^above 
described  the  court  held  the  plaintiff  entitled  to  an  award  of  damages  ButKlie  foua 
dation  for  the  recovery  in  all  the  cases  above  cited,  of  any  damages  whatexN)  U\m  in 

tTigiact  ul  the  iiici^Miitv  ^f  iM  st^lK'^ll^<^^7 

"  Looking  carefully  over  the  ca.-^es  umflving  the  elevated  railroads  and  their  rights 
and  liabilities,  we  cannot  see  that  any  new  rule  was  adopted  in  any  of  those  cases 
which  would  hold  tlie  defendant  herein  liable  under  the  facts  proved,  for  the  taking  of 
any  property  or  any  portion  of  an  easement  belonging  to  the  plaintiff.  On  the  con- 
trary we  think  the  plaintiff's  case  is  still  governed  by  the  case  of  Drake  and  the  other 
cases  in  this  court  which  have  already  been  cited,  and  in  which  the  principle  decided 
in  the  Drake  case  has  been  assented  to  and  affirmed  Upon  such  facts  it  has  been 
held  that  there  was  no  taking  of  any  property  or  easement  of  an  adjoining  owner 
who  had  no  title  to  any  portion  of  the  land  upon  which  the  street  was  laid  out,  where 
the  company  was  authorized  by  law  and  licensed  by  the  city  to  use  the  street." 

In  Pond  V.  The  Metrop.  Elev.  Ry  Co.  112  N  Y.  186  (1889)  the  court  (Andrews,  J.) 
said  "The  Story  case  (90  N.  Y.  122)  established  the  principle  that  an  abutting  owner 
on  streets  in  the  city  of  New  York,  possesses,  as  incident  to  such  ownership,  easements 
of  light,  air,  and  access  in  and  from  the  adjacent  streets,  for  the  benefit  of  his  abutting 
lands,  and  that  the  appurtenant  easements  and  outlying  rights  constitute  private 
property  of  which  he  cannot  be  deprived  without  compensation.  That  was  an  equity 
action  and  the  court  having  reached  the  conclusion  that  the  defendant's  structure  was 
an  unlawful  invasion  of  the  plaintiff's  easements,  granted  an  injunction,  postponing 
its  actual  issuance,  however,  until  after  such  reasonable  time  as  would  enable  the 
defendant  to  acquire  the  plaintiff's  right  by  voluntary  agreement  or  comj)ulsory  pro- 
ceedings. The  Story  case  did  not  determine  any  rule  of  damages.  But  in  Uline  v. 
N.  Y.  C.  Sr  n.  R  R.  R.  Co.  (101  N.  Y.  9S),  the  general  question  as  to  the  scope  of  the 
remedy  in  an  ordinary  legal  action  for  damages  sustained  by  an  abutting  owner  from 
the  construction  of  a  railway  in  the  street  fronting  his  premises,  without  his  consent 
and  in  violation  of  his  rights,  was  elaborately  considered,  and  it  was  determined  that  iu 
such  an  action  the  plaintiff  could  recover  temporary  damages  only  ;  that  ig.  sucli~dar^ 
ages  as  had  been  sustained  up  to  the  commencement  ofthe  action,  and  the  judgment 
below  which  .n11(^\rpfl  rlamno-fts  me.qsnred  bv  the  permanent  depreciation  in  the  vjilna. 
of  the  plaintiff's  lots  upon  the  assumption  that  the  trespass  and  wrong  would  be  con- 


CHAP.  VI.]      REINING   V.   NEW   YOKK,   LACK.WANNA,   ETC.   KY.  1119 

In  Itdninn  v.  The  New  York,  Lachawmna,  and  Western  Ry.  Co., 
128  N  Y  157  (1891),  the  court  (Andrews,  J.)  said:  "The  pnne.pal 
mltton  in  this  case  respects  the  rights  of  the  plaintiffs  as  abutting 
rners,   to  recover  damages  occasioned  by  tl,e  »"str„c  .on  o     ti. 

^^^T^reT'he  uermaueut  depreciatiou  in  value  of  his  premises  by  reason  of 
of  damages  would  have  Pf^^^^l^^-J^^y^^  ^g'-^^^^/.^ill  more  explicit  recoguitiou 

.„e  pr„p«ny,  as  ';' »  P^S^SP::    ire  J  ^^^^^  i"  '-e  complain., 

unaerstoou  productive  of  less  inconvemence,  on  the 

'tre  if  u' o  :  t^^^X^^^^^^^^  be  adapted.  ^But  the  rule  established  is  consistent 
w  th l^al  priu  ipl         A  recovery  of  judgment  for  damages  for  a  trespass  or  the  in- 

rnould  it  to  suit  the  circumstances,  as  was  done  m  Henderson  v.  .V  Y.  C  H.  K.  o^ 
rs  N  Y  4' 3)  The  present  case  was  an  action  for  damages  simply.  The  plamtiff 
neither  in  his  complaint  nor  on  the  trial  asked  for  equitable  relief. 

''We  think  the  judgment  should  be  reversed  and  a  new  trial  granted.  All  concur. 
Judgment  reversed." 

"The  law  of  the  State  of  New  York  as  declared  by  the  Court  of  Appeals  appears 
tobeasfoTow  ■  An  elevated  railroad  erected  in  and  over  a  street  pursuant  to  the 
sutute   of   hlstate,  and  with  due  compensation  to  the  owners  of  property  taken  for 

the  court  observed  that    it  might  be  f'^\''^''^\^\l'^l  '''^  j    f,,  the  court,  in 

;f  an   onoosite  rule  could  be  adopted.      112  N.  1.  lao.       i^tkai,^.  i 
NY.  eITr.  R.  v.  F,fth  Nat.  BK  135  U.  S.  432,  440  (1889).  -Ed. 


1120  REINING   V.    NHW   YORK,   LACKAWANNA,   ETC.    RY.       [cirAP.  VI. 

bounded  eastcrl}'  by  Coinnierciiil  Street,  westerly  by  Maiilen  Lane,  and 
southerly  by  Water  Street,  and  occupying  the  whole  lot  is  a  four-story 
brick  building  used  as  a  store  and  residence,  constructed  before  the  rail- 
road was  placed  in  Water  Street.  Water  Street  runs  easterly  and 
westerly,  and  has  existed  for  more  than  forty  years.  Up  to  1875,  the 
plaintiffs  owned  the  fee  to  the  centre  of  the  street  opposite  their  prem- 
ises, subject  to  the  public  easement.  In  that  year  proceedings  were 
taken  by  the  city  of  Buffalo  to  acquire  the  title  to  a  huge  number 
of  streets  in  Buttalo,  including  W^•lter  Street,  by  condemnation,  and 
resulted  in  the  city  acquiring  the  title,  upon  payment  of  a  uniform  and 
nominal  award  of  five  cents  damages  to  each  of  several  hundred  owners 
of  lots  on  the  streets  taken  including  the  plaintiffs. 

'*  In  18H2,  the  Common  Council  of  the  city  of  Buffalo  by  ordinance 
granted  to  the  defendant  the  right  to  construct  and  maintain  two  rail- 
road tracks  '  along  Prince  Street  to  a  point  midway  between  Hanover 
Street  and  Lloyd  Street,  thence  across  Lloyd  Street  at  such  grade  as 
will  permit  said  company  with  a  practical  construction  to  cross  Com- 
mercial Street  at  the  height  fixed  by  the  State  engineer;  thence  to  and 
along  the  centre  of  Water  Street  to  the  docks  of  the  Delaware,  Lacka- 
wanna, and  Western  Railroad  Company  at  the  foot  of  Erie  Street.' 
Commercial  Slip  is  a  part  of  the  Eric  Canal  and  separates  Prince  Street 
and  Water  Street,  and  together  they  form  a  continuous  street  except  as 
it  is  interrupted  b}'  Commercial  Slip.  The  defendant,  in  pursuance  of 
the  permission  of  the  Common  Council,  and  in  accordance  with  the  map 
and  profile  approved  by  the  council,  and  under  the  direction  of  the  city 
engineer,  proceeded  to  raise  the  grade  on  Prince  Street  so  as  to  enable 
the  compan}'  to  cross  Commercial  Slip  b}-  a  bridge  fourteen  feet  above 
the  water  line,  the  height  fixed  by  the  State  engineer,  and  to  meet  this 
grade  of  the  bridge  constructed  an  embankment  in  the  centre  of  Water 
Street  from  the  bridge  easterly  for  the  distance  of  300  feet,  passuig  the 
plaintiffs'  premises.  Water  Street  is  sixty-six  feet  wide.  The  side- 
walk on  the  Water  Street  side  of  the  plaintiffs'  lot  occupies  fourteen 
feet.  The  embankment  of  the  defendant  is  twenty-four  feet  wide,  and 
at  the  junction  of  Water  and  Commercial  streets  (at  the  corner  of 
which  is  the  plaintiffs'  lot),  it  is  five  feet  nine  inches  high,  and  from 
that  point  descends  westerh'  by  a  gradual  descent  passing  the  plain- 
tiffs' lot  and  across  Maiden  Lane  and  reaches  the  original  level  of  the 
street  nearly  300  feet  west  of  the  corner  of  Commercial  and  Water 
streets.  The  embankment  is  supported  laterally  by  solid,  perpendicular 
stone  walls,  which  extend  along  Water  Street  in  front  of  the  plaintiffs' 
lot  and  across  the  entrance  of  Maiden  Lane.  Between  the  perpendicu- 
lar stone  wall  on  the  northed}'  side  of  the  embankment  and  the  side- 
walk in  front  of  the  plaintiffs'  building  is  a  space  eight  to  nine  feet 
wide,  which  is  the  only  carriage-way  left  on  the  Water  Street  side  of 
the  plaintiffs'  premises.  Commercial  Street  extends  northerly  and 
southerly  from  Main  Street  to  Buffalo  harbor.  The  raising  of  the 
embankment  in  Water  Street  rendered  it  necessary  to  make  an  embank- 


CHAP.  VI.]      REINING   V.    NEW   YORK,   LACKAWANNA,   ETC.    RY.  1121 

ment  in  Commercial  Street  to  meet  the  grade  of  the  railroad,  and  this 
was  done  by  the  defendant.  The  defendant  paved  the  surface  of  the 
twent3--four  feet  strip  in  Water  Street  occupied  by  its  embankment, 
and  laid  thereon  part  of  the  way  one  track,  and  part  of  the  way  two 
tracks  for  the  accommodation  of  its  business.  Carriages  or  teams  can- 
not cross  Water  Street  in  front  of  plaintiffs'  premises.  Tliis  is  pre- 
vented by  the  embankment.  Access  to  their  premises  on  the  Water 
Street  side  from  Commercial  Street  south  of  Water  Street  is  also  pre- 
vented except  by  first  crossing  Water  Street,  and  then  passing  along 
the  embankment  on  Commercial  Street  130  feet,  and  then  turning  into 
the  roadway  on  Commercial  Street  between  the  embankment  in  that 
street  and  the  sidewalk,  and  thence  into  Water  Street,  or  else,  when 
reaching  the  junction  of  Commercial  and  Water  streets  bj-  turning  west 
and  driving  down  the  embankment  along  the  railroad  tracks  about  300 
feet  to  the  end  of  the  grade,  and  then  turning  and  going  easterly  along 
the  narrow  roadway  eight  or  nine  feet  wide  on  the  northeHy  side  of  the 
embankment.  This  space  is  not  sufficient  to  allow  wagons  to  pass 
each  other,  nor  can  a  single  wagon  with  horses  be  turned  around  in  this 
space  except  with  difficulty. 

"It  was  conceded  that  the  plaintiffs,  up  to  the  time  of  the  trial,  had 
sustained  damages  in  the  diminislied  rental  value  of  their  premises  by 
reason  of  tlie  embankment  in  the  sum  of  $525,  for  which  sum  a  verdict 
was  rendered,  and  no  question  now  arises  as  to  the  rule  of  damages  or 
the  amount,  provided,  upon  the  facts,  damages  are  legally  recoverable. 
.  .  .  [Here  follows  a  statement  of  the  defendant's  position  and  of 
Fobesv.  Ji.  W.  &  0.  R.  M.  Co.,  121  X.  Y.  505  {ante,  p.  1115).] 

"It  is  no  longer  open  to  debate  in  this  State  that  owners  of  lots  abut- 
ting on  a  city  street,  the  fee  of  which  is  in  the  municipality  for  street 
uses,  although  they  have  no  title  to  the  soil,  are  nevertheless  entitled  to 
the  benefit  of  the  street  in  front  of  their  premises  for  access  and  other 
purposes,  of  which  they  cannot  be  deprived  except  upon  compensation. 
The  right  of  abutting  owners  in  the  streets  is  not,  however,  of  that 
absolute  character  that  they  can  resist  or  prevent  any  and  all  interfer- 
ence with  the  street  to  their  detriment,  or  which  can  be  asserted  to 
stay  the  hand  of  the  municipality  in  the  control,  regulation,  or  improve- 
ment of  the  streets  in  the  public  interest,  although  it  may  be  made  to 
appear  that  the  privileges  which  they  had  theretofore  enjoyed,  and  the 
benefits  they  had  derived  from  the  street  in  its  existing  condition, 
would  be  curtailed  or  impaired  to  their  injury  by  the  changes  proposed. 

"  The  cases  of  change  of  grade  furnish  apposite  illustrations.  They 
proceed  on  the  ground  that  individual  interests  in  streets  are  subordi- 
nate to  public  interests,  and  that  a  lot  owner,  although  he  may  have 
built  upon  and  improved  his  property  with  a  view  to  the  existing  and 
established  grade  of  the  street,  and  relying  upon  its  continuance,  has 
no  legal  redress  for  any  injury  to  his  propert3',  however  serious,  caused 
by  a  change  of  grade,  provided  only  that  the  change  is  made  under  lawful 
authority.  This,  it  is  held,  is  not  a  taking  of  the  abutting  owner's  prop- 
VOL.  I.  — 71 


1122  REINING   V.    NEW   YORK,   LACKAWANNA,   ETC.    RY.       [cHAP.  VL 

ert}',  and  the  injur}-  requires  no  compensation.  The  hardships  arising 
from  the  application  of  this  rule  of  law  has  led  to  constitutional  amend- 
ments in  many  of  the  States,  providing  for  compensation  for  property 
damaged  as  well  as  taken  in  the  prosecution  of  public  improvements. 
The  general  rule  in  this  State  is  unchanged,  but  the  Act,  chap.  113  of 
the  Laws  of  1883,  and  provisions  in  some  city  charters,  afford  similar 
relief  in  certain  cases.  But  that  there  is  a  limitation  to  public  powers 
over  the  streets  of  a  city,  which  cannot  be  transgressed  without  invad- 
ing the  constitutional  rights  of  abutting  owners,  was  a  principle 
announced  in  the  Stor}-  case  (90  N.  Y.  122),  and  confirmed  and  broad- 
ened so  as  to  apply  to  other  circumstances  in  the  subsequent  cases. 
The  elevated  railroad  structure,  the  suliject  of  complaint  in  the  Story 
case,  occupied  with  its  supports  and  stairways  portions  of  the  street, 
and  such  occupation  was  necessarily  exclusive,  and  this  fact  was  prom- 
inently brought  into  view  in  the  opinions  delivered.  The  parts  of  the 
street  so  occupied  could  not  be  used  for  general  street  purposes.  This 
fact,  it  is  claimed,  distinguishes  the  present  case  from  that,  and  it  is  in- 
sisted, thattliis  case  is  more  nearly  allied  to  the  Fobes  case  than  to  that 
of  Story.  It  is  true  that  the  part  of  the  street  occufjied  by  the  embank- 
ment of  the  defendant  is  still  a  part  of  Water  Street.  It  is  also  true  that 
the  occupation  of  the  embankment  by  the  tracks  of  the  defendant  was 
not  necessarily  exclusive,  that  is  to  say,  it  is  possible  for  ordinary  vehi- 
cles to  traverse  the  eml^ankment  longitudinally,  but  such  travel  would 
subject  the  traveller  to  the  risk  of  meeting  railway  trains  on  the  narrow 
causewa}',  and  he  would  have  no  opportunity  to  turn  off  the  embank- 
ment, except  by  driving  over  the  perpendicular  wall  which  supports  it. 
The  plaintiffs  are  practicall}'  excluded  from  the  use  of  that  portion  of 
the  street  b}-  the  presence  of  the  railroad  there.  The}'  and  their  cus- 
tomers cannot  drive  across  it,  and  if  they  had  the  temerit}'  to  drive 
along  it,  nevertheless  they  would  be  compelled  to  make  a  long  circuit 
to  reach  the  plaintiffs'  premises  from  the  streets  south  of  the  embank- 
ment. The  onh'  practicable  roadwa}'  in  front  on  Water  Street  is  but 
a  few  feet  in  width,  quite  insufficient  for  a  safe  and  convenient  way  to 
and  from  their  lot. 

"  We  thjiikthe  public  cannot  justly  demand  such  a  sacrificejo£private^ 
interests,  or  justify  such  an  appropriation  of  a  street  by  a  municipaliii' 
in  aid  of  a  railroad_eiiterpilse.  The  Fobes  case  gives  no  countenance 
to  the  defendant's  contention.  The  limitations  upon  legislative  and 
municipal  authority,  so  carefulh'  stated  in  the  passages  quoted  from 
the  opinion,  are  distinctl}'  opposed  to  such  an  assumption.  That  case, 
and  those  of  Kerr  and  Kellinger,  were  cases  of  railroad  tracks  laid 
upon  the  general  grade  of  city  streets,  as  such  grade  existed  when  the 
tracks  were  authorized.  There  was  no  exclusive  appropriation  in  fact 
of  any  portion  of  the  surface  b\'  the  companies,  except  that  the  rails 
were  embedded  in  the  soil.  The  whole  street  in  each  of  these  cases 
remained  opened  and  unobstructed,  except  that  the  existence  of  the 
tracks   and  the  operation  of  the  respective   roads   thereon  rendered 


CHAP.  VI.]  REINING   V.   NEW    YORK,   LACKAWANNA,   ETC.    RY.      1123 

access  to  the  lots  of  the  abutting  owners  somewhat  less  safe  and  con- 
venient than  before.  Here,  as  the  evidence  tends  to  show,  the  city  of 
Buffalo,  for  the  convenience  and  presumably  upon  the  application  of 
the  defendant,  devoted  the  centre  of  Water  Street  to  what  is  practi- 
cally the  exclusive  use  of  the  defendant,  leaving  for  the  use  of  the 
plaintiffs  a  narrow  and  inconvenient  roadwa}',  separated  from  the  cen- 
tre of  the  street  by  a  barrier  therein,  impassable  for  carriages  from 
north  to  south,  opposite  the  plaintiffs'  lot  on  Water  Street,  and  only 
theoretically   open  from   east  to  west,  and  then  only  by  a  circuitous 

route.       It  is  Ciuit<^   prob.lblP  t'^"^    ^'^^  nronQi-nl   intnv»ptp  nf  T^^iffnln  nnfl    Q.f 

the  larger  public  are  promoted  by  this  apprripn'n*^^''^"  nf  thp  gtrnnf,  bnf-if. 
by  no  means  follows  that  a  lot-owner  whose  pippprty  is  injm-pd  should 
bear  the  loss  for  the  pnhlie  bPTT^^^  Wp  think  thp  onsp  fnlls  wit,hin  thft 
principle  of  the  Story  case,  and  that  while  the  law  now  is  that  it  is 

competent    for  thp    1pgig1<^t'T'^     *^    anfh»iM-7P    rniln^nrl     tror^lrOj   pUhpr    fnr 

steam  or  horse  railroads,  to  be  laid  on  the  ovdinnry  gi-ndp  of  streets^ 
the  fee  of  which  is  in  the  State  or  municipality,  without  making  coiu- 
pjnsation  to  abutting  owners  for  cons^'^'T'"^'"^  injin-ips  to  thoir  prop- 
erty, the  legislature  cannot  lecyally  nntlinrizp  stnu-tm-ps  fm-  r^niT^f^(^1 
purposes  to  be  erected  therein  for  thp  nsp  nnri  rnnvpnjpnpp  of  rnilf^r^<]g^ 
\vh\r]^  prnftifnily  pvpIikIp  td"^  nhnttinor  owners  from  the  part  of  the 
street  so  occupied,  without  compensating  them  for  the  injur}"  suffered, 
and  that  it  is  not  necessary  that  there  should  be  an   actual  physical 

exclusion  of  the  I'^trOW""''''    ^''•'^'^   ^''"   "^"  "^  ^''"*^  P"''^  '^^   ^^^  Ptmnt  ,^nnn. 

pied  by  such  structures  in  order  to  entitle  them  to  a  legal  remedy,.  It  is 
enough  if  such  part  of  the  street  is  practically  and  substantially  closed 

"  The  power  conferred  by  the  charter  of  Buffalo  upon  the  Common 
Council  to  '  permit  the  track  of  a  railroad  to  be  laid  in,  along  or  across 
any  street  or  public  ground'  (Laws  1870,  chap.  519,  tit.  3,  §  19), 
must  be  construed  as  su1)ject  to  the  qualification  that  no  propert}-  rights 
of  abutting  owners  are  thereby  invaded.  The  present  controversy 
could  not  have  arisen  prior  to  1875,  when  the  plaintiffs  were  owners  of 
the  fee  to  the  centre  of  Water  Street.  They  would  then,  under  the 
settled  law,  have  been  entitled  to  compensation.  The  city  of  Buffalo 
having  in  that  year  acquired,  for  a  nominal  consideration,  the  technical 
fee  in  the  street,  proceeded  afterwards  to  authorize  the  laying  of  the 
tracks  in  question,  and  it  is  now  claimed  that  this  change  in  the  title 
defeats  the  plaintiffs'  right  to  compensation.  This  is  probably  true,  if 
what  has  been  done  by  the  defendant  under  license  of  the  city  was  sim- 
ply the  laying  of  its  tracks  on  the  surface  of  the  street  at  its  ordinary 
grade,  but  this  was  not  the  character  of  the  change  effected. 

"  The  second  proposition  of  the  counsel  of  the  defendant  that  the 
building  of  the  embankment  was  a  mere  change  of  grade  of  Water 
Street,  made  under  the  authority  of  the  city,  is,  we  think,  untenable. 
The  charter  of  Buffalo  gives  plenary  power  to  the  city  to  fix  and  change 
the  grade  of  streets  by  formal  proceedings,  and  provides  that  when  a 


1124  REINING    V.    NEW    YORK,    LACKAWANNA,    ETC.    RV.       [CHAP.  VL 

grade  is  established  or  altered,  a  description  of  such  grade  shall  he 
made  and  recorded  by  the  city  clerk.  (Charter  ia7U,  tit.  'J,  §§  1,2, 
6.)  The  action  of  the  Common  Council  granting  permission  to  the 
defendant  to  occupy  Water  Street,  while  it  involved,  as  a  consequence, 
the  construction  of  an  embankment  in  Water  Street,  did  not  purport  to 
be  an  exercise  of  the  power  to  change  the  grade  of  the  street  under  tlie 
charter.  It  docs  not  appear  that  any  description  was  made  or  recorded 
as  is  required  when  a  new  grade  is  established.  It  would  be  a  strained 
construction  to  regard  the  action  of  the  council  as  a  change  of  grade 
of  Water  Street  under  the  charter  provisions.  The  defendant  desired 
to  lay  its  tracks  in  Water  Street  and  the  other  streets  mentioned  in 
the  grant,  and  to  enable  it  to  do  this  and  cross  Commercial  Slip  an 
embankment  in  the  street  was  authorized.  The  grade  of  Water  Street 
was  not  altered,  but  the  defendant  was  permitted  to  build  an  embank- 
ment in  the  street  for  its  railway.  The  fact  that  what  was  done  did  effect 
•a  change  in  the  grade  of  that  part  of  the  street  occupied  by  the  embank- 
ment does  not  prove  that  what  was  done  was  in  the  execution  of  the 
power  to  alter  the  grade  of  streets  conferred  on  the  council.  The 
primary  object  of  tiiis  power  contained  in  municipal  charters,  is  to 
enable  the  municipal  authorities  to  render  a  street  more  safe  and  con- 
venient for  public  travel,  to  afford  drainage,  in  short,  to  adapt  it  more 
perfectly  for  the  purposes  of  a  public  way.  It  is  claimed  that  the  city 
under  this  power  could  lawfully  authorize  an  embankment  in  part  of 
the  street,  leaving  the  other  part  on  a  lower  level.  We  are  not  called 
upon  to  say  whether  there  is  any  limit  to  the  exercise  of  municipal 
authority  or  that  the  city  cannot  in  exercising  the  power  to  establish 
and  alter  the  grade  of  streets,  raise  an  embankment  in  a  part  of  a 
street  if,  in  its  judgment,  this  will  promote  the  public  convenience  and 
the  purposes  of  the  street  as  a  highwa}-.  But  we  think  it  cannot,  under 
the  guise  of  exercising^  this  power,  approprlaiej^P^rr'nT'  a  sfrogt  to  the 
exclusive,  or  practically  to  the  exclusive  use  of  fi  railroad  company,  nr 
SO  as  to  cut  off  abutting  owners  from  the  use  of  any  part  of  the  strept 
in  the  accustomed  way,  without  making  compensation- for  the4nnnT 
snsTninpd^^  Wp  Vinvp  hpU  fK^TTTh^  authority  conferred  by  the  general 
railroad  law  upon  railroad  companies  to  cross  highways  in  the  construc- 
tion of  their  lines,  authorizes  their  construction  on,  over,  or  below  the 
grade  of  the  highway  crossed,  and  that  incidental  changes  of  the  grade 
of  the  street  rendered  necessary  to  accommodate  railroad  crossings, 
gives  no  right  of  action  to  abutting  owners  who  may  sustain  injurv. 
(  Conkling  v.  N.  Y.  0.  &  W.  JR.  B.  Co.,  102  N.  Y.  107'.)  The  practice 
of  permitting  railroads  to  cross  highwaj's  is  coeval  with  the  introduc- 
tion of  the  railroad  system  in  the  State,  and  the  decision  comports  with 
the  general  understanding  of  the  bench  and  the  bar.  In  case  of  rail- 
road crossings  the  highway  is  left  as  before.  No  part  of  it  is  taken  or 
exclusivel}'  appropriated  by  the  railroad  company.  In  these  cases 
there  is  no  use  of  the  highway  for  railroad  purposes.  Railroads  of 
necessity  intersect  highways,  and  it  is  held  that  the  State  may  permit 


CHAP.  VI.]      NEWMAN  V.  METROPOLITAN  ELEVATED  RAILWAY  CO.       1125 

them  to  be  crossed  by  a  railroad  company  and  that  this  involves  an 
invasion  of  no  substantial  right  of  the  owner  of  the  fee.  We  ought  not 
to  extend  the  doctrine  of  the  crossing  cases  to  unreasonable  limits,  and 
we  think  that  it  cannot  be  applied  to  justify  the  exercise  of  the  public 
powers  attempted  in  the  present  case."  .  .   . 

Gkay,  J.     1  concur  with  Judge  Andrews.   ... 

"  Here  the  object  was  to  subserve  the  railroad  use,  and  the  appropria- 
tion by  the  defendant  of  this  embankment  is  practically  exclusive.  The 
street  was  subjected  to  a  new  use,  with  consequences  as  direct,  in  the 
permanent  deprivation  of  the  abutting  property  owners'  appurtenant 
easement,  as  though  the  railroad  was  operated  in  front  of  his  premises 
upon  a  structure  physically  incapable  of  other  uses.  I  think  we  have, 
in  the  present  case,  the  element  of  an  appropriation  by  the  defendant 
of  the  street  by  a  permanent  structure  and  obstruction,  and,  hence,  it 
must  fall  within  the  spirit,  if  not  the  letter,  of  our  decision  in  the  Story 

case." 

All  concur,  except  Earl  and  Finch,  JJ.,  dissenting. 

Judgment  affirmed. 


NEWMAN   V.  THE   METROPOLITAN   ELEVATED  RAILWAY 

COMPANY. 

New  York  Court  of  Appeals.     Second  Division.     1890. 

[118  iV.  Y.  618.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  entered  upon  an  order  made  June  18, 
1887,  which  affirmed  a  judgment  in  favor  of  plaintiff  entered  upon  a 
verdict,  and  affirmed  an  order  denying  a  motion  for  a  new  trial. 

At  the  commencement  of  this  action  the  plaintiff  held  a  lease  of  prop- 
erty situated  upon  the  northwest  corner  of  Church  and  Rector  streets 
in  the  city  of  New  York.  The  lease  bore  date  May  1,  1877,  and  was 
for  the  term  of  fifteen  years,  with  a  right  of  renewal  for  an  additional 
term  of  ten  years.  Upon  the  property  there  was  a  brick  building  five 
stories  in  height,  the  first  floor  of  which  was  used  as  a  restaurant,  and 
the  other  floors  for  dwellings. 

The  I^letropolitan  Elevated  Railway  was  constructed  through  Church 
Street  in  front  of  said  premises,  and  in  Rector  Street  there  had  been 
erected  by  the  defendants  a  station  from  which  a  covered  platform  ran 
to  Greenwich  Street  and  there  connected  with  the  Ninth  Avenue 
elevated  road. 

The  plaintiff  claimed  in  his  complaint  that  the  defendants  structure 
interfered  with  the  ingress  and  egress  to  and  from  his  premises,  and 
also  impaired  the  circulation  of  light  and  air  from  the  street  to  his 


1126       NEWMAN  V.  METIJOPOLITAN  ELEVATED  RAILWAY  CO.       [CHAP.  VI. 

building,  and  deprived  him  of  its  customary  and  lawful  use,  and  greatly 
reduced  its  value  to  him  as  lessee. 

It  was  admitted  that  the  action  was  brought  and  tried  as  one  to  re- 
cover in  one  sum  the  whole  damage  sustained  and  to  be  sustained  from 
the  depreciation  of  the  plaintiff's  estate,  on  the  assumption  that  the 
defendants'  structure  caused  a  permanent  impairment  of  the  easements 
in  the  street  for  light,  air,  and  access. 

The  court,  having  charged  the  jury  that  "  the  damages  to  plaintitTs 
leasehold  was  to  be  measured  by  the  depreciation  of  rents  caused  by 
defendants'  structure,  in  depriving  the  premises  of  the  accustomed  light, 
air,  and  egress  which  it  had  before  said  structure  was  placed  thereon," 
and  that  in  considering  the  question  of  damages '' the  fact  that  real 
estate  had  risen  generally  in  that  district  of  the  city  did  not  relieve 
the  railroad  compan}'  from  the  element  of  damage,"  was  requested  by 
the  defendants  to  charge  as  follows  :  ''  That  in  estimating  the  damages 
to  the  leasehold  interest  in  this  plaintiff  caused  by  the  interference  by 
the  defendants  with  the  light,  air,  and  access  appurtenant  to  the  prem- 
ises, the  jury  may  take  into  consideration  any  benefits  peculiar  to  his 
bouse  which  have  arisen  by  the  construction  of  the  road  as  shown  by 
the  evidence."  To  this  the  court  replied:  "  That  I  refuse  to  charge. 
On  the  contrary,  the  jur}-  have  no  right  to  take  any  such  fact  into 
consideration." 

The  defendants  gave  evidence  tending  to  show,  and  from  which  the 
jur}'  might  have  found,  that  while  the  upper  parts  of  the  building  had 
been  made  less  desirable  for  dwellings  by  reason  of  the  erection  of  the 
defendants'  structure,  and  in  consequence  thereof  the  rents  had  fallen, 
the  location  of  the  station  in  Rector  Street  had,  from  the  greater  num- 
ber of  people  resorting  there,  caused  the  first  or  store  floor  of  the  build- 
ing to  become  more  desirable  for  business  purposes,  and  greatly  en- 
hanced in  rental  value. 

^iilien  T.  Daries  and  IF.  Bovrke  Cockran,  for  appellant.  James 
M.  Smith  and  Inglis  Stuart,  for  respondent. 

Brown,  J.  The  basis  of  the  court's  refusal  to  charge  as  requested 
is  to  be  found  in  the  Rapid  Transit  Act  (chap.  606,  Laws  1875,  §  20) 
and  in  the  General  Railroad  Law  (chap.  140,  Laws  1850,  §  16)  which, 
b}'  section  3,  chapter  885,  Laws  of  1872,  was  made  applicable  to  the 
Gilbert  Elevated  Railroad  Company  to  whose  rights  the  Metropolitan 
Railroad  Company  succeeded.  These  laws  provide  that  commissioners 
of  appraisal  shall  not,  in  determining  the  amount  of  compensation  to 
be  made  to  parties  owning  or  interested  in  property  acquired  for  the 
construction  and  operation  of  railways  formed  thereunder,  "  make  any 
allowance  or  deduction  on  account  of  an}'  real  or  supposed  benefits 
which  the  part}'  in  interest  ma}'  derive  from  the  construction  of  the 
proposed  railroad." 

What  is  the  true  meaning  of  this  provision  and  how  far  it  is  appli- 
cable to  a  case  of  the  character  we  are  considering,  is  a  question  we 
are  to  determine  upon  this  appeal. 


CHAP.  VI.]      NEWMAN  V.  METROPOLITAN  ELEVATED  RAILWAY  CO.       1127 

The  principle  upon  which  compensation  is  to  be  made  to  the  owner 
of  lauds  taken  by  proceedings  under  the  General  Railroad  Law  has 
been  frequently  considered  by  the  courts  of  this  State,  and  the  rule  is 
now  established  that  such  owner  is  to  receive,  first,  the  full  value  of  the 
land  taken,  and,  second,  where  a  part  only  of  land  is  taken,  a  fair  and 
adequate  compensation  for  all  injury  to  the  residue  sustained  or  to  be 
sustained  by  the  construction  and  operation  of  the  railroad.  T.  &  B. 
E.  E.  Co.  V.  Lee,  13  Barb.  1G9;  In  re  C.  &  S.  V.  E.  E.  Co.,  56 
Barb.  456  ;  In  re  P.  P.  &C.L  E.  E.  Co.,  13  Hun,  345  ;  In  re  N.  Y. 
C.  &  H.  E.  E.  E.  Co.,  15  Hun,  63:  In  re  N.  Y.  L.  &  W.  E. 
Co.,  29  Hun,  1  ;  In  re  N.  Y.  L.  &  W.  E.  Co.,  49  Hun,  539  ;  Hender- 
son V.  N.    Y.  C.  B.  E.  Co.,  78  N.  Y.  423. 

The  first  element  in  the  award  represents  the  compensation  for  land 
which  the  railroad  takes,  and  to  which  it  acquires  title.  The  second 
element  represents  damages  which  are  the  result  or  consequences  of 
the  construction  of  the  road  upon  property  not  taken,  and  which  the 
owner  still  retains.  Such  damages  are  wholly  consequential,  and  to 
ascertain  them  necessarily  involves  an  inquiry  into  the  effect  of  the 
road  upon  the  property,  and  a  consideration  of  all  the  advantages  and 
disadvantages  resulting  and  to  result  therefrom.  The  rule  is  well 
stated  in  Lewis  on  Eminent  Domain,  section  471,  as  follows:  "  When 
part  of  a  tract  is  taken,  just  compensation  would  therefore  consist  of 
the  value  of  the  part  taken,  and  damages  to  the  remainder,  less  any 
special  benefits  to  such  remainder  by  reason  of  the  taking  and  use  of 
the  part  for  the  purpose  proposed." 

In  this  rule  thus  settled  in  this  State,  and  which  controls  all  awards 
for  taking  of  land  under  the  General  Railroad  Act,  is  to  be  found  the 
true  application  of  the  statutory  provision  which  forbids  deductions  and 
allowances  to  be  made  by  commissioners  for  any  real  or  supposed 
benefits,  which  the  parties  interested  may  derive  from  the  construction 
of  the  railroad.  Whatever  land  is  taken  must  be  paid  for  by  the  rail- 
road company  at  its  full  market  value,  and  from  such  value  no  deduc- 
tion can  be  made,  although  the  remainder  of  the  land-owners'  property 
may  be  largely  enhanced  in  value  as  a  result  of  the  operation  of  the 
railroad.  But  in  considering  the  question  of  damages  to  the  remainder 
of  the  land  not  taken,  the  commissioners  must  consider  the  effect  of 
the  road  upon  the  whole  of  that  remainder,  its  advantages  and  disad- 
vantages, benefits  and  injuries,  and  if  the  result  is  beneficial,  there  is 
no  damage  and  nothing  can  be  awarded. 

The  rule  established  under  the  General  Railroad  Law  must  govern 
and  control  awards  made  under  the  Rapid  Transit  Act.  The  last- 
named  Act  confers  upon  corporations  formed  thereunder,  the  power  to 
acquire  property  for  railroad  purposes,  and  the  statutory  proceedings 
prescribed  are  substantially  the  same  as  those  under  the  General  Rail- 
road Act  and  no  reason  is  apparent  why  the  same  rule  should  not  apply 
to  proceedings  under  both  Acts. 

This  court  has  decided  that  owners  of  land  abutting  upon  public 


1128       NEWMAN  V.  METROPOLITAN  ELEVATED  UAILWAY  CO.      [i.HAP.  VL 

streets  have  easements  therein  for  ingress  and  egress  to  and  from  their 
premises,  and  for  the  free  circulation  of  light  and  air  to  their  property, 
which  easements  are  interests  in  real  estate,  and  constitute  property 
within  the  meaning  of  that  term  as  used  in  the  Constitution. 

The  easement  is  the  property  taken  by  the  railroad  compan}'.  But  in 
estimating  its  value  it  is  impossible  to  consider  it  as  a  piece  of  prop- 
erty, separate  and  distinct  from  the  land  to  which  it  is  appurtenant, 
and  the  right  of  the  property  owner  to  compensation  is  measured,  not 
by  the  value  of  the  easement  in  the  street  separate  from  his  abutting 
property,  but  by  the  damages  which  the  abutting  property  sustains  as  a 
result  or  consequence  of  the  loss  of  the  easement. 

It  follows  that  in  making  an  award  to  a  party  situated  as  the  plain- 
tiff was  with  reference  to  the  defendants'  railroad,  there  would  be  no 
compensation  for  property  taken  beyond  a  nominal  sum,  and  that  his 
right  to  recover  would  rest  chiefly  upon  proof  of  consequential  damages. 

An  estimate  of  such  damages  as  I  have  already  shown,  involves  an 
inquiry  into  the  effect  of  the  railroad  upon  the  whole  property,  and  a 
consideration  of  all  its  advantages  and  disadvantages.  If  the  rental 
value  of  the  whole  building  was  shown  to  have  been  diminished,  there 
was  injury  for  which  plaintiff  was  entitled  to  recover,  but  if  the  di- 
minished rental  value  of  the  upper  floors  was  equal  or  overcome  by 
increased  rental  value  in  the  store  then  there  was  no  injury  and  no  basis 
for  a  recovery  of  substantial  damages  against  the  defendants. 

While  the  precise  question  presented  by  the  exception  in  this  case 
has  not  heretofore  been  decided  in  this  court,  it  is  covered  l)y  the  de- 
cisions under  the  General  Railroad  Law  which  have  been  cited,  and  the 
rule  established  by  those  decisions  has  recently  been  applied  in  the 
second  judicial  department  to  the  case  of  an  elevated  railroad.  In  re 
Brooklyn  Elevated  B.  Co.  v.  Phillijn,  28  State  Kei)orter,  627.  That 
case  was  an  appeal  by  property  owners  from  an  award  of  nominal  dam- 
ages in  proceedings  by  an  elevated  railroad  company  to  condemn  an 
easement  in  a  street.  The  court  said  :  "  The  inquiiy  necessarily  takes 
in  the  advantages  from  the  railroad  when  the  extent  of  the  injury  is  to 
be  based  upon  the  diminution  of  value  by  reason  of  its  construction. 
The  basis  of  appraisement  must  then  be  the  difference  in  value  between 
the  abutting  house  before  the  construction  of  the  railroad  and  after- 
ward." 

In  Drucker  v.  Mcuihattan  B..  Co.,  106  N.  Y.  157,  this  court  held  ad- 
missible evidence  offered  by  the  property  owner  that  trade  and  business 
had  fallen  off  in  the  street  since  the  erection  of  the  railroad,  and  that 
property  was  for  that  reason  diminished  in  value.  If  such  evidence  is 
competent  to  sustain  a  recovery  it  is  difficult  to  see  why  it  is  not  com- 
petent for  the  railroad  company  to  show  that  the  effect  of  the  road  has 
been  to  cause  an  increase  in  business,  and  hence  an  enhancement  of 
the  value  in  abutting  property. 

The  question  whether,  in  awarding  damages  flowing  from  the  con- 
struction of  a  railroad,  its  injurious  effect  upon  a  part  of  a  residue  of  a 


CHAP.  VI.]      NEWMAN  V.  METROPOLITAN  ELEVATED  RAILWAY  CO.       1129 

tra(;t  of  land  could  alone  be  considered,  has  been  expressly  decided 
in  Illinois.  Page  v.  Chicago  li.  R.  Co.,  70  111.  324.  That  case  was 
an  assessment  of  damages  for  a  right  of  way  across  a  tract  of  forty 
acres  of  land.  Compensation  was  awarded  for  the  part  taken,  but  the 
evidence  showing  tiiat  the  residue  of  the  tract  would  be  enhanced  in 
value  by  the  construction  and  operation  of  the  road,  no  consequential 
damages  were  allowed  to  the  land-owner.  The  owner  claimed  that  a 
strip  of  land  next  to  the  railroad  was  lessened  in  value  bj-  the  proximity 
of  the  road.  The  constitutional  provision  in  Illinois  relating  to  the 
taking  of  property  for  public  use  is  the  same  as  our  own,  and  the  stat- 
ute under  which  the  assessment  was  made  provided  that  benefits  should 
not  be  set  off  against  or  deducted  from  compensation.  The  award  was 
sustained  on  appeal,  the  court  holding  that  it  was  not  the  damages  to 
a  strip  lying  within  a  limited  number  of  feet  of  the  road-bed  that  the 
jur}'  were  required  to  assess,  but  the  damages,  if  any,  to  the  entire 
tract.  That  the  effect  of  the  road  upon  a  part  of  the  tract  was  not  to 
be  considered,  but  upon  the  whole  tract.  "This,"  the  court  said,  "is 
not  deducting  benefits  from  damages,  but  it  is  ascertaining  whether 
there  be  damages  or  not."  To  the  same  effect  is  the  case  of  Oregon 
Ceiitral  B.  E.  Co.  v.    Wait,  3  Oreg.  91. 

The  statutes  we  have  considered  are  founded  upon  the  provision  of 
the  Constitution  forbidding  the  taking  of  private  property  for  public 
purposes  without  just  compensation.  Their  purpose  is  to  do  exact  and 
equal  justice  among  all  citizens  of  tlie  State,  and  to  award  to  every  one 
full  and  fair  compensation  for  all  property  taken  for  public  use  or 
injured  by  the  erection  of  public  improvements. 

The  rule  established  b}^  the  courts  and  prevailing  under  the  General 
Railroad  Law  accomplishes  in  a  broad  and  liberal  manner  that  object. 

The  meaning  of  the  expression  "just  compensation"  has  not  been 
limited  to  the  value  of  property  actually  taken,  but  has  been  held  to 
include  all  consequential  injuries  which  the  land-owner  may  sustain  by 
reason  of  depreciation  of  value  in  the  residue  of  the  property,  by  reason 
of  the  taking  ot  a  part  and  the  construction  thereon  of  the  public  im- 
provement. This  rule  affords  full  indemnity  to  the  property  owner, 
and  leaves  him  in  as  good  condition  as  he  was  before  the  construction 
of  the  road.  And  this  is  all  that  any  citizen  has  a  right  to  ask.  If 
the  rule  which  the  court  held  in  this  case  is  to  govern  awards  made 
against  railroad  companies  whose  structures  are  erected  in  the  public 
streets  under  public  authority,  when  no  land  is  taken,  and  the  compen- 
sation is  confined  to  injuries  sustained  by  abutting  property,  the  com- 
panies will  be  compelled  in  many  instances  to  pay  where  no  injury  has 
been  done,  and  parties  will  recover  who  have  sustained  no  loss.  Such 
a  rule  has  not  yet  received  judicial  sanction. 

The  increase  of  value  resulting  from  the  growth  of  public  improve- 
ments, the  construction  of  railroads,  and  improved  means  of  transit 
accrues  to  the  public  benefit  generally,  and  the  general  appreciation  of 
property  consequent  upon  such  improvements  belongs  to  the  property 


1130         BOII.M   V.    METROPOLITAN    ELEVATED  RAILWAY   CO.       [cilAr.  YL 

owner,  and  the  railroad  company  are  not  entitled  to  the  consideration 
of  that  element  in  the  ascertainment  of  the  compensation  it  must  pay 
to  the  abutting  proprietor.  But  the  special  and  peculiar  advantages 
which  property-  receives  from  the  construction  and  operation  of  the 
road,  and  the  location  of  the  stations,  are  elements  which  enter  largely 
into  the  inquir}'  whether  there  is  injury  or  not,  and  the  jury  must  con- 
sider them  and  give  to  them  due  weight  in  their  verdict. 

Between  this  rule  and  the  statutory  provision  quoted  there  is  no 
conflict.  The  property  owner  will  in  every  instance  receive  the  "just 
compensation  "  which  the  Constitution  secures  to  him  for  his  property 
which  is  taken  or  injured  by  the  railroad,  and  the  corporation  will  be 
compelled  to  pay  whatever  damages  result  from  the  erection  of  their 
structures  and  the  construction  of  the  road.  Our  conclusion  is  that 
the  defendant  was  entitled  to  the  instruction  requested,  and  the  ex- 
ception to  its  refusal  was  well  taken.  The  judgment  should  be  re- 
versed and  a  new  trial  granted,  with  costs  to  abide  the  event.  All 
concur;  Follett,  Ch.  J.,  in  result.  Judgment  recersecU 

1  And  so  Bookman  v.  N.  Y.  El.  R.  R.  Co.,  137  N.  Y.  302  (1893).  In  Bohm  v.  Tfie 
Metrop.  Elev'd  Ri/.  Co.,  129  N.  Y.  576  (1892),  the  plaintiff  alleojed  that  the  defendants  had 
unlawfully  interfered  with,  trespassed  upon,  and  illegally  taken  his  easements  (or 
some  portion  thereof)  of  light,  air,  and  access  to  his  property  by  the  illegal  erection 
and  operation  of  their  elevated  railway  in  such  avenue.  He  demanded  judgment  re- 
straining defendants  from  further  maintaining  their  structure  in  front  of  his  premises 
and  compelling  them  to  remove  the  same.  He  also  asked  to  recover  the  amount  of 
his  damage  already  sustained  by  reason  of  the  maintenance  and  operation  of  tiie  road 
past  his  premises,  and  that  if  defendants  were  permitted  to  maintain  and  operate  the 
road  in  the  future  it  should  only  be  upon  the  condition  that  they  should  pay  plaintiff  the 
amount  of  the  permanent  loss  he  would  suffer  by  reason  of  such  maintenance  and  operar 
tion.  In  giving  judgment  for  the  plaintiff,  the  court  (Peckham,  J.)  said  :  "  Although 
these  are  suits  in  equity,  commenced  to  obtain  equitable  relief  and  to  prevent  tiie  de- 
fendants from  operating  their  road  unless  they  pay  the  plaintiffs  the  damages  they 
will  sustain  from  the  permanent  interference  by  the  railroad  with  their  easements  of 
light,  air,  and  access,  yet  the  rules  upon  which  such  damages  are  to  be  awarded  are  so 
far  well  settled  as  to  enable  us  to  say  that  those  damages  are  only  such  as  would  be 
given  in  a  ])roceeding  for  tlie  condemnation  of  lands  for  a  railroad  use,  regard  being 
had  to  the  different  characteristics  of  the  property  to  be  taken  in  these  cases. 

"  The  rule  was  last  announced  in  this  court  in  the  recent  case  of  American  Bank  Note 
Company  v.  Xeir  York  Elevated  R.  R.  Co.  [129  X.  Y.  252],  not  yet  reported.  What  rule 
obtains  in  this  State  in  proceedings  to  condemn  the  kind  of  property  which  has  been 
taken  by  the  defendants  in  these  cases  is  now  made  the  subject  of  inquiry.  Generally 
in  taking  land  the  rule  may  be  said  to  be  to  pay  the  full  value  of  the  land  taken  at  its 
market  price,  and  no  deductions  can  be  made  from  that  value  for  any  purpose  what- 
ever. Then  as  to  the  land  remaining,  the  question  has  been  to  some  extent  mooted, 
whether  the  company  should  pay  for  the  injury  caused  to  such  land  by  the  mere  taking 
of  the  other  property,  or  whether,  in  case  the  proposed  use  of  the  property  taken  would 
depreciate  the  value  of  that  which  was  not  taken,  such  proposed  use  could  be  regarded 
and  the  depreciation  arising  therefrom  be  awarded  as  part  of  the  consequential  dam- 
ages suffered  from  the  taking.  I  think  the  latter  is  the  true  rule.  Henderson  v.  C. 
R.  R.  78  N.  Y.  423,  433 ;  Newman  v.  R.  R.  118  Id.  618 ;  In  re  Petition  Brooklyn  R.  R. 
55  Hun,  165,  167.  The  case  of  In  re  Petition  N.  Y.  Elevated  R.  R.  etc.,  36  Hun,  427, 
is  cited  for  the  other  rule.  The  question  might  be  of  great  importance  where  there 
was  an  injury  to  the  remaining  land,  but  if  there  have  been  no  injury,  the  inquiry  as 
to  the  scope  of  the  liability  for  damages  is  not  material.    There  is  no  question  made 


CHAP.  VI.]      BOHM   V.   METROPOLITAN    ELEVATED   RAILWAY   CO.         1131 

but  that  tlie  defendants  are  liable  to  pay  the  full  value  of  any  property  taken  by  them 
subject  to  no  deduction  whatever.  How  the  value  of  the  particular  kind  of  property 
which  is  here  taken  shall  be  arrived  at  is  the  main,  and  indeed  the  only,  question  in 
these  cases.  Included  in  this  inquiry  and  growing  out  of  it  arises  the  question,  shall 
only  special  benefits  to  the  remaining  property  be  regarded,  or  may  what  is  termed 
general  benefits  be  also  taken  into  consideration  ?  Before  entering  ou  a  discussion  of 
these  matters  I  think  it  proper  to  say  that  I  should  hesitate  to  admit  the  correctness 
of  the  claim  made  by  defendants,  that  where  private  property  is  taken  by  a  mere  busi- 
ness corporation,  as  for  a  public  use  under  the  granted  power  of  eminent  domain,  the 
legislature  could  provide  that  such  property  could  be  paid  for  by  benefits  accruing 
to  the  land-owner's  adjacent  property  consequent  upon  the  taking.  This  is  the  case 
in  regard  to  municipal  corporations  where  land  is  taken  for  a  public  street,  or  other 
public  and  municipal  purpose,  and  where  the  benefits  arising  to  the  adjacent  lands  of 
the  owner  whose  property  is  taken,  may  be  set  off  against  the  value  of  the  land  taken. 
So  in  the  case  of  property  taken  by  the  State  for  canal  or  other  public  purposes,  where 
the  owner  of  the  land  taken  was  frequently  paid  its  value  by  the  benefits  received  to 
his  adjacent  land  not  taken.  The  principle  underlying  these  cases  is,  however,  the 
right  of  the  municipality  or  State  to  tax  the  owners  of  the  land  left,  in  order  to  pay 
for  the  land  taken,  on  the  ground  that  they  are  specially  benefited  by  the  taking,  and 
hence  should  be  specially  taxed  for  the  payment  of  the  land.  The  case  of  Genet  v. 
Citt/  of  Brooklyn,  99  N.  Y.  296,  is  no  authority  for  a  contrary  view,  for  I  think  it 
supports  that  which  I  have  suggested.  A  mere  trading  or  business  corporation  has  no 
power  of  taxation,  and  the  State  could  not  delegate  such  power  to  it.  If  such  company 
desire  another's  property,  it  must  pay  a  just  compensation  for  it,  and  that  just  com- 
pensation would  not  consist  in  its  doing  the  owner  some  benefit  upon  his  remaining 
property.  .  .  . 

"  The  plaintiffs  own  no  land  in  the  street.  Their  ownership  of  the  land  is  bounded 
by  the  exterior  lines  of  the  street  itself.  Hence  when,  under  legislative  and  municipal 
authority,  the  railroad  structure  was  built,  it  was  supposed  by  many  there  was  no 
liability  to  abutting  owner.^,  because  no  land  of  theirs  was  taken,  and  any  damage 
they  sustained  was  indirect  only,  and,  therefore,  damnum  absque  injuria.  When  the 
courts  acquired  possession  of  the  question,  and  it  was  seen  that  abutting  land,  which 
before  the  erection  of  the  road  was  worth,  for  instance,  ten  thousand  dollars,  might 
be  reduced  to  a  half  or  a  quarter  of  that  sum  in  value,  or  even  rendered  practically 
worthless  by  reason  of  the  building  of  the  road,  it  became  necessary  to  ascertain  if 
there  were  not  some  principle  of  law  which  could  be  resorted  to  in  order  to  render 
those  who  wrought  such  damage  liable  for  their  work.  It  has  now  been  decided  that, 
although  the  land  itself  was  not  taken,  yet  the  abutting  owner,  by  reason  of  his  situation, 
had  a  kind  of  property  in  the  public  street  for  the  purpose  of  giving  to  such  land 
facilities  of  light,  of  air,  and  of  access  from  such  street.  The.«e  rights  of  obtaining 
for  the  adjacent  lands  facilities  of  light,  etc.,  were  called  ea.sements,  and  were  held  to  be 
appurtenant  to  the  land  which  fronted  on  the  public  street.  These  easements  were 
decided  to  be  property,  and  protected  by  the  Constitution  from  being  taken  without 
just  compensation.  It  was  held  that  the  defendants,  by  the  erection  of  their  structure 
and  the  operation  of  their  trains,  interfered  with  the  beneficial  enjoyment  of  these 
easements  by  the  adjacent  land-owner,  and  in  law  took  a  portion  of  them.  By  this 
mode  of  reasoning,  the  difficulty  of  retijarding  the  whole  damage  done  to  the  adjacent 
owner  as  consequential  only  (because  none  of  his  property  w.as  taken),  and,  therefore, 
not  collectible  from  the  defendants,  was  overcome.  The  interference  with  these  ease- 
ments became  a  taking  of  them  pro  tnnto,  and  their  value  was  to  be  paid  for,  and  in 
addition  the  damage  done  the  remaining  and  adjoining  land  by  reason  of  the  taking 
was  also  to  be  paid  for,  and  this  damage  was  in  reality  the  one  great  injury  which 
owners  sustained  from  the  building  and  operation  of  the  defendants'  road.  For  the 
purpose  of  permitting  such  a  recovery,  the  taking  of  property  had  to  be  shown.  The 
cases  of  Story,  Lahr,  Drucker,  Abendroth,  and  Kane  (the  last  of  which  is  reported  in 
125  N.  Y.  164,  and  in  which  the  others  are  referred  to)  finally  and  completely  settled 
these  matters. 

"  It  seems  to  me  plain,  from  this  review  of  the  law,  that  the  real  injury  (if  any)  suf- 


1132        BOHM   V.    iMETROPOLITAN   ELEVATED    RAILWAY    CO.       [cHAP.  VL 

fered  by  tlie  land-owner  iu  any  particular  case,  lies  iu  tiie  effect  pmduced  upon  his 
abutting  laud  by  tlie  wrongful  interference  of  defendants  with  tliesee;Lsemeuts  of  liglit, 
air,  and  access  to  such  laud.  Aud  where  they  are  interfered  witli,  and  iu  legal  effect 
taken  to  auy  extent,  it  is  uot  possible  to  think  of  tiieui  as  of  any  value  in  and  of  tlieui- 
selves  separated  from  tiie  adjoining  land,  but  their  value  is  to  be  measured  by  the 
injury  which  such  taking  iuHicts  upou  the  laud  wliich  is  left,  aud  to  which  they  were 
appurtenant. 

"  This  is  a  conse([uential  damage.  It  is  uot  the  light  or  the  air  tiiat  is  valual)le  sepa- 
rated from  the  land  adjoining.  With  regard  to  the  subject  under  discussion  there  is 
aud  can  be  no  value  in  a  giveu  quantity  of  air,  or  space,  or  light  iu  the  public  street 
except  as  it  may  be  used  iu  connection  with  aud  as  appurtenant  to  the  abutting  land. 
When  a  persou  interferes  with  such  light,  air,  or  access  aud  takes  it,  he  takes  nothing 
which  is  alone  and  inlriusically  valuable,  but  ouly  as  its  loss  affects  the  adjoining  land. 
This  loss  while  purely  cousequeutial  is,  uevertheless,  a  liability  which  the  persou  pro- 
posing to  take  the  property  is  bound  to  discharge.  .  .  . 

"  Tiie  real  question  to  be  cousidered  is  iu  truth  oue  of  damage  to  the  abutting  land. 
Newman  v.  Elevated  It.  Co.,  118  N.  Y.  618.  What  facts  may  be  regarded  upou  such 
au  inquiry  has  uot  been  finally  decided. 

"  Iu  the  ciise  of  Newman  {sujira}  a  portion  of  the  suliject,  was  involved  and  discussed, 
and  we  must  recognize  the  authority  of  that  case  upou  tiie  question  actually  therein 
decided.     A  reference  to  the  report  is  neces.sary  in  order  to  learu  that  fact.  ,  .  . 

"  The  so-called  Kapid  Trausit  Acts,  uuder  which  the  defendants  were  organized, 
provided  that  the  commissioners  of  appraisal  should  not  in  determining  the  amount  of 
compensation  make  any  allowance  or  deduction  on  account  of  any  real  or  supposed 
benefits  whicli  the  party  in  interest  may  derive  from  the  construction  of  the  proposed 
railroad.  The  case  of  Newman  decides  tliat  this  provision  does  not  mean  that  in  ex- 
amining the  question  whether  injury  has  resulted  to  the  abutting  owner's  remaining 
laud  by  reason  of  the  taking  of  a  portion  of  the  easements  spoken  of,  the  court  cannot 
regard  the  fact  that  .so  far  from  injury  the  land  remaining  had  beeus])ecially  enlianced 
in  value  by  reason  of  the  taking  On  the  contrary,  it  decides  that  such  fact,  of  special 
enhancement  iu  value,  is  material  and  may  aud  must  be  considered  upon  the  (|uestion 
of  damage.  It  is  not  offsetting  injury  against  benefits.  It  is  di.scovering  whether  in 
reality  there  has  been  auy  injury  to  the  remaining  land.  To  prove  that  the  land  has 
been  specially  benefited  may  be  proof  that  it  has  not  been  dimiuished  in  value.  If  it 
would  have  increased  still  more  in  value  but  for  this  taking  by  the  road,  that  differ- 
ence it  mu.st  pay  because  to  that  extent  there  would  be  damage.  The  Newmau  case  is 
authority  for  the  proposition  that  the  easements  are  only  of  nominal  value  in  and  of 
themselves,  and  that  tiie  result  of  taking  them  must  be  looked  for  in  tiie  effect  upon 
the  adjoining  land.  If  instead  of  loss  or  injury  that  land  has  been  sjiecially  i)euefited 
by  the  taking  by  the  railroad  company,  then  no  damage  has  been  sustained  liy  the  land- 
owner. Although  adding  nothing  to  the  weight  of  tiie  autliority  of  the  Newman  case, 
I  must  say  that  as  far  as  it  goes  the  decision  receives  my  unqualified  approval.  The 
remarks  of  the  learned  judge  iu  the  latter  part  of  the  opinion  as  to  general  benefits 
from  tlie  growth  of  the  city,  etc.,  were  no  part  of  the  decision  itself  and  were  merely 
suggestions  as  to  matters  not  really  involved  in  the  case.  They  raise  the  question  as 
to  how  far  general  benefits  to  the  land  may  be  regarded  and  also  wliether  assuming 
them  to  exist  they  must  have  been  caused  by  the  railroad  company  in  order  to  be 
noticed.  I  shall  add  a  word  or  two  later  on  upon  that  subject.  At  any  rate  the  case 
decides  that  it  is  a  defence  to  the  action  to  recover  damages,  if  it  be  proved  that  in  fact 
the  owner's  remaining  land  has  been  specially  benefited  by  the  taking. 

"  In  these  cases  there  is  no  claim  that  plaintiffs  have  received  benefits  from  the  tak- 
ing, which  were  special  aud  peculiar  to  their  lots  and  not  shared  in  by  the  owners  of 
lots  generally  in  the  avenue.  I  confess  I  have  been  and  am  wholly  unable  to  see  the 
least  materiality  in  the  distinction  between  what  are  termed  special  and  general  bene- 
fits to  the  property  left,  or  whether  such  benefits  have  been  caused  by  the  defendants. 
Strictly  speaking,  it  is  not  a  question  of  benefits  at  all,  except  that  proof  of  benefits 
may  be  one  way  of  showing  there  has  been  no  injury.  The  valne  of  the  easements 
taken,  we  have  seen,  was  merely  nominal,  and  the  sole  question  which  remains  is, 


CHAP.  VI.]        PIERCE  ET  AL.  V.   DREW  ET  AL.  1133 

PIERCE  ET  AL.  V.  DREW  et  al. 
Supreme  Judicial  Court  of  Massachusetts.     1883. 

[136  3Iass.  75.] 

Bill  in  equity  against  the  selectmen  of  Brookline  and  the  Americaa 
Rapid  Telegraph  Company  of  Massachusetts,  to  restrain  the  selectmen 
from  granting  to  the  telegraph  company  a  location  for  its  posts  and 
wires  in  Brookline.  The  defendants  demurred  to  the  bill  for  want  of 
equity.  At  the  hearing,  before  Endicott,  J.,  a  decree  was  entered 
sustaining  the  demurrer  and  dismissing  the  bill ;  and  the  plaintiffs 
appealed  to  the  full  court.  The  allegations  of  the  bill  appear  in  the 
opinion. 

A.  D.  Chandler^  for  the  plaintiffs.     F.  Morison,  for  the  defendants. 

therefore,  has  the  owner  suffered  any  damage  or  injury  whatever  which  has  been 
caused  by  tliis  taking,  for  if  there  liave  been  no  damage  there  can  be  no  recovery.  To 
ascertain  the  fact  whether  there  has  been  damage,  an  excursion  into  the  realms  of 
possibilities  as  to  what  might  have  happened  but  did  not,  is  not  permitted.  The  in- 
quiry whether  the  land  would  have  been  injured  if  certain  circumstances  had  not 
occurred  which  not  only  prevented  such  injury,  but  enhanced  its  value,  is  wholly  im- 
material. The  question  is,  what  in  fact  has  been  the  actual  result  upon  the  land  re- 
maining ■?  Has  its  actual  market  value  been  decreased  by  the  taking,  or  has  the 
taking  prevented  an  enhancement  in  value  greater  than  has  actually  occurred,  and  if 
so,  to  what  extent  ?  The  amount  of  such  decrease  in  the  value  of  the  remaining 
land,  or  the  amount  of  the  difference  between  its  actual  market  value  and  what  it 
would  have  been  worth  if  the  railroad  had  not  taken  the  other  property,  is  the  amount 
of  the  damage  which  the  defendants  should  pay.  If  on  the  contrary  there  has  been 
neither  decrease  in  value  caused  by  the  railroad,  nor  any  prevention  of  an  increase 
from  the  same  cause,  how  can  it  be  truly  said  that  the  lot-owner  has  been  injured  to 
the  extent  of  a  farthing  ?  The  absence  of  injury  may  have  been  the  result  of  the 
general  growth  of  the  city  by  reason  of  which  the  particular  property  lias  grown  in 
value  with  the  rest  of  the  city.  It  is  the  fact,  not  the  cause,  which  is  material. 
Where  it  appears  that  the  property  left  has  actually  advanced  in  value,  unless  it  can 
be  shown  that  but  for  the  act  of  defendants  in  taking  these  easements  it  would 
have  grown  still  more  in  value,  the  fact  is  plain  that  it  has  not  been  damaged. 

"  It  is  said  the  lot-owner  himself  is  entitled  to  the  benefits  accruing  to  him  from  the 
general  rise  of  property  caused  by  a  general  growth  of  the  city  in  that  vicinity,  and 
that  the  causes  of  such  growth  are  too  indefinite,  and  uncertain,  and  problematical  to 
permit  the  railroad  to  take  advantage  of  it  upon  the  question  of  damages.  Of  course, 
the  lot-owner  is  entitled  to  the  benefits  arising  from  these  sources.  I  propose  to  take 
no  course  which  shall  rob  him  of  them.  None  other  ought  to  or  in  fact  can  have  them. 
It  is  not  a  question  of  permitting  the  lot-owner  to  have  these  benefits.  How  is  he 
despoiled  of  them  when  upon  an  inquiry  whether  he  has  sustained  damage  from  the 
conduct  of  the  defendants  it  clearly  appears  that  he  has  not  ?  If  it  appear  that  he 
would  have  sustained  damage  but  for  the  fact  that  the  general  growth  of  the  city  in 
that  direction  prevented  it  and  caused  an  increase  in  value,  what  materiality  lies  in 
the  fact  that  this  growth  was  not  caused  by  the  railroad  "^  As  I  have  already  re- 
marked, the  fact  that  there  has  been  no  damage,  is  the  material  fact,  and  not  the  re.a- 
sons  which  in  truth  prevented  the  injury  from  occurring.  If  it  did  not  occur,  then 
clearly  the  lot-owner  has  suffered  nothing.  He  receives  all  the  benefits  attaching  to 
the  general  growth  of  the  city  which  causes  the  enhancement  in  value  of  his  own  lots, 
but  he  is  not  permitted  to  recover  from  defendants  alleged  damages  which,  in  fact,  he 
has  never  sustained."  —  Ed. 


1134  PIERCE   ET   AL.   V.    DRP^W   ET   AL.  [ JH AP.  VL 

Devens,  J.  The  facts  admitted  by  the  demurrer  may  be  thus  stated  : 
The  plaintiffs  own  land  on  a  certain  street  or  public  highway  in  Brook- 
line  ;  they  also  own  a  fee  in  the  half  of  the  street  which  is  next  to 
their  abutting  land. 

The  defendants  are  the  selectmen  of  Brookline,  and,  on  the  applica- 
tion of  the  American  Rapid  Telegraph  Company,  a  corporation  organ- 
ized under  the  St.  of  1874,  c.  165  ^  (Pub.  Sts.  c.  lOG,  §  14),  for  the 
transmission  of  intelligence  by  electricity,  are  about  to  grant  to  that 
company,  under  the  Pub.  Sts.  c.  109,  a  location  along  said  highway 
for  their  posts,  wires,  &c.  The  bill  seeks  to  restrain  the  defendants, 
upon  the  ground  that  the  last-named  statute  is  unconstitutional.  .  .  . 
[Here  follows  a  recital  of  the  substance  of  the  statute  and  a  deter- 
mination that  the  business  in  question  is  one  of  a  public  nature.] 

But  as,  even  if  the  legislature  has  the  right  to  authorize  the  erec- 
tion of  telegraph  poles  along  a  highway,  as  a  public  use  thereof, 
appropriate  safeguards  must  be  provided  for  any  rights  of  property 
belonging  to  individual  owners  which  may  be  taken  or  invaded,  there 
remain  these  inquiries  for  our  consideration  :  first,  whether  the  statute 
does  provide  any  compensation  to  the  owner  of  the  fee  for  this  new 
use  of  the  highway ;  second,  whether  he  is  entitled  to  such  compensa- 
tion ;  third,  whether  the  owner  of  property  near  to,  or  abutting  upon, 
the  highway,  is  entitled  to  any  compensation  therefor  other  than  such 
as  the  Act  provides.  .  .  . 

As  the  chapter  does  not,  in  our  opinion,  provide  for  damages  to  the 
owner  of  the  fee  in  the  highway  by  reason  of  the  erection  of  the  tele- 
graphic posts  and  apparatus,  it  is  to  be  determined  whether  such  a  use 
of  the  highway  creates  a  separate  and  additional  burden,  requiring  an 
independent  assessment  of  damages,  for  which  the  owner  of  the  land 
was  not  compensated  when  the  highway  was  laid  out,  and  thus  whether 
the  omission  of  the  Act  to  provide  for  tliis  compensation  renders  it 
unconstitutional. 

It  is  to  be  observed  that,  for  more  than  thirty  years,  the  right  to 
appropriate  highways  to  this  public  use,  witliout  any  compensation  to 
the  owners  of  the  fee  therein,  has  been  asserted  ;  that  the  statutes  in 
regard  to  it  have  more  than  once  been  expounded  by  this  court,  without 
any  apparent  doubt  of  their  validity  ;  and  that,  up  to  the  present  time, 
no  suggestion  has  ever  been  made  that  the  rights  of  such  owners  were 
in  any  way  invaded.  If  the  argument  that  these  owners  are  entitled 
to  compensation  be  correct,  the  estates  of  thousands  have  been  wrong- 
fully used  while  they  were  either  ignorant  of  their  rights  or  submis- 
sive to  injustice ;  and  in  the  mean  time  costly  telegraphic  structures 
have  been  erected,  and  the  whole  business  of  the  State  has  accommo- 
dated itself  to  this  system  of  the  transmission  of  intelligence.  After 
so  long  a  practical  construction  by  the  legislature  and  the  courts,  and 

1  This  statute  authorizes  any  number  of  persons,  not  less  than  three,  to  form  a  cor- 
poration "  for  the  purpose  of  carrying  on  any  lawful  business,"  excepting  certain  kinds 
of  business  not  material  to  be  stated. 


CHAP.  VI.]  PIERCE   ET   AL.   V.   DREW   ET   AL.  1135 

after  so  widely  extended  an  acquiescence  by  parties  whose  estates  or 
interests  therein  are  directly  affected,  it  would  require  a  clear  case  to 
justify  us  in  setting  aside  such  a  statute  as  unconstitutional,  even  if  it 
ba  true,  as  it  certainly  is,  that  no  usage  for  any  course  of  years,  nor 
any  number  of  legislative  or  judicial  decisions,  will  sanction  a  viola- 
tion of  the  fundamental  law,  clearly  expressed  or  necessarily  under- 
stood. Packard  v.  Richardson,  17  Mass.  122,  144  ;  Commonwealth 
V.  Parker,  2  Pick.  549,  557  ;  Holmes  v.  Hunt,  122  Mass.  505.  No 
right  to  take  the  private  property  of  the  owner  of  the  fee  in  the  high- 
way is  conferred  by  this  Act ;  all  that  is  given  is  the  right  to  use  land, 
by  permission  of  the  municipal  authorities,  the  whole  beneficial  use  of 
which  had  been  previously  taken  from  the  owner  and  appropriated  to 
the  public.  It  is  a  temporary  privilege  only  which  is  conferred  ;  no 
right  is  acquired  as  against  the  owner  of  the  fee  by  its  enjoyment,  nor 
is°any  legal  right  acquired  to  the  continued  enjoyment  of  the  privilege, 
or  any  presumption  of  a  grant  raised  thereby.  Pub.  Sts.  c.  109,  §  15. 
The  discontiuuance  of  a  highway  would  annul  any  permit  granted 
under  the  statute,  and  no  encumbrance  would  remain  upon  the  land. 

In  Ohase  v.  Sutton  Mamif.  Co.,  4  Cush.  152,  167,  it  is  said  by  Chief 
Justice  Shaw,  "  that  where,  under  the  authority  of  the  Legislature,  in 
virtue  of  the  sovereign  power  of  eminent  domain,  private  property  has 
been  taken  for  a  public  use,  and  a  full  compensation  for  a  perpetual 
easement  in  land  has  been  paid  to  the  owner  therefor,  and  afterwards 
the  land  is  appropriated  to  a  public  use  of  a  like  kind,  as  where  a  turn- 
pike has  by  law  been  converted  into  a  common  highway,  no  new  claim 
for  compensation  can  be  sustained  by  the  owner  of  the  land  over  which 
it  passes."  The  case  itself  goes  further  than  the  illustration  used  by 
the  Chief  Justice.  It  related  to  a  claim  made  by  an  owner  in  fee  of 
land  which  had  been  taken  by  a  canal  company  by  statutory  authority, 
for  the  purpose  of  a  navigable  waterway,  which  company  had  been 
permitted  by  statute  to  sell  its  property  to  a  railway  company ;  but, 
although  the  two  modes  of  transportation  were  entirely  different,  the 
validity  of  the  Act  was  sustained,  and  the  claim  of  the  land-owner  for 
further  compensation  disallowed. 

"  It  is  well  settled,"  says  Mr.  Justice  Gray,  in  Boston  v.  Eicliardson, 
13  Allen,  146,  160,  "that  when  land,  once  duly  appropriated  to  a 
public  use  which  requires  the  occupation  of  its  whole  surface,  is 
applied  by  authority  of  the  legislature  to  another  similar  public  use, 
no  new  claim  for  compensation,  unless  expressly  provided  for,  can  be 
sustained  by  the  owner  of  the  fee." 

When  land  has  been  taken  or  granted  for  highways,  it  is  so  taken  or 
granted  for  the  passing  and  repassing  of  travellers  thereon,  whether  on 
foot  or  horseback,  or  with  carriages  and  teams  for  the  transportation 
and  conveyance  of  passengers  and  property,  and  for  the  transmission 
of  intelligence  between  the  points  connected  thereby.  As  every  such 
grant  has  for  its  object  the  procurement  of  an  easement  for  the  public, 
the  incidental  powers  granted  must  be  so  construed  as  most  effectually 


1136  PIERCE   ET   AL.   V.   DREW   ET   AL.  [CHAP.  VI. 

to  secure  to  the  public  tlie  full  enjoyment  of  such  easement.      Com- 
momcea/th  v.  7'emple,  14  Gray,  61>,  77. 

It  has  never  been  doubted  that,  by  authority  of  tiie  legislature, 
highways  might  be  used  for  gas  or  water  pipes,  intended  for  the  con- 
venience of  the  citizens,  although  the  gas  or  water  was  conducted  there- 
under by  companies  formed  for  the  purpose  ;  or  for  sewers,  whose 
object  was  not  merely  the  incidental  one  of  cleansing  the  streets,  but 
also  the  drainage  of  private  estates,  the  rights  of  which  to  enter  thereni 
were  subject  to  public  regulations.  Commomcealth  v.  .Loicell  Gas 
Light  Co.,  12  Allen,  75  ;  Attorney-General  v.  Metropolitan  Railroad, 
125  Mass.  515,  517  ;  Boston  v.  Richardson,  ubi  supra. 

Nor  can  we  perceive  that  these  are  to  be  treated  as  incidental  uses, 
as  suggested  by  the  plaintiff,  because  the  pipes  are  conducted  under 
the  surface  of  the  travelled  wa3%  rather  than  above  it.  The  rights  of 
the  owner  of  the  fee  must  be  the  same  in  either  case,  and  the  use  of 
the  land  under  the  way  for  gas-pipes  or  sewers  would  effectually  pre- 
vent his  own  use  of  it  for  cellarage  or  similar  purposes. 

When  the  land  was  taken  for  a  highway,  that  which  was  taken  was 
not  merely  the  privilege  of  travelling  over  it  in  the  then  known  vehi- 
cles, or  of  using  it  in  the  then  known  methods,  for  either  the  convey- 
ance of  property  or  transmission  of  intelligence.  Although  the  horse 
railroad  was  deemed  a  new  invention,  it  was  held  that  a  portion  of  the 
road  might  be  set  aside  for  it,  and  the  rights  of  other  travellers,  to  some 
extent,  limited  by  those  privileges  necessary  for  its  use.  Common- 
wealth V.  Temple,  ubi  supra;  Attorney-General  v.  Metropolitan  Rail- 
road, ubi  supra.  The  discovery  of  the  telegraph  developed  a  new  and 
valuable  mode  of  communicating  intelligence.  Its  use  is  certainly  simi- 
lar to,  if  not  identical  with,  that  public  use  of  transmitting  information 
for  which  the  highway  was  originally  taken,  even  if  the  means  adopted 
are  quite  different  from  the  post-bo}'  or  the  mail-coach.  It  is  a  newly 
discovered  method  of  exercising  the  old  public  easement,  and  all 
appropriate  methods  must  have  been  deemed  to  have  been  paid  for 
when  the  road  was  laid  out.  Under  the  clause  to  regulate  commerce 
among  the  States,  conferred  on  Congress  by  the  Constitution  of  the 
United  States,  although  telegraphic  communication  was  unknown  when 
it  was  adopted,  it  has  been  held  that  it  is  the  right  of  Congress  to  pre- 
vent the  obstruction  of  telegraphic  communication  by  liostile  State 
legislation,  as  it  has  become  an  indispensable  means  of  intercommuni- 
cation.   Pensacola  Telegraph  v.  Western  Uyiion  Telegraph  [96  U.  S.  1]. 

No  question  arises  as  to  any  interference  with  the  old  methods  of 
communication,  as  the  statute  we  are  considering,  by  §  8.  guards  care- 
fully against  this  by  providing  that  the  telegraphic  structures  are  not 
to  be  permitted  to  incommode  the  public  use  of  highways  or  public 
roads.  We  are  therefore  of  opinion  that  the  use  of  a  portion  of  a 
highway  for  the  public  use  of  companies  organized  under  the  laws  of 
the  State  for  the  transmission  of  intelligence  by  electricity,  and  sub- 
ject to  the  supervision  of  the  local  municipal  authorities,  which  has 


CHAP.  VI.]      ADAMS   V.    CHICAGO,   BURLINGTON,   ETC.    RAILROAD.       1137 

been  i)ermittecl  by  the  legislature,  is  a  public  use  similar  to  that  for 
which  the  highway  was  origiually  takeu,  or  to  which  it  was  originally 
devoted,  and  that  the  owner  of  the  fee  is  entitled  to  no  further 
compensation. 

There  remains  the  inquiry,  whether  there  is  any  ol)jection  to  the 
statute  because  it  does  not  provide  a  sufficient  remedy  for  the  owners 
of  property  near  to  or  adjoining  the  way,  who  may  be  incidentally  in- 
jured by  the  structures  which  the  telegraph  companies  may  have  been 
permitted  to  erect  along  the  line  of  the  higiiway  and  within  its  limits. 
Such  remedy  is  given  by  §  4  as  the  legislature  deemed  sufficient. 
We  -should  not  be  willing  to  believe  that  the  land-owner  thus  injured 
would  be  without  remedy,  if  the  company  failed  to  pay  tlie  damages 
lawfully  assessed  under  this  section,  while  it  still  endeavored  to  main- 
tain its  structures  ;  but  the  only  compensation  to  which  such  owner  is 
entitled  is  that  which  the  legislature  deems  just,  when  it  permits  the 
erection  of  these  structures.  The  legislature  may  provide  for  com- 
pensation to  the  adjoining  owners,  but  without  such  provision  there 
can  be  no  legal  claim  to  it,  as  the  use  of  the  highway  is  a  lawful  one. 
Attorney-General  v.  JletrojyoUtan  Railroad,  uhi  supra. 

The  clause  in  the  Declaration  of  Rights  which  provides  that,  •'  when- 
ever the  public  exigencies  require  that  the  property  of  any  individual 
should  be  appropriated  to  public  uses,  he  shall  receive  a  reasonable 
compensation  therefor,"  is  confined  in  its  application  to  property 
actually  taken  and  aj)propriated  by  the  government.  No  construction 
can  be  given  to  it  which  can  extend  the  benefit  of  it  to  the  case  of  one 
who  suffers  an  indirect  or  consequential  damage  or  expense  by  means 
of  the  riglitful  use  of  property  already  belonging  to  the  public.  Cal- 
lender  v.  Marsh,  1  Pick.  418,  430. 

The  majority  of  the  court  is  therefore  satisfied  that  the  demurrer  to 
this  bill  was  properly  sustained,  and  the  entry  will  be. 

Decree  affirmed. 

[Charles  Allen,  J.,  for  himself  and  William  Allen,  J.,  gave  a 
dissenting  opinion.]  ^ 


ADAMS   V.   CHICAGO,    BURLINGTON,   AND   NORTHERN 
RAILROAD   COMPANY. 

Supreme  Court  of  Minnesota.     1888. 

[39  Minn.  286.] 

Appeal  by  defendant  from  an  order  of  the  District  Court  for  Winona 
County,  refusing  a  new  trial  after  a  trial  by  Start,  J.,  a  jury  being 
waived. 

1  Compare  Am.  Teleph.  ^  Teleg.  Co  .  v.  Pearce,  71  Md.  535  (1889).  — Ed. 
VOL.  I.  — 72 


1138       ADAMS   V.    CHICAGO,   BUKLINGTON',   ETC.    RAILROAD.       [cHAI.  VI. 

Wm.  Gale,  J.  W.  looser/,  and  Touwj  and  Lightner,  for  appellant. 
Tawney  and  Randall,  for  respondent. 

GiLFiLLAN,  C.  J.  Second  Street,  in  the  city  of  Winona,  is,  and  for 
30  years  lias  been,  a  public  street,  70  feet  wide,  running  nearly  east 
and  west  llirough  the  city.  Plaintiff  is  the  owner  of  and  occupies  as 
bis  residence  a  lot  abutting  on  the  south  side  of  said  street.  The 
defendant,  under  authority  of  the  Common  Council,  which  authority 
the  city  charter  empowered  the  council  to  give,  has  constructed  and  is 
operating  the  main  line  of  its  railroad,  an  ordinary  commercial  railroad, 
running  to  and  through  Winona,  upon  and  along  the  north  half  of 
Second  Street,  passing  in  front  of  plaintiff's  lot,  no  part  of  the  track 
being  laid  south  of  the  centre  line  of  the  street.  Safe  and  convenient 
ingress  and  egress  to  and  from  plaintiff's  lot  are  not  materially  im- 
paired. The  injurious  consequences  to  the  lot  are  not  due  to  any  improper 
construction  or  operation  of  the  road,  but  are  such  as  result  from  con- 
structing and  operating  a  railroad  along  a  street  in  an  ordinary  and 
prudent  manner.  These  injurious  consequences  arise  from  the  engines 
and  trains  passing  day  and  night,  and  throwing  steam,  smoke,  dust, 
and  cinders  upon  the  plaintiff's  premises,  and  into  his  house,  polluting 
the  air  with  offensive  smells,  and  interfering  with  the  free  circulation  of 
b'ght  and  pure  air  into  and  upon  his  premises,  and  jarring  the  ground 
so  as  to  cause  the  house  and  furniture  to  vibrate  ;  causing  physical  dis- 
comforts and  annoj'ances  to  plaintiff  and  his  family,  and  whereb}'  the 
rental  A-alue  of  his  premises  is  diminished.  The  court  below  ordered 
judgment  for  the  plaintiff  for  the  damage  to  the  rental  value  up  to  the 
commencement  of  the  action,  and  the  defendant  appeals. 

The  principal  question  involved  has  never  been  directly  before  this 
court.  There  have  been,  however,  cases  in  which  the  decisions  bore 
incidental!}'  upon  it.  It  is  well  settled  that  where  there  is  no  taking 
of,  or  encroachment  on,  one's  property  or  property'  rights  b}'  the  con- 
struction and  operating  of  a  railroad,  an}'  inconveniences  caused  by  it, 
as  from  noises,  smoke,  cinders,  etc.,  not  due  to  improper  construction, 
or  negligence  in  operating  it,  furnish  no  ground  of  action  ;  as  when  the 
railroad  is  laid  whoU}'  on  land  which  the  company  has  acquired  by  pur- 
chase or  condemnation,  or  in  which  the  party  has  no  interest,  so  that 
it  does  no  wrong  to  him  in  constructing  and  operating  the  road,  though 
there  may  be  some  inconvenience  or  damage  to  him  arising  from  it,  if 
it  be  such  as  the  general  public  suffer,  he  has  no  legal  cause  to  com- 
plain. Railroads  are  a  necessity,  and  the  public,  which  enjoys  the 
general  incidental  benefits  from  them,  must  endure  any  general  incon- 
veniences necessarily  incident  to  their  construction  and  operation.  And 
if  a  railroad  compaii}-  even  wrongfully  obstructs  a  street  abutting  on 
one's  premises,  not  at  the  part  of  the  street  where  it  so  abuts,  unless 
access  to  his  premises  is  thereby  cut  off  or  raatenally  interfered  with, 
any  inconvenience  that  he  may  suffer  therefrom  furnislies  no  ground 
for  a  private  action,  because  the  wrong  done  is  a  public  wrong  for 
which  the  public  authorities  are  the  proper  parties  to  seek  redress. 


CHAP.  VI.]      ADAMS   V.    CHICAGO,   BURLINGTON,   ETC.    RAILROAD.       1139 

See  Shauhutx.  St.  Paul  &  Sioux  City  R.  Co.^  21  Minn.  502  ;  Rochette 
V.  Chicago,  Mil.  cfc  St.  Paul  Ry.  Co.,  32  Minn.  201  (20  N.  W.  Rep. 
140)  ;  Barnam  v.  Minnesota  Transfer  Ry.  Co.,  33  Minn.  365  (23 
N.  W.  Rep.  538).  But  if  a  railroad,  not  touching  one's  premises,  ob- 
structs a  street  abutting  on  or  leading  to  them,  so  as  to  cut  off  or 
materially  interfere  with  his  only  access  to  them,  the  inconvenience  is 
deemed  to  be  special,  and  not  one  common  to  the  public,  and  an  acttion 
lies.  Brakken  v.  Minn.  &  St.  Louis  Ry.  Co.,  29  Minn.  41  (UN.  W. 
Rep.  124).  It  is  the  same  where  one  owns  land  abutting  on  a  naviga- 
ble river  or  lake,  and  a  railroad  is  laid  along  between  the  land  and  the 
navigable  water.  Brisbijie  v.  St.  Paul  &  Sioux  City  R.  Co.,  23  Minn. 
114;  Union  Depot,  etc.  Co.  v.  Brunsivick,  31  Minn.  297  (17  N.  W. 
Rep.  626).  And  also  where  a  strip  between  the  lots  and  the  river  has 
been  dedicated  to  public  use  as  a  levee  or  landing,  and  a  railroad  is 
laid  upon  it.  Skurmeier  v.  St.  Paul  &  Pac.  R.  Co.,  10  Minn.  59  (82) 
(88  Am.  Dec.  59).  Where,  however,  there  is  a  taking  of  a  part  of  a 
tract  or  lot  of  land,  the  diminution  in  value  of  the  part  not  taken, 
caused  by  the  noise  of  passing  trains,  and  inconvenience  and  interrup- 
tion to  the  use  of  the  part  not  taken,  resulting  from  the  ordinar\-  opera- 
tion of  the  rof^l  {County  of  Blue  Earth  v.  St.  Paul  &  Sioux  City  R. 
Co.,  28  Minn.  503,  11  N.  W.  Rep.  73);  and  from  increased  exposure 
of  buildings  already  erected  to  danger  of  fire  from  passing  trains  {Col- 
vill  V.  St.  Paul  &  Chicago  Ry.  Co.,  19  Minn.  240  (283)  ,  Johnson  v. 
Chicago,  B.  <k  N.  R.  Co.,  37  Minn.  519,  35  N.  W.  Rep.  438)  ;  and 
from  increased  danger  of  injury  to  or  destruction  of  the  household  of 
the  owner,  unless  the  property  not  taken  is  equally  valuable  for  some 
other  purpose, —  Curtis  v.  St.  Paul,  S.  &  T.  F.  R.  Co.,  20  Minn.  19 
(28),  —  are  proper  elements  of  the  damages  to  be  allowed  for  the 
taking. 

From  these  decisions  the  propositions  may  be  stated  :  That  the  right 
of  recovery  against  a  railroad  company,  when  ttiere  is  no  improper 
construction  of  or  negligence  in  operating  the  railroad,  for  inconven- 
iences caused  by  noises,  smoke,  dust,  and  cinders,  does  not  depend 
on  the  fact  that  such  inconveniences  exist,  if  they  be  such  as  are  com- 
mon to  the  public  at  large,  but  on  the  fact  that  there  has  been  a  taking 
of  the  parties'  property  for  the  purpose  of  the  railroad,  accompanied 
with  such  inconveniences,  or  to  which  they  are  incident;  and,  if  neces- 
sarily caused  by  the  company's  proper  use  of  its  own  property,  there 
can  be  no  recovery  because  of  them.  And  that,  where  there  is  a  tak- 
ing, such  inconveniences  as  are  necessarily  incident  to  it,  and  to  the 
use  for  which  the  property  is  taken,  are  proper  elements  of  the  damages 
to  the  party.  And  this  further  proposition  (fully  established  and  more 
clearly  set  forth  in  many  other  decisions  of  this  court)  that  the  rule  or 
damage  is  applied  only  to  a  case  where  part  of  a  distinct  tract  or  lot 
is  taken,  in  which  case  the  damages  only  to  the  part  not  taken  are  to 
be  estimated.  As  to  that  only  are  the  damages  deemed  special.  As 
to  other  distinct  tracts  or  lots  of  the  same  owner  the  inconveniences 
are  generally  such  as  the  public  suffer. 


I 

1140       ADAMS   V.   CHICAGO,   BURLINGTON,   ETC.    RAILROAD.       [CIIA}\  VI. 

As  the  plaintiff  does  not  claim  to  own  the  laml  in  the  street  which 
the  company  has  taken  for  its  road,  but  claims  only  a  right  or  interest 
in  the  nature  of  an  easement  in  it  appurtenant  to  his  lot,  tlie  quchtion 
has  been  raised  and  discussed,  at  considerable  lengUi,  whether,  conceding 
the  right  or  interest  he  claims,  the  acts  of  the  dcfeutiant  constitute  a  tak- 
ing, within  the  constitutional  provision  prohibiting  the  taking  of  private 
property  for  public  use  without  just  compensation.  As  that  provision 
IS  inserted  for  the  protection  of  the  cilizen,  it  ought  to  have  a  lil)eral 
interpretation,  so  as  to  elfect  its  general  purpose.  All  properly,  what- 
ever its  character,  comes  within  its  protection.  It  is  hardly  necessary 
to  say  that  any  right  or  interest  in  land  in  the  nature  of  an  easement 
is  property,  as  much  so  as  a  lien  upon  it  by  mortgage,  judgment,  or 
under  mechanic's  lien  laws.  If  a  man  is  deprivctl  of  his  propertv  for 
the  purpose  of  any  enterprise  of  public  use,  it  must  be  a  taking,  even 
though  the  right  of  which  he  is  deprived  is  not  and  cannot  be  employed 
in  the  public  use.  In  the  case  of  a  lien  on  land  taken  for  railroad  pur- 
poses, the  company  cannot  make  any  use  of  the  lien.  It  does  not 
succeed  to  the  ownership  of  it.  It  merel3'  displaces  it,  —  destroys  it. 
So,  in  case  of  an  easement.  If  A.  has.  as  appurtenant  to  his  lot,  an 
easement  for  riglit  of  way  over  the  adjoining  laii<l.  and,  such  adjoining 
land  is  taken  for  railroad  purposes,  the  company  does  not  and  cannot 
succeed  to  the  easement.  But  it  may  destroy  or  materially  impair  it 
by  rendering  it  impossible  for  the  owner  of  it  to  enjoy  it  to  the  full 
extent  that  he  is  entitled  to.  Such  destruction  or  impairment  is  within 
the  meaning  of  the  word  "  taken,"  as  used  in  the  Constitution,  as  fully 
as  is  the  depriving  the  owner  of  the  possession  and  use  of  his  corporeal 
property. 

The  main  question  in  the  case  is,  has  the  owner  of  a  lot  abutting 
on  a  public  street  a  right  or  interest  in  the  street  opposite  his  lot, 
appurtenant  to  his  lot,  and  independent  of  his  ownershii)  of  the  soil 
of  the  street,  and,  if  so,  what  is  that  right  or  interest?  If  he  has, 
and  the  acts  of  the  defendant  in  constructing  and  operating  its  rail- 
road along  that  part  of  the  street  opposite  plaintiff's  lot  prevent  or 
impair  liis  enjo\ment  of  such  right  or  interest,  then  he  has  a  right  to 
recover. 

We  find  a  great  man}'  eases  in  which  is  stated,  in  general  terms,  the 
proposition  that,  although  the  fee  of  the  street  be  in  the  State  or  muni- 
cipality, the  owner  of  an  abutting  lot  has,  as  api)urtenant  to  his  lot, 
an  interest  or  easement  in  the  street  in  front  of  it.  which  is  entirely 
distinct  from  the  interest  of  the  public.  Grand  Rcqnds  &  Iml.  R.  Co.  v. 
Heisel,  38  Mich.  62  ;  Lexington  &  Ohio  R.  Co.  v.  Applegale,  8  Dana, 
289  (33  Am.  Dec.  497)  ;  Elizabethtoivn,  etc.  R.  Co.  v.  Combs,  10  Bush, 
382  ;  Haynes  v.  Tliomas.,  7  Ind.  38  ;  Protzman  v.  Indianapolis,  etc. 
R.  Co.,  9  Ind.  467  (68  Am.  Dec.  650)  ;  St07ie  v.  Fairbury,  etc.  R. 
Co.,  68  111.  394  ;  Tate  v.  Ohio  &  Mississijjpi  R.  Co.,  7  Ind.  479  ; 
Lackland  v.  North  Missouri  R.  Co.,  31  Mo.  180  ;  Street  Railway  v. 
Cumminsville,  14  Ohio  St.  523  ;  Railway  Co.  v.  Lawrence.,  38  Ohio 


CHAP.  VI.]      ADAMS   V.   CHICAGO,   BURLINGTON,   ETC.    RAILROAD.       1141 

St.  41  ;  Crawford  v.  Village  of  Delaware,  7  Ohio  St.  459  ;  City  of 
Denver  v.  Bayer,  7  Col.  113  (2  Pac.  Rep.  6);  Town  of  Mensselaer  v. 
Leopold,  106  Ind.  29  (5  N.  E.  Rep.  761).  In  38  Mich.  62,  71,  the 
Supreme  Court  states  it  thus  :  "  Every  lot-owner  has  a  peculiar  interest 
in  the  adjacent  street  which  neither  the  local  nor  the  general  public  can 
pretend  to  claim  ;  a  private  right  in  the  nature  of  an  incorporeal  here- 
ditament, legall}'  attached  to  his  contiguous  ground  ;  an  incidental  title 
to  certain  facilities  and  franchises,  which  is  in  the  nature  of  propertj', 
and  which  can  no  more  be  appropriated  against  his  will  than  an}-  tangi- 
ble propert}'  of  which  he  may  be  owner."  Although  the  proposition 
w^as  apparentl}'  stated  with  care  and  upon  deliberation,  it  seems  to  us 
(and  we  say  it  with  diffidence,  because  of  the  eminent  character  of  that 
court)  that  the  decision  of  the  case  was  a  departure  from  the  doctrine 
thus  laid  down  (and  the  same  may  be  said  of  several  of  the  cases  re- 
ferred to).  For  where  the  railroad  was  laid  upon  a  part  of  the  street 
opposite  the  party's  lot,  of  which  part  he  did  not  own  the  fee,  it  denied 
his  right  to  recover  for  damages  caused  to  his  lot  incidental  to  a  proper 
operating  of  the  railroad,  and  limited  it  to  cases  where  the  acts  of  the 
company,  of  omission  or  commission,  amounted  to  a  nuisance.  As  the 
lot-owner  can  recover  for  a  private  nuisance,  committed  by  the  im- 
proper operation  of  a  railroad,  even  on  the  company's  own  land,  in  which 
he  has  no  interest  (Baltimore  &  Potomac  R,  Co.  v.  First  Baptist 
Church,  108  U.  S.  317,  2  Sup.  Ct.  Rep.  719),  it  would  seem  as  though, 
if  he  is  in  no  better  plight  in  respect  to  the  company's  acts  in  the  street, 
his  "  peculiar  interest,"  distinct  from  that  of  the  public,  in  the  street, 
is  of  very  little  value.  His  title  to  his  interest  in  the  street  is  precari- 
ous, if  authority  from  the  State  or  municipalit}'  may  justify  what  would 
without  such  authority  be  a  private  wrong  as  to  him. 

None  of  the  cases  we  have  referred  to,  nor  any  till  we  come  to  what 
are  known  as  the  "  Elevated  Railway  Cases,"  attempt  to  define  the 
limits  and  extent  of  the  right  of  an  abutting  lot-owner  in  the  street 
opposite  his  lot,  where  he  does  not  own  the  fee.  That  it  extends  to 
purposes  of  ingress  and  egress  to  and  from  his  lot  is  conceded  by  all. 
And  for  this  purpose  it  may  extend  beyond  the  part  of  the  street 
directly  in  front ;  for,  as  we  have  seen,  an  action  by  him  will  lie  for 
obstructing  the  street,  away  from  his  lot,  so  as  to  cut  off  or  materially 
interfere  with  his  only  access  to  it. 

The  questions  are  asked,  how  does  the  lot-owner  get  an  easement  in  the 
street?  ...  It  is,  however,  hardly  necessary  to  inquire  how  the  lot-owner 
gets  his  private  right  in  the  street ;  for  it  is  established  law  that  he  has  a 
private  right,  which,  as  we  have  stated,  all  the  cases  concede  extends 
to  the  necessity  of  access.  Access  to  the  lot  is  only  one  of  the  direct 
advantages  which  the  street  affords  to  it.  In  a  city  densely  peopled 
and  built  up,  the  admission  of  light  and  air  into  buildings  is  about  as 
important  to  their  proper  use  and  enjoyment  as  access  to  them.  Light 
and  air  are  largely  got  from  the  open  space  which  the  streets  afford. , 
What  reason  can  be  given  for  excluding  a  right  to  the  street  for  admit- 


1142       ADAMS   V.    CHICAGO,   BURLINGTON,    ETC.    UAILKUAD.       [ciIAl'.  VL 

ting  light  and  air,  when  the  right  to  it  for  access  is  concecied?  For 
mere  purposes  of  access  to  the  lots,  a  strip  10  or  15  feet  wide  might  be 
sufficient.  Yet  everybody  knows  that  a  lot  fronting  on  a  street  GO  or 
70  feet  wide  is  more  valuable,  because  of  the  uses  that  can  be  made  of 
it,  than  though  it  front  on  such  a  narrow  strip.  Take  a  case  in  one  of 
the  States  where  the  fee  of  the  streets  is  in  the  State  or  municipalit}', 
and  of  a  street  60  feet  wide.  The  abutting  lot-owners  have  paid  for 
the  advantages  of  the  street  on  the  basis  of  that  width,  cillier  in  the 
enhanced  price  paid  for  their  lots,  or,  if  the  street  was  established  by 
condemnation,  in  the  taxes  they  have  paid  for  the  land  taken.  In  such 
a  case,  if  the  State  or  municipalit}-  should  attempt  to  cut  the  street 
down  to  a  widtli  of  10  or  15  feet,  would  it  be  an  answer  to  objections 
by  lot-owners  that  the  diminished  width  would  be  sufficient  for  mere 
purposes  of  access  to  their  lots?  It  would  seem  as  though  the  question 
suggests  the  answer. 

The  cases  known  as  the  "  Elevated  Railway  Cases"  (Stonj  v.  iV".  Y. 
Elevated  R.  Co.,  90  N.  Y.  122,  and  Lnhr  v.  Metropolitan  Elevated 
R.  Co.,  104  N.  Y.  268,  10  N.  E.  Rep.  528)  are  notable  in  several  re- 
spects :  first,  because  they  were  the  first  cases  (and  it  seems  strange 
that  they  should  have  been)  in  which  was  squarely  presented,  so  as  to 
demand  a  direct  decision,  the  claim  of  abutting  lots  to  an  easement  in 
the  street  in  their  front,  for  purposes  of  light  and  air ;  second,  for  the 
number  and  ability  of  the  counsel  on  each  side,  and  the  thoroughness 
with  which  they  discussed  every  point  involved,  and  presented  ever}' 
argument />ro  and  con  that  could  be  suggested;  and,  lastly  and  espe- 
cially, for  the  exhaustive  character  of  both  tlie  prevailing  and  dissent- 
ing opinions  by  the  members  of  the  court.  The  latter  case  was  reall}* 
a  re-argument  of  the  questions  decided  in  the  earlier,  and  in  its  opinion 
the  court  not  only  adliered  to,  but  took  pains  to  define,  its  earlier  deci- 
sion, and  in  some  respects  to  go  beyond  it,  and  give  to  the  principles 
determined  a  wider  application  than  appears  to  have  been  given  to 
them  in  the  first  case.  We  think  that  in  those  cases  the  doctrine  is 
unqualifiedly  established  that  no  matter  how  the  abutting  owner  ac- 
quires title  to  his  land,  and  no  matter  how  the  street  was  established, 
so  that  the  only  right  of  the  public  is  to  hold  it  for  public  use  as  a 
street  forever  (and  the  public  gets  no  greater  right  under  a  dedication), 
and  no  matter  who  may  own  the  fee,  "  an  abutting  owner  necessarily 
enjoys  certain  advantages  from  the  existence  of  an  open  street  adjoin- 
ing his  property,  which  belong  to  him  b}*  reason  of  its  location,  and 
are  not  enjoyed  by  the  general  public,  such  as  the  riglit  of  free  access 
to  his  premises,  and  the  free  admission  and  circulation  of  light  and  air 
to  and  through  his  propertj'."  The  doctrine  was  followed  and  applied 
by  the  Circuit  Court  of  the  United  States  for  the  Southern  District  of 
New  York,  in  Fifth  JSfat.  Bank  v.  N.  Y.  Elevated  R.  Co.,  24  Fed.  Rep. 
114.  The  general  doctrine,  we  think,  stands  on  sound  reason  and 
considerations  of  practical  justice. 
The  private  right  in  a  street  is  of  course  subordinate  to  the  public 


CHAP.  VI.]       ADAMS   V.    CHICAGO,   BURLINGTON,    ETC.    RAILROAD.        1143 

riaht      The  latter  right  is  for  use  as  a  public  street,  and  the  incidental 
ri'ht  to  put  and  keep  it  in  condition  for  such  use,  and  for  no  other  pui- 
pose      Whatever  limitation   or  abridgment  of  the  advantages  which 
tlie  abutting  lot  is  entitled  to  from  the  street  may  be  caused  by  the 
exercise  of  the  public  right,  the  owner  of  the  lot  must  submit  to.     If 
nuttin<T  it  to  proper  street  uses  causes  annoying  noises  to  be  made  in 
front  Sf  his  lot,  or  the  air  to  be  filled  with  dust  and  smoke,  so  as  to 
darken  his  premises,  or  pollute  the  air  that  passes  from  the  street  upon 
them,  he  has  no  legal  cause  of  complaint.     His  right  to  complain  arises 
when  such  interruptions  to  the  enjoyment  of  his  private  right  are  caused 
by  a  perversion  of  the  street  to  uses  for  which  it  was  not  intended ;  by 
employing  it  for  uses  which  the  public  right  does  not  justify.     Ihat 
constructing  and  operating  an  ordinary  commercial  railroad  on  a  street 
is  a  perversion  of  the  street  to  a  use  for  which  it  was  not  intended  one 
not  justified  by  the  public  right,  and  which  the  State  or  municipality, 
as  representing  such  right,  cannot,  as  against  private  rights,  authorize, 
_  the  decisions  of  this  court  are  full  and  explicit.     It  has  always  been 
held  here,  contrary  to  the  decisions  in  many  of  the  States,  that  laying 
such  a  railroad  upon  a  public  street  or  highway  is  the  imposition  o    an 
additional  servitude  upon  it,  -  an  appropriation  of  it  to  a  use  for  which 
it  was  not  intended.     Carli  v.  Stillwater  Street  %.,  etc.  Co.,  28  Minn 
373  (10  N.  W.  Rep.  205),  and  cases  cited.    Many  of  the  decisions  cited 
to  show  that  upon  a  state  of  facts  such  as  exists  in  this  case  the  lot- 
owner  can  have  no  right  of  action,  were  by  courts  which  hold  that  the 
use  of  a  street  for  an  ordinary  railroad  is  a  legitimate  street  use,  —  one 
that  comes  within  the  uses  and  purposes  for  which  streets  are  estab- 
lished.    Where  that  is  the  rule,  inasmuch  as  the  right  or  interest  of 
the  abutting  lot-owner  is  subordinate  and  subject  to  the  right  to  devote 
the  street  to  use  for  a  railroad,  as  well  as  for  any  other  proper  mode  of 
street  travel,  of  course  no  cause  of  action  in  favor  of  the  lot-owner, 
whether  he  owns  the  fe'e  of  the  street  or  not,  could  grow  out  of  the 
proper  construction  and  operating  of  a  railroad  in  the  street.     For  that 
reason  tlie  decisions  of  such  courts  can  be  of  no  authority  here,  where 
a  different  rule  upon  the  rightfulness  of  using  the  street  for  such  a 
purpose   prevails. 

The  conclusions  arrived  at  are  that  the  owner  of  a  lot  abutting  on  a 
public  street  has,  independent  of  the  fee  in  the  street,  as  appurtenant 
to  his  lot,  an  easement  in  the  street  in  front  of  his  lot  to  the  full  width 
of  the  street,  for  admission  of  light  and  air  to  his  lot,  which  easement 
is  subordinate  only  to  the  public  right.  That  depriving  him  of  or  inter- 
fering with  his  enjoyment  of  the  easement  for  any  public  use  not  a 
proper  street  use  is  a  taking  of  his  property  within  the  meaning  of  the 
Constitution.  That  appropriating  a  public  street  to  the  construction  and 
operation  of  an  ordinary  commercial  railroad  upon  it  is  not  a  proper 
street  use.  That  where,  without  his  consent  and  without  compensation 
to  him,  such  a  railroad  is  laid  and  operated  along  the  portion  of  the 
street  in  front  of  his  lot,  so  as  upon  that  part  of  the  street  to  cause 


1144       ADAMS    V.    CHICAGO,    liUULLNGTON,    ETC.    UAILKOAD.       [ciIAI'.  VL 

smoke,  dust,  cinders,  etc.,  which  darken  or  pollute  the  uir  coming  from 
that  part  of  the  street  upon  his  lot,  he  may  recover  whatever  damages 
to  his  lot  are  caused  by  so  laying  and  operating  such  railroad  on  that 
part  of  the  street. 

That  the  recovery  should  be  limited  to  the  damages  caused  by  operat- 
ing the  railroad  in  front  of  plaintiff's  lot,  and  ouglit  not  to  include  any 
tliat  might  have  accrued  from  operating  it  on  other  parts  of  the  street, 
was  undoubtedly  the  opinion  of  the  court  below  when  it  came  to  make 
its  findings  of  fact ;  for  it  finds  as  a  fact  no  otlier  damage  than  the 
depreciation  in  the  rental  value  of  the  lot  caused  by  operating  the  rail- 
road on  the  street  in  front  of  it.  The  proof  of  depreciation  in  rental 
value,  however,  w^as  made  in  part  by  admitting  proof  (against  defend- 
ant's objection)  of  the  rental  value  ""wilh  the  road  constructed  on  that 
street,  and  operated  there  as  roads  usually  are."  There  was  no  other 
evidence  of  depreciation.  The  evidence  takes  into  account  not  merely 
the  consequences  to  tiie  lot  from  operating  the  railroad  in  front  of  it, 
but  also  from  operating  the  road  on  the  whole  or  any  part  of  it, 
however  remote  from  the  lot.  This  would  allow  plaintiff  to  recover  for 
such  consequences  of  operating  the  road  as  he  suffered  in  common  with 
the  public  geneially,  and  not  merely  such  as  were  peculiar  to  himself. 
The  evidence  was  erroneously  admitted,  and,  as  there  was  no  compe- 
tent evidence  to  sustain  the  finding  of  the  amount  of  damage,  the  find- 
ing must  be  set  aside.  A  new  trial  is  therefore  ordered  of  the  issue  as 
to  the  amount  of  damage  (but  of  no  other  issue),  unless  the  plaintiflf 
will  consent  in  the  court  below  to  take  judgment  for  nominal  damages 
merely.^ 

Vanderburgh,  J.  (dissenting).  If  a  street  or  highway  is  so  occu- 
pied or  encumbered  as  to  occasion  special  and  peculiar  injury  to  an 
abutting  land-owner,  an  action  for  damages  or  an  injunction  may  be 
sustained.  But  I  do  not  assent  to  the  projwsilion  that  such  owner  has 
property  interests  in  the  street,  beyond  tlie  boirtidary  of  his  land  therein 
(presumptively  the  centre  line  thereof),  which  are  the  proper  subject  of 
condemnation  proceedings.  The  opposite  rule,  I  think,  has  always 
been  accepted  and  acted  on  in  this  State,  and  is  supported  by  the  great 
weight  of  authority.  .   .  . 

1  And  so  Lamm  v.  Chic.  S^-c.  Ry.  Co.,  45  Minn.  71,  78  (1890)  ;  Williams  v.  Cily 
Electric  St.  By.  Co.,  41  Fed.  Rep.  .5.56  (U.  S.  C.  C  E.  D.  Ark.  1890).  Compare 
Nichols  V.  Ann  Arbor,  ^c.  Ry.  Co.,  87  Mich.  361. 

In  Garrett  v.  Lake  Roland  El.  Ry.  Co.,  29  Atl.  Rep.  8.30  (June,  1894),  the  Maryland 
Court  of  Appeals  (McSherrt,  J),  in  sustaining  a  decree  dismissing  the  plaintiff's 
hill,  said  .  "  By  Section  5  of  Ordinance  No.  23,  approved  April  8, 1891,  the  North  Avenue 
Railway  Company  (one  of  the  several  roads  by  the  consolidation  of  which  the  Lake 
Roland  Elevated  Railway  Company  was  formed)  was  authorized  to  bridge  the  Nortii- 
ern  Central  Railway  Company's  tracks  on  North  Street,  by  means  of  an  elevated 
structure,  extending,  including  the  necessary  approaches  thereto,  along  North  Street 
from  the  corner  of  that  and  Eager  streets  to  the  corner  of  North  and  Saratoga  streets. 
A  stone  abutment,  forming  an  inclined  plane,  to  carry  on  its  perpendicular  or  highest 
side  the  iron  superstructure,  and  to  serve,  on  its  surface,  as  the  northern  approach  to 
the  elevated  road,  has  been  erected  nearly  in  the  centre  of  North  Street  between  Chase 


CHAP.  VI.J        WESTERN   UNION   TELEGRAPH   CO.   V.    WILLIAMS.  1145 

WESTERN   UNION   TELEGRAPH    COMPANY    v.    WILLIAMS. 
Virginia  Supreme  Court  of  Appeals.     1890. 

[86  Va.  696.] 

Error  to  judgment  of  Circuit  Court  of  New  Kent  County,  rendered 
October  30,  1888,  in  an  action  of  trespass  on  the  case  wherein  James 
K.  Williams  was  plaintiff,  and  the  plaintiff  in  error,  the  Western  Union 
Telegraph  Company,  was  defendant.     Opinion  states  the  case. 

St'aples  and  Munford  and  Eobert  Stiles,  for  the  plaintiff  in  error. 
Pollard  and  Sands,  E.  T.  Lacy,  and  W.  W.  Gordon,  for  the  defendant 

in  error. 

Lacy,  J.,  delivered  the  opinion  of  the  court.  .  .  .  However,  it  is 
claimed  by  the  plaintiff  in  error  that,  granting  that  the  rights  of  the 

and  Eager,  directly  in  front  of  part  of  the  first-named  lots  of  Mr.  Garrett.     It  is  83 
feet  and  2\  inches  in  length,  and  Ib^^  feet  in  width,  and  starts  at  the  street  grade,  and 
gradually  rises  to  a  height  of  9  feet,  and  leaving  a  distance  or  driveway  between  its 
western  'face  and  the  curb  line,  contiguous  to  Mr.  Garrett's  property,  of  9  feet  and 
8^  inches.  .  .  .  The  proposition  distinctly  presented    by  the   record,  and   earnestly 
contended  for  bv  the  appellant's  distinguished  counsel,  is  that  the  erection  by  the 
appellee  of  this  abutment  on  property  not  owned  by  the  appellant,  but  in  the  bed  of  a 
public  citv  thoroughfare,  upon  which  his  lots  abut,  destroys  the  access  to  his  land, 
interferes'with  light  and  air,  imposes  a  new  and  additional  servitude  upon  his  prop- 
erty, and  deprives  him  of  the  benefit  of  the  use  of  the  same,  and  amounts  in  law  to  a 
taking  of  his  property  that  is  in  fact  not  trespassed  upon  or  touched,  —  is  illegal,  until 
compensation  ghall  have  been  first  made  therefor.     Though  there  has  been  no  physical 
invasion  of  the  appellant's  property,  still,  if  the  act  complained  of  constitutes,  by  rea- 
son of  its  consequences,  a  taking  of  the  appellant's  private  property  for  a  public  use, 
within  the  meaning  of  section  40  of  article  3  of  the  Constitution  of  Maryland,  which 
prohibits  the  taking  of  private  property  for  public  use,  except  upon  just  compensation 
being  first  paid  or  tendered,  then  the  injunction  should  have  been  granted.  .  .  .  There 
is  some  conflict  among  adjudged  cases  as  to  what  amounts  to  such  a  taking,  but  the 
overwhelming  weight  of  authority  accords  with  the   conclusions   which  this   court 
announced   in  two  cases  that  will  be  fully  referred  to  later  on.     Apart  from  the 
decisions  of  the  Supreme  Court  of  Ohio  (see  Crawford  v.  Delaware,  7  Ohio  St.  460), 
which  rest  upon  a  doctrine  peculiar  to  that  State,  and  the  recent  New  York  decisions 
in  the  Elevated  Railway  Cases  [Storn  v.  Railroad  Co.,  90  N.  Y.  122,  Lahr  v.  Railway 
Co  ,  104  N.  Y.  26S),  which  are  hopelessly  in  conflict  with  the  principles  announced  in 
other  cases  in  the  same  State  {Radcliffv.  Ma>jor,  etc.,  4  N.  Y.  195  ;  Fohr.'s  v.  Railroad 
Co  ,  121  N.  Y.  505),  and  the  decisions  in  Minnesota  {Adams  v.  Railroad  Co.,  39  Minn. 
286',  39  N.  W.  629 ;  I^amm  v.  Railroad  Co.,  47  N.  W.  455),  and  a  few  cases  in  Missis- 
sippi [Theobold  v.  Railway  Co.,  66  Miss.  279),  and  possibly  one  or  two  other  States,— 
all  substantially  following  the  New  York  Elevated  Railway  Cases, —there  is  prac- 
tically an  unbroken  current  of  adjudged  cases  broadly  and  clearly  marking  and  defin- 
ing the  difference  between  an  incidental  injury  to,  and  an  actual  taking  of,  private 
property.  .  .  .   We  must  either  adhere  to  these  two  decisions  in  50  Md.  and  74  Md. 
[Mayor  v.  WilUson,  50  Md.  148,  and  O'Brien  v.  R.  R   Co.,  74  Md.  363],  strictly  in 
accord,  as  we  have  shown  them  to  be,  with  the  derided  weight  of  judicial  opinion^  on 
this  subject,  —  or  else,  receding  from  them,  adopt  the  Ohio  or  the  New  York  doctrine. 
We  see  no  reason  for  departing  from,  or  for  modifying,  our  former  deliberate  judg- 
ments.    The  Ohio  doctrine  is  peculiar  to  that  State  alone  {O'Connor  v.  Pittsburgh  [18 
Pa.  St.  187],  Northern  Transp.  Co.  v.  Chicago  [99  U.  S.  635]),  and  is  so  admitted  to 
be  in  Crawford  \.  Delaware,  supra.     The  New  York  doctrine  involves  this  inextricable 
dilemma,  viz.  ■■  If  the  grading  of  a  street  by  a  municipal  corporation  cuts  off  all  access 


1146  WESTERN    UNION   TELEGRAPH    CO.    V.    WILLIAMS.        [('HAP.  VL 

plaintiff  are  what  we  have  stated,  and  the  Commonwealth  lias  onl\-  the 
right  to  use  by  going  over,  still  his  case  is  good,  because  his  works 
are  onl}' a  use  of  the  easement,  and  constitute  no  new  taking, — no 
additional  servitude.     We  will  now  briefly  consider  this  argument. 

The  right  in  the  Commonwealth  is  to  use  by  going  along  over ;  this 
is  the  extent  of  the  right.  If  the  right  was  granted  to  the  defendant  to 
go  over  simply  to  carry  its  messages,  then  the  right  granted  was  in  ex- 
istence before  the  grant,  and  the  right  to  go  over  is  not  only  not  dis- 
puted, but  distinctly  admitted.  This  is  the  servitude  over  the  land 
fixed  upon  it  by  law,  and  the  whole  extent  of  it.  If  anything  more  is 
taken  it  is  an  additional  servitude,  and  is  a  taking  of  the  property 
within  the  meaning  of  the  Constitution.  To  take  the  whole  subject,  the 
land  in  fee,  is  a  taking.  This,  however,  is  the  meaning  of  the  term 
only  in  a  limited  sense,  and  in  the  narrowest  sense  of  the  word.  The 
constitutional  provision,  which  declares  that  property  shall  not  be  taken 
for  public  use  without  just  compensation,  was  intended  to  estal)lish  this 
principle  bej'ond  legislative  control,  and  it  is  not  necessary  that  prop- 
erty should  be  absolutely  taken,  in  the  sense  of  completely  taking,  to 
bring  a  case  within  the  protection  of  the  Constitution.  As  was  said  by 
a  learned  justice  of  the  Supreme  Court  of  the  United  States  :  ''  It  would 
be  a  curious  and  unsatisfactory  result,"  [Here  follows  the  rest  of  a 
paragraph  from  the  opinion  of  the  court  (Miller,  J.)  in  Pumpelli/ 
V.  Green  Bay  Co.,  arae,  p.  10G2.J 

It  is  obvious,  and  it  is  so  held  in  many  cases,  that  the  construction 
of  a  railroad  upon  a  highway  is  an  additional  servitude  upon  the  land, 
for  which  the  owner  is  entitled  to  additional  compensation.  Cooley's 
Constitutional  Limitations,  5-48  ;  Ford  v.  Chicago  and  Xorthv;estern 
R.  R.  Co.,  14  Wis.  61G  ;  Pomerojj  v.  Chicago  &  M.  R.  R.  Co.,  10  Wis. 
640.  And  the  power  of  the  legislature  to  authorize  a  railroad  to  be 
constructed  on  a  common  highway  is  denied,  upon  the  ground  that  the 
original  appropriation  permitted  the  taking  for  the  purposes  of  a  com- 
mon highwa}-,  and  no  other.  The  principle  is  the  same  when  the  land 
is  taken  for  an}'  other  purpose  distinct  from  the  original  purpose,  and 
the  reasoning  in  the  two  cases  is  applicalile  to  each.  In  the  case  of 
Imlay  v.  Union  Branch  R.  R.  Co.,  26  Conn.  255,  it  is  said  :  "  When  land 
is  condemned  for  a  special  purpose,  on  the  score  of  public  utility,  the 
sequestration  is  limited  to  that  particular  use.  Land  taken  for  a  high- 
way' is  not  therein-  converted  into  a  common.     As  the  propert}'  is  not 

to  a  person's  honse,  albeit  his  property  is  thereby  destroyed  and  rendered  valueless, 
it  is  not  taken,  in  the  constitutional  sense,  but  if  a  railroad  company,  in  lawfully  con- 
structing its  road,  does  precisely  the  same  thing  that  the  city  did  in  grading  the  street, 
then  the  abutter's  property  is  taken,  though  not  physically  entered  upon  at  all.  .  .  . 
The  structure  is  therefore  a  lawful  one.  It  does  not  destroy  the  street,  as  a  street, 
though  it  may  cause  the  plaintiff  greater  inconvenience  in  gaining  access  to  his  lots 
than  he  encountered  before  it  was  built.  But  this  and  the  other  injuries  complained 
of  are  purely  incidental  and  consequential,  though  the  appellant  [under  the  statutes 
and  the  ordinance]  is  not  without  a  remedy  therefor."  .  .  .  [Beyan,  J  gave  a  dis- 
senting opinion.]  —  Ed. 


CHAP.  VI.]       WESTERN   UNION   TELEGRAPH   CO.   V.    WILLIAMS.  1147 

taken,  but  the  use  only,  the  right  of  the  public  is  limited  to  the  use,  the 
specific  use,  for  which  the  proprietor  has  been  divested  of  a  complete 
dominion  over  his  own  estate.  These  are  propositions  which  are  no 
longer  open  to  discussion."  Nicholson  v.  N.  Y.  &  N.  H.  R.  R.  Co.^ 
22  Conn.  85  ;  South  Carolina  R.  R.  Co.  v.  Steiner,  44  Ga.  546.  In 
the  case  of  a  telephone  company,  the  Chancellor,  in  the  case  of  Broome 
V.  Neiv  York  &  New  Jersey  Telephone  Co.  (5th  Central  Rep.  814),  held 
that,  in  order  to  justify  a  telephone  company  in  setting  up  poles  in  the 
highway,  it  must  show  that  it  has  acquired  the  right  to  do  so,  either  by 
consent  or  condemnation  from  the  owner  of  the  soil,  saying:  "The 
complainant  seeks  relief  against  an  invasion  of  his  proprietary  right  to 
his  land.  The  defendant,  a  telephone  company,  without  any  leave  or 
license  from,  or  consent  by  him,  but,  on  the  other  hand,  against  his 
protest  and  remonstrance,  and  in  disregard  of  his  warning  and  express 
prohibition,  and  without  condemnation  or  any  steps  to  that  end,  set  up 
its  poles  upon  his  land."  What  has  been  said  is  sufficient  of  itself  to 
establish  the  right  of  the  complainants  to  relief:  for  in  order  to  justify 
the  defendant  in  setting  up  the  poles,  it  is  necessary  for  it  to  show  that 
it  has  acquired  the  right  to  do  so,  either  by  consent  or  condemnation 
from  the  owner  of  the  soil.  As  to  these  rights  of  the  owner  of  the  soil 
see  American  and  English  Encyclopaedia  of  Law,  vol.  9,  title  "  High- 
ways," vii.  sec.  2  ;  Board  of  Trade  Tel.  Co.  v.  Barnett,  107  111.  508 ; 
Southwestern  R.  R.  Co.  v.  Southern  &  A.  Tel.  Co.,  46  Ga.  43  ;  West- 
ern Union  Tel.  Co.  v.  Rich,  19  Kansas,  517;  Willis  v.  Erie  Tel.  &c. 
Co.,  34  N.  W.  Rep.  337. 

That  the  erection  of  a  telegraph  line  upon  a  highway  is  an  additional 
servitude  is  clear  from  tlie  authorities.  That  it  is  such  is  equally  clear 
upon  principle  in  the  light  of  the  Virginia  cases  cited  above.  If  the 
right  acquired  by  the  Commonwealth  in  the  condemnation  of  a  highway 
is  only  the  right  to  pass  along  over  the  highway  for  the  public,  then,  if 
the  untaken  parts  of  the  land  are  his  private  property,  to  dig  up  the 
soil  is  to  dig  up  his  soil ;  to  cut  down  the  trees  is  to  cut  down  his 
trees ;  to  destroy  the  fences  is  to  destroy  his  fences ;  to  erect  any 
structure,  to  affix  any  pole  or  post  in  and  upon  his  land,  is  to  take  pos- 
session of  his  land  ;  and  all  these  interfere  with  his  free  and  unrestricted 
use  of  his  property.  If  the  Commonwealth  took  this  without  just  com- 
pensation it  would  be  a  violation  of  the  Constitution.  The  Common- 
wealth cannot  constitutionally  grant  it  to  another.  .  .  .  We  think 
the  instructions  of  the  Circuit  Court  were  clearly  right,  and  there  is 
no  error  therein.  .  .  . 

Lewis,  P.,  dissenting,  said :  I  take  a  very  different  view  of  the  case 
from  that  taken  in  the  opinion  of  the  court  just  read,  and  as  the  case 
is  an  important  one,  I  will  state  the  reasons  for  my  dissent.  I  agree 
that  the  Act  of  February  10,  1880,  does  not  provide  for  additional 
compensation  to  the  owners  of  lands  abutting  on  highways  along  which 
telegraph  lines  may  be  constructed,  and  therefore  that  the  question  in 
the  case  is,  whether,  on  that  account,  the  Act  is  unconstitutional?  .  .  . 


1148  WESTERN   UNION   TELEGRAPH    CO.    V.    WILLIAMS.       [CHAP.  VL 

What,  then,  is  the  nature  and  extent  of  the  public  easement  in  land 
condemned  for  a  highway?  Tlie  plaintiff  contends  that  it  is  merely  a 
right  of  passage,  and  nothing  more  ;  Bulllny  v.  The  Mayor  of  Peters- 
burg, 3  Rand.  563,  is  referred  to  in  support  of  this  position. 

That  case,  which  adopts  the  language  of  the  ancient  authorities  on 
the  subject,  does,  indeed,  so  hold,  and  when  it  was  decided,  the  language 
used  was  sufficiently  comprehensive  to  cover  every  then  known  mode  of 
enjoying  the  public  right.  But  since  that  time  civilization  has  ad- 
vanced ;  new  modes  of  using  the  public  highways  have  been  discovered, 
and  as  the  common  law  adapts  itself  to  the  constantly-changing  wants 
and  conditions  of  society,  the  courts  have  held,  and  riglitly,  I  tliink, 
that  the  view  contended  for  by  the  plaintiff  is  altogether  too  narrow 
and  restricted ;  so  that  the  principle,  as  now  established,  is  that  the 
highways  of  a  State  are  not  only  open  and  free  for  travel  and  traffic, 
but  that,  with  the  assent  of  the  legislature,  they  may  be  devoted, 
under  the  original  appropriation,  to  such  other  public  uses  as  are  con- 
sistent with  theii  use  as  public  thoroughfares.  .  .   . 

Much  of  the  confusion  in  the  decisions  on  the  subject  of  the  consti- 
tutional power  of  the  legislature  over  highways  is  owing,  it  seems  to 
me,  to  a  failure  to  discriminate  between  the  use  for  which  a  highway 
is  appropriated  and  the  modes  of  using  it.  Hence,  in  passing  upon  such 
questions,  a  clear  idea  of  what  a  highway  is  ought  always  to  be  kept  in 
view.  And  what  is  a  highway?  Perhaps  no  better  definition  of  it,  in 
tlie  light  of  reason  and  the  modern  decisions,  can  be  given  than  to  say 
that  it  is  a  road  or  thoroughfare  for  the  use  of  the  general  public  for 
the  purpose  of  inter-commu7iication ,  which  embraces  the  right  to  use  the 
highway,  not  only  for  passage,  but  for  the  transmission  of  intelligence. 
Formerly,  as  before  remarked,  the  onl}'  mode  by  which  intelligence 
could  be  transmitted  over  a  highway  was  by  passing  over  it.  But  it  is 
not  so  now.  The  discovery  of  the  telegraph  and  the  telephone  has 
revolutionized  the  methods  of  inter-communication ;  and  I  am  unable 
to  perceive  why,  when  a  message  is  sent  over  a  telegraph  or  telephone 
wire  erected  on  the  public  highwa}',  the  same,  or  substantially  the  same, 
use  is  not  made  of  the  highway  as  when  a  message  is  sent  over  it  by  a 
messenger  on  foot  or  on  horseback.  In  the  one  case,  as  was  well  said 
in  the  argument  at  the  bar,  the  message  goes  with  the  messenger ;  in 
the  other,  it  goes  without  a  messenger,  —  the  only  difference  being  in 
the  mode  of  sending  it.  And  it  hardly  seems  in  keeping  with  the  pro- 
gressive spirit  of  the  common  law,  in  eulogy  of  which  so  much  has  been 
justly  written,  to  say  that  the  new  method  is  not  admissible,  though  with 
the  assent  of  the  legislature,  because  it  was  not  known  to  Bracton  or 
Blackstone.  Said  the  court,  in  Dickerson  v.  Colgrove,  100  U.  S.  578: 
"  The  common  law  is  reason  dealing  by  the  light  of  experience  with 
human  affairs."  And  what  experience  had  our  fathers  with  electricity, 
as  an  element  of  inter-communication,  in  1825,  when  Bollivg  v.  Mayor 
of  Petersburg  was  decided  ?     None  whatever. 

That  the  new  method  is  not  inconsistent  with  the  ordinary  use  of  a 


CHAP.  VI.]       WESTERN   UNION   TELEGRAPH   CO.   V.   WILLIAMS.  1149 

bi'yhway  is,  to  my  mind,  obvious.  Indeed,  it  is  in  aid  of  it ;  for  it  not 
only  furnishes  va'stly  increased  facilities  of  inter-communication,  but  it 
tends  to  the  relief  of  the  highway  by  lessening  travel  over  it,  — which 
in  populous  cities,  and  even  in  the  country,  is  no  small  consideration. 
And  here  it  may  be  remarked  that  the  statute  expressly  provides  that 
in  no  case  shall  a  telegraph  or  telephone  erected  along  a  highway  ob- 
struct the  ordinary  use  of  the  highway.  Acts  1879-1880,  p.  53  ;  Code, 
sees.  1287-1290.  ...  In  the  argument,  a  number  of  authorities  were 
cited  to  show  that  it  is  not  competent  for  the  legislature  to  authorize  a 
telegraph  company  to  construct  its  line  over  the  right  of  way  of  a  rail- 
road comoany,  without  making  just  compensation  therefor  ;  and  this,  I 
take  it,  no  one  will  deny.  The  road-bed  and  right  of  way  of  a  railroad 
company  — at  least  in  this  State  — is  as  much  its  property  as  is  its 
rolling-stock,  or  the  money  in  its  treasury,  and  the  one  can  no  more  be 
lawfuUy  taken  without  just  compensation  than  the  other.  But  that  is  a 
very  different  case  from  this ;  for  here  I  have  endeavored  to  show  that 
'  the  plaintiff's  property  has  not  been  taken  ;  that  nothing  has  been 
granted  but  the  right  to  use  a  public  easement,  which  right,  under  no 
circumstances,  can  last  longer  than  the  easement  itself. 

Fortunately,    direct   authority  is   not   wanting  in  support  of  these 
views.     The  precise  question  has  been  adjudicated  in  two  well-consid- 
ered opinions,  — one  by  the  Supreme  Judicial  Court  of  Massachusetts, 
in  the  case  of  Pierce  v.  Drew,  136  Mass.  75  ;  the  other  by  the  Supreme 
Court  of  Missouri,  in  the  case  of  The  Julia  Building  Ass'n  v.  The  Bell 
Telephone  Co.,  88  Mo.  258,  —in  both  of  which  cases  it  was  distinctly 
held  that  an  additional  servitude  is  not  imposed  by  the  erection  on  a 
public  highway  of  a  telegraph  or  telephone  line,  under  a  statute  of  the 
State,  and  that  such  statute  is  not  unconstitutional,  because  it  makes  no 
provision  for  additional  compensation  to  the  owners  of  the  fee  in  the  high- 
way.    In  the  first  mentioned  case,  the  court,  in  an  able  and  learned 
opinion  by  Mr.  Justice  Devens,  said  :  "The  discovery  of  the  telegraph 
developed  a  new  and  valuable  mode  of  communicating  intelligence.    Its 
use  is  certainly  similar  to,  if  not    identical  with,   that  public  use  of 
transmitting  information  for  which  the  highway  was  originally  taken, 
-even  if  the  means  adopted  are  quite  different  from  the  post-boy  or  the 
mail-coach.     It  is  a  newly-discovered  method  of  exercising  the  old  pub- 
lic easement,  and  all  appropriate  methods  must  have  been  deemed  to 
have  been  paid  for  when  the  road  was  laid  out."     And  he  added  that, 
"  under  the  clause  to  regulate  commerce  among  the  States,  conferred  on 
Congress  by  the  Constitution  of  the  United  States,  although  telegraphic 
communication  was  unknown  when  it  was  adopted,  it  had  been  held  it 
is  the  right  of  Congress  to  prevent  the  obstruction  of  telegraphic  com- 
municatTon  by  hostile  State  legislation,  as  it  has  become  an  indispen- 
sable means  of  inter-communication."     Citing  Fensacola  Telegraph  v. 
Western   Union  Telegraph,  96  U.   S.   1.     See  also    Telegraph   Co.  v. 
Texas,  105  U.  S.  460 ;   Western  Union  Tel.  Co.  v.  Alabama,  132  U.  S. 
472,  and  cases  cited. 


IIjO  western    union    telegraph   CO.    V.   WILLIAMS.       [cHAP.  VL 

In  the  telephone  case,  it  was  said  :  "  If  a  thousand  messages  were 
daily  transmitted  by  means  of  telephone  poles,  wires,  and  other  appli- 
ances used  in  telephoning,  the  street  through  these  means  would  serve 
the  same  purpose,  which  would  otherwise  require  its  use  either  by  foot- 
men, horsemen,  or  carriages  to  effectuate  the  same  purpose.  In  tiiis 
view  of  it,  the  erection  of  telephone  poles  and  wires  for  transmission  of 
oral  messages,  so  far  from  imposing  a  new  and  additional  servitude, 
would,  to  the  extent  of  each  message  transmitted,  relieve  the  street  of 
a  servitude  or  use  by  a  footman,  horseman,  or  carriage." 

In  opposition  to  these  views,  the  case  of  Board  of  Trade  Td.  Co. 
V.  Barnett,  107  111.  507,  has  been  cited.  That  case  was  disapproved  of 
by  both  the  Massachusetts  and  Missouri  courts,  and,  I  tlmik,  with 
good  reason.  The  case  decides  that  there  is  no  difference  in  principle 
between  a  telegraph  and  a  steam  railway  in  a  country  highway,  so  far 
as  the  abstract  question  of  servitude  is  concerned,  and  that  as  the  rail- 
way is  an  additional  servitude,  so  also  is  the  telegraph.  But  this 
reasoning,  to  my  mind,  is  fallacious.  In  the  nature  of  things,  the  use 
of  a  liighway  for  operating  a  steam-railway  more  or  less  excludes  the 
ordinary  methods  of  travel,  and  is  attended  witli  other  inconveniences 
besides.  But  can  this  be  said  of  the  telegraph?  In  what  way  does  a 
telegraph  erected  on  the  side  of  a  highway  in  the  country  interfere  with 
the  rights  of  the  abutting  owner,  or  with  its  use  as  a  public  thorough- 
fare? Does  it  exclude  or  obstruct  travel?  On  the  contrary,  it  is 
obviously  much  less  of  an  obstruction  than  travellers  on  horseback  or 
in  vehicles  over  the  road  usually  are  to  one  another ;  and  as  to  any  in- 
creased dangers  or  annoyances  resulting  from  the  use  of  streets  in  a 
city  for  the  stringing  of  numerous  wires,  of  which  much  has  been  said, 
that  is  not  a  direct  but  an  incidental  injury,  which  is  a  matter  for  the 
legislature,  and  not  for  the  courts,  to  consider ;  for  nobody  doubts 
that  in  such  cases  the  legislature  may,  if  it  sees  fit,  require  additional 
compensation  to  the  owners  of  the  fee  to  be  made. 

It  has  never  been  questioned,  so  far  as  I  am  informed,  that  the 
legislature  may  authorize  telegraph  wires  to  be  laid  beneath  the  surface 
of  a  street,  without  additional  compensation  therefor ;  and  if  this  can  be 
lawfully  done,  the  power  to  authorize  the  wires  to  be  put  above  the  sur- 
face would  seem  to  be  equally  clear,  the  difference  being  a  mere  matter 
of  regulation,  as  to  which,  as  we  have  seen,  the  power  of  the  legislature 
is  unqualified.  .  .  .  M}*  opinion,  therefore,  is  that  the  Act  in  question 
is  constitutional  and  valid,  and  that  the  judgment  of  the  Circuit  Court 
should  be  reversed. 

Richardson,  J.,  concurred  with  Lewis,  P.  Judgment  affirmed.^ 

1  And  so  Stowers  v.  Postal  Tel.  Co.,  68  Miss.  559  (1891).  —Ed. 


CHAP.  VI.]      HALSEY   V.   RAPID   TIIANSIT   STREET   RAILWAY   CO.         1151 


HALSEY     V.    THE     RAPID     TRANSIT     STREET     RAILWAY 

COMPANY. 

New  Jersey  Coukt  of  Chancery.     1890. 

[47  N.  J.  Eg.  380.] 

Mr.  John  B.  Emery  and  Mr.  Frederic  W.  Stevens,  for  the  com- 
plainant. 3Ir.  Chandler  W.  Hiker  and  Mr.  Theodore  Runyon,  for  the 
defendant. 

Van  Fleet,  V.  C.  The  complainant  owns  lands  abutting  on  Kin- 
ney Street  and  Belmont  Avenue,  in  the  city  of  Newark.  His  lands 
have  a  frontage  on  Kinney  Street  of  two  hundred  and  thirty-six  feet, 
and  on  Belmont  Avenue  of  about  one  hundred  and  thirty-three  feet. 
His  title  extends  to  the  middle  of  the  street.  The  defendant  is  a 
street  railway  corporation.  It  was  organized  under  a  general  stat- 
ute ai)proved  April  6th,  1886,  entitled  '"An  Act  to  provide  for  the 
Incorporation  of  Street  Railway  Companies  and  to  regulate  the  same." 
Rep.  Sup.  p.  363.  The  defendant  has  laid  two  railroad  tracks  in 
Kinney  Street,  and  intends  to  lay  two  others  in  Belmont  Avenue. 
One  of  those  laid  in  Kinney  Street  is  on  that  part  of  the  street  in 
which  the  complainant  owns  the  fee  of  the  land.  No  claim  is  made 
that  these  tracks  were  put  down  without  authorit}'  of  law,  or  in 
violation  of  the  complainant's  rights.  The}'  are  unquestionably  law- 
ful structures.  They  were  put  down  by  permission  of  the  city  au- 
thorities and  under  their  supervision.  The  defendant  intends  to 
use  electricity  as  the  propelling  power  of  its  cars,  and  for  the  pur- 
pose of  applying  this  force  to  the  motors  on  its  cars,  it  has,  with 
the  permission  of  the  city  authorities,  erected  three  iron  poles  in 
the  centre  of  Kinne}'  Street  and  strung  wires  thereon.  The  poles 
stand  parti V  on  the  complainant's  land.  The  erection  of  these  poles 
and  the  use  to  which  the  defendant  intends  to  appl}'  them  constitutes 
the  only  ground  on  which  the  complainant  rests  his  right  to  the  relief 
he  asks.  The  bill  describes  these  three  poles  as  standing  one  hundred 
and  eleven  feet  distant  from  each  other,  about  twenty  feet  in  height, 
ten  inches  by  six  in  diameter  at  the  base,  set  in  a  guard  or  frame,  in 
the  form  of  an  inverted  cup,  which  at  its  base  is  twentj'-two  inches  by 
eigliteen  in  diameter.  .  .  .  The  poles  were  erected  without  the  consent 
of  the  complainant  and  without  compensation  to  him.  No  compensa- 
tion is  intended  to  be  made.  The  complainant  insists  that  the  erection 
of  the  poles  imposed  a  new  and  additional  servitude  on  his  land  in  the 
street;  in  other  words,  that  his  land,  by  the  erection  of  the  poles,  has 
been  appropriated  to  a  purpose  for  which  the  public  have  no  right  to 
use  it.  .  .  . 

The  question  on  wliich  the  decision  of  the  case  must  turn  is  this : 
Has  the  complainant's  land  in  the  street  been  appropriated  to  a  pur- 
pose for  which  the  public  have  no  right  to  use  it?    It  is  of  the  first 


1152         HALSEY   V.    IIAPID   TRANSIT   STREET   RAILWAY   CO.       [cilAP.  VI. 

importance  in  discussing  this  question  to  keep  constantly  before  the 
mind  the  fact  that  the  locus  in  quo  is  a  public  highway,  where  the 
public  right  of  free  passage,  common  to  ail  the  people,  is  the  prisiary 
and  superior  right.  The  complainant  has  a  right  in  the  same  land. 
He  holds  the  fee  subject  to  the  public  easement.  But  his  right  is  sub- 
ordinate to  that  of  the  public,  and  so  insignificant/  when  contrasted 
with  that  of  the  public,  that  it  has  been  declared  to  be  practically  with- 
out the  least  beneficial  interest.  Mr.  Justice  Depue,  in  pronouncing  the 
judgment  of  the  Court  of  Errors  and  Appeals  in  Ilohohen  Land  and 
Improvement  Co.  \.  Ilobokefi,  7  Vr.  540,581,  said:  "With  respect 
to  land,  over  which  streets  have  been  laid,  the  ownership  for  all  sub- 
stantial purposes  is  in  the  public.  Nothing  remains  in  the  original 
proprietor  but  the  naked  fee,  which  on  the  assertion  of  the  public  riglit 
is  divested  of  all  beneficial  interest."  This  view  was  subsequently  en- 
forced b3'  the  same  court  in  Sullivan  v.  North  Hudson  B.  M.  Co.^  22 
Vr.  518,  543.  Both  the  nature  and  extent  of  the  public  right  are  well 
defined.  Lands  taken  for  streets  are  taken  for  all  time,  and  if  taken 
upon  compensation,  compensation  is  made  to  the  owner  once  for  all. 
His  compensation  is  awarded  on  the  basis  that  he  is  to  be  deprived 
pei'petually  of  his  land.  The  lands  are  acquired  for  the  purpose  of  pro- 
viding a  means  of  free  passage,  common  to  all  the  people,  and  conse- 
quently may  be  rightfully  used  in  any  way  that  will  subserve  that 
purpose.  By  the  taking  the  public  acquire  a  right  of  free  passage  over 
ever}'  part  of  the  land,  not  only  by  the  moans  in  use  when  the  lands 
were  taken,  but  b}"  such  other  means  as  the  improvements  of  the  age, 
and  new  wants,  arising  out  of  an  increase  in  population  or  an  enlarge- 
ment of  business,  may  render  necessary.  It  is  perfectly  consistent 
with  the  purposes  for  which  streets  are  acquired  that  the  public  au- 
thorities should  adapt  them,  in  their  use,  to  the  improvements  and 
conveniences  of  the  age.  Morris  and  Essex  li.  li.  Co.  v.  JVeicurk,  2 
Stock.  352,  357.  This  is  the  principle  on  which  it  has  been  held  that 
a  street  railwa}',  operated  b}'  animal  power,  does  not  impose  a  new  ser- 
vitude on  the  land  in  the  street,  but  is,  on  the  contrar}',  a  legitimate 
exercise  of  the  right  of  public  passage.  Such  use,  though  it  may  be  a 
new  and  improved  use,  still  is  just  such  a  use  as  comes  precisely  within 
the  purposes  for  which  the  public  acquired  the  land.  Chancellor  Wil- 
liamson, speaking  on  this  subject  in  the  case  last  cited,  said  in  sub- 
stance (p.  558),  the  authoritv  to  use  a  public  highway  for  the  purpose 
of  a  railroad,  retaining  the  use  of  such  highway  for  all  ordinar}'  pur- 
poses, subject  onl}'  to  the  inconvenience  of  the  railroad,  is  not  such  a 
taking  of  private  propert}'  from  the  owner  of  the  fee  of  the  adjacent 
land  as  is  prohibited  b}-  the  Constitution.  The  easement  of  the 
highway  is  in  the  public,  although  the  fee  is  technically  in  the  adjacent 
owner.  It  is  the  easement  only  which  is  appropriated,  and  no  right  of 
the  owner  is  interfered  with.  While  the  street  is  preserved  as  a  com- 
mon public  highway,  the  use  of  it  does  not  belong  to  the  owner  of  the 
land  abutting  on  it  any  more  than  it  does  to  any  other  individual  of  the 


CHAP.  VI,]       HALSEY   V.    RAPID   TRANSIT   STREET   RAILWAY    CO.         1153 

communitv.  The  legislature,  therefore,  does  not,  by  permitting  a  rail- 
road company  to  use  the  highway  in  common  with  the  pul)lie,  take 
away  froui  the  land-owner  anything  that  belongs  to  him.  It  is  not  a 
misappropriation  of  the  way.  It  is  used,  in  addition  to  the  ordinary 
mode,  in  an  improved  mode  for  tlie  people  to  pass  and  repass.  This 
exposition  of  the  law,  so  far  as  it  concerns  horse  railroads,  has  been 
approved  as  correct  in  all  subsequent  cases.  As  I  understand  the  ad- 
judications of  this  State,  this  principle  must  be  considered  authorita- 
tively established,  that  any  use  of  a  street  which  is  limited  to  an 
exercise  of  the  right  of  public  passage,  and  which  is  confined  to  a 
mere  use  of  the  iwblic  easement,  whether  it  be  by  old  methods  or  new, 
and  which  does  not  tend,  in  any  substiintial  respect,  to  destroy  the 
street  as  a  means  of  free  passage,  common  to  all  the  people,  is  per- 
fectly legitimate.  Such  use  invades  no  right  of  the  abutting  owners , 
it  takes  nothing  from  them  which  the  law  reserved  to  the  original  pro- 
prietor when  his  land  was  taken  ;  it  is  simply  a  user  of  a  right  already 
fully  vested  in  the  public,  and  consequently,  by  its  exercise,  nothing  is 
taken  from  the  abutting  owners  which  can  be  made  the  basis  of  addi- 
tional compensation. 

It  is  not  denied  that  the  railway  tracks  which  the  defendant  has  laid 
on  the  complainant's  land  were  placed  there  by  authority  of  law,  nor 
that  the  defendant  has  a  legal  riglit  to  use  them  in  the  transportation 
of  passengers,  but  the  complainanfs  claim  is  this :  that  by  the  erectipn 
of  the  three  poles,  his  land  in  the  street  has  been  appropriated  to  a  use 
entirely  outside  of  the  public  easement,  and  that  it  follows,  as  a  neces- 
sary legal  consequence,  that  such  use  constitutes  a  wrongful  taking  of 
his'^property.     Stated  more  briefly,  his  claim  is,  that  the  erection  of  the 
poles  puts  an  additional  servitude  on   his  land,  and  attempts  to  give 
the  public  a  right  in  his  land  which,  as  yet,  has  not  been  acquired,  nor 
paid  for.     That  the  poles  will,  to  a  trifling  extent,  obstruct  public  travel 
and  prevent  infinitesimal  parts  of  the  street  from  being  used  as  a  means 
of  free  passage,  is  a  fact  which  cannot  be  denied,  but  there  is  nothing  in 
this  situation^of  aff'airs  which  entitles  the  complainant  to  the  aid  of  a 
court  of  equity,  unless  it  is  made  to  appear  that  the  nuisance  thus  cre- 
ated results   in   some  substantial   injury  to   him,  different  from  that 
suffered  by  the  public  at  large,  and   that  the  damage  which  he   will 
sustain  in  consequence  of  the  nuisance  is  irreparable  in  its  character. 
The  rule  on   this  subject  is  settled.     An  individual  has   no  right  of 
action,  in  cases  of  nuisance  created  by  obstructing  a  highway,  unless 
he  suffers  some  private,  direct,  and  material  damage  beyond  the  public 
at  large,  as  well  as  damage  otherwise  irreparable.     Mere  diminution 
of  the°value  of  the  property  of  the  party  complaining,  by  the  nuisance, 
without  irreparable  mischief,  will  not  furnish  any  foundation  for  equit- 
able relief.     Morris  a7id  Essex  E.  B.  Co.  v.  Prudden,  5  C.  E.  Gr. 
530,  537.  .  .  . 

The  court  might  very  properly,  I  think,  at  this  point  deny  the  com- 
plainant's application,  on  the  ground  that  he  has  shown  no  such  injury 
VOL.  I.  —  73 


1154         HALSEY   V.    RAPID   TKANSIT   STREET    RAILWAY   CO.       [CIIAI".  VI. 

as  entitles  him  to  relief  by  injunction,  but  as  this  course  would  leave 
the  principal  question  of  the  case  untleeitU'il,  it  .should  not,  in  ni}-  judfj^- 
uient,  be  adopted.  The  litigants,  I  thiid<,  are  entilU-d  to  a  decision  on 
the  question,  whether  or  not  the  coni[)lainant'8  land  in  the  street  has 
been  appropriated,  by  the  erection  of  the  poles,  to  a  use  not  within  the 
public  easeinent.  That  is  the  question  which  received  the  principal  at- 
tention of  counsel  on  the  argument,  and  which  has  occu[)ied  the  greater 
part  of  the  time  devoted  to  the  consideration  of  the  case. 

The  right  of  the  defendant  to  use  electricity  as  its  motive-power  is 
clear.  The  defendant  was  organized  under  a  general  statute,  author- 
izing seven  or  more  persons  to  associate  themselves  together,  by  articles 
in  writing,  for  the  purpose  of  forming  a  corporation  to  construct,  main- 
tain, and  operate  a  street  railway  for  the  transportation  of  passengers. 
Rev.  Sup.  p.  3G.J.  The  motive-power  to  be  used  by  corporations  formed 
under  this  statute  is  in  no  way  limited  or  defined  ;  the  statute  does  not 
say  that  the}'  shall  use  animal,  mechanical,  or  chemical  power  ;  it  says 
nothing  at  all  on  the  subject  of  i)Ower ;  hence,  under  the  general  grant 
of  power  to  maintain  and  ojjcrate  a  street  railway,  it  would  seem  to  be 
clear  that  a  corporation  formed  under  this  statute  takes,  by  necessary 
and  unavoidable  implication,  a  right  to  use  any  force,  in  the  propulsion 
of  its  cars,  that  may  be  fit  and  appropriate  to  that  end,  and  which  does 
not  prevent  that  part  of  the  public  which  desires  to  use  the  street, 
according  to  other  customary  methods,  from  having  the  free  and  safe 
use  thereof  While  the  rule  is  elementary  that  public  grants  arc  to  be 
strictly  construed,  still  it  is  also  well  established,  tliat  where  a  corpo- 
ration is  authorized,  by  a  general  grant,  to  exercise  a  franchise  or  to 
carry  on  a  business,  and  the  grant  contains  no  words  either  defining 
or  limiting  the  powers  which  the  corporation  may  exercise,  it  will  take, 
by  implication,  all  such  powers  as  are  reasonably  necessary  to  enable 
it  to  accomplish  the  purposes  of  its  creation,  I  am,  therefore,  of 
opinion,  that  if  there  was  no  other  legislation  on  this  subject  than  that 
just  mentioned,  and  that  it  was  made  to  appear  that  electricity  could 
be  used  for  the  propulsion  of  street  cars  without  preventing  the  free 
and  safe  use  of  the  street  b}'  other  means  of  transportation,  the  defend- 
ant would,  by  force  of  the  statute  under  which  it  was  organized,  have 
a  right  to  use  electricity  as  its  motive-power.  But  there  is  otiier  legis- 
lation on  this  sul>ject.  Just  a  month  prior  to  the  approval  of  the  statute 
under  which  the  defendant  was  organized,  another  statute  was  passed, 
which  declares  that  any  street  railway  company  in  this  State  may  use 
electric  motors  as  the  propelling  power  of  its  cars  instead  of  horses ; 
provided,  it  shall  first  obtain  the  consent  of  the  proper  municipal  au- 
thorit}'  to  use  such  motors.     Rev.  Sup.  p.  369,  §  30.   .  .   . 

By  the  terms  of  the  statute  just  construed,  no  street  railwiy  cor- 
poration can  use  electricit}'  as  its  motive-power  until  it  has  obtained 
the  consent  of  the  proper  municipal  authority.  The  defendant  has 
such  consent.  It  was  given  by  resolution  adopted  b}-  the  common 
council  and  approved  b}-  the  mayor.     The  complainant  contends  that 


CHAP.  VI.]       HALSEY   V.    RAPID    TRANSIT   STREET    RAILWAY   CO.         1155 

consent  cannot  be  given  by  resolution,  and  insists  that  the  munici- 
pality, in  such  a  matter,  can  only  act  by  ordinance.  But  the  rule,  accord- 
ing to  the  adjudged  cases,  is  firmly  settled  the  other  way,  and  may  be 
stated  as  follows  :  Where  a  statute  commits  the  decision  of  a  matter 
to  the  common  council  or  other  legislative  body  of  a  cit}',  and  is  silent 
as  to  the  method  in  which  the  decision  shall  be  made,  it  may  be  made 
either  bv  resolution  or  ordinance.  Or  —  to  state  the  rule  in  another 
furm  —  where  no  method  is  prescribed  in  which  a  municipality  shall 
exercise  its  power,  but  it  is  left  free  to  determine  the  method  for  itself, 
it  may  act  either  by  resolution  or  ordinance.  One  method  is  just  as 
effectual  in  point  of  law  as  the  other.  /State  v.  Jersey  City,  3  Dutch. 
493  ;  City  of  Burlington  v.  Denuison,  13  Vr.  165  ;  Butler  v.  Passaic, 
15  Vr.  171. 

In  view  of  the  legislation  and  the  action  of  the  city  authorities  just 
discussed,  it  would  seem  to  be  clear,  that  the  right  of  the  defendant 
to  use  electricit}'  as  its  motive-power  stands,  at  least  so  far  as  the 
public  are  concerned,  on  a  sure  foundation.  The  poles  and  wires  are 
to  be  used  to  apply  electricitv  to  the  motors  on  the  cars.  They  form  a 
part  of  what  is  called  the  overhead  system.  In  the  present  state  of  the 
art,  they  constitute  a  part  of  the  best,  if  not  the  onl}-  means,  by  which 
electricity  can  be  successfully  used  for  street-car  propulsion.  The 
proof  on  this  point  is  decisive.  Thomas  A.  l^dison  is  perhaps  the 
highest  authority  on  this  subject  in  this  country.  lie  says,  in  an  affi- 
davit annexed  to  the  defendant's  answer,  that  the  only  method  of  ap- 
plying electricity  for  street-car  propulsion  which,  up  to  the  present 
time,  has  proved  successful,  electricall}'  an<l  commercially,  is  what  is 
known  in  the  art  as  the  overhead  system,  whereby  electricity  is  supplied 
to  the  motors  on  the  cars  from  wires  suspended  above  the  cars.  Other 
electricians  say  the  same  thing.  The  proofs  also  show,  that  there 
are  over  two  hundred  electric  street  railways  in  the  United  States 
cither  in  operation  or  in  course  of  construction,  and  that  of  those  in 
operation  nearly  all  use  the  overhead  system.  That,  according  to  the 
proofs,  is  the  best  system,  and  the  one  in  general  use,  and  the  onl}'  one 
which,  as  3'et,  has  proved  successful.  The  facts  just  stated  are  in  no 
way  controverted,  so,  as  the  proofs  now  stand,  the  court  is  bound  to 
declare,  as  an  established  fact,  that  the  poles  and  wires  are,  in  the 
present  state  of  the  electric  art,  necessary  to  the  successful  operation 
of  the  defendant's  railwa}-  by  electricit}-.  The  poles  and  wires  are  to 
be  used  as  helps  to  the  public  in  exercising  their  right  of  passage  over 
the  street.  They  form  part  of  the  means  by  which  a  new  power,  to  be 
used  in  the  place  of  animal  power,  is  to  be  supplied  for  the  propulsion 
of  street  cars,  and  they  have  been  placed  in  the  street  to  facilitate  its 
use  as  a  public  wav  and  thus  add  to  its  utility  and  convenience. 
The  whole  matter  may  be  summed  up  in  a  single  sentence :  the  poles 
and  wires  have  been  placed  in  the  street  to  aid  the  public  in  exercising 
their  right  of  free  passage  over  the  street.  That  being  so,  it  seems 
to  me  to  be  clear  beyond  question,  that  the  poles  and  wires  do  not  im- 


1156         HALSEY  V.   RAPID   TRANSIT   STREET   RAILWAY   CO.       [ciIAP.  VI. 

pose  a  new  burden  on  the  land,  but  must,  on  the  contrary,  be  regarded, 
both  in  law  and  reason,  as  legitimate  accessories  to  the  use  of  the  land 
for  the  very  purposes  for  which  it  was  acquired.  They  are  to  be  used 
for  the  propulsion  of  street  cars,  and  the  riglit  of  the  public  to  use  the 
streets  b^-  means  of  street  cars,  without  making  compensation  to  the 
owners  of  the  naked  fee  in  the  street,  is  now  so  thoroughly  settled  as 
to  be  no  longer  open  to  debate.  It  would  seem  then  to  be  entirely 
certain,  that  the  occupation  of  the  street  by  the  poles  and  wires  takes 
nothing  from  the  complainant  which  the  law  reserved  to  the  original 
proprietor  when  the  public  easement  was  acquired.  This  view  is  in 
strict  accord  with  the  uniform  current  of  judicial  opinion  on  this  sub- 
ject. The  question  presented  here  for  judgment  has  already  been 
considered  b}-  the  Supreme  Court  of  Rhode  Island  in  TcKjgart  v.  New- 
jyort  Street  Railway  Co.,  19  Atl.  Rep.  326,  and  by  the  Circuit  Court  of 
the  United  States  for  the  eastern  district  of  Arkansas  in  Williams  v. 
Citi/  Electric  Street  Railway  Co.,  41  Fed.  Rep.  556,  and  by  local 
coiu'ts  in  Kentucky,  Ohio,  and  Indiana,  and  in  each  instance  the  de- 
cision has  been  that  the  placing  of  the  poles  and  wires  in  the  street, 
for  the  purpose  of  propelling  street  cars  by  electricit}',  did  not  impose 
a  new  servitude  on  the  land,  nor  aj)propriate  the  land  to  a  use  not 
within  the  public  easement.  Tlie  decision  in  these  cases  was  i)laccd 
upon  this  manifestly  just  principle :  that  the  question,  whether  a 
new  method  of  using  a  street  for  public  travel  results  in  the  imposition 
of  an  additional  burden  on  the  land  or  not,  must  be  determined  b}' 
the  use  which  the  new  method  makes  of  the  street,  and  not  by  the 
motive-power  which  it  employs  in  such  use.  The  use  is  the  test  and 
not  the  motive-power.  And  this  principle  exhibits,  in  a  ver^'  clear 
light,  the  reason  why  it  has  been  held  that  the  placing  of  telegraph  and 
telephone  poles  in  the  street  imposes  an  additional  servitude  on  the 
land.  They  are  not  placed  in  the  street  to  aid  the  pul)lic  in  exercising 
their  right  of  free  passage,  nor  to  facilitate  the  use  of  tiie  street  as  a 
public  way,  but  to  aid  in  the  transmission  of  intelligence.  Although 
our  public  highways  have  always  been  used  for  carrying  the  mails  and 
for  the  promotion  of  other  like  means  of  communication,  yet  the  use  of 
them  for  a  like  pin-pose,  b}'  means  of  the  telegraph  and  telephone, 
differs  so  essentially,  in  every  material  respect,  from  their  general  and 
ordinary  uses,  that  the  general  current  of  judicial  authorit}' has  declared 
that  it  was  not  within  the  public  easement.  Massachusetts  has,  how- 
ever, by  a  divided  court,  held  otherwise.  Pierce  v.  Drew,  136  Mass. 
75.  .  .  . 

The  poles  and  wires  .  .  .  are  designed  to  facilitate  the  use  of  the  streets 
as  means  of  public  passage,  and  thus  increase  their  utility  and  conveni- 
ence to  the  public.  But  I  do  not  believe  it  is  possible  to  imagine  any 
condition  of  facts  which  would  make  it  lawful  to  erect  a  building,  to  be 
used  as  a  dwelling,  in  a  public  way.  Such  use  of  the  land  would  un- 
doubtedl}'  be  entirely  foreign  to  the  purposes  for  which  it  was  acquired. 
There  can,  however,  be  no  doubt,  I  think,  that  erections  maj-  be  law- 


CHAP.  \I.]       HALSEY   V.   RAPID   TRANSIT    STREET    RAILWAY   CO.  1157 

fully  made  in  the  streets  of  a  city  for  the  purpose  of  lighting  them. 
They  must  be  lighted  at  night  to  make  their  use  safe  and  convenient, 
and  to  prevent  lawlessness  and  crime.  By  the  charter  of  Newark,  power 
is  given  to  its  governing  body,  b}'  express  words,  to  light  the  streets, 
parks,  and  other  public  places.  I  have  no  doubt  that  in  virtue  of  this 
power  the  city  has  the  right  to  erect  poles  in  the  street  just  where  the 
poles  in  question  are.  The  poles  in  question  are  m  fact  to  be  used  for 
the  purpose  of  lighting  the  street.  One  of  the  conditions  on  which  the 
city  gave  its  consent  to  the  erection  of  the  poles  is,  that  the  defendant 
shall  place  on  every  other  pole  a  group  of  five  incandescent  lights,  of  six- 
teen candle-power  each,  and  furnish  such  light  every  night.  This  use 
of  the  poles  and  wires  would,  in  my  judgment,  legalize  their  erection, 
but  this  is  not  their  primary  use.  They  were  erected  primarily  and 
principally  to  facilitate  the  use  of  the  street  and  add  to  its  convenience 
as  a  public  way,  and  it  is  upon  this  ground  that  I  think  it  should  be 
declared  that  their  presence  in  the  street  invades  uo  right  of  the 
complainant. 

The  averment  that  the  use  of  electricit}'  by  the  defendant,  as  its  pro- 
pelling i)Ower,  will  render  the  street  so  extremely  dangerous  as  practi- 
cally to  destroy  it  as  a  public  way  for  any  other  use  than  that  which 
the  defendant  ma}'  make  of  it,  is  not  supported  b}-  the  proofs  ;  on  the 
contrary,  I  think  it  is  veiy  clearly  shown,  that  an  electric  current  of  the 
volume  the  defendant  will  use,  may  be  used  with  entire  safet}'  to 
everybody. 

The  complainant's  application  must  be  denied,  with  costs.^ 

1  And  so  Patterson  Ry.  Co.  v.  Grundii,  26  Atl.  Rep.  788  (N.  J.  Ch.  1893) ;  Tarjgart 
et  al.  V.  Newp.  St.  Ri/.  Co.,  16  R.  I.  668  (1890)  ;  Dean  v.  Ann  Arhnr  St.  Ri/.  Co.,  93 
Mich.  330  (1892) ;  aff 'g  Det.  Ry.  v.  Mil/s,  85  Mich.  634  (1891).  See  Poles  and  Wires,* 
Ilarv.  Law  Rev.  245 ;  Keasbey,  Electric  Wires  in  Streets,  cc.  vi-xi.  ;  Randolph,  Em. 
Doni.  s.  403. 

In  Went  Jersey  Ri/.  Co.  v.  Camden,  ^-c.  Ry.  Co.,  29  Atl.  Rep.  423,424  (N.  .J.,  June, 
1894),  the  court  (McGill,  Chancellor),  in  dissolvinjr  an  injunct*ion,  said  :  "  The  com- 
plainant seeks  to  su.stain  the  injunction  it  has  obtained  as  a  protection  at^ainst  the 
invasion  of  its  property  rights  which,  under  the  Constitution,  cannot  be  appropriat!<:>d  by 
the  street  railway  witliout  authority  of  law,  and  upon  compensation.  The  rights  which 
it  deems  to  be  threatened  arise  from  its  status,  —  first,  as  tlie  owner  of  the  fee  of  land 
occupied  by  Cooper  Street;  and,  second,  as  the  owner  of  a  steam  railroad  authorized 
to  cross  that  street.  The  ownership  of  the  fee  in  the  soil  in  the  public  street  is  sub- 
ordinate to  the  public  use  thereof  for  the  purposes  of  a  highway.  That  use  is  an 
easement  of  passage  by  every  one  over  the  highway,  and  every  part  of  it,  by  any 
means  which  will  not  substantially  and  permanently  exclude  any  one  from  the 
enjoyment  of  that  common  right.  The  means  by  which  such  use  is  to  be  law- 
fully had  cannot  be  particularly  defined,  because,  as  suggested  by  Vice-Chan- 
cellor Van  Fleet,  in  Nnhey  v"  Railway  Co.,  47  N.  J.  Eq.  380,  20  Atl.  859, 
they  will  be  as  numorous  as  the  improvements  of  the  age  and  new  wants,  arising 
out  of  an  increase  in  population  or  an  enlargement  of  business,  may  render  neces- 
sary. It  has  been  repeatedly  declared  by  the  courts  of  this  State  that  the  use  of 
the  public  easement  of  a  highway  by  a  horse  railway  is  a  lawful  servitude,  and 
therefore  is  not  a  new  burden  of  the  soil  for  which  compensation  must  be  made 
to  the  owner,  the  reason  being  that  it  is  a  convenient  and  beneficial  means  of  pas- 
sage to  the  public  which  does  not  prevent  the  accustomed  use   of  the  highway  by 


1158  HALSEY   V.    RAPID    TRANSIT   STHKET    RAILWAY   CO.       [CHAP,  VL 

others  On  the  contrary,  it  so accoininoiliites  and  facilitatts  tliat  use  that  il  uiuru  lliaa 
coiiipcusates  for  the  slight  iucuuvenieni'e  tliat  its  rails  and  the  necesnity  of  permilling 
It  to  have  the  right  of  way  over  ordinary  vehicles  occasion.  It  is  a  means  of  use  whii  li 
Btauds  in  nuirked  distinction  from  the  steam  railway  (though  the  difference  is  ouly  iu 
degree),  wliose  raised  rails,  noise,  speeil,  and  accompanying  daugt-r  have  led  the  courts 
to  declare  it  to  be  incompatible  with  the  common  use  of  tiie  highway,  and  therefore  au 
additional  servitude,  for  wiiich  the  owuer  of  the  soil  must  be  compensated.  Cilhtiis' 
t'uurli  Co.  V.  Camden  Horse  R.  Co.,  33  N.  J.  Kq.  207.  The  electric  street  railwav,  as 
uow  ordiuarily  in  use,  by  cars  patterned  iu  style  and  size  after  the  horse  railway  car, 
stands,  as  a  means  of  using  the  highway,  iu  degree,  between  the  horse  and  the  steaiu 
railways  As  iu  case  of  the  horse  railway,  its  rails  do  i.ol  materially  interfere  with 
the  ordiuary  use  of  the  highway.  While  its  motive-power,  as  usually  aj. plied,  e.xcceds 
iu  capacity  that  of  the  horse  railway,  and  the  noise  aud  danger  atteuding  its  ojieration 
are  greater,  they  do  not  exteud  to  the  power,  uoise,  aud  danger  of  the  steam  locomo- 
tive, with  its  attendant  traiu  of  cars.  Its  capacity  for  speed  is  great,  but  that  is  subject 
to  nmnicipal  control.  1  do  not  uow  deal  with  the  future  possibilities  of  the  elec- 
tric railway.  It  uniy  readily  be  conceived  that  the  greater  motive-power  it  possesses 
may  some  time  induce  an  attempt  to  use  the  highways  by  trains  of  cars,  or  by  rails  and 
cars  of  sucii  character  aud  size  as  to  practically  work  all  e\  lis  of  the  steam  railway, 
aud  that  there  will  be  inaugurated  .systems  of  through  cars,  in  furtherance  of  nipid  tran- 
sit between  distaut  points,  which  will  crowd  and  burden  the  street  to  the  inconvenience 
and  obstruction  of  its  other  uses,  without  any  accommodation  to  the  ordinary  local  u.se 
of  the  street,  aud  thus  the  degree  of  incomj)atibility  with  the  common  u.se  may  be  so 
raised  that  the  courts  will  be  obliged  to  distinguish  between  methods  of  use,  and  de- 
clare agaiust  some  as  creating  an  additional  servitude  of  the  land  occupied  by  the 
highway,  the  crucial  test  for  that  distinction  being  whether  the  use  contemplated  is 
comi)atiblc  with  the  j)urposc  for  which  the  common  highway  was  originally  designed. 
But  such  use  is  not  at  present  the  normal  operation  of  tlie  electric  street  railway,  and  it 
is  not  claimed  that  anv  such  abnormal  conditions  exist  in  the  case  underconsideratiou. 

"  Basing  their  conclusions  uixm  the  contenii)lation  of  the  customary  u.se  of  the  elec- 
tric street  railwav,  the  courts  have  regarded  tliat,  as  ojterated  l)y  the  trolley  system,  it 
is  not  an  additional  burden  upon  the  soil  in  the  common  highway.  Ilalsey  v.  Railway 
Co.,  supra;  Tni/qart  v.  Ralluai/  Co,  16  H.  I.  G68,  19  Atl  320;  Rallwaij  Co  v.  Mills, ^b 
Mich.  6.'34,  48  N.  W.  1007  ,  Lock  hart  v.  Raihcai/  Co.,  \:\0  Pa.  St.  419.  21  Atl  26; 
Hudson  Eiver  Tel  Co.  v.  Watervliet  Tuminke  and  R,/.  Co.,  135  N.  Y.  393,  407.  32  N. 
E.  148;  Raihrai/  Co.  v.  Winslow,  3  (>\uo  Cir.  Ct  K.  425.  The  first  cited  of  these 
ca?e.s  i.s  the  utterance  of  this  court.  But  it  is  a  work  of  supererog.ation  at  this  time 
to  treat  this  question<is  more  than  an  unsettled  and  doubtful  one.  It  is  at  least  that. 
The  present  apjilicntion  is  to  di.ssolvc  a  ]ireliiiiiiiary  injunction  which  will  not  be  suf- 
fered to  stand  in  the  protection  of  the  (omplaiiiant  from  a  use  of  the  street  by  the 
defendant  which  may  or  may  not  invade  its  property  rights.  Unless  the  iuva-sion  be 
clear,  the  injunction  must  be  di.s.«olvcd.  Cilnms'  Coadi  Co.  v.  Camden  Horse  R.  Co., 
supra  :  Hagerti/  v.  f.ee,  45  N.  J.  Eq.  255,  17  Atl.  826. 

"  But  it  is  urged  that  the  poles  planted  within  the  curb  lines  of  the  sidewalk  to 
support  the  overhead  wires,  are  at  least  an  inva.sion  of  private  property.  The  side- 
walks are  p.nrts  of  the  highway,  snlject  to  the  public  easement.  They  are  set  apart 
principally  for  n.se  by  pedestrians.  They  are  defined  by  the  curb  lines  beyond  which 
vehicles  may  not  go,  and  .at  which,  experience  has  taught,  lamp,  hitching,  and  awning 
posts,  sliade  trees,  and  the  like.  ni,av  lie  planted  without  inconvenience  either  to  pedes- 
trians or  vehicles.  At  that  place  the  lamp-j'ost,  which  provides  a  means  to  light  the 
highway  and  thus  facilitate  its  use,  has  not  been  regarded  .as  an  additional  burden 
upon  the  soil,  and,  upon  similar  consideration,  it  becomes  difficult  to  perceive  wh}-  the 
poles  which  .acconimod.ate  a  convenient  use  of  the  highw.ay  by  a  street  railw.ay  are  to 
be  regarded  differently.  It  is  to  be  rememberc<l,  however,  that  the  .abutting  land-owner 
ordinarily  has  something  more  of  property  than  the  ownership  of  the  mere  fee  of  the 
soil  in  the  sidewalk.  By  the  laws  and  us.ages  of  the  State  the  sidew.alk  has  in  a  de- 
gree been  regarded  as  an  appendage  to  and  a  part  of  the  premises  .abutting  upon  it, 
and  as  so  essential  to  the  beneficial  use  of  such  premises  that  its  improvement  is  prop- 


CHA1\  VI.]  STREET   RAILWAY   CO.   V.   DOYLE.  1159 


STREET   RAILWAY   COMPANY  v.  DOYLE. 
Supreme  Court  of  Tennessee.     1890. 

[88  T^nn.  747.] 

Appeal  in  error  from  Circuit  Court  of  Shelby  Count}-,  L.  H.  Estes,  J. 
Tarley  &  Wright  ami  Myers  &  Sneed^  for  Street  Railway  Company. 
F.  P.  Edmonson  and  J.  P.  Houston,  for  Doyle. 

Caldwell,  J.  Action  of  Doyle,  an  abutting  lot-owner,  to  recover 
damages  from  the  East  End  Street  Railway  Company  for  the  alleged 
wrongful  and  unlawful  construction  and  operation  of  its  railway  line 
along  and  upon  the  highway  in  front  of  his  property.  Verdict  and 
judgment  for  plaintiflf,  and  appeal  in  error  by  defendant. 

On  the  trial  below  the  defendant  requested  the  trial  judge  to  instruct 
tlie  jury  as  follows:  ''If  the  jury  find  that  the  defendant  constructed 
its  road  through  a  part  of  the  city  to  a  point  five  miles  into  the  country, 
in  accordance  with  its  contract  with  the  city  and  county,  road  [its 
cars]  being  propelled  by  a  steam  motor,  and  used  only  for  carrying 
passengers,  stopping  at  street  crossings  to  take  on  j^assengers,  then 
the  court  charges  you  that  its  construction  is  not  an  additional  servi- 
tude upon  the  streets  or  public  roads  from  that  contemplated  in  the 
dedication." 

Tiie  court  refused  to  give  this  instruction,  and  his  action  in  that 
behalf  is  assigned  as  error. 

This  presents  the  question  reserved  in  the  Smith  case  (3  Pickle, 
633),  namely:  Whether  a  railway,  whose  cars  are  propelled  by  "a 
dummy  steam-engine,"  and  used  for  passengers  only,  is  a  l)urden  or 
servitude  on  the  public  street  or  higliway  in  addition  to  that  contem- 
plated in  the  original  dedication  of  the  land  to  public  use.     The  reser- 

erly  imposed  upon  the  owner  of  the  abutting  land.  Halsey  v.  Railwai/  Co.,  supra  ; 
Slate  V.  Manor,  i^j-c,  37  N.  J.  Law,  415;  Wtlkr  v.  McCormick,  47  N.  J.  Law,  397,  1 
Atl.  516.  It  follows  that  if  such  improvement  of  the  sidewalk,  or  constructions  under 
it,  which  the  land-owner  shall  lawfully  make  in  pursuance  of  ids  duty  to  the  public, 
or  for  his  own  private  convenience,  be  expensive  in  character,  so  that  substantial  dam- 
age will  result  to  him  from  the  planting  of  the  trolley  poles,  a  serious  fiuestion  will 
arise  whether  there  will  not  l>e  a  taking  of  his  property  for  which  he  must  be  com- 
pensated, and  a  threatened  invasion  sufficiently  serious  to  induce  this  court's  interfer- 
ence. Hut  that  question  is  not  presented  in  this  case.  It  does  not  appear  that  the 
com.plainant  has  improved  the  sidewalk  in  front  of  its  property  so  that  the  planting  of 
the  poles  will  substantially  or  .seriously  damage  such  improvement,  or,  indeed,  that  it 
has  improved  them  at  all.  Another  consideration  borne  in  mind  is  that  the  abutting 
property  owner  has  the  right  of  ingress  to  and  egress  from  his  pro])erty  by  means  of 
tlie  street  in  a  manner  wliich  will  accord  with  the  lawful  purposes  to  whicli  he  devotes 
his  property,  and  also  to  a  reasonably  available  way  through  the  higliway  to  the  seve- 
ral -stories  of  his  building  in  cases  of  emergencies,  like  fire.  He  al.so  has  the  right  to 
light  and  air  from  the  highway.  And  he  cannot  be  deprived  of  either  of  these  rights 
by  the  placing  of  poles  or  erection  of  wires  without  compensation  being  made  to  him. 
Rnilwnii  Co.  v.  Grundy,  51  N.  J.  Eq.  213,  223,  26  Atl.  788.  No  question  touching 
these  rights  is  presented  at  this  time."  —  Ed. 


1160  STREET   RAILWAY   CO.   V.    DOYLE.  [CIIAP.  VI 

vation  was  made  in  tliat  case  because  the  plaintiff  therein  did  not  own 
the  ultimate  fee  in  the  street,  and  was  not,  tlierelbre,  in  an  atlitudi'  to 
be  affected  by  a  decision  of  the  question.  For  reasons  stated  in  that 
case  and  in  the  Bingham  case,  to  be  hereafter  cited,  an  al)utting  land- 
owner, whose  line  is  the  side  and  not  the  centre  of  the  }>nl>lic  highwav, 
is  not  entitled  to  compensation  for  the  imposition  of  an  adtlilional  bur- 
den on  the  ultimate  fee.  Not  owning  the  fee,  he  can  justly  claim  no 
compensation  for  its  impairment  by  a  new  burden  imposed  upon  it. 
That  is  a  matter  for  the  owner  of  the  estate,  out  of  which  the  pul)lic 
easement  was  originally  carvetl,  and  not  for  the  abutting  owner,  whose 
title-[)apers  take  him  only  to  the  side  of  the  highway,  as  was  true  in 
the  Bingham  and  Smith  cases. 

In  the  present  case  the  plaijitifFs  line  is  in  the  centre  of  the  highwav, 
and  to  tiiat  line  he  owns  the  ultimate  fee  ;  that  is.  he  has  such  owner- 
ship of  the  soil  that  he  may  resume  absolute  possession  and  dominion 
of  It  to  the  centre  of  the  highway  whenever  the  original  use  for  which 
the  highway  was  set  apart  shall  be  finally  abandoned. 

The  appropriation  vested  the  public  with  only  such  part  of  his  fee- 
simple  estate  as  was  necessary  to  the  full  enjtnnient  of  the  use  then 
in  contemi)lation.  Consequently  anything  which  diverts  the  iiighway 
from  that  use,  or  applies  it  to  another  or  different  use,  is  the  imposition 
of  an  additional  burden  on  the  reserved  estate  of  the  owner,  and  con- 
stitutes a  taking  of  his  property,  for  which  lie  may  demand  and  recover 
just  compensation. 

So,  then,  the  proposition  contained  in  the  request  for  special  instruc- 
tion is  a  material  one  in  this  case,  and  should  have  been  given  or 
refused,  as  it  may  be  sound  or  unsound  in  law. 

It  is  well  settled  that  an  ordinary  steam  or  commercial  railwa\'  is, 
and  that  an  ordinary  street  railway,  operated  with  horses,  is  not  an 
additional  servitude  on  the  ultimate  fee  in  the  public  street  or  highway, 
the  former  being  a  new  and  different  use,  while  the  latter  is  but  an 
improved  and  consistent  mode  of  enjoying  the  original  or  ordinary  use. 
Bingham,  v.  BdiWoad,  3  Pickle,  522  ;  Smith  v.  Street  Railroad,  lb., 
633,  and  authorities  cited. 

The  distinction  between  the  use  by  the  commercial  railway  and  that 
b}'  the  horse  railway  is  so  wide  and  plain  that  it  needs  no  further  com- 
ment or  illustration. 

Confessedl}',  the  railway  involved  in  this  ca-se  is  on  the  line  between 
the  two  —  the  equivalent  of  neither,  but  partaking  largeh-  of  the  nature 
of  both.  Like  those  upon  the  commercial  railway,  its  cars  are  pro- 
pelled by  a  steam-engine,  with  its  nnavoidal)le  smoke,  noise,  and  vibra- 
tion, though  in  a  less  degree;  and,  like  the  horse-car  line,  it  transports 
passengers  only,  stopping  at  short  intervals  upon  the  highway  to  take 
them  on  and  let  them  off,  while  the  commercial  railway  carries  both 
passengers  and  other  freight,  receiving  and  discharging  them  at  regular 
depots  farther  apart. 

The  size,  weight,  and  speed  of  appellant's  trains  (consisting  usually 


CHAP.  VI.]  STREET   RAILWAY   CO.    V.    DOYLE.  1161 

of  a  small  "  boxed"  engine  and  two  coaches)  are  much  less  than  those 
of  the  commercial  railway  trains;  but,  at  the  same  time,  its  trains  are 
much  larger,  heavier,  and  more  rapid  in  transit  than  the  ordinary  horse- 
car.  Alike,  the  commercial  railway  and  that  operated  by  the  appellant 
are  obvious  hindrances  to  other  modes  of  travel  and  traffic  rightfully 
enjoyed  upon  the  public  highway;  alike,  they  endanger  the  lives  and 
property  of  individuals,  for  whom,  in  the  aggregate,  the  original  dedi- 
cation or  condemnation  was  made.  There  is  a  difference,  it  is  true ; 
but  the  difference  is  in  the  degree  and  not  in  the  kind  of  interruption 
and  peril. 

From  the  very  nature  of  the  case  it  is  perfectly  manifest  to  our  minds 
that  the  presence  of  appellant's  track  and  trains  is  entirely  inconsistent 
with,  and  a  perpetual  embarrassment  to,  the  ordinary  use  of  the  public 
highway. 

It  is  utterly  impossible  to  operate  such  a  railway  with  such  trains 
without  greatly  obstructing  and  rendering  more  dangerous  other  busi- 
ness and  travel  usually  seen  and  always  allowable  on  a  public  highwa}-. 

To  the  extent  of  this  obstruction  and  this  increase  of  danger  by  its 
appropriation  of  the  highwa}'  for  its  own  purposes,  there  is  necessaril}' 
a  diversion  from  and  inconsistency  with  the  original  use  ;  and  to  that 
extent  the  construction  and  operation  of  appellant's  road  is  the  impo- 
sition of  an  additional  servitude  upon  the  ultimate  fee  of  the  owners  of 
the  soil  in  the  public  highway. 

This  does  not  mean  that  the  trains  of  appellant  are  to  be  banished 
as  unauthorized  b}'  law,  but  simply  that  their  presence  and  operation 
in  the  public  highway  is  an  additional  burden  on  the  ultimate  fee,  for 
which  the  owner  is  entitled  to  compensation. 

The  charter  from  the  State  and  contract  with  the  city  and  county 
authorize  the  proper  construction  and  use  of  this  railway,  but  the}-  do 
not  purport  to  warrant  the  appropriation  of  the  owner's  property  with- 
out paying  him  therefor.  Even  if  such  were  their  [jurport  and  intent, 
that  could  not  alter  the  case,  and  would  afford  no  sufficient  answer  to 
the  plaintiff's  demand,  because  the  Constitution  forbids  the  taking  of 
private  property  for  public  use  without  just  compensation.  Constitu- 
tion, Art.  I.,  Sec.  21. 

The  instruction  requested  was  properly  refused. 

Counsel  for  appellant  have  called  our  attention  to  the  case  of  JVeioell 
V.  Minn.  L.  &  M.  Ry.  Co.,  35  Minn.  112  (s.  c.  27  N.  W.  R.  839), 
which  we  find  to  be  an  authority  for  the  proposition  requested,  and  in 
conflict  with  the  conclusion  reached  in  this  opinion.  Not  agreeing  to 
the  reasoning  of  that  case,  and  the  decision  of  a  sister  State  being  at 
most  only  persuasive  authority,  we  prefer  not  to  follow  it. 

We  have  carefully  considered  the  several  other  assignments  of  error 
None  of  them  are  well  taken. 

Let  the  judgment  be  affirmed.^ 

1  Compare  McQuaid  v.  PortL,  ^c.  Rj.  Co.,  18  Oreg.  237  (1889).  —  Ed. 


1162  sterling's  appkal.  [chap,  vl 

In  Sterlini/s  Appeal,  111  Pa.  35,  40  (1885),  where  u  Natural  Gagi 
Company  was  proposing  to  lay  its  pipes  under  a  country  highway  in 
front  of  the  appellant's  land,  the  court  (Stkuuett,  J.)  said  :  "  As  owner 
of  the  land  traversed  by  the  pul)lic  road,  he  has  a  right  to  use  it  and 
the  land  on  which  it  is  located  for  any  purpose  that  will  not  impede  or 
interfere  with  the  public  travel.  By  appropriating  land  for  the  specific 
purpose  of  a  common  highway,  the  public  acquires  a  mere  right  of  pas- 
sage with  the  powers  and  privileges  incident  to  such  riglit.  The  fee 
still  remains  in  the  land-owner  notwithstanding  the  publi(;  have  acquired 
a  right  to  the'  free  and  uninterrupted  use  of  the  road  for  the  purpose  of 
passing  and  re-passing ;  and  he  may  use  the  land  for  his  own  purposes 
in  any  way  that  is  not  inconsistent  with  the  public  easement,  lie  may, 
for  example,  construct  underneath  the  surface  passage-ways  for  water 
and  other  purposes,  or  appropriate  the  subjacent  soil  and  minerals  if 
any,  to  any  use  he  pleases,  provided  he  does  not  interfere  with  the 
rights  of  the  public.  In  other  words,  the  only  servitude  imposed  on 
the  land  is  the  right  of  the  public  to  construct  and  maintain  thereon  a 
safe  and  convenient  roadway,  which  shall  at  all  times  be  free  and  open 
for  public  use  as  a  highway.  It  is  in  view  of  this  servitude  that  dam- 
ages may  be  awarded  to  the  land-owner.  Laying  and  maintaining  a 
pipe  line,  at  the  ordinary  depth  under  the  surface,  necessarily  imposes 
an  additional  burden  on  the  land,  not  contemplated  either  by  the  owner 
or  by  the  public  authorities,  when  the  land  was  appropriated  for  the 
purpose  of  a  public  road.  It  is  a  burden,  moreover,  which  to  some 
extent,  at  least,  abridges  the  rights  of  the  land  owner  in  the  soil  tra- 
versed b}'  the  road,  and  hence  it  is  a  taking  within  the  meaning  of  the 
constitutional  provision  requiring  just  compensation  to  be  made  for 
property  taken,  injured,  or  destroyed.  (Const.  Art.  XV'I.,  sect.  8.)  In 
some  cases  it  is  possible  the  injur}-  may  be  consequential  as  well  as 
direct.     The  constitutional  provision  embraces  both. 

"  In  Bloomfiekl  &  Rochester  Ndtnral  Gas  Li(jht  Co.  v.  Calkins,  62 
N.  Y.  38G,  it  was  held  that  a  corporation  organized  under  an  Act,  simi- 
lar to  ours,  authorizing  the  formation  of  gas-light  companies,  has  no 
authority  to  lay  its  pipes  in  a  country*  highway  without  the  consent  of 
or  without  the  appraisal  and  payment  of  compensation  to  the  owner  of 
the  land.  There  is  no  reason  why  this  should  not  be  the  rule  with  re- 
spect to  public  roads  in  the  rural  districts.  As  to  streets  and  alleys 
in  cities  and  boroughs,  there  are  reasons  why  a  different  rule  to  some 
extent  should  prevail ;  but  that  question  is  not  now  before  us." 


:HAP.  VI.]     McDEVITT  V.    PEOPLE'S  NATURAL  GAS  CO.         1163 


McDEVlTT   V.   PEOPLE'S   NATURAL    GAS   COMPANY. 
Supreme  Court  of  Pennsylvania.     1894. 

[28  Atl.  Rep.  9-18.] 

Appeal  from  Court  of  Common  Pleas,  Alleghany  County.  .  .   . 

S.  Schoyer,  Jr.,  and  W.  S.  Ililler,  for  appellants.     Geo.  C.  Wilso7i 
and  F.  M.  Magee,  for  the  appellee. 

Williams,  J.  The  People's  Natural  Gas  Company  was  incorporated 
under  the  Act  of  1885  (P.  L.  29),  known  as  the  "  Natural  Gas  Act," 
for  tlie  pur[)ose  of  supplying  natural  gas  to  the  citizens  of  Pittsburgh 
for  use  as  fuel.  The  city  had  given  its  permission  to  the  company  to 
occui)y  the  streets  with  its  mains  and  service  pipes,  and  had  undertaken 
to  impose  certiin  modes  and  restrictions  upon  it,  in  the  manner  of  con- 
ducting its  business,  that  have  since  been  held  to  be  unauthorized  by 
law,  and  therefore  without  force  or  effect.  Pittsburgh'' s  Apjjeal,  115 
Pa.  St.  4,  7  Atl.  778.  Pending  the  Utigation  over  this  subject  the  com- 
pany began  laying  its  mains  into  the  city,  and  in  July,  188G,  entered 
upon  Forbes  Street,  in  the  city,  for  that  purpose.  The  appellees,  who 
are  the  owners  of  lots  on  said  street,  then  began  proceedings  by  bill  in 
equity  to  restrain  the  company  from  laying  its  gas  main  under  the  side- 
walk in  (rout  of  their  premises  on  Forbes  Street.  Relief  was  asked  on 
two  grounds :  First,  because  the  ordinances  of  the  city  of  Pittsburgh 
had  not  been  complied  with  by  the  company ;  second,  because  the  side- 
walks along  the  sides  of  the  cartways  were  not  within  the  meaning  of 
the  Act  of  1885,  and  were  no  part  of  the  highways,  but  were  private 
property,  except  for  the  purposes  of  passage  by  pedestrians.  A  pre- 
liminarv  injunction  was  granted,  which  was  afterwards  dissolved  on 
condition  that  the  company  should  execute  a  bond  to  indemnify  the 
plaintiiTs  in  that  case  for  any  loss  they  might  sustain  by  reason  of  the 
laving  of  said  main  under  the  sidewalk  in  front  of  their  premises. 
The  bond  was  given,  and  the  gas  main  laid.  The  plaintiffs  then  made 
application  for  the  appointment  of  viewers  to  appraise  the  damages 
done  to  their  property  by  the  laying  of  the  main  under  the  sidewalk. 
Viewers  were  appointed,  and  an  appraisement  of  the  damages  was  made 
by  them,  whicli  was  appealed  from.  On  a  trial  before  a  jury  a  verdict 
has  been  rendered  against  the  company  for  a  few  cents  less  than  $5,500, 
and  the  judgment  entered  thereon  is  now  before  us  for  review.  .  .   . 

We  are  in  a  position,  therefore,  to  enter  unembarrassed  upon  a  con- 
sideration of  the  subject  brought  to  our  attention  by  the  first  assign- 
ment of  error.  The  Act  of  1885  confers  the  right  of  eminent  domain 
on  companies  formed  for  the  transportation  of  natural  gas.  In  the 
exercise  of  this  right,  they  may  enter  upon  private  property,  or  upon 
public  streets  or  highways.  If  the  entry  is  upon  private  property,  the 
company  must  try  "  to  agree  with  the  owner  as  to  the  damage  properly 


116-4  McDEVITT   V.    I'EOI'LK's   NATURAL   GAS   CO.  [cHAP.  VL 

payable  fur  an  easement  in  liLs  or  her  prujxTt) ,  it  such  owntr  can  be 
found  and  is  siti  Juris."  Failing  to  agree  with  the  owner,  the  corpora- 
tion niii-st  ti-ndcr  hiui  a  bond  to  secure  the  payment  of  damages,  and, 
if  this  is  refused,  must  apply  to  the  Court  of  Common  I'lcas  of  the 
proper  county  to  approve  the  sulliciency  of  the  bond.  Atler  this  has 
been  done,  viewers  may  be  appointed  by  the  court  to  assess  the  dam- 
ages proper  to  be  paul  to  the  property-owner  "  for  the  casement  appro- 
priated by  the  coujpany."  If  the  entry  is  upon  a  public  street  m  u 
borough  or  city,  the  corporation  must  first  procure  the  consent  of  the 
municipality,  expressed  "  by  ordinance  duly  passed  and  approved." 
So  long  as  the  gas  main  follows  the  struct,  the  entry  upon  ami  occupa- 
tion of  the  street  is  under  the  authority  of  the  municiitality.  When- 
ever it  leaves  the  street,  and  enters  the  private  properly  of  an  individual, 
then  the  duty  to  negotiate  with  the  owner  arises,  since  entry  u[)on  and 
occupation  of  private  property  must  be  under  authority  derived  from 
the  owner.  Forbes  Street  was  a  city  highway,  and  subject,  like  all 
other  streets  in  a  city,  to  urban  servitudes  *  for  the  benefit  of  the  public. 
In  land  taken  for  a  highway  in  the  country,  the  easement  acquired  by 
the  public  is  only  for  the  purposes  of  a  way  over  the  surface.  For  all 
other  purposes  the  land  may  be  occupied  by  the  owner,  so  long  as  the 
public  easement  is  not  disturbed.  We  accordingly  held  in  tSlerlim/s 
Ajjpeal,  111  Pa.  St.  3.'),  2  Atl.  100,  that  the  maintenance  of  a  pipe  line 
under  such  a  highway  imposed  an  additional  servitude  upon  the  land. 
It  ma}'  be  a  very  slight  one,  but  to  some  extent  it  abridges  the  rights 
of  the  land-owner  in  the  soil.  Our  Brother  Stkuhktt  said  in  that  case  : 
"  As  to  streets  and  alleys  in  cities  and  boroughs,  there  are  reasons  wh}' 
a  different  rule,  to  some  extent,  should  prevail."  These  riasons  are 
obvious.  The  necessit}'  for  drainage,  for  a  water  supply,  for  gas  for 
purposes  of  lighting,  for  natural  or  fuel  gas  for  heat,  for  subways  for 
telegraph  and  other  wires,  and  for  other  urban  necessities  or  conveni- 
ences, gives  to  the  municipality  a  control  over  the  subsurface  that  the 
townshii)  has  not.  Property  in  a  city  is  no  less  sacred  than  property  in 
the  country.  Tlio  title  of  the  owner  is  neither  better  nor  worse  because 
of  the  location  of  his  land.  liut  its  situation  may  subject  it  to  a  greater 
servitude  in  favor  of  the  public  in  a  large,  compactly  built  cit}'  than 
would  be  imposed  upon  it  in  the  open  country".  The  city  has  the  right 
to  use  the  streets  and  alleys,  to  whatever  depth  below  the  surface  it  may 
be  desirable  to  go.  for  sewers,  gas  and  water  mains,  and  any  other  urban 
uses.  In  taking  the  streets  for  these  necessary  or  desirable  purposes, 
it  is  acting,  not  for  its  own  profit,  but  for  the  public  good.     It  is  the 

'  This  phrase  suggests,  but  has  no  real  relation  to  the  like  expression  in  the  Koman 
law.  "  The  leadiucj  division  of  pra'dial  servitudes  in  the  civil  law,  but  which  appears  to 
afford  no  practicallv  useful  distinction  in  the  English  law,  is  into  urban  and  rustic 
servitudes,  —  the  former  including  all  servitudes  relating  to  buildings  wherever  situ- 
ated ;  the  latter,  all  those  relating  to  land  uncovered  b\-  buildings,  whether  situated 
in  town  or  country." —  Gale  on  Easements  (6th  ed.),  22.  Hunter.  Roman  Law  (2d  ed.), 
415,  419,  gives  the  right  of  aquce  ductus  as  a  rural  servitude,  and  the  right  of  passing 
»  sewer  through  or  below  another's  ground,  as  an  urban  servitude.  —  Ed. 


CHAP.  VI.]  MCDEVITT   V.   PEOPLE'S   NATURAL   GAS   CO.  1165 

representative  of  the  inhabitants  of  the  city,  considering  their  health, 
their  family  comfort,  and  their  business  needs  ;   and  every  lot-owner 
shares  in  the  benefits  which  such  an  appropriation  of  the  streets  and 
alleys  confers.    If  the  city  abridges  his  control  over  the  soil  in  and  under 
ihe  streets,  it  compensates  him  by  making  him  a  sharer  in  the  public 
advantages  that  result  from  proper  drainage,  from  an  abundant  water 
supply,  "from  the  general  distribution  of  gas,  and  the  like.      The  dis- 
turbance of  the  owner's  control  over  the  subsurface  of  the  streets  is, 
in  a  le-al  sense,  an  invasion  of  his  rights,  but  it  is  dam7ium  absque 
imuria.     He  has  no  right  of  action  against  the  municipality  therefor. 
Dill.  Mun.  Corp.  §§  691,  699  ;  Ang.  Highw.  §§  ^5,  312  ;Llhott  Roads 
&  S    299  ;  Lockhart  v.  Raihmy  Co.,  139  Pa.  St.  123,  21  Atl.  26  ; 
Sterling's  Appeal,  supra.     The  use  of  the  surface  is  not  restricted  to 
the  modes  of  travel  in  common  use  when  the  street  is  opened,  but  such 
improved  methods  of  travel  as  the  public  interest  requires  may   be 
adopted,  with  the  consent  of  municipality.     In  Eafferty  v.   Traction 
Co    147  Pa.  St.  579,  23  Atl.  884,  we  held  that  the  operation  of  a  street 
railway  on  a  public  street,  when  authorized  by  law,  does  not  impose  an 
additional  servitude  on  the  land,  whether  the  railway  company  employs 
horses  as  motive  power,  or  a  cable,  or  electricity.     It  is  a  legitimate 
use  of  the  surface  in  aid  of  the  public  right  of  passage  over  the  streets. 
The  Act  of  1885  declares  the  transportation  and  supply  of  natural  gas 
to  be  a  public  use,  confers  upon  the  corporations  organized  under  its 
provisions  the  right  of  eminent  domain,  and  requires  them  to  furnish 
natural  gas  to  consumers  along  their  lines,  or  within  the  districts  sup- 
plied b3^them,  respectively.     The  appellant  was  organized   under  the 
Act  of  1885.     It  came  to  the  city  of  Pittsburgh  proposing  to  furnish 
its  citizens  with  natural  gas  as  a  fuel.     The  city  was  then  to  judge 
whether  such   fuel  was  desirable,  and  whether  its  introduction  would 
be  a  convenience  to  its  citizens  so  great  as  to  justify  the  occupancy  of 
the  public  streets  by  its  mains  and  service  pipes.     This  question  was 
decided  in  favor  of  the  company,  and  permission  was  given  to  use  the 
streets  of  the  city  as  a  means  of  reaching  customers.     Under  this  per- 
mission, it  might  lawfully  enter  upon  the  streets,  as  we  have  already 
seen,  to  lay  its  pipes,  without  liability  to  lot-owners  therefor. 

But  it  is  contended  that  the  sidewalks  are  not  a  part  of  the  street, 
and  that,  in  laying  its  pipes  under  the  sidewalk,  the  gas  company  has 
entered  private  property  by  virtue  of  its  power  of  eminent  domain,  and 
must  treat  with  the  owner  for  the  damages  it  may  have  done.  This  con- 
tention cannot  be  sustained.  The  Act  of  1847  gives  to  cities  the  power 
"to  cause  to  be  graded,  paved  or  macadamized  any  public  street,  lane 
or  alley  or  parts  thereof  which  is  now  or  may  hereafter  be  laid  out  and 
opened  in  any  of  the  said  cities  .  .  .  and  to  regulate,  grade,  pave  and 
re-pave,  curb  and  re-curb,  the  said  footways  and  sidewalks,"  and  to 
make  regulations  concerning  the  deposit  of  lumber,  building  material, 
or  other  "articles  "  on  any  of  the  said  footways,  sidewalks  or  other  por- 
tions of  the  said  streets  or  alleys."     The  street  includes  the  whole  of 


1166  McDEVITT   V.    people's   NATURAL   GAS   CO.  [CHAP.  VL 

the  land  laid  out  for  public  use  as  a  highway.  The  city  determineB 
how  much  of  it  siiall  be  devoted  to  a  cartway,  aud  how  much  to  a  foot- 
way, and  regulates  tl»e  grading  aud  paving  of  both.  The  separation 
of  one  from  the  other  by  a  line  of  curbing  is  for  the  security  of  that 
part  of  the  public  that  passes  along  the  streets  on  foot,  and  for  no 
other  purpose.  The  municipality  has  the  same  control  over  the  side- 
walks that  it  has  over  the  carriageways.  Jjiuingston  v.  Jl'olf,  13G  Pa. 
St.  533,  20  Atl.  551.  The  learned  judge  of  the  court  below  took  the 
same  view  of  this  question,  and  affirmed  the  defendant's  first  point, 
which  asked  an  instruction  that  the  "  defendants  have  the  same  right 
in  the  sidewalks  as  they  would  have  in  that  portion  of  llie  street  lying 
between  the  curbstones."  The  situation  of  the  defendant  under  this 
ruling  was  precisely  the  same  as  it  would  have  been  had  the  gas  main 
been  laid  under  the  cartwa}'. 

The  defendant's  second  point  asked  the  court  to  say  that  the  lot- 
owners  on  Forbes  Street  had  no  rights  in  the  street  except  such  as 
were  subservient  to  the  public  use,  under  the  direction  or  sanction  of 
the  city,  and  that  as  the  defendant's  gas-main  was  laid  for  a  public 
use,  under  the  authority  of  the  Act  of  1885,  and  with  the  consent  of 
the  municipal  government,  the  lot-owners  along  Forbes  Street  were  not 
entitled  to  recover  damages  for  the  use  of  the  street.  This  point  the 
learned  judge  refused.  The  logical  result  of  this  ruling  is  to  put  the 
rights  of  tlie  lot-owner  in  the  street  in  front  of  his  premises  above 
the  rights  of  the  public  represented  b}-  the  municipality.  In  other 
words,  it  puts  the  urban  servitudes  in  a  subservient  position,  aud 
makes  the  imposition  of  each  of  them  upon  a  city  street  an  additional 
servitude  upon  tlie  land  of  the  adjoining  lot-owner,  for  which  he  has  a 
right  of  action.  This  is  not  the  law  in  this  State,  as  is  shown  by  the 
authorities  already  cited.  As  applicable  to  a  country  highwa}',  it 
would  be  quite  right,  for  under  the  general  road  laws  the  public  ease- 
ment in  such  a  highway  is  for  passage  over  the  surface  only.  Land 
taken  for  a  street  in  a  city  is  subjected  to  a  very  different  easement, 
because  of  the  sanitary  and  business  needs  of  a  cit}- ;  and  the  extent 
of  the  easement  depends  upon  the  municipal  judgment  as  to  the  extent 
of  occupancy  necessary  to  subserve  the  health,  the  comfort,  and  con- 
venience of  the  citizens.  Elevated  structures  that  interfere  with  the 
passage  of  light  and  air  stand  on  different  ground.  Jones  v.  Railroad 
Co.,  151  Pa.  St.  30,  25  Atl.  134.  In  this  case  no  entry  was  made  upon 
the  close  of  the  plaintiffs.  The  pipe  is  buried  in  the  street,  at  a  depth 
of  four  feet  under  the  surface.  Access  to  the  plaintiff's  propert}'  has 
not  been  affected.  There  is  no  physical  change  made  in  it,  or  in  the 
street  on  which  it  fronts.  If  the  lots  are  affected  in  value,  it  is  as  a  con- 
sequence of  the  proximity  of  the  gas  line,  and  not  because  of  anything 
done  to  or  upon  them.  Their  remedy,  under  such  circumstances,  is  b}' 
action,  or  upon  the  bond  given  to  secure  them  against  loss  by  reason 
of  the  dissolution  of  the  injunction.  It  is  not  b}'  the  appointment  of  view- 
ers, and  the  proceeding  provided  by  the  Act  of  1885  for  the  assessment 


CHAP.  VI.]        MARCHANT   V.   PENNSYLVANIA   RAILROAD   CO.  11G7 

of  damages  done  by  an  entry  upon  private  property  under  the  right  of 
eminent  domain.  The  1st  assignment  of  error  is  sustained;  also,  the 
4th,  5th,  7th,  8th,  and  9th  assignments. 

The  judgment  is  reversed,  and  the  order  appointing  viewers  is 
set  aside.^ 


MARCHANT   v.   PENNSYLVANIA  RAILROAD   CO. 

Supreme  Court  of  the  United  States.     1894. 

[153  U.  S.  380.] 

M.  Hampton  Todd,  for  plaintiff  in  error.     A.  H.  Wintersteen,  and 
Wayne MacVengh,  for  defendant  in  error. 

Mr.  Justice  Siiiras,  after  stating  the  facts  in  the  foregoing  lan- 
guage,^  delivered  the  opinion  of  the  court. 

The  Pennsylvania  Railroad  Company,  a  corporation  under  the  laws 
of  the  State  of  Pennsylvania,  and  invested  with  the  privilege  of  taking 
private  property  for  its  corporate  use,  erected  in  May,  1881,  and  has 
since  maintained,  a  viaduct  or  elevated  roadway  and  railroad  thereon 
along  the  south  side  of  Filbert  Street  in  the  city  of  Philadelphia.  On 
tlie  opposite  or  north  side  of  Filbert  Street  the  plaintiff  below  was  the 
owner  of  a  lot  or  parcel  of  land,  whereon  was  erected  a  large  four- 
story  building,  at  that  time  occupied  as  a  dwelling  and  business  house. 
The  elevated  railway  did  not  occupy  any  portion  of  the  plaintiff's 
land,  nor  did  it  trench  upon  Fill)crt  Street  where  it  extends  in  front  of 
the  plaintiff's  property,  which  is  situated  on  Filbert  between  Seven- 
teenth and  Eig-hteenth  Streets ;  but  where  the  elevated  road,  in  its 
course  westward,  reaches  Twentieth  Street,  it  trends  to  the  north,  and 
is  supported  over  tlie  cartway  of  Filbert  Street  by  iron  pillars  having 
their  foundations  in  that  street  inside  the  curb  line,  and  thus  extends 
westwardly  to  the  Schuylkill  River.  Opposite  the  plaintiff's  lot  the 
railroad  structure  occupies  land  owned  by  the  company. 

The  plaintiff,  by  his  action  in  the  Court  of  Common  Pleas,  sought 
to  recover  for  injuries  caused  to  his  property  by  the  smoke,  dust,  noise, 
and  vibration  arising  from  the  use  of  the  engines  and  cars,  the  neces- 
sary consequence  and  incidents  of  the  operations  of  a  steam  railway. 
The  trial  court  refused  the  defendant's  prayer  that  "  the  jury  should 

1  Compare  Kincai'd  v.  Indiana  Nat.  Gas  Co.  et  ah,  124  Ind.  577,  579  (1890),  ia 
which  it  was  held  that,  subject  to  the  right  of  the  public  to  pass  and  repass,  "  the 
owner  of  the  fee  of  a  rural  road  retains  all  right  and  interest  in  it."  The  court 
(Elliott,  J.)  said  :  "There  is  an  essential  distinction  between  urban  and  suburban 
highways,  and  the  rights  of  abutters  are  much  more  limited  in  the  case  of  urban 
streets  than  they  are  in  the  case  of  suburban  ways."  See  Randolph,  Em.  Dom.,  ss.  401, 
413. —Ed. 

2  The  statement  of  facts  is  omitted ;  they  sufficiently  appear  in  the  opinion.  —  Ed. 


11G8  MARCIIANT   V.    PENNSYLVANIA    KAILKOAD    CO.         [cilAl'.  VI. 

be  instructed  that  the  defentlaut,  uiulci  its  charter  and  supplements  iu 
evidence,  had  full  lawful  authority  to  create  and  operate  the  Filljcrt 
Street  extensi&n  or  branch  described  in  tlie  declaration  without  incur- 
ring any  liability  by  reason  thereof  for  consequential  damages  to  the 
property  of  the  plaintiff,  the  uncontradicted  evidence  being  that  none 
of  the  said  property  was  taken  by  the  defendant,  but  that  the  entire 
width  of  Filbert  Street  intervenes  between  the  railroad  of  the  defend- 
ant and  the  nearest  point  thereto  of  the  property  of  the  plaintilf;" 
and  instructed  the  jury  that  the  only  question  for  them  to  determine 
was  the  amount  of  depreciation  in  value  of  the  plaintiff's  property 
caused  by  the  operation  of  the  railroad,  and  that  in  estimaling  the 
damages  they  should  consider  the  value  of  the  property  before  and  its 
value  after  the  injury  was  inflicted,  and  allow  the  difference.  The 
plaintiff  recovered  a  verdict  and  judgment.  The  judgment  was  re- 
versed l)y  the  Sui)reme  Court  of  Pennsylvania  (13  Atl.  HDO),  because 
of  tlie  action  of  the  trial  court  in  refusing  to  grant  the  defendant's 
prayer  for  instruction,  and,  in  effect,  because  the  plaintiff  had  no  cause 
of  action.  By  the  specifications  of  error  contained  in  this  record  we 
are  asked  to  reverse  the  judgment  of  the  Supreme  Court  of  Pennsyl- 
vania because  the  plaintiff"  in  error  was  thereb}'  deprived  of  her  prop- 
erty without  compensation,  because  she  was  thereby  deprived  of  the 
equal  protection  of  the  law's,  and  because  she  was  thereby  deprived  of 
her  property  without  due  process  of  law.   .   .  . 

The  first  i)roposition  asserted  by  the  plaintiff,  that  her  private  prop- 
erty has  been  taken  from  her  without  just  compensation  having  ])eea 
first  made  or  secured,  involves  certain  questions  of  fact.  Was  the 
plaintiff  the  owner  of  private  property,  and  was  such  property  taken, 
injured,  or  destroyed  l)y  a  cori)oration  invested  with  the  privilege  of 
taking  private  property  for  public  use?  The  title  of  the  plaintiff  to  the 
property  affected  was  not  disputed,  nor  that  the  railroid  company  was 
a  corporation  invested  with  the  privilege  of  taking  private  pro|)erty 
for  public  use.  But  it  was  adjudged  by  the  Supreme  Court  of  Penn- 
sylvania that  the  acts  of  the  defendant  which  were  complained  of  did 
not,  under  the  laws  and  Constitution  of  that  State,  constitute  a  taking, 
an  injury,  or  a  destruction  of  the  plaintiffs  property. 

We  are  not  authorized  to  inquire  into  the  grounds  and  reasons  upon 
which  the  Supreme  Court  of  Pennsylvania  proceeded  in  its  construc- 
tion of  the  statutes  and  Constitution  of  that  State,  and,  if  this  record 
presented  no  other  question  except  errors  alleged  to  have  been  com- 
mitted by  that  court  in  its  construction  of  its  domestic  laws,  we  should 
be  obliged  to  hold,  as  has  been  often  held  in  like  cases,  that  we  have 
no  jurisdiction  to  review  the  judgment  of  the  State  Court,  and  we 
should  have  to  dismiss  this  writ  of  error  for  that  reason. 

But  we  are  urged  to  sustain  and  exercise  our  jurisdiction  in  this 
case,  because  it  is  said  that  the  plaintitT's  property  was  taken  "  with- 
out due  process  of  law,"  and  because  the  plaintiff  was  denied  "  the 
equal  protection  of  the  laws,"  and  these  propositions  are  said  to  pre- 


CHAP.  VL]        MARCHANT   v.   PENNSYLVANIA   RAILROAD   CO.  1169 

sent  Federal  questions  arising  under  the  Fourteenth  Amendment  of 
the  Constitution  of  the  United  States,  to  which  our  jurisdiction  extends. 

It  is  sufficient  for  us  in  the  present  case  to  say  that,  even  if  the 
phiintiff  could  be  regarded  as  having  been  deprived  of  her  property, 
the  proceedings  that  so  resulted  were  in  "  due  process  of  law." 

The  plaintiff  below  had  the  benefit  of  a  full  and  fair  trial  in  the 
several  courts  of  her  own  State,  whose  jurisdiction  was  invoked  by  her- 
self. In  those  courts  her  rights  were  measured,  not  by  laws  made  to 
affect  her  individually,  but  by  general  provisions  of  law  applicable  to 
all  those  in  like  condition.   .   .  . 

The  plaintiff  in  error  further  contends  that  by  the  proceedings  ia 
the  courts  of  Pennsylvania  she  was  denied  the  equal  protection  of  the 
laws.  We  understand  this  proposition  to  be  based  on  the  allegation 
that  those  suitors  whose  property  abutted  on  Filbert  Street  between  the 
Schuylkill  River  and  Twentieth  Street,  where  the  elevated  road  actually 
occupies  the  territory  of  Filbert  Street,  were  allowed  by  the  Pennsyl- 
vania courts  to  recover  damages  for  the  injury  thus  occasioned  to  their 
property,  while  the  plaintiff,  and  those  in  like  case,  whose  property 
abutted  on  Filbert  Street  where  it  was  not  occupied  by  the  railroad 
structure,  which  was  erected  on  the  opposite  side  of  the  street,  on 
land  belonging  to  the  railroad  company,  were  not  permitted  to  recover. 
The  diversity  of  result  in  the  two  classes  of  cases  is  supposed  to  show 
that  equal  protection  of  the  laws  was  not  afforded  to  the  unsuccessful 
litigants.  It  is  not  clear  that  the  facts  are  so  presented  as  to  author- 
ize us  to  consider  this  question.  Neither  in  the  plaintiff's  declaration, 
in  the  instructions  prayed  for,  nor  in  the  charge  of  the  trial  court,  do 
we  perceive  any  finding  or  admission  that  there  were  suitors,  holding 
property  abutting  on  Filbert  Street,  who  were  held  entitled  to  recover 
for  damages  occasioned  by  the  elevated  railroad.  However,  the  third 
assignment  of  error  is  as  follows  :  "  The  Supreme  Court  of  Pennsyl- 
vania erred  in  deciding  that  the  present  cause  was  different  in  principle 
from  the  case  of  liailroad  Co.  v.  Duncan,  111  Pa.  St.  352,  5  Atl.  742, 
and  Railroad  Co.  v.  Miller,  132  U.  S.  75,  10  Sup.  Ct.  34.  The  effect 
of  said  decision  is  that,  under  the  same  constitutional  guaranties,  it  gives 
to  one  person  a  right  to  compensation  for  property  damaged  by  the 
defendant  in  the  exercise  of  its  power  of  eminent  domain,  and  denies 
it  to  another ;  and  as,  in  this  instance,  the  decision  is  against  the 
plaintiffs  right  to  compensation  for  the  injury  to  her  property  by  the 
defendant,  she  is  thereby  deprived  of  the  equal  protection  of  the  laws." 
The  counsel  of  defendant  in  error,  in  their  printed  brief,  make  no 
point  that  the  facts  are  not  shown  by  this  record,  but  discuss  the 
question  on  its  merits.  We  are  referred  in  the  printed  briefs  to  our 
own  case  of  liailroad  Co.  v.  Miller,  132  U.  S.  76,  10  Sup.  Ct.  34,  m 
the  report  of  which  it  appears  that  one  Duncan,  whose  property  abut- 
ted on  Filbert  Street,  where  that  street  was  occupied  by  the  elevated 
railroad  in  question,  was  permitted  by  the  State  courts  to  recover  for 
VOL.  I.  — 74 


1170  N i:\VBV    V.    I'LATTE    COUNTY.  [CHAI'.  VI. 

damages  suffered  by  having  been  deprived  of  access  to,  aud  the  free 
use  of,  Filbert  Street. 

Concediug,  for  the  sake  of  the  arguiuent,  that  the  facts  are  as 
alleged  by  the  plaintiff  in  error,  we  are  unable  to  see  any  merit  in  the 
contention  that  the  Supreme  Court  of  Pennsylvania,  in  distinguishing 
between  the  case  of  those  who,  like  Duncan,  were  shut  oil'  from  access 
to  and  use  of  the  street  by  the  construction  thereon  of  the  elevated 
railroad,  and  the  case  of  those  who  suffered,  not  from  the  construction 
of  the  railroad  on  the  street  on  which  their  property  abutted,  but 
from  the  injuries  consequential  on  the  operation  of  the  railroad,  as 
situated  on  defendant's  own  i)roperty,  thereby  deprived  the  plaintiff  of 
the  equal  protection  of  the  laws.  The  two  classes  of  complainants 
differed  in  the  critical  particular  that  one  class  suffered  direct  and  im- 
mediate damage  from  the  construction  of  the  railroad  in  such  a  way  as 
to  exclude  them  from  the  use  of  their  accustomed  highway,  and  the 
other  class  suffered  damages  which  were  consequential  on  the  use  by 
the  defendant  company  of  their  franchise  on  their  own  property.   .   .   . 

It  should  also  be  observed  that  the  plaintiff  does  not  complain  that, 
by  any  legislative  enactment,  she  has  been  denied  rights  granted  to 
others,  but  she  attributes  error  to  the  judgment  of  the  Sui)reme  Court 
of  Pennsylvania  in  construing  that  provision  of  the  Constitution  of  the 
State  which  gives  a  remedy  for  property  injured  by  the  construction  of 
a  railroad,  as  not  extending  the  remedy  to  embrace  property  injured 
by  the  lawful  operation  of  the  railroad.  It  is  not  pretended  that  V)y 
such  a  construction  of  the  law  the  plaintiff  has  l)een  deprived  of  any 
right  previously  enjoyed.  The  scope  of  the  remedy  added  by  the  Con 
stitution  of  1874  to  those  previously  possessed  by  persons  whose  prop- 
erty is  affected  by  the  erection  of  a  public  work  is  declared  by  the 
court  not  to  embrace  the  case  of  damages  purely  consequential. 

In  so  holding  it  does  not  appear  to  us  that  the  .Sui>reme  Court  of 
Pennsylvania  has  either  deprived  the  plaintiff  of  property  without  due 
process  of  law,  or  denied  her  the  equal  protection  of  the  law,  and  its 
judgment  is  accordingly  affirmed. 


NEWBY  V.  PLATTE  COUNTY. 
Supreme  Court  of  Missouri.     1857. 

[25  3Ia  258.1] 

p.  H.  Hayden,  for  appellant. 

I.  Newby  was  entitled  in  damages  to  the  full  value  of  his  land  appro- 
priated and  taken  for  the  road,  and  the  Cv>urt  in  the  assessment  thereof 
had  no  right  to  take  into  consideration  the   probable   or   incidental 

1  This  case  contains  nowhere  any  statement  of  facts.  — Ed. 


CHAP.  VI. J  NEWBY    V.    PLATTE    COUNTY.  1171 

advantages  which  might  or  should  accrue  to  Newby  from  the  road  in  its 
enhancement  of  the  value  of  his  adjacent  lands.  (See  Constitution  of 
Missouri,  article  13,  section  7  ;  5  Dana,  32  ;  7  Dana,  87  ;  9  Dana,  114.) 
Leonard,  J.,  delivered  the  opinion  oi"  the  court.  .  .  .  The  17th  section 
of  the  2d  article  of  the  general  road  law  of  1845  (R.  C.  1846,  p.  974) 
provides  that,  in  assessing  the  land-owner's  damages,  the  commis- 
sioners "  shall  take  into  consideration  the  advantages  as  well  as  the 
disadvantages  of  the  road  to  such  persons."  The  present  road  was 
authorized  to  be  established  as  a  State  road  b}'  the  special  Act  of  the 
7th  February,  1849,  and  the  proceedings  for  this  purpose  are  directed 
to  be  according  to  the  general  road  law  of  1845,  and  the  amendatory 
Act  of  the  25th  of  Januar}',  1847.  On  an  appeal  from  the  County  Court, 
the  plaintiff's  damages  as  a  land-owner  were  assessed  in  the  Circuit  Court 
b}'  the  court  in  lieu  of  a  jury,  on  an  agreed  statement  of  the  facts,  and 
the  Circuit  Court,  when  applied  to  for  that  purpose,  refused  to  declare 
that  the  plaintiff  "  was  entitled  to  the  value  of  the  land  taken  for  the 
road,  and  that  the  advantages  of  the  road  to  him  could  not  be  set  off 
against  his  claim  for  the  value  of  the  land,"  and  decided  that  the  plain- 
tiff was  not  entitled  to  any  money  compensation  for  the  land  taken  for 
the  public  use ;  and  thus  the  validit}'  of  the  statute  provision  to  which 
we  have  referred  is  submitted  to  our  judgment  by  the  present  proceed- 
ings. If  the  State  government  possessed  no  authorit}^  over  private 
property  except  that  of  taking  it  for  the  public  use  upon  rendering  the 
owner  a  just  compensation,  it  would  seem  that,  under  this  provision, 
the  owner  would  be  entitled  to  the  full  money  value  of  his  property 
without  any  deduction.  The  rule  of  constitutional  law  being  that 
private  property  cannot  be  taken  for  public  use,  bj'  the  autliority  of  the 
legislature,  without  a  just  compensation,  it  follows  that  what  is  to  be 
considered  as  compensation  within  the  meaning  of  the  clause  Is  a  ques- 
tion of  law  for  the  courts,  and  not  a  matter  for  the  legislature  ;  and, 
under  such  a  constitution  as  we  have  supposed,  with  no  other  power 
over  private  property  than  that  of  taking  it  for  the  public  use  upon 
making  the  owner  a  just  compensation,  it  would  be  quite  beyond  the 
scope  of  the  legislative  autliority  to  declare  that  tiie  benefit  derived  by 
Liie  land-owner  from  the  road  is  tiie  just  compensation  secured  by  the 
Constitution.  If  the  provision  were  that  the  owner  should  be  indemnified 
against  the  act  complained  of,  it  might  be  insisted,  that,  in  ascertaining 
the  extent  of  the  damages  sustained,  the  advantages  as  well  as  the  dis- 
advantages resulting  from  the  act  must  be  taken  into  consideration  ; 
and  this"  seems  to  be  the  view  taken  of  the  subject  by  the  Supreme 
Court  of  Ohio,  in  Simonds  and  others  against  Cincinnati  (14  Ohio, 
174),  ander  the  Constitution  of  that  State,  which  expressly  requires  the 
compensation  to  be  made  in  "  money."  But  that  is  not  the  language 
nor  the  scope  of  the  provision.  The  declaration  of  the  Constitution  is, 
tuat  no  private  property  ought  to  be  taken  or  applied  to  public  use 
without  a  just  compensation  ;  and  this  would  seem  to  imply  that  the 
party  should  receive  the  value  of  his  property  in  money.     The  transac- 


1172  NEVVBY    V.    PLATTE    COUNTY.  [<  HAT.  VI. 

tion  is  a  forced  sale  to  the  public,  and  the  Constitution  la  this  provi-sion 
secures  to  the  owner  the  just  price  of  his  property  as  the  onl}'  condition 
upon  which  he  can  be  lawfully  deprived  of  it. 

The  government,  however,  possesses  other  powers  over  private 
propert}'  beside  the  right  of  eminent  domain  ;  and  if  in  the  exercise  of 
the  taxing  power,  the  government  may  lawfully  require  the  adjacent 
land-owners  to  contribute  towards  paying  for  the  right  of  way  in  pro- 
portion to  the  benefit  each  will  derive  from  the  road,  the  i)resent  enact- 
ment, so  far  as  it  directs  the  advantages  of  the  road  to  be  deducted 
from  the  price  of  the  land,  must  perhaps  be  considered  as  an  exercise 
of  the  taxing  power.  This  law  is,  indeed,  nothing  more  in  efifect  than 
the  exercise  of  both  powers  of  government  in  tiie  same  breath  —  that  of 
taking  the  land  l)y  tlie  right  of  eminent  domain,  and  of  requiring,  undi'r 
the  taxing  power,  tiie  adjacent  land-owners  to  contribute  to  the  cost  of 
it  in  proportion  to  the  benefit  each  will  derive  from  the  road.  We  have 
an  instance  of  express  legislation  of  this  character  in  the  St.  Louis 
Charter  Amendment  Act  of  the  23d  of  February,  lH,j3,  where  it  is  pro- 
vided that  when  it  shall  become  necessary,  in  order  to  improve  any 
street,  &c.,  to  take  private  property,  tiie  jury  shall  first  ascertain  the 
value  of  all  the  ground  proposed  to  be  taken,  and  then  assess  against 
the  cit}',  for  the  i>ayineiit  of  tliis  del)t,  a  sum  equal  to  the  value  of  the 
improvement  to  the  general  pul)lic ;  and  the  balance  of  the  money 
necessary  to  pay  for  the  ground  they  shall  assess  against  the  owners  of 
the  lots  fronting  on  the  streets  according  to  the  value  of  their  lots,  and 
in  the  proportion  that  they  will  be  respectively  benefited  by  the  improve- 
ment. Under  this  Act.  and  tlie  oidinance  passed  to  carry  it  nito  execu- 
tion, when  the  whole  lot  is  taken,  the  owner  receives  the  whole  value  of 
it  in  money;  but  when  part  only  is  taken,  the  value  of  the  part  taken 
and  the  amount  of  benefit  the  owner  will  derive  from  the  improvement 
of  the  street  in  respect  to  the  residue  of  his  lot  are  assessed  sepaiatelv, 
and  one  being  set  off  against  the  other,  tlie  owner  receives  or  pays  the 
balance  as  it  turns  out  to  be  for  or  against  him.  Under  the  St.  Louis 
Act,  the  cit}'  pays  toward  the  cost  of  the  ground  a  sinn  equal  to 
the  value  of  the  improvement  to  the  city  generally,  and  the  residue  of 
the  cost  is  apportioned  among  the  adjacent  lot-owners  in  proportion  to 
the  benefit  derived  respectively  from  the  improvement.  Under  the  pro- 
visions of  the  general  road  law,  the  adjacent  land-owners  pay  towards 
the  cost  of  the  right  of  way  the  value  of  the  improvement  to  themselves 
—  not  exceeding,  however,  the  value  of  the  land  taken  from  them 
respectively,  —  leaving  the  balance  of  the  cost  to  be  paid  by  the  count}-. 
Under  the  St.  Louis  Act,  the  sums  to  be  paid  by  and  to  the  adjacent 
lot-owners  are  assessed  separately,  and  when  part  only  of  a  proprietor's 
lot  is  taken,  one  amount  is  set  off  against  the  otiier,  and  the  balance 
only  is  settled  in  money.  Under  the  road  law,  the  benefit  is  in  every 
case  deducted  from  the  value  of  the  land  taken,  and  the  balance  only  is 
formally  ascertained  and  declared  ;  thus  what  is  formally  gone  through 
with  under  the  St.  Louis  Act,  step  by  step,  is  done  substantially  at  one 


CHAP.  VI.]  NEWBY   V.    PLATTE   COUNTY.  1173 

blow  under  the  road  law.  In  both  cases  the  legislature  exercises  the 
same  power  over  private  property,  and  no  other ;  and  although  in  one 
case  the  language  employed  has  a  more  direct  reference  to  the  taxing 
power  than  in  ihe  other,  we  are  not  at  liberty,  we  think,  on  that  account 
to  treat  the  provision  in  one  act  as  a  prohibited  invasion  of  private 
propert}-,  and  to  give  etfect  to  it  in  the  other  as  an  exercise  of  a  lawful 
power.  If  the  legislature  may,  under  the  taxing  power,  lawfully  require 
the  contribution,  and  if  this  provision  in  the  road  law  be  substantially 
such  a  requisition,  as  we  think  it  is,  we  are  not  at  liberty  to  treat  it  as  a 
nuUit}',  but  must  give  efTect  to  it  accordingly.  In  a  case  now  before  us 
at  St.  Louis  {Garrett  v.  St.  Louis),  under  the  St.  Louis  Act  before 
referred  to,  part  of  the  plaintiff's  lot  was  taken  for  the  improvement  of 
Main  Street,  and  he  insists  upon  being  paid  the  whole  assessed  value  of 
the  part  taken,  without  any  deduction  on  account  of  the  assessment 
against  him  for  benefits  in  respect  to  the  residue  of  his  ground  ;  and  the 
question  tliere  is  as  to  the  validity  of  what  is  in  that  case  express  taxa- 
tion for  a  local  object,  —  while  in  the  present  case  it  is  as  to  the  validity 
of  what  is,  in  effect,  though  not  in  words,  a  like  assessment  for  a  like 
purpose. 

In  both  cases  the  only  question,  as  it  appears  to  us,  is  as  to  the  com- 
petency of  the  legislature  to  require  the  adjacent  land-owners  to  contri- 
bute towards  the  cost  of  the  ground  for  a  road  or  street,  in  proportion 
to  the  benefit ;  or,  to  state  the  proposition  in  more  general  terms,  it  is  as 
to  tlie  constitutional  validit}'  of  taxes  imposed  b}-  a  subordinate  authority 
in  the  State  upon  an  arbitrary  district  of  country,  in  proportion,  not  to  the 
value  of  the  property,  but  to  the  benefit  to  be  derived  by  the  owner  from 
the  improvement. 

Upon  this  question  we  begin  by  remarking  that  the  power  of  taxation, 
as  the  more  subordinate  power  of  taking  private  i)roperty  for  the  use  of 
tlie  public,  without  any  reference  to  the  owner's  dut}-  to  contribute  to  a 
common  burden,  exist  and  are  exercised  of  necessity  in  every  nation  as 
legitimate  powers  of  civil  government,  and  appertain  to  our  State  gov- 
ernment as  part  of  the  legislative  power,  without  any  ex|)ress  grant  for 
that  purpose.  The  right  of  eminent  domain  is,  in  its  nature,  capable  of 
being  limited  and  regulated  in  some  degree  by  general  rules,  and  has 
accordingly,  as  we  have  already  remarked,  been  confined  in  all  civilized 
States  by  the  practice  of  government,  and  in  our  American  republics  by 
express  constitutional  provision,  to  cases  of  public  necessity  and  con- 
venience, on  the  payment  to  the  owner  of  a  just  compensation.  But 
the  power  of  taxation  is  more  indefinite  in  its  character,  and  less  capable 
of  limitation  b}'  general  rules  of  law,  —  the  amount  of  money  to  be 
raised,  and  to  what  purpose  it  shall  be  applied,  and  the  persons  and 
things  that  shall  contribute  to  it  and  according  to  what  rule  of  appor- 
tionment, are  all  matters  left  almost  of  necessity  to  the  discretion  of 
the  legislative  department,  —  the  only  express  limitations  in  our  Con- 
stitution upon  the  taxing  power  being  that  "all  property  subject  to 
taxation   shall  be  taxed  in  proportion  to  its  value,"   and  the  prohi- 


1174  NEWBY   V.    PLATTE    COUNTY.  [('IIAI'.  VI. 

bition  against  taxing  the  lands  of  non-residents  biglier  than  rebiiKiils' 
lands. 

The  validity  of  the  enactment  now  under  consideration,  considered 
as  an  exercise  of  the  taxing  power,  is  not  questioned  upon  tlie  ground 
of  its  being  a  local  tax.  There  are  everywhere,  in  all  civilized  States, 
two  sorts  of  public  expenditure,  —  those  that  concern  the  whole  State  in 
general,  and  those  that  are  confined  to  its  civil  subdivisions  and  lesser 
localities,  and  both  justice  and  convenience  require,  and  have  accord- 
ingly introduced  into  the  practice  of  all  governuients,  corresponding 
general  and  local  taxation.  (Domat,  Pub.  Law  Book,  I.,  tit.  5,  sees.  1 
and  5.)  Our  own  practice,  corresponding  with  the  general  practice  of 
the  other  States,  has  been  to  meet  the  general  burdens  by  general 
taxation,  and  to  make  it  the  duty  of  the  local  authorities  to  raise  and 
expend  within  their  respective  limits,  under  such  restrictions  as  the 
legislature  should  deem  proper,  the  taxes  applicable  to  the  local  public 
service.  The  manifest  equity  and  convenience  of  these  local  assess- 
ments, for  the  accom[)lishment  of  local  pur[)oses,  lias  brought  them 
more  and  more  into  general  use,  confining  them,  in  ver}'  many  instances, 
to  very  small  localities ;  and  no  one  now  questions  their  validit}', 
although  at  an  early  day  the  constitutional  validity'  of  taxation  levied 
by  subordinate  tribunals  was  questioned,  on  the  ground  tliat  it  was 
levied  without  the  consent  of  the  people  or  their  representatives  ;  or,  in 
other  words,  that  it  was  an  exercise  of  the  legislative  power  of  taxation 
which  it  was  not  competent  for  the  legislature  to  delegate  to  others. 
(County  Lev}-  Case,  5  Call,  i;39.)  That  objection,  however,  wa?  over- 
ruled in  the  case  in  which  it  was  made,  and  has  never  been  regarded  in 
American  legislation. 

The  objections  that  have  since  been  relied  upon  to  these  local  assess- 
ments for  local  improvements  are  that  it  is  not  "legitimate  taxation," 
and  that  in  this  State,  under  our  Constitution,  the}'  are  not  valid  as 
taxes,  because  the}'  are  apportioned  according  to  the  benefit  and  not 
according  to  the  value  of  the  property  as  required  by  the  Constitution. 
The  position  assumed  is  that  ''  legitimate  taxation  is  limited  to  the 
imposing  of  burdens  or  charges  for  a  public  purpose  equally  upon  the 
persons  or  property  within  a  district  known  and  recognized  by  law  as 
possessing  a  local  sovereignty,  for  certain  purposes,  as  a  State,  county, 
city,  town,  village,  &c.  ;  "  and  consequently  road  and  street  and  other 
similar  assessments  for  local  improvements  ai-e  no  other  than  the  taking 
of  private  property,  under  color  of  the  taxing  power,  without  providing 
the  compensation  required  by  the  Constitution.  This  idea,  it  is  believed, 
was  first  formally  announced  in  New  York,  in  the  case  of  The  People  v. 
3Tayor  of  Brookh/n,  6  Barb.  216,  and  is  said  to  have  originated  in 
the  Court  of  Appeals  of  Kentucky,  in  the  case  of  Sutton's  Heirs  v.  City 
of  Louisville  (5  Dana,  2d>).  The  New  York  case  was  an  assessment 
on  a  lot-owner  in  proportion  to  the  benefit  for  the  purpose  of  build- 
ing a  sewer,  and  the  Kentucky  case  was  a  similar  assessment  for  the 
extension  of  a  street,  and  both  assessments  were  decided  to  be  uncon- 


CHAP.  VL]  NEWBY   V.    PLATTE  COUNTY.  117.1 

stitutional,  as  not  being  legitimate  exercises  of  the  taxing  power.  The 
New  York  case,  however,  was  reversed  ou  appeal,  in  the  Court  of 
Appeals  (4  Comst.  428),  and  the  doctrine  itself  seems  to  have  been 
subsequent!}'  abandoned  in  effect  in  Kentuck}",  in  the  case  of  the  City  of 
Lexington  v.  McMiUa'Dis  Heirs,  1)  Dana,  513,  b}'  the  same  court,  com- 
posed of  the  same  judges,  in  which  it  originated.  In  the  latter  case, 
Lexington  was  authorized  b\'  its  charter  to  cause  the  streets  to  be 
paved  at  the  expense  of  the  lot-owners  in  each  square,  either  upon  the 
application  of  the  greater  part  of  them,  or  without  such  application  by 
tlie  unanimous  consent  of  the  nia\'or  and  council;  and  one  question 
being  as  to  the  validitv  of  an  assessment  that  had  been  made  pursuant 
to  an  ordinance  passed  with  the  required  unanimity,  the  court  held  it 
valid,  suggesting  that  each  square  might  be  considered  an  independent 
niunicipalit}'  for  this  purpose.  Upon  principle,  there  is  nothing,  we 
think,  in  the  objection. 

In  distinguishing  taxation  from  the  taking  of  private  propcrt}'  under 
the  right  of  eminent  domain,  it  has  been  well  observed  that  taxation 
exacts  property  from  individuals  as  their  respective  shares  of  contribu- 
tion to  a  public  burden.  Private  property  taken  by  the  right  of  eminent 
domain  is  not  taken  as  the  owner's  share  of  such  a  contribution,  but  as 
so  much  beyond  it.  Taxation  operates  upon  a  class  of  persons  or 
things,  and  by  some  rule  of  apportionment.  The  exercise  of  the  riglit 
of  eminent  domain  operates  upon  individual  persons  or  things,  and 
without  any  reference  to  what  is  exacted  from  others.  The  present  tax, 
if  we  may  consider  it  as  one,  operates  upon  a  class  of  persons,  — tiie 
owners  of  the  several  tracts  of  land  over  which  the  road  passes,  —  is 
assessed  against  them  in  proportion  to  the  benefit  each  derives  from  the 
improvement,  and  is  exacted  from  them  as  their  respective  shares  of 
contribution  to  the  establishment  of  the  road.  We  may  remark,  too, 
that  taxation  of  this  character  has  prevailed  too  long  and  too  exten- 
sively to  be  treated  as  illegitimate,  or  denounced  as  legislative  spoliation 
under  the  guise  of  the  taxing  power.  It  prevailed  in  England  several 
centuries  ago  ;  and  the  assessments  made  there  by  the  commissioners 
of  sewers  on  the  lands  affected  by  their  operations  was  taxation  of  this 
character.  (28  Hen.  VIII.,  chap.  5,  sec.  o.)  In  Massachusetts,  from 
an  early  period,  meadows,  swamps,  and  lowlands  were  required  to 
be  assessed  among  the  proprietors  to  pay  the  expense  of  draining  them 
(Rev.  Stat,  of  Mass.  p.  673),  and  in  Connecticut  the  same  power  was 
given  to  cominissioners  for  draining  marshy  lands  (Conn.  Stat.  ed. 
1839,  p.  544).  It  is  said  by  the  judge,  who  delivered  the  opinion  of  the 
Court  of  Appeals  in  the  Brooklyn  case  before  referred  to,  that  the  system 
of  local  taxation  for  local  improvements,  by  assessing  the  burden 
according  to  the  benefit,  had  prevailed  for  more  than  one  hundred  and 
fifty  years,  and  that  this  power  was  given  to  the  corporation  of  New 
York  in  1691,  and  had  since  been  conferred  on  nearly  ever}'  cit}'  and  on 
many  of  the  villages  of  the  State.  We  are  informed  in  the  opinion  of  the 
Supreme  Court  of  Kentuck}-,  in  the  Lexington  case  before  referred  to. 


117G  NEWBY   V.    PLATTE   COUNTY.  [cHAP.  VI 

that  the  assessment  of  benefits  for  the  improvement  of  streets  had  been 
sanctioned  as  constitutional  in  Louisiana,  Soutli  Carolina,  and  Peim- 
sylvania ;  had  been  virtually'  recognized  by  the  courts  in  New  York 
and  Massachusetts,  and  had  never  been  declared  unconstitutional  by 
any  court,  so  far  as  Ihcy  had  been  able  to  ascertain  ;  and  we  may  our- 
selves remark  that  similar  taxation  is  authorized  by  law  in  New  .Terse}', 
Mar3'land,  Virginia,  Ohio,  and  Indiana,  and  either  acquiesced  in  by  these 
communities  or  adjudged  valid  by  their  courts.  Finally,  the  validity  of 
local  assessments  of  this  character  was  considered  and  atlirmcd  in  this 
court  at  our  last  St.  Louis  fall  term,  in  the  case  of  Lockwood  v.  The 
City  of  St.  Louis.,  24  Mo.  20,  where  the  assessment  was  to  construct  a 
common  sewer,  and  was  levied  on  all  the  lots  in  an  arbitrary  district,  — 
laid  off  by  the  corporation  for  the  purpose  of  constructing  the  sewer. 
.  .  .  IJut,  although  we  concur  with  the  Circuit  Court  iii  thinking  this 
section  of  the  road  law  constitutional,  3'et  the  judgment  must  be 
reversed  upon  another  ground.  The  only  facts  agreed  between  the 
parties,  and  upon  which  the  decision  was  pronounced,  were,  that  the 
road  ran  "  through  the  plaintiff's  land  one  Imiidivd  and  twenty-two 
poles,  and  occupied  one  and  one-half  acres  of  ground,  worth  fifteen 
dollars  per  acre  ;  "  but  it  was  not  admitted  that  the  road  was  any  benefit 
to  the  party,  and  the  court,  we  think,  could  not  infer  this  as  a  matter  of 
law  from  the  agreed  facts,  and  pronounce  against  allowing  the  [)laintitT 
an}'  compensation  for  the  property  of  wiiicli  he  was  deprived. 

As  to  the  proper  rule  by  which  to  compute  the  benefits  in  cases  of 
this  character,  it  may  not  be  improper,  as  the  case  is  to  be  remanded 
for  further  proceedings,  to  remark  that  the  Sui)reme  Court  of  Massachu- 
setts, in  the  case  of  Meacham  v.  The  Fitchhnr(j  Rnilroad  Co.,  4  Cush. 
392,  declared  that  the  benefits  to  be  charged  against  the  adjacent  land- 
owners and  deducted  from  the  compensation  to  be  paid  to  them  were 
the  direct  and  peculiar  benefits  that  would  result  to  them  in  particular, 
and  not  the  general  benefit  that  they  would  derive  in  common  with  other 
land-owners  from  tlie  building  of  the  road  ;  and  this  seems  to  be  sub- 
stantially the  principle  adopted  by  our  own  legislature  as  just  and  equi- 
table in  the  St.  Louis  Street  Improvement  Act  before  referred  to,  and 
ought  perhaps  to  be  followed  in  the  construction  of  this  provision  of  the 
road  law.  In  reference  to  the  disadvantages,  it  is  to  be  observed  that 
the  Constitution  only  secures  to  the  owner  the  price  of  his  property, 
but  it  is  competent  for  the  legislature  to  go  beyond  this,  and  not  only 
pay  him  the  value  of  his  property,  but  also  indemnify  him  against  any 
damage  that  will  result  to  him  from  the  use  to  which  it  is  to  be  applied  ; 
and  this  they  have  effected  by  requiring  the  disadvantages  as  well  as 
the  advantages  to  be  taken  into  c^/nsideration  in  the  assessment  of  the 
damages.  Judge  Ryland  concurring,  the  judgment  is  reversed,  and 
the  cause  remanded. 

ScoTT,  J.,  dissenting.  I  dissent  from  so  much  of  the  opinion  of  the 
majority  of  the  court  as  maintains  that,  in  the  computation  of  the  dam- 
ages to  be  paid  to  the  owner  of  the  property  taken  for  public  use,  regard 


CHAP.  VI.]  WAGNER    V.    GAGE   COUNTY.  1177 

must  be  bad  to  tbe  advantages  and  disadvantages  resulting  to  sucb 
owner  from  the  use  to  wbich  tbe  property  may  be  applied.  Tbe  value 
in  cash  of  the  thing  taken,  considering  its  place  and  situation,  is  the 
compensation  contemplated  by  tbe  Constitution  to  wbich  the  owner,  as 
such,  is  entitled.  The  legislature  may  compensate  disadvantages  with 
advantages,  but  the  value  of  the  property  taken  must  be  paid  for  in 
money.' 

In  Wagner  v.  Garje  Count}/,  3  Neb.  237  (1874),  on  appeal  from  tbe 
award  of  commissioners  to  assess  damages  from  tbe  laying  out  of  a 
road,  It  appeared  that  the  presiding  judge  below  bad  instructed  the 
jur}'  as  follows  :  — 

"  In  your  consideration  of  tbe  evidence,  you  will  not  take  into  con- 
sideration any  consequential  damages  that  might  possibly  occur  by 
reason  of  the  location  of  such  road,  nor  what  might  be  consequential 
costs  of  erecting  fences  ;  but  tbe  measure  of  damages  is  the  difference 
between  tbe  market  value  of  tbe  premises  immediately  before  tbe 
road  was  located,  and  the  market  value  thereof  immediately  after  its 
location." 

Tbe  jury  found  a  verdict  for  tbe  defendant ;  whereupon  tbe  plaintiff 
filed  a  motion  for  a  new  trial,  which  being  overruled  by  the  court, 
judgment  was  rendered  on  tbe  verdict.  To  reverse  this  judgment  the 
cause  was  brought  to  this  court  by  petition  in  error. 

JV.  K.  Griggs  and  W.  II.  Ashby,  for  plaintiff  in  error.  S.  C.  B. 
Dean  and   W.  J.  GalhraUh,  for  defendant  in  error. 

Maxwkll,  J.  Section  thirteen  of  tbe  bill  of  rights  in  our  Constitu- 
tion declares  that  ''  tbe  property  of  no  person  shall  be  taken  for  the 
public  use  without  just  compensation  therefor ;  "  and  that  section  is 
only  declaratory  of  tbe  common  law.   .  .  . 

Our  statutes  (General  Statutes,  955)  provide  the  mode  of  locating 
new  roads,  and  section  twenty-four  of  the  chapter  provides  for  com- 
pensation to  tbe  owner  of  tbe  land. 

Tbe  question  arises,  what  is  just  compensation  ?  All  the  cases  seem 
to  concur  in  excluding  more  general  and  public  benefits,  wbich  tbe 
owner  of  tbe  land  shares  in  common  with  tbe  rest  of  tbe  inhabitants 
of  the  vicinity,  from  being  taken  into  consideration  in  estimating  com- 
pensation. While  this  is  the  law  in  theory,  in  several  of  the  States  it 
seems  to  be  disregarded. 

In  Massachusetts  tbe  court  held,  "  the  jury  might  and  ought  to  have 
returned  that  the  party  sustained  no  damages,  if  such  was  their  con- 
viction ;  the  benefit  the  owner  of  the  land  derived  from  tbe  laying  out 
of  a  way  over  it  may  often  exceed  tbe  value  of  tbe  land  covered  by 
the  way."  Commonwealth  v.  Sessions  of  Middlesex,  9  Mass.  388. 
And  the  same  doctrine  has  been  held  in  Vermont.     Livermore  v.  Ja- 

^  Affirmed  in  State  v.  City  of  Kansas,  89  Mo.  34  (1886).  Compare /Tennerfy  v. 
Indianapolis,  103  U.  S.  599 ;  BJoomington  v.  Latham  et  aL,  142  111.  462,  and  the  cases  on 
special  assessments,  infra,  pp.  128G  to  1315.  —  Ed. 


1178  WAGNEK   V.   GAGE   COUNTY.  [cilAl'    VL 

maica,  23  Vt.  361.  And  in  Pennsylvania  the  courl  Lekl,  '' tUo  more 
common  mode  of  estimating  land  damages  unquestionably  is,  to  give 
the  company  the  specific  benefit  caused  to  land,  a  portion  of  which  is 
taken,  in  the  enhancing  the  value  of  the  same,  and  only  to  allow  the 
land-owner  such  a  sum  as  will  leave  him  as  well  off  in  regard  to  the 
particular  land,  as  if  the  works  had  not  been  built,  or  his  land  taken. 
This  is  done  by  giving  the  land-owner  a  sum  equal  to  the  difference 
between  what  the  land  would  have  sold  for  before  the  road  was  built, 
and  what  the  remainder  will  sell  for  after  the  coustructi<jn."  JIarrey 
V.  Lackaioanna  &  Bloomshuvyli  R.  7i.,  47  Pa.  St.  428  ;  Troy  \-  Bus- 
ton  R.  R.  v.  Zee,  13  Barb.  IGD  ;  Matter  of  Farnam  Street,  17  Wend. 
649. 

The  Supreme  Court  of  Ohio,  since  the  adoption  of  the  Constitution 
of  1851,  hold  that  in  all  cases  compensation  must  be  made  for  the  land 
actually  taken.  The  court  says,  in  regard  to  the  provisions  of  the  Con- 
stitution providing  for  compensation,  "  by  the  one,  the  compensation 
is  to  be  assessed  without  deduction  for  benefits,  and  by  the  other  irre- 
spective of  benefits,  and  by  each  a  full  compensation  is  required.  Now, 
when  is  a  man  fully  compensated  for  his  property?  Most  clearly  and 
unquestionably  when  he  is  paid  its  full  value,  and  never  before.  The 
word  'irrespective'  relates  to  this  full  compensation,  and  binds  the 
jury  to  assess  the  amount  without  looking  at  or  regarding  any  benefits 
contemplated  by  the  construction  of  the  imi)rovement.  When  this  is 
done,  and  this  consideration  wholly  excluded,  the  jury  have  nothing  to 
do  but  ascertain  the  fair  maiket  value  of  the  property  taken.  .  .  . 
Whether  the  property  is  appropriated  directly  l)y  the  public,  or  through 
the  intervention  of  a  cori)oration,  the  owner  is  entitled  to  receive  its 
fair  market  value  at  the  time  it  is  taken,  as  much  as  he  might  fairly 
expect  to  be  able  to  sell  it  to  others  for,  if  it  was  not  taken; and  this 
amount  is  not  to  be  increased  from  the  necessity  of  the  public  or  the 
corporation  to  have  it,  on  the  one  hand,  nor  diminished  from  any  neces- 
sity of  the  owner  to  dispose  of  it,  on  the  other.  It  is  to  be  valued 
precisely  as  it  would  be  appraised  for  sale  upon  execution,  or  by  an 
executor  or  guardian,  and  without  any  regard  to  the  external  causes 
that  mav  have  contributed  to  make  up  its  present  value."  Giesy  v.  C. 
W.  &  Z.  R.  R.  Co.,  4  Ohio  St.  330-332. 

This  seems  to  us  to  be  the  only  just  and  equitable  rule,  requiring  in 
all  cases  that  compensation  shall  be  made  for  the  fair  market  value  of 
the  land  actually  taken,  while  special  benefits  may  be  set  off  against 
any  local  or  incidental  injury  to  the  residue  of  the  tract. 

Section  nineteen  of  the  bill  of  rights  of  the  Ohio  Constitution  pro- 
vides, that  compensation  for  property  taken  for  public  use  shall  be 
assessed  by  a  jur}-  "  without  deduction  for  benefits  to  any  property  of 
the  owner."  This  provision  seems  to  have  been  incorporated  in  the 
Constitution  of  1851,  in  consequence  of  the  decisions  of  the  Supreme 
Court  of  that  State  in  Symonds  v.  The  City  of  Cincinnati^  14  Ohio, 
147  ;  and  Broivn  v.  The  Same,  14  Id.  541,  where  the  court  held  it  was 


CHAP.  VI. J         CONN.    RIVER   R.   R.    CO.   V.    COUNTY   COM'RS.  1179 

competent  for  the  defence  to  show  the  benefit  conferred  on  the  owner 
bythe  appropriation,  such  benefit  to  be  considered  by  the  jury  m  esU- 
ItL  the  damages.  We  think  the  words  '^  without  deduction  for 
b^!efiTs  "  adds  nothing  to  the  term  '^  just  compei^sation,"  and  that  the 
same  rule  is  as  appUcablc  in  our  State  as  in  Ohio. 

The  urv  in  this  case  having  found  for  the  defendant,  it  was  the  duty 
of  the  court  to  set  aside  the  verdict  and  grant  a  new  trial. 

T  ?".ment  of  the  District  Court  is  reversed,  and  cause  remanded 
foi  a  tnal  de  novo.  ^^'-^^^^  "^^^^  remanded} 

Mr.  Chief  Justice  Lake  concurs. 

Ik    Conn.  Ewer  R.  IL  Co.  v.  County   ComWs  of  Fra-klin    \^ 
Mass    50  (1879),  a  statute  had   required   the  manager  of  a  raihoad 
owned  by  the  St^te,  upon  the  direction  of  the  Governor  and  Counci 
to  take  certain  land  for  the  purposes  of  the  road,  and  P-)-  "^  ^^^  f 
should  be  paid  for  out  of  the  earnings  of  the  road^    ^'^^Tt^^^'^^^ 
these  earnincrs  would  -probably  be  amply  sufficient      to  meet  these 
avments.     The  manager,  having  been  duly  duected,  entered  upon  the 
"  ,rand  petitioned  the'  county  commissioners  to  proceed  in  ascertaining 
aTd  awarding  damages.     In  granting  a  writ  of  prolubition  against  U 
Lmissioners,  the'court  (G.av,  C.  J.)  said  :     -rwo  q-s tions  aie 
presented  by  the   case,   and   have  been   argued   by   ^^""^^l;    ^"f^ 
Wliether  the  St.  of  1878,  c.   277,  is  unconstitutional,  for  want  ot  a 
sufficient  provision  for  the  payment  of  compensation  for  the  land  taken . 
Second      Whether  the  writ  of  prohibition  is  a  suitable  remedy . 

-  The  Constitution  of  the  Commonwealth  declares  that,  '  vvbenever 
the  public  exigencies  require  that  the  property  of  any  individual  should 
be  appropriated  to  public  uses,  he  shall  receive  a  reasonable  compensa- 

1  And  so  0,nnhn  v.  Z7o,.e//  Lumber  Co.,  30  Neb.  63.3,  635  (1890)      Compare  Terry 

V  Hartford    39  Conn.  286,   Randolph,  Em.  Dom.  s.  273.     In  Omaha   South.  R;/.   to. 

V  S  8  N  W  Hep  289  (Neb.  1894).  the  court  (Rao.vx,  C).  said  :"  The  damages 
lo  which  a  land-owner  i.  entitled  by  reaso.i  of  the  construction  of  a  ra.lway  across  Ins 
farm  are    1)  the  actual  value  of  the  land  taken,  at  the  tin.e  of  tUo  tak.ug,  withou    d.m- 

nuln  on  account  of  any  benefit,  advantage,  or  other  set-off.  whatsoever;  (2)  the 
dep^e    ation  in  the  value  of  the  remainder  of  the  tract  of  land  caused  by  the  appro- 
priation of  a  part  thereof  for  railway  purposes,  and  the  constru<a.on  and  permanent 
Sron  and  occupation  of  the  railroad  thereon,  excluding  general  benefits.    Ra,lroad 
(?    V  Xa-  Wey,  64  III.  339 ;  Ra.lroad  Co.  v.   W.el.,  25  Neb.  542,  41  N.  W.  297  ;  Rol> 
bnsr  Lhoac    Co,6  Wis.  610;  RaUroad  Co.  v.  //on,,  41   Ind.  479.     In  an  inquiry 
whethe^^and  how  much,  the  part  of  a  farm  not  taken  for  railroad  r.ght  of  way  is 
Iprecia  ed  in  value  hv  the  appropri.ation  of  a  part,  evidence  as  to  the  s.ze  of  the  farm 
the  pu  pose  for  which  it  is  used;    the  improvements  thereon,  and  how  located ;  the 
irec ton   of   the  road   across   the  farm;    the   cuts  and    fills    -^-\-\'?  ^^\Z' 
in  the  construction  of  the  road;  the  width  of  the  right  of  way  ;  the  height  of  em- 
bankments;  the  depth  of  ditches;  the  inconvenience  in  crossing  the  track  from  one 
part  of  the  farm  to  another  ;  the  liability  of  stock  being  killed ;  and  danger  from  fire 
f r' m  pa  sTng  trains,  -  are  all  facts  competent  for  the  jury's  cons^^Ieration  in  determin- 
Tth^d  pLiation  in  value  of  the  remainder  of  the  farm.     Radway  Co.  v.  Beeson 
SSXeb  36r54  N.  W.  557."     See  Leroy  Sr  West.  R.  R.  Co.  v.  Ross  et  al.,  40  Kans.  598 ; 
Meacbam  v]  Fitchb.  R.  R.  Co.,  4  Cush.  291. -Ed. 


1180  CONN.    laVER   R.    R.    CO.   V.    COUNTY   CO.M'kS.         [cHaIv   VI. 

tion  therefor.'  Declaration  of  Rights,  art.  10.  It  has  long  been  set- 
tled by  tlie  decisions  of  this  court,  that  a  statute  which  undertakes  to 
appropriate  private  property  for  a  public  highway  of  any  kind,  without 
adequate  provision  for  the  payment  of  compensation,  is  unconstitu- 
tional and  void,  and  does  not  justify  an  entry  on  the  land  of  the  owner 
without  his  consent.  ('om»to/iiceallh  v.  J'efers,  2  ^lass.  125;  J'rrri/ 
V.  Wilso?i,  7  Mass.  303  ;  Thacher  v.  Dartmouth  Bridye,  1«  Pick.  501. 
'Under  our  Constitution,'  said  Chief  Justice  Shaw,  '  the  Act  conferring 
the  power  must  be  accom|)anied  by  just  and  constitutional  provisions 
for  full  compensation  to  be  made  to  the  owner.  If  the  governnient 
authorizes  the  taking  of  property,  for  any  use  other  than  a  public  one, 
or  fails  to  make  provision  for  a  compcn.sation,  the  Act  is  simply  void  ; 
no  right  of  taking  as  against  the  owner  is  conferred  ;  and  he  has  the 
same  rights  and  remedies  against  a  party  acting  under  such  authoritv, 
as  if  it  had  not  existed.'  Boston  tD  Lmrell  Iliiilrrxul  v.  Sdleni  S.- 
Lowell Railroad,  2  Gray,  1,  37.  So  in  a  case  of  laying  out  as  a  pub- 
lic highway  a  bridge  owned  by  a  private  corporation,  Mr.  Justice  Colt 
said:  'The  duty  of  paying  an  adequate  compensation,  for  private 
propert}'  taken,  is  insci)arable  from  the  exercise  of  the  right  of  eminent 
domain.  The  Act  granting  the  power  must  provide  for  compensation, 
and  a  ready  means  of  ascertaining  the  amount.  Payment  need  not 
precede  the  seizure  ;  but  the  means  for  securing  indemnity  must  be 
such  that  the  ow-ner  will  be  i)ut  to  no  risk  or  uureasonal)le  dela\ .' 
TLaverhxll  Bridge  v.  County  Commissioners.,  103  Mass.  120,  124. 

"  In  Rogers  v.  Bradshaw,  20  Johns.  735,  744,  cited  by  the  learned 
counsel  for  the  respondents,  the  decision  was  that  the  statutes  appli- 
cable to  the  case,  construed  together,  expressly  provided  for  the  esti- 
mate and  payment  of  the  damages,  and  that  sucli  payment  need  not  be 
actually  made  before  the  entry  npon  the  land ;  and  the  dictum  of 
Chancellor  Kent,  that  an  omission  of  the  legislature  to  provide  for 
compensation  miglit  not  have  made  the  entry  a  trespass,  is  opposed  to 
the  course  of  decisions  in  this  Commonwealth,  and  has  not  been  fol- 
lowed in  New  York.  In  B/oodgood  v.  JSIuhaxck  it-  Hudson  Railroad, 
18  Wend.  1,17,  Chancellor  Walworth,  while  admitting  that  the  legis- 
lature might  authorize  the  land  of  an  indivi(bial  to  be  entered  upon  for 
the  purpose  of  examination  or  of  making  preliminary  surveys,  without 
compensation,  said  :  '  But  it  certainly  was  not  the  intention  of  the 
framers  of  the  Constitution  to  authorize  the  property  of  a  citizen  to  be 
taken  and  actually  appropriated  to  the  use  of  the  public,  and  thus  to 
compel  him  to  trust  to  the  future  justice  of  the  legislature  to  provide 
him  a  compensation  therefor.  The  compensation  must  be  either  ascer- 
tained and  paid  to  him  before  his  property  is  thus  appropriated,  or  an 
appropriate  remedy  must  be  provided,  and  npon  an  adequate  fund  ; 
whereby  he  may  obtain  such  compensation  through  the  medium  of  the 
courts  of  justice,  if  those  whose  dut}'  it  is  to  make  such  compensation 
refuse  to  do  so.  In  the  ordinary'  case  of  lands  taken  for  the  making  of 
public  highways,  or  for  the  use  of  the  State  canal,  such  a  remed}'  is  pro- 


CHAP.  VI.]  CONN.  EIVER   K.    R.   CO.   V.   COUNTY   COM'kS.  1181 

vkled ;  and  if  the  town,  county,  or  State  officers  refuse  to  do  their  duty 
in  ascertaining,  raising,  or  paying  such  compensation  in  the  mode  pre- 
scribed by  law,  the  owner  of  the  property  has  a  remedy  by  mandamus 
to  compel  them  to  perform  their  duty.  The  public  puise,  or  the  prop- 
erty of  the  town  or  county  upon  which  the  assessment  is  to  be  made, 
nuiy  justly  be  considered  an  adequate  fund.  He  has  no  such  remedy, 
however,  against  the  legislature  to  compel  the  passage  of  the  necessary 
laws  to  ascertain  the  amount  of  compensation  he  is  to  receive,  or  the 
fund  out  of  which  he  is  to  be  paid.'  And  m  People  v.  Kayden,  G  Hill, 
359,  361,  Chief  Justice  Nelson  said:  '  Although  it  may  not  be  neces- 
sary, within  the  constitutional  provision,  that  the  amount  of  compen- 
sation should  be  actually  ascertained  and  paid  before  property  is 
thus  taken,  it  is,  I  apprehend,  the  settled  doctrine,  even  as  it  respects 
the  State  itself,  that,  at  least,  certain  and  ample  provision  must  be  first 
made  by  law  (except  in  cases  of  public  emergency),  so  that  the  owner 
can  coerce  payment  through  the  judicial  tribunals  or  otherwise,  without 
any  unreasonable  or  unnecessary  dela^".'  See  also  liexfonl  v.  Knight, 
1  Kernan,  308,  314;  Chapman  v.  Gates,  54  N.  Y.  132,  146. 

"  Statutes  taking  private  property  for  a  public  highway,  and  provid- 
ing for  the  ascertaining  of  the  damages,  and  for  payment  thereof  out 
of  the  treasury  of  the  county,  town,  or  city,  have  often  been  held  to  be 
constitutional.  Haverhill  Brichje  v.  County  Commissioners,  103 
Mass.  120;  Chapman  v.  Gates,  b\  N.  Y.  132;  Loweree  v.  Newark, 
9  Vroom,  151  ;  Yost's  Report,  17  Penn.  St.  524;  Powers  v.  Bears,  12 
Wis.  213,  220;  Commissioners  v.  Boicie,  34  Ala.  461.  But,  in  the 
cases  in  which  it  has  been  so  held,  the  liability  to  pay  the  damages 
rested  upon  the  whole  property  of  the  inhabitants  of  the  municipality, 
and  might  be  enforced  by  writ  of  execution  or  warrant  of  distress,  or 
by  mandamus  to  compel  the  lev}'  of  a  general  tax.  IIHI  v.  Boston, 
122  Mass.  344,  350  ;  Rose  v.  Taunton,  ll'J  Mass.  99,  101  ;  Bloodgood 
V.  Mohawk  &  Hudson  Railroad,  and  Rexford  v.  Knight,  above 
cited  :  Comnxonweidth  v.  Commissioners  of  Allegheny,  37  Penn.  St. 
237,  277  ;  Minhinnah  v.  Haines,  5  Dutcher,  388  ;  Brock  v.  Hishen, 
40  Wis.  674.  The  rule  has  not  been  extended  to  cases  in  which  only 
a  special  fund  was  charged  with  the  payment  of  the  damages,  and  the 
niunicipalit}'  had  no  power  to  levy  a  general  tax  to  pa}'  them.  Chapman 
V.  Gates,  54  N.  Y.  146  ;  Keene  v.  Bristol,  26  Penn.  St.  46. 

"In  Ash  V.  Cummings,  50  N.  H.  591,  621,  it  was  said:  'In  cases 
where  the  State,  or  a  county,  or  a  town,  is  to  be  made  liable  for  the  dam- 
ages which  an  individual  may  suffer  by  having  his  property  taken  for 
the  public  use,  it  is  not  so  important  that  the  compensation  should  be 
paid  or  secured  in  advance,  provided  the  law  provides  a  certain  and 
expeditious  way  of  ascertaining  and  recovering  it,  because  there  the 
presumption  and  the  fact  are  that  these  municipalities  are  always 
responsible.'  And  the  saying  was  quoted  with  approval  by  a  majority 
of  the  court  in  Orr  v.  Quimhy,  54  N.  H.  590,  594.  But  in  each  case 
it  was  obiter  dictum.     Ash  v.  Cummings  was  the  case  of  a  mill-dam 


1182  CONN.    KIVKU    II.    i:.    CO.    V.    COUNTY    COVI'KS  [Cll.VK  VL 

erected  by  one  indivitliial  to  the  injury  of  another.  In  Orr  v.  Qiihnby, 
it  was  admitted  that  the  only  question  to  be  determined  was  whether 
the  defendant  had  the  right  to  enter  and  cut  trees  on  the  i)huntiir8 
land,  and  that  the  question  whether  the  hind  coukl  be  permam-nlly 
occupied  without  assessment  and  payment  of  damages  did  not  arise ; 
54  N.  H.  596  ;  and  the  position  assumed  in  the  dictum  above  quoted 
was  strongly  controverted  m  an  elaborate  dissenting  opinion  of  Mr. 
Justice  Doe,  as  it  had  previously  been  in  an  able  judgment  of  the 
Supreme  Court  of  Maine,  delivered  by  Chief  Justice  Shepley.  Cushmmi 
V.  Smith,  34  Maine,  247. 

'•  When  private  property  is  taken  directly  by  the  Commonwealth  for 
the  public  use,  it  is  not  necessary  or  usual  that  the  Commonwealth 
should  be  made  subject  to  compulsory  process  for  the  collection  of  the 
money  to  be  paid  by  way  of  compensation.  It  is  sulFicient  tliat  the 
statute  which  authorizes  the  taking  of  the  property  should  provide  for 
the  assessment  of  the  damages  in  the  ordinary  manner,  and  direct  that 
the  damages  so  assessed  be  paid  out  of  the  treasury  of  the  Common- 
wealth, and  authorize  the  Governor  to  draw  his  warrant  therefor ; 
because,  as  observed  by  Chief  Justice  Bigelow,  'This  is  clearly  an 
appropriation  of  so  much  mone}'  as  may  be  necessary  to  pay  the  dam- 
ages which  may  be  assessed  under  the  Act.'  '  It  is  a  pledge  of  the  faith 
and  credit  of  the  Commonwealth,  made  in  the  most  solemn  and  authen- 
tic manner,  for  the  i)ayraent  of  the  damages  as  soon  as  they  are  ascer- 
tained and  li(jiiidated  by  due  process  of  law.'  Talbot  v.  Hudson,  16 
Gray,  417,  431. 

"  But  in  the  statute  before  us  there  is  no  pledge  of  the  faith  and 
credit  of  the  Commonwealth,  no  appropriation  of  the  general  funds  in  its 
treasury,  and  no  authority  to  the  Governor  to  draw  his  warrant  for  the 
payment  of  the  damages  out  of  such  funds.  On  the  contrary,  the  very 
terms  of  the  statute  preclude  the  inference  of  any  such  pledge,  appro- 
priation, or  authorit}',  by  directing  that  the  land  taken  for  the  union 
passenger  station  shall  be  paid  for  from  the  earnings  of  the  Tioy  and 
Greenfield  Railroad  and  Hoosac  Tunnel,  and  appropriating  for  the  pur- 
poses of  the  Act  a  sum  not  exceeding  nine  thousand  dollars,  to  be  paid 
out  of  those  earnings.  St.  1878,  c.  277,  §§  6,  8.  The  fact,  admitted 
by  the  parties,  that  those  earnings  will  probably  be  sulDcient  to  meet 
and  extinguish  all  claims  for  damages  for  lands  so  taken,  falls  short  of 
satisfying  the  requirement  of  the  Constitution  that  the  owner  of  prop- 
erty taken  for  the  use  of  the  public  shall  have  a  prompt  and  certain 
compensation,  without  being  subject  to  an}'  risk  or  unreasonable  delay. 

"  The  provisions  of  the  St.  of  1878,  c.  277,  specifying  and  appropri- 
ating a  certain  sum  out  of  those  earnings  for  the  payment  of  damages 
assessed  under  this  Act,  are  equally  conclusive  against  the  suggestion 
made,  though  not  strongl}'  pressed,  at  the  argument,  that  the  Common- 
wealth, or  the  manager  acting  in  its  behalf,  ma}-  be  required  by  the 
county  commissioners,  at  the  request  of  the  land-owner,  to  give  addi- 
tional security  for  the  payment  of  the  damages  under  the  General  Rail- 


CHAP.  VI.]  BRICKETT   V.    HAVERHILL   AQUEDUCT   CO.  1183 

road  Act  of  1874,  c.  372,  §  Go.  Sections  69  and  72  of  that  Act,  provid- 
ing that,  if  the  raih-oad  corporation  shall  not  pay  the  amount  of 
damages  awarded  by  the  jury,  a  warrant  of  distress  or  execution  may 
issue  to  compel  the  payment  thereof,  and  that,  until  such  warrant  or 
execution  is  satisfied,  all  right  and  authority  to  enter  upon  the  land, 
except  for  making  surveys,  shall  be  suspended,  and  the  exercise  thereof 
may  be  restrained  by  injunction,  are  also  inapplicable,  because  in  the 
present  case  no  warrant  of  distress  or  execution  can  issue,  either  against 
the  manager  or  against  the  Commonwealth  ;  not  against  the  manager, 
because  he  takes  no  title  himself  in  the  land,  but  is  a  mere  agent  of  the 
Commonwealth,  acting  under  the  direction  of  the  Governor  and  Coun- 
cil, and  removable  at  their  pleasure;  Sts.  1875,  c.  77;  1876,  c.  150; 
1878,  c.  191  ;  not  against  the  Commonwealth,  because  the  Common- 
wealth is  never  liable  to  judicial  suit  or  process,  except  so  far  as  its 
own  consent  thereto  has  been  clearly  manifested  by  statute.  Troy  & 
Greenfield  Railroad  v.  Commonwealth,  a)de,  43. 

"The  St.  of  1878,  c.  277,  therefore,  so  far  as  it  purported  to 
authorize  the  taking  of  land  of  the  Connecticut  River  Railroad 
Company  for  a  union  railroad  station,  was  unconstitutional,  and  the 
taking  under  that  Act  was  void,  for  want  of  any  provision  for  adequate 
and  certain  compensation  to  the  owner. 

"That  taking,  being  unauthorized  and  void,  did  not  alter  the 
rights  of  the  owner  of  the  land,  vested  no  title  in  the  Com- 
monwealth, and  could  not  be  the  basis  of  a  petition  to  the  county 
commissioners  for  the  assessment  of  damages  as  for  land  lawfully 
appropriated  to  the  public  use.  The  invalidity  of  the  taking  and  the 
consequent  want  of  jurisdiction  in  the  county  commissioners  are  not 
cured  by  the  St.  of  1879,  c.  290,  passed  since  this  case  was  argued,  and 
providing  that  the  sums  of  money  required  under  the  St.  of  1878,  c. 
277,  shall  be  paid  from  the  treasury  of  the  Commonwealth,  instead  of 
from  the  earnings  of  the  Troy  and  Greenfield  Railroad  and  Hoosac 
Tunnel.  The  statement  of  Mr.  Justice  Baldwin,  in  Bonaparte  v. 
Camden  &  Amboy  Railroad,  Bald.  205,  226,  that  it  is  not  indispen- 
sable that  a  law  permanently  appropriating  private  property  to  the  use 
of  the  public  should  contain  a  provision  for  compensation,  or  prescribe 
the  mode  of  making  it,  but  that  such  a  law  would  be  valid  if  the  legisla- 
ture should  by  a  subsequent  law  direct  compensation  to  be  made,  appears 
to  have  been  founded  on  the  dictum  of  Chancellor  Kent  referred  to  in 
the  early  part  of  this  opinion,  and  is  inconsistent  with  the  settled  law 
of  this  Commonwealth,  and  with  the  weight  of  authority  elsewhere."  ^ 

In  Brickett  v.  Haverhill  Aqueduct  Company,  142  Mass.  394  (1886), 
the  defendant,  under  a  statute  purporting  to  authorize  the  taking  and 
use  of  the  waters  of  certain  ponds,  took  the  waters  of  Kenoza  lake  and 

1  Compare  United  States  v.  Enfjerman,  46  Fed.  Rep.  176,  holding  that  under  the 
Constitution  of  the  United  States  a  jury  is  not  necessary.  And  so  in  other  jurisdic- 
tions.    S«e  Randolph,  Em.  Dom.  s.  316.  — Ed.  * 


1184  BKICKETT   V.    HAVEUUILL   AQUEDUCT   CO.  [CHAP.  VI, 

!)uilt  a  dam  across  a  river  which  was  the  only  outlet  of  the  lake  ; 
whereby,  as  the  plaintiff  alleged,  the  How  of  the  stream  through  his 
land  was  prevented.  The  statute  provided  lor  l)aying  '-all  damages 
sustained  by  entering  upon  and  taking  "  these  waters.  The  plaintiff 
brought  a  common-law  action  of  tort,  and  a  verdict  was  ordered  for 
the  defendant.  In  setting  aside  this  verdict  on  the  ground  that  the 
defendant  miglit,  perhaps,  have  exceeded  the  statutory  authority,  the 
court  (Morton,  C.  J.)  said :  "  Without  doubt,  the  defendant  was  liable 
to  the  plaintiff  in  some  form  of  proceeding  for  any  damage  sustained 
by  him  by  reason  of  taking  the  water  and  building  the  dam.  W'ltuppa 
Reservoir  Co.  v.  FaU  Hirer,  134  Mass.  2G7.  But  it  is  settled  that, 
when  the  legislature  authorizes  a  municipal  or  other  corporation  to  take 
private  property  for  public  uses,  and  provides  in  the  statute  a  mode 
of  ascertaining  and  recovering  the  damages,  such  statutory  remedy  is 
the  onl}'  remedy  to  which  the  injured  party  can  resort  for  acts  done 
within  the  authority  of  the  statute. 

"It  follows  that  the  plaintiff  cannot  maintain  an  action  of  tort  for 
injuries  caused  to  him  b}"  any  acts  of  the  defendant  which  it  was  author- 
ized to  do  under  the  statute,  but  his  only  remedy  is  the  one  pointed  out 
by  the  statute. 

"The  plaintiff  recognizes  this  princii)le ;  but  contends  that  the 
St.  of  1867  is  unconstitutional  and  invalid,  because  it  does  not  make 
adequate  provision  for  the  recovery  of  damages  caused  by  the  defend- 
ant's acts  under  it. 

"The  Constitution  provides  that,  '  whenever  the  public  exigencies 
require  that  the  property  of  any  individual  should  be  appropriated  to 
public  uses,  he  shall  receive  a  reasonable  compensation  therefor.' 
Declaration  of  Rights,  art.  10.  Undoubtedly,  a  statute  which  attempts 
to  authorize  the  appropriation  of  private  property  for  public  uses,  with- 
out making  adequate  provision  for  compensation,  is  unconstitutional 
and  void.  Connecticut  Ricer  Railroad  v.  County  Commissioners^ 
127  Mass.  50,  and  cases  cited.  But  the  St.  of  1867  does  not  undertake 
to  do  this.  It  provides,  in  substance,  that  the  corporation  shall  be 
liable  to  pay  all  damages  for  injury  to  private  property,  and  specifies  a 
sufficient  remedy  to  enable  the  person  injured  to  recover  such  damages. 
We  are  not  aware  of  any  case  in  which  it  has  been  held  that  such  pro- 
visions are  not  a  sufficient  compliance  with  the  requirement  of  the  Con- 
stitution. The  instances  are  numerous  in  which  aqueduct  companies 
have  been  incorporated  by  statutes  which  contain  the  same  provisions 
for  securing  compensation.  The  successive  legislatures,  in  these 
statutes,  recognized  the  constitutional  obligation  to  make  adequate 
compensation,  and  deemed  that  such  provisions  did,  with  practical  cer- 
tainty, secure  the  rights  of  individuals  whose  property  was  taken  or 
injured. 

"  The}'  undoubtedly  took  into  consideration,  not  only  the  special 
remed}'  provided  b}*  each  statute,  but  the  other  rights  and  remedies 
which  an  individual  would  have  under  the  general  laws,  if  his  damages 


CHAP.  VI.]  BEICKETT   V.    HAVERHILL   Ai^UEDUCT    CO.  11S5 

were  not  paid  after  they  were  ascertained.  Take  the  case  before  us. 
If  the  plaintiff,  or  any  person  injured,  had,  upon  proper  application, 
had  his  dauiuges  ascertained,  he  would  be  entitled  to  a  warrant  of  dis- 
tress to  compel  the  payment  of  them;  Pub.  Sts.  c.  110,  §  18;  if 
this  was  ineffectual,  and  the  defendant  still  refused  to  pa}',  without 
doubt  this  court  would,  by  proceedings  in  equity,  restrain  the  defend- 
ant from  a  further  use  of  the  water,  and,  if  necessary,  order  the  removal 
of  the  dam. 

''  The  question  whether  the  provision  for  compensation  furnished  by 
the  statute  is  an  adequate  one  is  a  practical  question.  It  seems  to  us 
that  the  remedy  which  the  statute  in  question  furnishes  against  the  cor- 
poration, supplemented  by  the  remedies  afforded  by  the  general  laws, 
if  it  refuses  to  pa}"  the  damages  assessed,  affords  to  any  person  whose 
property  is  taken  or  injured  by  the  acts  of  the  corporation  a  reasonable 
certainty  that  he  will  recover  and  receive  compensation  therefor.  We 
are  not,  therefore,  prepared  to  hold  that  the  statute  is  unconstitutional, 
because  it  does  not  make  adequate  provision  for  compensation. 

"The  case  of  Connecticut  liiver  Railroad  v.  County  Commission- 
ers, ubi  supra,  is  quite  different  from  the  case  at  bar.  In  that  case,  in 
the  statute  which  was  held  to  be  unconstitutional,  no  person  or  corpo- 
ration, neither  the  State  nor  the  manager  of  the  railroad,  was  made 
liable  for  the  damages,  but  the  plaintiff  was  left  to  look  solely  to  a 
future  uncertain  fund,  and  he  was  provided  with  uo  means  of  enforcing 
his  claim  against  the  fund. 

"  We  do  not  deem  it  important  that  the  land  of  the  plaintiff  which 
was  injured  was  outside  of  the  limits  of  this  State.  The  language  of  the 
Act  is  general,  and  puts  all  water  rights  upon  the  same  footing,  and 
applies  to  a  proprietor  outside  the  State.  Such  proprietor  certainly  has 
no  greater  rights  than  the  citizen  whose  lands  or  water  rights  within 
the  State  are  injured  by  the  acts  of  the  defendant  under  the  authority 
of  the  legislature.  Whether  the  constitutional  objection  we  have  con- 
sidered would  be  open  to  a  citizen  of  another  State,  whose  lands  or 
water  rights  in  that  State  are  injured,  we  need  not  discuss  nor  decide. 

"  It  follows  that  the  plaintiff  cannot  maintain  this  action  for  damages 
caused  by  any  acts  of  the  defendant  which  are  authorized  by  the 
statute."  1 

1  And  so  Cherokee  Nation  v.  So.  Kans.  Rj/.  Co.,  1.3.')  U.  S.  641.  See  supra,  pp.  979- 
990;  Tutlle  v.  Knox  County,  89  Tenn.  \hl  (1890);  Wallace  v.  R.  R.  Co.,  138  Pa.  168 
(1890). 

"  The  fundamental  doctrine,  of  course,  is  that  private  property  cannot  be  taken  for 
public  purposes  without  just  compensation,  but  this  need  not  be  given  in  all  cases  con- 
currently in  point  of  time  with  the  actual  exercise  of  the  right  of  eminent  domain.  It 
is  enough  if  an  adequate  and  certain  remedy  is  provided  whereby  the  owner  of  such 
property  may  compel  payment  of  his  damages.  {Bloodqood  v.  M.  Sf  H.  R.  R.  Co., 
18  Wend.  9 ;  Lyon  v.  Jerome,  26  Id.  585  ;  People  ex  rel.  Utiey  v.  Hayden,  6  Hill,  359  ; 
Rexford  V.  Knight,  11  N.  Y.  308.)  This  means  reasonable  legal  certainty.  (Chapman 
V.  Gates,  54  N.  Y.  146;  Sage  v.  City  of  Brooklyn,  89  Id.  189.)"— Danforth,  J.,  for 
the  court,  in  In  the  Matter  of  the  Pet'n  of  the  U.  S.,  96  N.  Y.  227. 
VOL.  I.  — 75 


2186  BlUCKETT   V.    IlAVEUlllLL    A<.jL'1;L'UCT   CO.  [CHAI*.  VI. 

la  riie  State  v.  Perth  Amboij,  52  N.  J  Law,  132  (1889),  tlie  Supreme  Court  of  New 
Jersey  (Cjakkison,  J.)  said  .-  "  'I'lie  ordinance  brouj^lit  up  by  tliis  writ  is  nugaturv  if  the 
diarter  of  tlie  citv  of  Perth  Aiiibin-  eontuius  uo  provision  by  which  private  lauds  ca;i 
be  takea  for  public  use  by  the  proceediu^s  iu  questiou. 

"  i'he  sovert'igu  power  of  compelliuy  au  owner  to  part  with  the  title  to  his  lauds  i:J 
coupled  with  tlie  correlative  duty  of  providing  for  the  payment  of  tiie  comjiulsory  pur- 
chase. Bv  the  Constitution  of  tliis  State  a  distinction  is  made  between  those  cases  u 
which  property  is  taken  directly  by  the  State,  as  by  a  municipal  cur[)oration  by  State 
autiiority,  and  those  cases  in  whicli  a  private  corporation,  acting  as  the  State's  agent, 
appropriates  private  property  for  a  public  purpose.  In  tlie  latter  case  actual  com|)eu- 
satiou  to  tlie  owner  must  precede  tiie  taking  of  his  lands,  whereas  in  the  former  it  is 
enouo-li  if  provision  be  made  by  which  the  owner  can  obtain  compensation,  and  that 
an  impartial  tribunal  is  provided  for  assessing  it.  Loweree  v  Newark,  9  Vroom,  151  ; 
Wliteler  v.  Essex  Road  Board,  10  Id.  291. 

"  A  law  which  lacks  these  reijuisites  will  nut  authorize  the  exercise  of  this  sover- 
eio-u  ri^ht.  Furthermore,  tiie  provision  which  thus  enables  the  owner  to  obtain  com- 
pensation for  his  lands  must  be  in  existence  at  tlie  time  the  power  to  comj>el  him  to 
part  with  them  is  exerted.      Gaines  v.  Hudson  Connti/  Commissioners,  8  \'room,  12. 

"  Where  no  such  legislation  exists,  tiie  owner  may  resist  the  initial  step  toward  the 
divestment  of  his  title.  The  invasion  of  his  own  rights  as  well  as  his  duties  to  the 
representatives  of  the  public  reijuires  him  to  challenge  the  imjiroNement  at  its  thresh- 
old, before  outlay  and  acquiescence  shall  have  worked  to  his  detriment  and  to  theirs. 
Games  v.  Hudson  C'ounti/  Commissioners,  sujira. 

"The  remedy,  moreover,  in  cases  when  compensation  is  deferred,  must  be  adeiiuate, 
one  to  which  tiie  party  can  resort  of  his  ovyu  motion;  it  must  not  be  burdeneil  by 
unusual  steps  of  procedure  or  other  vexatious  features.  Butler  v.  Seuer  Commissioners, 
10  Vroom,  G67.  Such  a  remedy  can  exist  only  wliere  the  owner,  who  is  comi)elled  to 
part  with  iiis  projterty  without  being  paid  tlie  price,  has  iiis  damages  legally  ascer- 
tained under  the  law  which  authorized  the  taking. 

"The  tribunal  which  is  thus  to  assess  tiie  owner's  damages  may  be  determined  by 
the  Constitution  or  ijy  tlie  statute  under  w  hicii  the  condemnation  jiroccedings  are  liad 
Where  the  Constitution  is  silent  as  to  the  manner  in  which  tiie  assessment  for  property 
taken  shall  be  made,  the  power  to  take  is  dormant  until  the  legislature  supplies  the 
plan.  However  ordained,  the  proceeding  is  judicial  in  character,  and  the  party  in 
interest  is  entitled  to  have  an  impartial  tribunal  and  the  rights  and  privileges  u.sually 
deemed  essential  to  a  judicial  investigation.  And,  in  general,  liy  whatever  method 
the  property  of  an  individual  is  to  be  divested,  under  color  of  law,  by  proceedings 
against  his  will,  the  existence  of  the  proper  machinery  must  be  clear  in  the  law,  and  a 
strict  compliance  with  all  those  provisions  wiiicli  have  been  therein  made  for  his  pro- 
tection must  he  shown.     Davis  v    f/oirell,  18  Vroom,  280  ;  2  Dill   Mun  Corp.  §  604. 

"  We  have  seen  that,  in  the  alisence  of  controlling  constitutional  provision,  it  is 
competent  for  the  State  to  authorize  municipal  corporations  to  take  private  lands  for 
public  use  without  first  making  payment  therefor,  althougii  such  a  course  is  character- 
ized by  Judge  Dillon  as  an  unusual  one —  ' The  almost  invariable,  and  certainly  the 
just,  course  l)eing  to  require  payment  to  precede  or  to  accompany  the  act  of  apjiropria- 
tion.'     2  Dill.  Mun.  Corp.  61.5. 

"The  power  delegated,  moreover,  being  a  stringent  and  extraordinary  one,  no  pre- 
sumptions will  be  intended  against  the  owner.  In  any  event,  if  a  legislative  purpose 
to  postpone  appropriation  to  j)ayment  be  discovered,  it  will  be  given  strict  effect. 

"  Applying  these  general  principles  to  the  case  in  hand,  it  is  clear  that  the  proceed 
ings  open  to  the  defendant  under  its  charter  neither  provide  for  the  compensation  of 
the  prosecutrix  in  respect  to  her  lands,  nor  do  they  give  her  that  adequate  remedy 
which  the  organic  law  guarantees."  —  Ed. 


CHAP.  VI.]  FORSTER  V.    SCOTT.  1187 

FORSTER  V.   SCOTT. 
New  Yokk  Court  of  Appeals.     1893. 

[136  N.  Y.  577.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
in  the  city  of  New  York,  entered  upon  an  order  made  Jan.  15,  1802, 
which  directed  a  judgment  in  favor  of  plaintiff,  upon  a  case  submitted, 
under  the  Code  of  Civil  Procedure  (§  1279). 

The  questions  involved  and  the  facts,  so  far  as  material,  are  stated 
in  the  opinion. 

Rollin  11.  Lynde,  for  appellant.     Henry  A.  Foster,  for  respondent. 

O'lJuiEN,  J.  The  question  in  this  case  is  in  respect  to  the  plaintiff's 
rights  under  a  contract  made  by  him  with  the  defendant  June  18,  1891, 
whereby  he  agreed  to  sell  and'  the  defendant  to  purchase  a  parcel  of 
vacant  land  in  the  city  of  xXevv  York,  at  a  price  specified,  subject  to 
but  without  assuming  a  mortgage  thereon  of  §4,000.  The  plaintiff  on 
his  part  agreed  to  convey  the  premises  to  the  defendant  by  a  full  cove- 
nant warranty  deed,  suflicient  to  vest  the  title  in  fee  simple  free  from 
any  lien  or  encumbrance  except  the  mortgage.  At  the  time  stipulated 
in  the  contract  the  plaintiff  tendered  to  the  defendant  a  deed  in  the 
required  form  and  containing  the  proper  covenants,  which  the  defendant 
declined  to  accept  for  the  reason  that  upon  searching  the  title  he  had 
discovered  that  there  was  sucli  an  encumbrance  upon  the  land  that  the 
l)laiuti(f  was  unable  to  convey  a  good  title  as  recjuired  by  the  contract. 
The  facts  were  agreed  upon  and  submitted  to  the  General  Term  under 
the  provisions  of  §  1279  of  the  Code,  where  it  was  held  that  no  lien  or 
encumbrance,  aside  from  the  mortgage,  existed  or  attached  to  the  land 
by  reason  of  the  facts  so  stated,  and  directed  judgment  for  the  i)laiu- 
titf  that  the  defendant  accept  the  deed  tendered  and  pay  tlie  purchase 
l)rice.  The  facts  so  far  as  they  are  material  to  the  point  involved  are 
these:  On  the  18th  of  October,  1890,  the  department  of  parks  of  the 
city  of  New  York,  under  the  [provisions  of  chapter  681  of  the  Laws  Of 
1886,  filed  a  map  of  a  proposed  street  or  avenue  which  entirely  covers 
the  plaintiff's  lot.  The  map  so  filed  complies  strictly,  with  respect  to 
form  and  substance,  with  all  the  provisions  of  law  on  the  subject.  The 
proposed  street  has  not  been  opened  and  no  proceedings  have  been 
taken  to  open  it  or  to  acquire  the  title  to  i)laintiff's  land  by  condemna- 
tion. Section  677  of  the  Consolidation  Act  provides  as  follows  with 
reference  to  damages  for  taking  lands  for  such  streets  when  the  same 
are  finally  opened:  "  No  compensation  shall  bo  allowed  for  any  build- 
ing, erection,  or  construction  which  at  any  time,  subsequent  to  the 
filing  of  the  maps,  plans,  or  profiles  mentioned  in  section  six  hundred 
and  seventy-two  of  the  Act,  may  be  built,  erected,  or  placed  in  part 
or  in  whole  upon  or  through  any  street,  avenue,  road,  public  square,  or 
place  exhibited  upon  such  maps,  plans,  or  profiles."  The  plaintiff's 
vacant  lot  derives  almost  its  entire  value  from  the  fact  that  it  is  possi- 


11,S8  FOKSTtK   V.    SCOIT.  [i.llAl'.  VL 

ble  to  use  it  for  building  purposes.  The  fuels,  llifrcfurc,  prtscul  two 
questions. 

(1 )  Whether,  assuming  the  statute  to  be  valid,  a  lien  or  eneuujltranee 
was  created  and  attaeheil  to  the  land  in  (jueMlion  by  the  tiling  of  ihe 
jna[)  b}"  the  park  ilepurtnient.  (2)  Whether  the  legislature  had  power 
under  the  Constitution  to  enact,  as  it  virtuall}  ilid,  that  whenever  land 
thus  exhibited  upon  the  map  is  taken  f«M'  street  purposes,  at  any  time 
after  the  filing  thereof,  no  compensation  shall  be  made  to  the  owner 
for  any  improvements  put  upon  the  land  iluring  the  time  between  the 
tiling  of  the  map  and  the  condemnation  proceeding. 

An  encumbrance  is  said  to  import  every  right  to  or  interest  in  the 
land,  which  n)ay  subsist  in  another,  to  the  diminution  of  the  value  of 
the  land,  but  consistent  with  the  power  to  pass  the  fee  by  a  convey- 
ance. (1  Bouvier's  Law  Diet.  [).  CJO  ;  2  Greenl.  Ev.  §  242  ;  3  Wash- 
burn on  Real  Property,  Gii'J,  §   14.) 

Any  right  existing  in  another  to  use  the  land  or  whercliy  the  use  by 
the  owner  is  restricted  is  an  encumbrance  within  the  legal  meaning  of 
the  term.     (Wettnon-  v.  Ilruce,  118  N.  Y.  319.) 

It  was  conceded  by  the  General  Term  that  the  public  authorities 
might  or  might  not  appropriate  the  land  according  to  their  pleasure, 
notwithstanding  the  filing  of  the  map,  and  further  that  in  case  the 
ownei-,  after  the  map  was  tiled,  made  improvements  upon  it,  he  did  so 
at  ihe  [)eril  of  losing  the  enhanced  value  of  the  land  resultiig  there- 
fiom.  These  piopositions  seem  to  be  correct,  but  we  are  constrained 
to  differ  with  that  court  in  the  conclusion  that  such  a  situation  does 
not  impair  the  value  of  the  proi)erty  and  amount  to  an  encumbrance 
within  the  meaning  of  the  contract.  If  the  law  was  valid  it  virtually 
imposed  a  restriction  upon  the  use  of  the  property  because  it  enacted 
that  it  could  not  be  used  for  building  purposes,  except  at  the  risk  to 
the  owner  of  losing  the  cost  of  the  building  at  some  time  in  the  future. 
We  are  also  constrained  to  differ  with  the  General  Term  in  regard  to 
the  validity  of  the  statute  in  so  far  as  it  enacts  that  the  owner  of  land 
exhibited  upon  the  maps  is  not  entitled  to  compensation  for  imiirove- 
ments  subsequentl}'  made.  This  statute  is  of  somewhat  ancient  origin, 
and  it  was  said  in  some  of  the  cases  that  it  was  at  first  enacted  at  the 
solicitation  of  the  land-owners  in  order  to  enhance  the  value  of  their 
propert}'.  (In  re  Fitrman  Street,  17  Wend.  G58  ;  In  re  WaU  Street, 
17  Barb.  639  ;  Seaman  v.  Hirks,  8  Paige,  6G0.) 

However  that  may  be,  in  the  aspect  in  which  the  question  is  now- 
presented,  we  think  it  is  in  conflict  with  the  provisions  of  the  Consti- 
tution for  the  protection  and  security  of  private  property.  The  con- 
stitutional guarantees  against  the  appropriation  of  private  [)roperty 
for  public  use,  except  upon  just  compensation,  as  well  as  that  against 
depriving  the  owner  of  its  enjoyment  and  possession  without  due  pro- 
cess of  law,  have  been  the  subject  of  much  judicial  discussion  in  the 
manifold  aspects  in  which  the  questions  have  been  jiresented  in  the 
numerous  cases.     These  provisions  have  been  so  thorongldy  expounded, 


CHAP.  VI.J  FORSTER   V.   SCOTT.  1189 

and  their  application,  meaning,  and  practical  scope  so  minutely  explained, 
that  it  would  be  ver}'  difficult  to  suggest  now  any  views  which  could  be 
called  new,  and  a  restatement  of  pro[)Ositions,  so  often  before  sanc- 
tioned by  courts  and  judicial  writers,  is  quite  needless.     This  case  is 
governed  by  a  few  principles  so  well  settled  and  understood  that  tliey 
are  elementary,  and  nothing  can  be  added  to  their  force  or  application 
by  illustration  or  extended  discussion.     The  validity  of  a  law  is  to  be 
determined  by  its  purpose  and  its  reasonable  and  practical  effect  and 
operation,  though  enacted  under  the  guise  of  some  general  power,  which 
the  legislature  ma}-  lawfully  exercise,  but  which  may  be  and  frequently 
is  used  in  such  a  manner  as  to  encroach,  by  design  or  otherwise,  upon 
the  positive  restraints  of  the  Constitution.     What  the  legislature  can- 
not do  directly,  it  cannot  do  indirectly,  as  the  Constitution  guards  as 
effectually  against  insidious  approaches  as  an  open  and  direct  attack. 
Whenever  a  law  deprives  the  owner  of  the  beneficial  use  and  free  en- 
joyment of   his  property,  or   imposes  restraints   upon  such  use  and 
enjoyment,  that  materially  affect  its  value,   without  legal  process  or 
compensation,  it  deprives  him  of  his  property  within  the  meaning  of 
the  Constitution.     All  that  is  beneficial  in  property  arises  from  its  use 
and  the  fruits  of  that  use,  and  whatever  deprives  a  person  of  them 
deprives  him  of  all  that  is  desirable  or  valuable  in  the  title  and  pos- 
session.    It  is  not  necessar}-,  in  order  to  render  a  statute  obnoxious 
to  tlie  restraints  of  the  Constitution,  that  it  must  in  terms  or  in  effect 
authorize  an  actual  physical  taking  of  the  property  or  the  thing  itself, 
so  long  as  it  affects  its  free  use  and  enjoyment,  or  the  power  of  dispo- 
sition at  the  will  of  the  owner.     Though  the  police  and  other  powers 
of  government  may  sometimes  incidentall}'  affect  property  rights,  ac- 
cording to  established  usages  and  recognized    principles  familiar  to 
courts,  yet  even  these  powers  are  not  without  limitations,  as  the}-  can 
be  exercised  only  to  promote  the  public  good,  and  are  always  subject 
to  judicial  scrutiny.     (  Wynehnmcr  v.  People,  1.3  N.  Y.  378  ;  People  v. 
Badd,  117  Id.  1 ;    Giinian  v.    Turker,  128  Id.  190;  People  ex  rel.  v. 
Albertson,  .55  Id.  50 ;  In  re  Jacobs,  08  Id.  98  ;  People  ex  rel.  v.  Otis^ 
90  Id.  48  ;  People  v.  Gilhon,  109  Id.  389  ;  Munn  v.  Jllinois,  94  U.  S. 
141 ;  Henderson  v.  Mayor.,  etc.,  92  Id.  259 ;  Id.  p.  275  ;  Brimmer  v. 
Bebman,  138  Id.  78  ;    Chicaqo,  etc.  v.  Minnemtn,  134  Id.  418  ;  Bohan 
v.  Port  Jervis  G.  L.  Co.,  122  N.  Y.  18  ;  Cooley  on  Con.  Lim.  [6th  ed.] 
207,  670.) 

As  the  plaintiff  in  the  case  at  bar  was  virtually  deprived  of  the  right 
to  build  upon  his  lot  by  the  statute  in  question,  and  as  this  circumstance 
obviously  impaired  its  value  and  interfered  with  his  power  of  disposi- 
tion, it  was  to  that  extent  void  as  to  him,  and  created  no  encumbrance 
upon  it.  It  follows  that  the  judgment  of  the  General  Term  was  correct 
in  its  result,  though  we  have  not  been  able  to  concur  in  the  grounds 
upon  which  it  was  made,  and  in  affirming  its  action,  we  have  preferred 
to  place  our  reasons  upon  other  grounds.  The  judgment  should  be 
affirmed.     All  concur.  Judgment  affirmed. 

END   OF  VOL.   I. 


.,.-.^^ 


LAW  LIBRAEY 
BNTVERSltY  OF  CALIFORNIA 


AA    000  851172    7 


